Bills Digest No. 110  1999-2000 Ministers of State and Other Legislation Amendment Bill 1999

Numerical Index | Alphabetical Index

WARNING:
This Digest was prepared for debate. It reflects the legislation as introduced and does not canvass subsequent amendments. This Digest does not have any official legal status. Other sources should be consulted to determine the subsequent official status of the Bill.

CONTENTS

Passage History
Purpose
Background
Main Provisions
Endnotes
Appendix
Contact Officer and Copyright Details

Passage History

Ministers of State and Other Legislation Amendment Bill 1999

Date Introduced: 9 December 1999

House: House of Representatives

Portfolio: Finance and Administration

Commencement: On proclamation, but no later than 6 months after Royal Assent.

Purpose

The Bill gives effect to a recommendation of the Remuneration Tribunal to alter the status of Parliamentary Secretaries, treating them as 'officers', for the purposes of section 64 of the Constitution.

The Parliamentary Secretaries Act 1980 is repealed.

The Ministers of State Act 1952 is amended to increase the maximum size of the federal Ministry from 30 to 42. Up to 12 of the 42 may be designated 'Parliamentary Secretaries' and the maximum number of Ministers remains at 30.

The Bill has the effect of increasing the entitlements of Parliamentary Secretaries and allowing them to receive a salary rather than the present 'capped' expenses of office allowance.

Background

The Parliamentary Secretaries Act 1980 provides for the Prime Minister to appoint members of both Houses of Parliament as Parliamentary Secretaries to Ministers of State.

The Howard Government presently comprises 30 Ministers of State and 12 Parliamentary Secretaries.

Ministers are salaried. Parliamentary Secretaries are not. The latter, however, are entitled to an acquitted expenses allowance of up to $10 000 per annum and reimbursement for defined travel expenses subject to certain conditions.⁽¹⁾

The role of Parliamentary Secretaries is not closely defined, varies from individual to individual, and in part depends on whether the relevant individual is a Senator or a member of the House of Representatives.

In his Second Reading Speech, the Parliamentary Secretary to the Minister for Finance and Administration, the Hon Peter Slipper recounted:

Writing in the journal Legislative Studies in 1993, one commentator, having noted the varying practice in the Australian Parliament since federation, and the different approaches taken in other jurisdictions, summarised the possible reasons for the appointment of Parliamentary secretaries as follows:

• [T]o accomplish better management of the ministerial workload, by offloading or devolving routine, tedious, non policy or ceremonial duties, thereby freeing the minister to devote more time to policy matters, major aspects of departmental administration, and matters truly and essentially appertaining to ministerial responsibility.
• [T]o obtain a larger ministerial team without incurring the financial or political cost of formally enlarging the ministry.
• [T]o enlarge the support group for the ministry within caucus [or the joint party room], to deliver political rewards to friends and allies, and to avert political disharmony or disunity.
• [T]o give training and experience to likely candidates for office.⁽³⁾

It is not uncommon for 'ministers assisting' (however described) to be appointed in other jurisdictions - the United Kingdom, Canada and New Zealand and some Australian States all have equivalent positions, the occupants of which receive a salary in addition to their entitlements as MPs.

At the Commonwealth level, the record has been somewhat mixed and the position of Parliamentary Secretaries and their equivalents has been more tenuous and somewhat ambiguous.

This ambiguity has in part derived from political factors and also from the constraints imposed by the Australian Constitution on the appointment of persons to the Executive Government.

Recent History

A full history of the office of Assistant Minister or Parliamentary Secretary, including the use of ministers without portfolio and ministers with token departments,⁽⁴⁾ is beyond the scope of this Digest.

Those wanting more detailed history of developments at the federal level are advised to consult the following:

• Report by the Senate Standing Committee on Constitutional and Legal Affairs, The Constitutional Qualifications of Members of Parliament, 1981.⁽⁵⁾
• Margaret Healy, 'The role of parliamentary secretaries', Legislative Studies, Spring 1993.⁽⁶⁾

For present purposes it is perhaps sufficient to note that Australian Governments, irrespective of party, have included as part of the formal structure of the Executive, persons who were not Ministers of State as defined by section 64 of the Constitution.

Examples of ministers without portfolio can be found as far back as the Barton Government, and the third Fisher Government (17.9.1914 - 27.10.1915) included two 'Assistant Ministers'.

The present arrangements whereby the appointment and entitlements of Parliamentary Secretaries are governed largely by legislation date back to the Fraser Government which enacted the Parliamentary Secretaries Act 1980 (the Act which this Bill aims to repeal).

In introducing the Parliamentary Secretaries Bill 1980, the Minister for Youth Affairs and Minister Assisting the Prime Minister, Hon Ian Viner, gave only a brief rationale for the initiative, whist confirming an earlier Government announcement that two Parliamentary Secretaries would be appointed.⁽⁷⁾

The ALP supported the passage of the 1980 Bill. However, Opposition speakers in the House criticised the proposal, variously attacking similar (but less formal) arrangements entered into by the Menzies and McMahon Governments, questioning the Government's motives for the changes and querying the possible implications for ministerial accountability to Parliament.⁽⁸⁾

The Hawke Government first appointed Parliamentary Secretaries after the 1990 election. This apparent change of approach by the ALP is at least in part attributable to the creation of so-called mega-Departments as part of the Machinery of Government reforms in 1987.

Figures for the number of Parliamentary Secretaries appointed by recent governments are as follows:

Hawke Fourth Ministry (4.4.90 - 20.12.91) 4 Parliamentary Secretaries

Keating First Ministry (27.12.91 - 24.3.93) 8 Parliamentary Secretaries

Keating Second Ministry (24.3.93 - 11.3.96) 10 Parliamentary Secretaries

Each of the Howard Ministries (11.3.96 - present) 12 Parliamentary Secretaries.

Constitutional Issues

In broad terms, two constitutional objections have been raised to the appointment of assistant ministers/parliamentary secretaries.

First, that any person appointed to the office of parliamentary secretary/assistant minister, thus being part of the Executive Government but not a Minister, would be disqualified from being a member of parliament if they received payment in the nature of salary for any duties they performed in their Executive Office.

Second, it is arguable that under the Constitution, it is not possible to appoint more than one Minister to administer a single Department and that every Minister must have a Department.

In regard to the number, appointment, and salary of Minister of State, the Australian Constitution relevantly provides:

Section 64. Ministers of State

Section 65. Number of Ministers

Section 66. Salaries of Ministers

The Constitution is largely silent on the appointment of what have variously been termed 'Parliamentary Under-Secretaries', 'Assistant Ministers' and 'Parliamentary Secretaries'. No specific mention is made of any such office. However, the appointment of what in other Parliaments are also sometimes called 'junior ministers' is constrained by the wording of the relevant Constitutional provisions mentioned above.

A further important limitation, this time with regard to the remuneration of those holding such an office, arises by virtue of section 44(iv) of the Constitution which relevantly provides:

As noted above, taken together these relevant provisions have acted as an impediment to the Prime Minister and the Executive more generally in structuring and remunerating federal Ministries.

The current view on the nature and scope of these limitations and inhibitions is as follows:

2. The remuneration of Ministers must be set by Parliament (section 66).

3. The maximum size of the ministry is determined by Parliament (section 65).

4. Each Minister must administer at least one department. (However, there is no minimum size for a Department of State.)

5. It remains a matter of contention as to whether more than one person can be Minister for an individual department. Current practice and the weight of expert opinion favours the view that there can be more than one minister per Department.

6. Parliamentary Secretaries as presently appointed are not ministers and therefore do presently occupy a section 64 office of profit under the Crown. That being the case, Parliamentary Secretaries do not come within the exception in section 44(iv) which permits Ministers to receive remuneration in addition to their parliamentary salary.

7. The current practice is that Parliamentary Secretaries may be reimbursed out of Consolidated Revenue for expenses reasonably incurred up to a level determined by the Remuneration Tribunal.

8. The accepted practice of paying Parliamentary Secretaries for expenses is not free from doubt.

The latter point requires some elaboration. First, what the Remuneration Tribunal may regard as reasonable expenses, may not necessarily be regarded by the High Court as reasonable for the purposes of section 44(iv). Secondly, it is arguable that any allowance that is not paid as a reimbursement for actual expenses incurred is income. Again, section 44(iv) disqualification provisions would apply. Thirdly, dicta in Sykes v Cleary (No.2) (1992) 176 CLR 77 suggest that 44(iv) may be infringed even where no money, whether in the form of income or expenses, is received by Member or Senator.⁽⁹⁾ Here it may be recalled that Mr Cleary was disqualified from membership of the House of Representatives even though at the time of lodging his nomination for election he was on leave without pay from the Victorian teaching service. His subsequent resignation from his 'office of profit' after the holding of the election (but before the declaration of the poll) did not put him beyond the reach of section 44(iv). Where, however, the Cleary situation may be distinguished from that of Commonwealth Parliamentary Secretaries is that the latter office at no time attracts a payment in the nature of salary, ie it is not by nature an office of profit. A teacher or other permanent member of the Executive does occupy an office of profit even if at any given time he or she is not in receipt of an income from that office.

Whatever the finer points of constitutional law, it is widely agreed that the present position is unclear and unsatisfactory.

The Senate Standing Committee on Constitutional and Legal Affairs' 1981 Report (see above) criticised the need for Governments to rely on highly technical or artificial arrangements to appoint 'ministers assisting'. The Report recommended either the wholesale reform of the relevant Chapter of the Constitution (Chapter 5) or, barring that, an amendment to section 44(iv) 'to enable the appointment and remuneration of assistant ministers, parliamentary secretaries and the like without causing their disqualification'.⁽¹⁰⁾

The Final Report of the Constitutional Commission (1988) accepted the view that section 64 may not prevent the appointment of more than one Minister to administer a single department - thus foreshadowing the sort of mechanism we see in the present Bill.⁽¹¹⁾ The Constitutional Commission also recommended changes to section 64 to recognise the position of Assistant Ministers.⁽¹²⁾ The Constitutional Commission's recommendations relating to section 44(iv) were also aimed at facilitating the appointment of paid Assistant Ministers.⁽¹³⁾

Accountability

A further technical concern regarding the appointment of 'ministers assisting' has revolved around the issue of whether parliamentary secretaries/assistant ministers might be regarded officers of the parliament (like the Speaker and President) or members of the Executive. Were they to be regarded as purely parliamentary officer-holders, then they would not hold an office of profit under the Crown and hence would not be subject to disqualification under section 44(iv) of the Constitution.

Professor Enid Campbell and others have suggested that it may be possible to draw a distinction between the assistance given by a Parliamentary Secretary to a minister in his or her capacity as a minister of state, and assistance given in their capacity as a Member of Parliament.⁽¹⁴⁾ A Parliamentary Secretary who served only the parliament could be paid a salary for all their parliamentary duties without fear of disqualification under section 44(iv)

One problem with this argument, is that the tasks of Parliamentary secretaries are ill-defined and might legitimately be regarded, even if confined to parliamentary duties, as serving principally the interests of the Executive [the very behaviour or state of mind that section 44(iv) is directed against].

Further, defining the duties and responsibilities of Parliamentary Secretaries would reduce the flexibility of the office and thereby diminish their political and practical value.

It is this very 'flexibility' and lack of definition in the role of Parliamentary Secretaries that has given both the Chambers pause for thought over the past decade. Again a full recounting of the relevant parliamentary law and history is beyond the scope of this paper, partly because the topic has received more detailed attention in the sources already cited.

Broadly, the question is how Parliamentary Secretaries ought to be treated by the parliament for accountability purposes.

Presently the Standing Orders of the House of Representatives provide that Parliamentary Secretaries are to be treated as Ministers except in relation to the answering of parliamentary questions.⁽¹⁵⁾

With regard to the Senate, On 3 September 1991, 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).

On 6 May 1993, the Senate adopted a sessional order that provided, 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.⁽¹⁶⁾

With Parliamentary Secretaries to be treated as full-Ministers under section 64 for the purposes of the Ministers of State Act 1952, it may be appropriate to review their status and, in particular, whether they should be subject to parliamentary questioning in the same way as other Ministers.

Remuneration Tribunal Recommendations and Cost of Proposal

The Explanatory Memorandum states that the maximum sum payable as Ministers' salaries under section 66 of the Constitution is to increase by $678 000. It also says that there will be an offsetting reduction of up to $120 000 per annum in expenses of office for Parliamentary Secretaries.

The net impact of the changes, which includes an increase in the salaries of the 30 existing Ministers as well as the new salary awarded to the 12 Parliamentary Secretaries, is a maximum of $558 000 per annum.

Each Parliamentary Secretary is to lose their present entitlement in expenses of office allowance (excluding travel allowance) of $10 000 per annum.⁽¹⁷⁾ In its place, each Parliamentary Secretary will receive an annual salary of $22 500 per annum.⁽¹⁸⁾

In its 1997 Review the Remuneration Tribunal had identified its concerns with respect to the remuneration and (increased) duties of Parliamentary Secretaries. In that report, the Tribunal stated that it recognised:

The Remuneration Tribunal's 7 December 1999 Report on 'Senators and Members of Parliament, Ministers and Holders of Parliamentary Office' records that:

Main Provisions

Schedule 1 - Amendment of the Ministers of State Act 1952

Item 1 provides for two classes of Minister under section 64 of the Constitution. One class is to include up to 12 Ministers with the designation Parliamentary Secretary. The maximum number of other Ministers is to remain at 30.

Item 2 provides for the maximum amount that may be paid in Ministerial salaries per annum to be increased by $678 000.

Schedule 2 - Repeal of the Parliamentary Secretaries Act 1980

Item 1 reflects the changed status of Parliamentary Secretaries.

Item 2 is a savings provision. It preserves machinery provisions in the Remuneration Tribunal Act 1973 that allow for the Remuneration Tribunal to conduct inquiries into the entitlements of Parliamentary Secretaries.

Schedule 3 - Amendment of the Remuneration Tribunal Act 1973

Items 1-5 amend the machinery provisions in the Remuneration Tribunal Act 1973. The amendments are a direct consequence of the Government's decision to alter the status of Parliamentary Secretaries to officers under section 64 of the Constitution and enable them to receive a salary rather than an expenses of office allowance.

Schedule 4 - Amendment of the Freedom of Information Act 1982

The amendment made by item 1 is technical in nature and is consequential to the repeal of the Parliamentary Services Act 1980. Parliamentary Secretaries will, as Ministers, be subject to the Freedom of Information Act 1982.

Endnotes

1. Refer section 6 of the Ministers of State Act 1952 and Remuneration Tribunal Determination Number 16 of 1993 as consolidated to 31 Determination 1996. Remuneration Tribunal, 1997 Decisions and Reports, pp 35-37.
2. Parliamentary Debates, 9 December 1999, p 13198.
3. Margaret Healy, 'The role of parliamentary secretaries', Legislative Studies, Spring 1993, pp 46-60, at p 47.
4. The Department of the Vice-President of the Executive Council (headed by Sir James Killen MP from 7 May 1982 to 11 March 1983) which had only a handful of staff would be seen by many as falling into the latter class.
5. See especially pp 63-74.
6. op cit.
7. Parliamentary Debates, 26 November 1980, p 81.
8. Parliamentary Debates, 3 December 1980, pp 319-324. Opposition Speakers were the Hon Bill Hayden, Hon Mick Young and Brian Howe MP.
9. Per Mason CJ, Toohey and McHugh JJ, pp 97-98 and Brennan J at p 108., Deane J at pp 117-118.
10. op cit, pp 72-73.
11. Report, volume 1, p 329.
12. ibid, pp 316 and 329-330.
13. ibid, pp 296 and 299-301.
14. Cited in Healy, op cit, pp 57-58. Enid Campbell, 'Ministerial Arrangements in Australia', Australian Government Administration. Report, Appendix 1, 1976, p 200.
15. Resolution of the House, 16 October 1991. See also guidelines issued by the Speaker on 26 March 1992.
16. Odgers' Australian Senate Practice, ninth edition, 1999, esp pp 457-459.
17. Remuneration Tribunal, Determination Number 8 of 1998.
18. Remuneration Tribunal, Report on Senators and Members of Parliament, Ministers and Holders of Parliamentary Office - Salaries and Allowances for Expenses of Office, December 1999.
19. Remuneration Tribunal, 1997 Decisions and Reports, p 13.
20. Remuneration Tribunal, op cit, December 1999, p 5.

Appendix A

Commonwealth Government

SECOND HOWARD MINISTRY

20 July 1999 *

Each box represents a portfolio. Cabinet Ministers are shown in bold type. As a general rule, there is one department in each portfolio. Except for the Department of the Prime Minister and Cabinet and the Department of Foreign Affairs and Trade, the title of each department reflects that of the portfolio minister. There is also a Department of Veterans' Affairs in the Defence portfolio.

Source: Prime Minister's Website: http://www.pm.gov.au/portfolio/portfolio.htm

Contact Officer and Copyright Details

Bob Bennett
4 February 2000
Bills Digest Service
Information and Research Services

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