Chapter 2 references

[1] For discussion of the Member as the basic unit of the House see Ch. on ‘Members’.

[2] That is, two or more parties which combine their numbers to form a coalition government.

[3]See ‘Composition of the Ministry’ at p. 58, and ‘Federal Executive Council’ at p. 77.

[4]See ‘Cabinet’ at p. 75.

[5]See Ch. on ‘Double dissolutions and joint sittings’.

[6] For commentaries on the relationship between Government and Parliament see, for example, J. Uhr, ‘Parliament’ in Government, politics, power and policy in Australia, Longman Cheshire, 1994; and J. Uhr, Deliberative democracy in Australia: The changing place of Parliament, Cambridge University Press, 1998.

[7] Walter Bagehot, The English Constitution, 4th edn, Fontana, London, 1965, p. 65.

[8] Bagehot, pp. 67–8.

[9] S.O. 35.

[10] S.O. 45. Programming declarations can also be made by the Chief Government Whip.

[11] Including Parliamentary Secretaries, see p. 70.

[12] This is an important exception as it has regard to the concept of ‘executive privilege’ which has been invoked in respect of the publication of government documents and information. see Chs on ‘Documents’ and ‘Committee inquiries’.

[13] Since the inception of the Petitions Committee in 2008 its practice has been that the majority of petitions received are referred. Before 2008 there was no obligation for a Minister to respond.

[14] Constitution, s. 61; and see ‘Governor-General’ in Ch. on ‘The Parliament and the role of the House’.

[15]Quick and Garran, p. 702.

[16]Quick and Garran, p. 703.

[17]Quick and Garran, p. 704.

[18] Including since 2000 Ministers of State designated as Parliamentary Secretaries, see p. 71.

[19] The Parliament has never exercised the power regarding the particular office a Minister shall hold.

[20] In referring to the British constitutional framework Mill referred to these rules as ‘the unwritten maxims of the constitution’. Twenty years later Dicey called them ‘the conventions of the constitution’ while Anson referred to them as ‘the custom of the constitution’. Sir Ivor Jennings, The law and the Constitution, 5th edn, University of London Press, London, 1959, pp. 81 ff.

[21] Also prorogation and appointing the time for holding sessions, (Constitution, s. 5) and other powers. see ‘Governor-General’ in Ch. on ‘The Parliament and the role of the House’.

[22]See, for example, Amalgamated Society of Engineers v. Adelaide Steamship Co. Ltd (1920) 28 CLR 129 (Engineers Case) and more recently Cormack v. Cope (1974) and others discussed in Ch. on ‘Double dissolutions and joint sittings’.

[23] L. F. Crisp, Australian national government, 5th edn, p. 352.

[24] G. S. Reid, ‘The double dissolutions and joint sitting commentaries’, in Gareth Evans (ed.), Labor and the Constitution 1972–1975, Heinemann, Melbourne, 1977, p. 244.

[25] Suggested references include Sawer, Federation under strain; G. Evans (ed.), Labor and the Constitution; Cooray, Conventions, the Australian Constitution and the future; Saunders and Smith, Paper prepared for Standing Committee D (of the Australian Constitutional Convention) identifying the conventions associated with the Commonwealth Constitution.

[26]Department of the Prime Minister and Cabinet, Cabinet Handbook, 9th edn, 2016, p. 9. See also Prime Minister, A guide on key elements of ministerial responsibility, Dec. 1998, pp. 2, 4.

[27]See ‘Motions of no confidence or censure’ in Ch. on ‘Motions’.

[28]See, for example: L. F. Crisp, Australian national government, 5th edn, pp. 354–6; Hugh V. Emy, The politics of Australian democracy, 2nd edn, Macmillan, South Melbourne, 1978, pp. 246, 312–13; S. Encel, Cabinet government in Australia, 2nd edn, Melbourne University Press, Carlton, 1974, p. 107.

[29] David Butler, ‘Ministerial responsibility in Australia and Britain’, Parliamentary Affairs XXVI, 4, 1973, pp. 413–14.

[30] Royal Commission into Australian Government Administration, Report, PP 185 (1976) 59–60; see also B. M. Snedden, ‘Ministerial responsibility in modern parliamentary government’, paper presented to the Third Commonwealth and Empire Law Conference, Record, Law Book Co., Sydney, 1966; R. V. Garland, ‘Relations between Ministers and departments’, Royal Institute of Public Administration (ACT Group), Newsletter, 3 August 1976, p. 24.

[31] H. V. Emy, The politics of Australian democracy, 2nd edn, Macmillan, South Melbourne, 1978, p. 280.

[32] Sir Billy M. Snedden, ‘Ministers in Parliament—A Speaker’s eye view’. In Responsible government in Australia, Patrick Weller & Dean Jaensch (eds), Drummond, Richmond, 1980, p. 76. see also Sir Robert Garran oration, (1988) by the Hon. R.J.L. Hawke.

[33]See R. V. Garland, Relations between Ministers and departments, p. 24.

[34]See ‘Motions of no confidence or censure’ in Ch. on ‘Motions’.

[35] Section 15 of the Constitution altered with respect to filling of casual vacancies in the Senate.

[36] For discussion of the private Member’s conflicting responsibilities see Ch. on ‘Members’.

[37]see Ch. on ‘Order of business and the sitting day’.

[38] The discipline exercised by the Labor Party has generally been considered to be more direct and greater than that exercised by the coalition parties.

[39] VP 1904/49 (27.4.1904), 149–51 (17–18.8.1904); VP 1905/9 (5.7.1905); VP 1908/79 (10.11.1908), 81–3 (12&17.11.1908); VP 1909/11–13 (1&2.6.1909).

[40] This earlier Liberal Party later formed part of the Nationalist Party in 1917.

[41] Renamed National Country Party of Australia in 1975, VP 1974–75/624 (13.5.1975). Renamed National Party of Australia in 1982, H.R. Deb. (19.10.1982) 2163. Known as the Nationals since 2003.

[42] Spelling changed from ‘Labour’ to ‘Labor’ from circa 1912.

[43] Hung Parliaments—that is, where no party or coalition has obtained a majority of seats in the House of Representatives—occurred following the 1940 and 2010 general elections. In 1940 the United Australia Party–Country Party coalition led by Prime Minister Menzies formed a minority Government with the support of two independents. However, in 1941, following coalition leadership changes which brought Country Party leader Fadden to the Prime Ministership, the two independents transferred their support to the Labor Party. The Labor Party then formed a minority Government led by Prime Minister Curtin for the remainder of the Parliament. In 2010 the Australian Labor Party led by Prime Minister Gillard formed a minority Government with the support of a minor party Member (Australian Greens) and three independents.

[44] Since the general election in 1949 the other parties represented in the House have been:

    1. the Australian Labour Party (Anti-Communist) in 1955 which comprised seven former members of the Australian Labor Party, VP 1954–55/161 (19.4.1955); H.R. Deb. (19.4.1955) 3;
    2. One Nation in 1997 (a single former independent);
    3. Australian Greens (one Member elected at a by-election in 2002, one Member elected in 2010, 2013 and 2016);
    4. the Nationals—WA (one Member elected in 2010);
    5. Palmer United Party (one Member elected in 2013);
    6. Katter’s Australian Party (a single former independent elected in 2013 and 2016);
    7. Nick Xenophon Team (one Member in 2016). In recent Parliaments there have been up to five independents elected. Most Parliaments since 1996 have also had a Member from the Northern Territory based Country Liberal Party, however this party has been formally part of the Liberal–Nationals coalition. In 2008 the Queensland branches of the Liberal Party and the Nationals merged to form the Liberal National Party of Queensland: however, LNP candidates elected to the Federal Parliament continued to sit as Liberals or Nationals. For a record of party representation in the House since 1901 see Appendix 10.

[45]See also Ch. on ‘Members’.

[46] This is an important distinction for the purpose of the constitutional provision regarding ‘office of profit’, see p. 73.

[47] For level of additional salary see latest Remuneration Tribunal determination. In 2016 amounts ranged from 85% for the Leader of the Opposition to 2% for a minor party deputy whip. Note that these positions are not regarded as offices of profit under the Crown by virtue of section 44(iv) of the Constitution; the persons are neither appointed by nor are they servants of the Crown. Those officers not in bold type are not strictly parliamentary office holders.

[48] Level of additional remuneration varies.

[49] Other than a party whose leader is the Prime Minister or Leader of the Opposition. Level of additional remuneration depends on number of party members in the Parliament (minimum 5).

[50] Other than a party whose leader is the Prime Minister or Leader of the Opposition. Minimum 5 party members in each House.

[51] Including specified Deputy Whips. Level of additional remuneration varies.

[52] The occupants however are pre-selected for nomination by the parliamentary parties; and see Ch. on ‘The Speaker, Deputy Speakers and officers’.

[53] However, the occupants are normally selected for nomination by the parliamentary parties in the first instance; and see Ch. on ‘Parliamentary committees’.

[54] The Parliamentary Labor Party nominates or elects its members to occupy all parliamentary and party positions. The parliamentary wing of the Liberal Party elects its leader (and deputy leader) who appoints its Senate leaders, and whips in the House. Liberal Party whips in the Senate are elected. The Nationals elect their leaders and whips.

[55] E.g. VP 2016–18/7–9 (30.8.2016).

[56] The whips may be assisted by a returning officer or a secretary to the parliamentary party (also members of the parliamentary party). They are party internal positions which have no formal recognition within the Parliament itself.

[57]Odgers, 6th edn, p. 417.

[58] N. Wilding & P. Laundy, An encyclopaedia of Parliament, 4th edn, Cassell, London, 1972, pp. 785–7, including reference to Porritt, The unreformed House of Commons.

[59] The ‘list of speakers’ is advisory only and does not bind the Chair in allocating the call.

[60] Although the Procedure Committee has expressed the view that it is incumbent on all Members to maintain a quorum, as it is generally government business which is before the House, it is to the Government’s advantage to see that it does not lapse through lack of a quorum. see Ch. on ‘Order of business and the sitting day’.

[61]See Ch. on ‘Order of business and the sitting day’.

[62] The presentation or moving of the stages of government bills specifically excluded. VP 1993–96/982–3 (12.5.1994).

[63] S.O. 2 (definitions)—relevant to S.O. 116(c).

[64] The word ‘caucus’ was originally an American term meaning in its broadest sense simply a meeting of parliamentary members of a particular party to consult. see Patrick Weller (ed.), Caucus minutes 1901–1949; Vol. I, Melbourne University Press, 1975, pp. 5–7.

[65]See ‘Composition of the Ministry’ at p. 58.

[66]See also Ch. on ‘Order of business and the sitting day’.

[67] K. Jackson, ‘Caucus—the anti-Parliament system’, The Parliamentarian LIX, 3, 1978, p. 159.

[68] Constitution, s. 65.

[69]Ministers of State Act 1915.

[70]Ministers of State Act 1952, s. 4; for a schedule of statutory increases in the number of Ministers see Appendix 9; for a list of Ministries see Appendix 7.

[71] VP 1905/47 (17.8.1905), 89 (21.9.1905), 146 (2.11.1905); VP 1909/66 (29.7.1909; VP 1910/122 (15.9.1910); VP 1925/42 (9.7.1925), 73 (20.8.1925).

[72] In the first Labor Government in 1904 Prime Minister Watson chose the members of his Ministry.

[73] E.g. Gazette C2016G01034 (27.07.2016).

[74] E.g. VP 2016–18/7–9 (30.8.2016).

[75] Known as the Administrative Arrangements Order.

[76] Except for a re-organisation of the Department of Defence between 1939 and 1942.

[77] In the early Ministries the Vice-President was a member of the Executive Council without ministerial portfolio. Prime Minister Lyons filled the position between 1935 and 1937.

[78] The number of departments was reduced by amalgamation from 28 to 18; 16 major departments were so created, with two small departments remaining administratively distinct under junior Ministers, H.R. Deb. (15.9.1987) 43–4.

[79] H.R. Deb. (15.9.1987) 43–6.

[80] Statement by Governor-General on 11 November 1975. see Ch. on ‘Double dissolutions and joint sittings’.

[81] Department of the Prime Minister and Cabinet, Cabinet Handbook, 9th edn, 2016, p. 26. see also Department of the Prime Minister and Cabinet, Guidance on caretaker conventions, 2016.

[82]  (i) H.R. Deb. (9.5.1916) 7686, (ii) during adjournment of the Houses between 30 August 1962 and 2 October 1962.

[83] Constitution, s. 64.

[84] J 1978–80/571 (22.2.1979); S. Deb. (22.2.1979) 229–40. A notice of motion with similar intent was later given in the House on 3 May 1979, NP 96 (8.5.1979) 5205.

[85] PP 354 (1986) 25.

[86] H.R. Deb. (24.3.1988) 1292–8.

[87] For a list of Australian Prime Ministers see Appendix 6. For a commentary on the Prime Ministership  see J. Uhr, ‘Prime Ministers and Parliament: patterns of control’ in Menzies to Keating—the development of the Australian Prime Ministership, Melbourne University Press, 1992.

[88] N. Wilding & P. Laundy, An encyclopaedia of Parliament, 4th edn, Cassell, London, 1972, p. 581.

[89] Attributed to Keith, British Cabinet system, referred to in Wilding & Laundy, p. 580. With the development of Cabinet government and growth in power and prestige of the Prime Minister, this term can no longer be strictly acceptable terminology.

[90]Quick and Garran, p. 703.

[91]See Ch. on ‘Double dissolutions and joint sittings’.

[92] Three Prime Ministers have died while in office—Mr Lyons in 1939, Mr Curtin in 1945 and Mr Holt in 1967.

[93] The only Prime Ministers defeated at an election were Mr Bruce in 1929 and Mr Howard in 2007.

[94] Most recently Mr Gorton in 1971, Mr Hawke in 1991, Mr Rudd in 2010, Ms Gillard in 2013 and Mr Abbott in 2015.

[95] (i) Loss of majority on floor of the House without general election, most recently Mr Fadden in 1941; (ii) loss of majority following general election, most recently Mr Fraser in 1983, Mr Keating in 1996, Mr Howard in 2007 (himself defeated), and Mr Rudd in 2013; and (iii) loss of majority in House and failure to regain majority at general election, most recently Mr Bruce in 1929 (himself defeated), and Mr Hughes in 1923.

[96] Most recently Sir Robert Menzies in 1966.

[97]See also ‘Composition of the Ministry’ at p. 58.

[98] For example, Mr Fraser in 1977.

[99]Acts Interpretation Act 1901, s. 19.

[100] L. F. Crisp, Australian national government, 5th edn, p. 368.

[101] Prime Minister Menzies was also Minister for External Affairs between 4 February 1960 and 22 December 1961. Prime Minister Whitlam was also Minister for Foreign Affairs between 5 December 1972 and 6 November 1973.

[102] Most recently Mr McEwen in 1967.

[103] There are examples of State Treasurers coming from State upper houses, e.g. Mr Egan in NSW (April 1995), Mr Lenders in Victoria (August 2007).

[104] The Attorney may appear in court personally, e.g. Re Patterson Ex parte Taylor [2001] HCA 51 (2001) 182 ALR 657.

[105]Parliamentary Counsel Act 1970; see also Ch. on ‘Legislation’.

[106] VP 1977/249 (6.9.1977); H.R. Deb. (6.9.1977) 721–32.

[107] H.R. Deb. (6.9.1977) 721.

[108] For a list of Leaders of the House see Appendix 8.

[109] For example, motions for leave of absence to Members, suspension of standing orders, alterations in the order of business, changes in days and hours of sitting, and often motions for the closure, debate management motions, the adjournment, etc.

[110]See also Ch. on ‘Order of business and the sitting day’.

[111] Another Minister is appointed Deputy Leader of the House to assist the Leader of the House in these duties. This position receives no additional salary.

[112] Sir Garfield Barwick resigned his seat to become Chief Justice of the High Court of Australia, VP 1964–66/76 (23.4.1964).

[113]See Gazettes 98 (19.12.1949) 3831, 124A (5.12.1972) 1, and S94 (11.3.1996).

[114] Gazette S290 (20.12.1977) 1.

[115] Gazette S268 (5.12.1978); see also Gazettes 32 (22.3.1971) 2007 and 48B (12.6.1974) 1–2, but the Minister’s appointments on these occasions were ‘determined’.

[116] E.g. Cases of the Hon. Peter Howson, H.R. Deb. (8.11.1967) 2775–80; the Hon. P. Nixon, H.R. Deb. (21.9.1982) 1674.

[117]Quick and Garran, pp. 705–6.

[118] As a duty to the Parliament and the people, reasons for resignation or dismissal are normally made public. see also Sir Robert Garran oration (1988), by the Hon. R. J. L. Hawke, for comment on the grounds justifying resignation.

[119] Case of the Rt Hon. W. M. Hughes, H.R. Deb. (6.11.1935) 1306–7; see also case of the Hon. L.H.E. Bury in 1962 who was asked to resign by the Prime Minister, L. F. Crisp, Australian national government, 5th edn, p. 355.

[120] Case of the Rt Hon. R. G. Menzies on 20 March 1939. see H.R. Deb. (20.4.1939) 18.

[121] Case of the Hon. M. J. Young, H.R. Deb. (23.8.1983) 16; subsequently reappointed, H.R. Deb. (28.2.1984) 1.

[122] Case of the Hon. J. Brown, S. Deb. (17.12.1987) 3390.

[123] Case of the Hon. R. F. X. Connor, H.R. Deb. (14.10.1975) 2031–2, 2033, 2038.

[124] Case of Senator the Hon. A. J. McLachlan, H.R. Deb. (4.11.1938) 1322; S. Deb. (3.11.1938) 1189.

[125] Case of the Hon. R. V. Garland in 1976, The Parliamentarian LVII, 4, 1976, p. 253.

[126] Case of the Hon. J. N. Lawson in 1940, G. Sawer, Australian federal politics and law 1929–1949, Melbourne University Press, 1963, p. 104.

[127] Case of the Hon. J. M. Fraser, H.R. Deb. (9.3.1971) 679–84; case of the Hon. A. S. Peacock, H.R. Deb. (28.4.1981) 1607–14.

[128] Case of the Hon. E. G. Theodore, H.R. Deb. (8.7.1930) 3749–53. Mr Theodore submitted his resignation to the Prime Minister on 5 July 1930 following certain allegations against himself contained in the report of a Royal Commission appointed by the Government of the State of Queensland.

[129] Case of the Rt Hon. P. R. Lynch, Commonwealth Record 2, 45, 14–20 November 1977, pp. 1662–4.

[130] Case of the Hon. R. J. Ellicott, H.R. Deb. (6.9.1977) 721–32.

[131] Case of Senator G. F. Richardson on 19.5.1992 (the Senator had earlier been censured by the Senate on the matter). Senator Richardson later returned to the Ministry.

[132] Case of the Hon. A. Griffiths on 22.1.1994. Police investigation subsequently found no evidence of criminal offences by Mr Griffiths and an inquiry concluded that, in one respect Mr Griffiths’ conduct was improper, but that it would properly be open to the Prime Minister to accept the return of Mr Griffiths to the Ministry (Report by M.H. Codd, AC, July 1995).

[133] Case of the Hon. R. Kelly, H.R. Deb. (28.2.1994) 1365.

[134] Case of Senator the Hon. J. R. Short on 13.10.1996.

[135] Case of the Hon. G. D. Prosser, H.R. Deb. (25.8.1997) 6701.

[136] Case of the Hon. J. R. Sharp (claimant) and the Hon. D. F. Jull (administratively responsible), H.R. Deb. (24.9.1997) 8318–23; case of the Hon. P. J. McGauran, H.R. Deb. (24.9.1997) 8318–23 (Mr McGauran later returned to the Ministry).

[137] Case of the Hon. J. Fitzgibbon on 4.6.2009 (Minister’s office use for, and Minister’s staff members’ involvement with, relative’s business meetings).

[138] Case of the Hon. J. Briggs on 29.12.2015. Case of the Hon B. Joyce, Gazette C2018G00137 (26.2.2018).

[139] Case of the Hon. E. L. Robinson, VP 1978–80/645 (22.2.1979), 648 (27.2.1979); H.R. Deb. (22.2.1979) 334. Mr Robinson was reappointed a few days later, H.R. Deb. (27.2.1979) 345–6.Case of the Hon. P. J. Keating (following unsuccessful leadership challenge), H.R. Deb. (3.6.1991) 4507.

[140] E.g. Ministers resigned who had supported the challenger (Mr Rudd) to Prime Minister Gillard (21–22.3.2013).

[141] E.g. Ministers resigned who did not support new Prime Minister Rudd (26.6.2013).

[142] Case of the Rt Hon. I. McC. Sinclair, Commonwealth Record 4, 38, 24–30 September 1979, p. 1444; Gazette S192 (27.9.1979). Mr Sinclair was reinstated to the Ministry following acquittal from criminal charges, Gazette S180 (19.8.1980).

[143] Gazette 193 (13.12.1918) 2353; VP 1917–19/411 (13.12.1918); H.R. Deb. (13.12.1918) 9296. see H.R. Deb. (17.12.1918) 9614–39 for Mr Jensen’s comments.

[144] Gazettes S104 (6.6.1975) and S106 (6.6.1975); see also John Kerr, Matters for judgment, Macmillan, Melbourne, 1978, pp. 242–3. Sir John Kerr discusses also the power of the Governor-General to dismiss Ministers and the attempt by Mr Cameron to be heard by the Governor-General before being dismissed.

[145] Gazette S133 (2.7.1975).

[146] H.R. Deb. (9.7.1975) 3556–7.

[147]Simultaneous dissolution of the Senate and the House of Representatives by His Excellency the Governor-General on 11 November 1975, PP 15 (1979) 1.

[148] ‘Matters in relation to electoral redistribution, Queensland, 1977’, Report of the Royal Commission of Inquiry, PP 263 (1978) 243.

[149] Gazette S149 (8.8.1978); H.R. Deb. (15.8.1978) 16–19.

[150] On 8 July 1976 the appointment of Senator the Hon. I. J. Greenwood was ‘determined’ because of his continuing ill health, VP 1976–77/253 (17.8.1976).

[151] The appointment of the Hon. A. J. Grassby was ‘determined’ almost a month after his defeat at a general election. Gazette 48B (12.6.1974) 1.

[152] H.R. Deb. (24.6.1943) 333; H.R. Deb. (30.6.1943) 572.

[153] H.R. Deb. (15.10.1943) 673–4.

[154] H.R. Deb. (23.9.1943) 18; also information from the ‘Register of Executive Councillors’ maintained by the Department of the Prime Minister and Cabinet.

[155] VP 1948–49/335 (24.6.1949); also information from the ‘Register of Executive Councillors’.

[156] VP 1978–80/156 (2.5.1978); H.R. Deb. (2.5.1978) 1584; H.R. Deb. (15.8.1978) 18; PP 263 (1978); also information from the ‘Register of Executive Councillors’.

[157] S. Deb. (19.3.2014) 1487.The Prime Minister announced that while standing aside the Senator would draw no ministerial salary or entitlements, H.R. Deb. (19.3.2014) 2453.

[158] On 21.9.2015. The ICAC report (30.8.2016) did not make adverse findings against the Senator.

[159] S. Encel, Cabinet government in Australia, 2nd edn, Melbourne University Press, Carlton, 1974, p. 176.

[160] VP 1905/11 (7.7.1905); VP 1907–08/271 (11.3.1908).

[161] VP 1909/13 (2.6.1909); VP 1929–31/5 (6.2.1929). In 1918 one Honorary Minister acted as Minister for the Navy and had charge of shipping and ship building and another was given complete control of recruiting, H.R. Deb. (10.4.1918) 3724. In 1934 the Hon. C. W. Marr was appointed an Honorary Minister in charge of the Royal Visit then in progress, VP 1934–37/19 (14.11.1934).

[162] VP 1914–17/381 (27.10.1915), 513 (29.11.1916); VP 1932–34/436 (13.10.1932).

[163] VP 1929–31/484 (5.3.1931); VP 1934–37/6 (23.10.1934); VP 1970–72/708 (10.9.1971).

[164] VP 1934–37/6 (23.10.1934). In the coalition Ministry of 1909–10 Prime Minister Deakin did not administer a Department of State, VP 1909/13 (2.6.1909). There have also been appointments of Ministers without portfolios with specific duties, VP 1934–37/6 (23.10.1934), 262 (23.9.1935), 641 (11.9.1936); VP 1937–40/5 (30.11.1937), 241 (8.11.1938).

[165] VP 1937–40/349 (3.5.1939); VP 1940/2 (17.4.1940).

[166] VP 1940–43/279 (25.2.1942); H.R. Deb. (20.5.1942) 1455.

[167] For example ‘Minister for Employment and Youth Affairs and Minister Assisting the Prime Minister’. There have also been ‘Ministers appointed only to assist’ a specified Minister, VP 1937–40/349 (3.5.1939); VP 1940/2 (17.4.1940). In Zoeller v. Attorney-General (Commonwealth) and others (76 ALR 279) it was held that s. 64 did not require that only one Minister could administer each department and that it was lawful to appoint two Ministers.

[168] For a summary of earlier precedents see pp. 108–9 of the second edition.

[169] As a recognition of their duties the Nicholas Committee on the salaries and allowances of Members of Parliament recommended ‘Subject to the proper interpretation of Section 44 of the Constitution’ that an under-secretary or an assistant minister be paid an additional salary of £500 per annum. ‘Salaries and Allowances of Members of the National Parliament’, Report of Committee of Enquiry, 1952, p. 19 (not made a Parliamentary Paper).

[170] H.R. Deb. (27.8.1952) 619. Outside Australia on ministerial business all expenses were an official charge, H.R. Deb. (26–27.10.1961) 2647.

[171]But see H.R. Deb. (12.7.1922) 324; H.R. Deb. (5.12.1934) 786; H.R. Deb. (29.11.1934) 650.

[172]Parliamentary Secretaries Act 1980.

[173] H.R. Deb. (9.5.1990) 154.

[174] H.R. Deb. (16.10.1991) 2045. The resolution was later repassed with continuing effect, VP 1993–96/25 (5.5.1993).

[175] S.O.s 2, 98(b) and 99.

[176] H.R. Deb. (26.3.1992) 1247.

[177] The restriction is interpreted as relating to sponsorship of Private Members’ business. Parliamentary Secretaries and Ministers are not prevented from taking part in debate on a private Members’ motion or bill.

[178] S.O. 229(d) (since 2016).

[179]Ministers of State and Other Legislation Amendment Act 2000. The Act repealed the Parliamentary Secretaries Act. The validity of these appointments was upheld by the High Court inRe Patterson Ex Parte Taylor [2001] HCA 51 (2001); 182 ALR 657.

[180] VP 2004–07/1702–3 (13.2.2007).

[181] H.R. Deb. (12.10.2015) 10751–3. Initially, the shadow ministry continued to use the title of shadow parliamentary secretary. The title shadow assistant minister was used from the start of the 45th Parliament.

[182]See Ch. on ‘Members’.

[183] Constitution, s. 66.

[184]Parliamentary Business Resources Act 2017, s. 55.

[185]Parliamentary Business Resources Act 2017, s. 61.

[186]Parliamentary Business Resources Act 2017 , s. 44.

[187] Expressed as a percentage of a parliamentarian’s base salary (in 2016 ranging from 160% for the Prime Minister to 25% for a Parliamentary Secretary/Assistant Minister).

[188] The Manager of Government Business in the Senate receives an additional amount which varies depending on whether he or she is a Cabinet Minister, other Minister, or a Parliamentary Secretary.

[189] Constitution, s. 44(iv).

[190] Constitution, s. 44.

[191] Constitution, s. 66.

[192] For fuller discussion of this issue see Senate Standing Committee on Constitutional and Legal Affairs, The constitutional qualifications of Members of Parliament. PP 131 (1981) Ch. 6.

[193]See Ch. on ‘Members’ for discussion generally.

[194] H.R. Deb. (22.9.1983) 1172–4.

[195]See ‘Pecuniary interest’ in Chapter on ‘Members’.

[196] Department of the Prime Minister and Cabinet, Cabinet Handbook, 9th edn, 2016, p. 17.

[197] VP 1993–96/2203 (21.6.1995).

[198]A guide on key elements of ministerial responsibility, Prime Minister, April 1996; H.R. Deb. (30.4.1996) 14. Reissued in slightly amended form December 1998; H.R. Deb. (9.2.1999) 2196.

[199] Australian Government, Standards of ministerial ethics, December 2007 (reissued by Prime Minister Gillard in 2010). Australian Government, Statement of ministerial standards, February 2018.

[200] Department of the Special Minister of State, Statement of standards for ministerial staff, 2013.

[201]See and Department of the Prime Minister and Cabinet, Lobbying code of conduct, 2013.

[202] Foreign Influence Transparency Scheme Bill 2017.

[203] Originally referred to as an ‘Inner Cabinet’.

[204] On a point of terminology ‘Cabinet government’ in parliamentary terms has been equated with ‘responsible government’; ‘Cabinet solidarity’ and ‘collective Cabinet responsibility’ with ‘collective ministerial responsibility’.

[205]Quick and Garran, pp. 704–5.

[206]Quick and Garran, pp. 705–6.

[207] For a detailed exposition of the role, functioning and organisation of Cabinet the reader is referred to Jennings, Cabinet government; Crisp, Australian national government; Encel, Cabinet government in Australia.

[208] H.R. Deb. (8.11.1938) 1323 ff.

[209] Sawer, Australian federal politics and law 1929–1949, p. 103.

[210] L. F. Crisp, Australian national government, 5th edn, pp. 374–83.

[211] Announced outside the House; but see H.R. Deb. (10.8.1954) l16.

[212] Remuneration Tribunal, Salaries payable to Ministers of State, PP 221 (1976) 3.

[213] Remuneration Tribunal, Salaries payable to Ministers of State, PP 52 (1984) 13.

[214] One or two portfolios had more than one Cabinet Minister.

[215]Quick and Garran, pp. 704–5.

[216]Acts Interpretation Act 1901, s. 16A.

[217]See generally Constitution and particularly ss. 62–4. Having been sworn (once) as Executive Councillor, each Minister or Parliamentary Secretary also takes the oath or affirmation of office for each specific ministerial appointment. The wording of the oath or affirmation is not prescribed in either case—for history see Deirdre McKeown, Oaths and affirmations made by the executive and members of the federal parliament since 1901, Parliamentary Library research paper, 2013–14.

[218] Gazettes S290 (20.12.1977) 1 and S295 (22.12.1977).

[219] The secretariat of the Executive Council is located in the Department of the Prime Minister and Cabinet. For more detail see Department of the Prime Minister and Cabinet, Federal Executive Council Handbook, Canberra, 2015.

[220] Constitution, s. 126.

[221] Gazette S184 (24.7.1987) 6.

[222] Advice from Attorney-General’s Department, dated 8 January 1948, relating to execution of instruments by the Governor-General; and see G. Sawer, Federation under strain, pp. 100–2.

[223] Constitution, s. 4.

[224] N. Wilding & P. Laundy, An encyclopaedia of Parliament, 4th edn, Cassell, London, 1972, p. 509. The term ‘Her Majesty’s Loyal Opposition’ was also used.

[225]  (i) On 27 April 1904 Watson (ALP) was commissioned in place of Deakin (Protectionist), (ii) on 18 August 1904 Reid (Free Trade–Protectionist) was commissioned in place of Watson, (iii) on 5 July 1905 Deakin was commissioned in place of Reid, (iv) on 13 November 1908 Fisher (ALP) was commissioned in place of Deakin, and (v) on 2 June 1909 Deakin (Fusion) was commissioned in place of Fisher.

[226] On 27 April 1904 Reid (Free Trade) was Leader of the Opposition; on 5 July 1905 Watson (ALP) was Leader; on 13 November 1908 Reid was Leader; and see Appendix 4.

[227] Except for a period of separation prior to the 1987 election, from 29.4.87.

[228] There is only one Leader of the Opposition. The Senate Leader is ‘Leader of the Opposition in the Senate’. For a list of Leaders see Appendix 4.

[229]Parliamentary Allowances Act 1920.

[230] Particularly as a result of an enquiry into the salaries and allowances of Members of the National Parliament in 1952 (and later inquiries). This inquiry also resulted in special remuneration for the Deputy Leader of the Opposition for the first time.

[231] VP 1929–31/587–90 (23.4.1931); S.O. 1.

[232] S.O. 216.

[233]Enquiry into the Salaries and Allowances of Members of the National Parliament 1952, p. 18 (not made a Parliamentary Paper).

[234]Inquiry into the Salaries and Allowances of Members of the Commonwealth Parliament, PP 15 (1959–60) 31.

[235] Ranging from 27.5% to 20% of base salary.

[236] That censure motions are invariably unsuccessful, and opposition attempts to suspend standing orders often so, is beside the point—the matter of concern is either raised or publicly highlighted as one that a Government is reluctant to debate.

[237] If not, they have the opportunity to add dissenting reports.

[238] Staff assistance to the Leader of the Opposition, provided at government expense, has increased especially since the period of the ALP Government of 1974–75.

[239] This is especially so in times of national emergency: in World War II senior opposition members had close involvement with the conduct of the war through their membership of the Advisory War Council.

[240] J. Stewart, The Canadian House of Commons, Montreal, McGill–Queen’s University Press, 1977, p. 168.