Number of Ministers
The Constitution provides for the number of Ministers as follows:
Until the Parliament otherwise provides, the Ministers of State shall not exceed seven in number, and shall hold such offices as the Parliament prescribes, or, in the absence of provision, as the Governor-General directs.
The Parliament increased the number of Ministers of State from seven to eight in 1915. Further statutory increases have brought the number up to the present limit of 30. In addition, twelve positions of Minister of State to be designated as Parliamentary Secretary were created in 2000 (see page 70). These constitutional and statutory limitations apply to the number of Ministers administering a Department of State. In earlier years ‘Ministers’ who did not administer a department were also appointed—see ‘Ministerial assistance’ at page 70.
Composition of the Ministry
The allocation of portfolios—that is, the Departments of State that Ministers shall administer—has never been determined by the Parliament although there have been unsuccessful attempts in the House to have the Parliament elect the Ministry. In practice the Governor-General determines the allocation of portfolios on the advice of the Prime Minister. In the case of a Liberal–Nationals coalition the Prime Minister, following consultation with the Leader of the Nationals, nominates Ministers and decides the allocation of portfolios for recommendation to the Governor-General. Between the formation of the Fisher Ministry in 1908 and the Rudd Ministry in 2007, the Australian Labor Party caucus elected its Ministers and the Prime Minister allocated portfolios for recommendation to the Governor-General; Labor Party Ministers are now also appointed by the Prime Minister.
The approval of the Governor-General to the composition of the Ministry, the creation of departments, the allocation of portfolios and any ministerial and departmental change is notified publicly and announced in the House. The principal areas of departmental responsibility and enactments administered by the respective Ministers are notified publicly by order of the Governor-General. Temporary ministerial arrangements may be made by the Prime Minister without reference to the Governor-General.
Since the formation of the first Commonwealth Government on 1 January 1901 the Ministry has always included a Prime Minister, a Treasurer, an Attorney-General and a Minister for Defence. The titles and functions of other Ministers have varied over the years. A Vice-President of the Executive Council has always been appointed and, since the early 1930s, has usually administered a Department of State in addition to performing Executive Council duties. A Minister may administer more than one department.
The two-level Ministry
In September 1987 the 3rd Hawke Government instigated a two-level ministerial structure accompanied by a reorganisation of the public service which considerably reduced the number of government departments. Each of the major departments so created was headed by a senior or ‘portfolio’ Minister, who was also a member of Cabinet. Senior Ministers were assisted in the administration of their portfolios by junior Ministers with specific titles and responsibilities for designated areas of departmental operations.
In announcing the new administrative arrangements the Prime Minister stated that under the new system portfolio Ministers were released from some of the detailed administrative work, enabling them to give greater attention to policy. All portfolios were represented in Cabinet without the need for the Cabinet to be expanded to an unmanageable size. Portfolio Ministers were ultimately responsible for the administration of their entire portfolios and were accountable to Parliament for their overall operation. All Ministers, however, had a clear accountability within specific responsibilities allocated to them, which included responding to questions without notice. This approach has been followed in later Parliaments.
On occasions Governments have been formed from the combined membership of two (or more) political parties. Coalition Governments have occurred when the numerical strength of one party is less than an absolute majority of the House, or for political reasons by agreement between the parties. The Ministry is composed of members of the coalition parties determined by agreement. Between 1949 and 1972, between 1975 and 1983, and between 1996 and 2007, Liberal–National Party (formerly Country Party, later Nationals) coalition Governments were in office.
The Free Trade–Protectionist coalition between August 1904 and July 1905 was known as the Reid–McLean Ministry. Between February 1923 and October 1929 the Nationalist–Country Party coalition was known as the Bruce–Page Ministry. Between June 1909 and April 1910 the existing three non-Labour groups formed a Protectionist–Free Trade–Tariff Reform coalition which was known as the ‘Fusion’ Ministry.
In order that the government of the country continues uninterrupted there have been occasions when the Governor-General has found it necessary to appoint an interim or ‘caretaker’ Government pending the resolution of political matters, for example, the election of party leaders or a general election (and see page 96 of second edition).
On the dismissal of the Whitlam Australian Labor Party Government on 11 November 1975, the Governor-General commissioned the Leader of the Opposition, Mr Fraser (Liberal Party), to form a ‘caretaker’ Government (Liberal–National Country Party coalition) until a general election was held. The ‘caretaker’ Ministry, consisting of 15 Ministers, was formed on the basis that it ‘makes no appointments or dismissals and initiates no policies’ and held office until 22 December 1975.
By convention, Governments ensure that important decisions are not made during the period immediately prior to a general election which would bind an incoming Government and limit its freedom of action. The conventions require a Government to avoid implementing major policy initiatives, making appointments of significance or entering into major contracts or undertakings during the caretaker period, and also to avoid involving departmental employees in election activities. The Ministry, Cabinet or Cabinet committees may meet, if necessary, for the normal business of Government, but the matters considered are constrained by the conventions. Normally efforts are made to clear necessary business prior to the caretaker period. The ‘caretaker’ period applies formally from the dissolution of the House until the election results are clear, or in the event of a change of Government, until the new Government is appointed. However, it is also accepted that care should be exercised in the period between the announcement of the election and dissolution.
Other practices applying to the election period, usually regarded as being part of the caretaker conventions, are aimed at ensuring that departments avoid partisanship during an election campaign and that government resources are not directed to supporting a particular political party. They address matters such as the nature of requests that Ministers may make of their departments, procedures for consultation by the Opposition with departmental officers, travel by Ministers and their opposition counterparts and the continuation of government advertising campaigns.
The Ministry and the Senate
The composition of the Ministry has always included some Senators to represent the Government by presenting its policies and facilitating the passage of its legislation in the Senate. Senate Ministers initiate bills (other than financial bills) and make policy statements to the Senate connected with their portfolios. In addition each Senate Minister represents in the Senate one or more Ministers located in the House. Likewise each Senate Minister is represented by a Minister in the House of Representatives.
The House from which Ministers shall be drawn is not mentioned in the Constitution. In practice the number of Senate Ministers is determined by the Prime Minister or the parliamentary party, as the case may be, and in recent years has varied between four and nine. A large component of Senate Ministers may be seen as running counter to the concept of responsible government and the Senate’s traditional role as a ‘House of review’. In keeping with constitutional principles and the constitutional limitations on the Senate regarding the initiation of financial legislation, the majority of the Ministry, including the Prime Minister and the Treasurer, has always been drawn from the House of Representatives.
Following the presumed death of Prime Minister Holt on 17 December 1967, the Liberal Party chose Senator Gorton as its leader on 10 January 1968 and he was sworn in as Prime Minister the same day. Although there had been previous occasions of Senate Ministers acting as Prime Minister, this is the only occasion on which a sitting Senator has been commissioned to form a Government. Senator Gorton did not sit in the Senate as Prime Minister because neither House met during the period between his election as Prime Minister and his subsequent election as a Member of the House of Representatives. Prime Minister Gorton resigned his place as a Senator on 1 February 1968, in order to seek election to the House of Representatives. He was elected on 24 February 1968 at the by-election for the division of Higgins left vacant by Mr Holt’s death. Between 1 February and 24 February Mr Gorton was a Member of neither House but, as permitted by the Constitution, was able to remain Prime Minister during this period.
From time to time the view has been put that the presence of Ministers in the Senate is incompatible with its effective performance as a House of review and a States House. In 1979 a motion was moved in the Senate, but remained unresolved, to the effect that Senators should no longer hold office as Ministers of State, with the exception of the Leader of the Government in the Senate, and that chairmen of the Senate’s Legislative and General Purpose Standing Committees should be granted allowances, staff and other entitlements similar to Ministers. In 1986 the House Standing Committee on Procedure expressed the opinion that all Ministers should be Members of and responsible to the House of Representatives. In 1988 a private Member’s motion was debated in the House, but remained unresolved, urging the party winning the next and subsequent elections to appoint all Ministers from the House of Representatives and urging the Senate to further expand its committee system and adopt greater powers of investigation and inquiry.
The origin of the title of Prime Minister is to be found in English constitutional history with the title being first attributed to Sir Robert Walpole in 1721. The Cabinet system of government and the position within it of the Prime Minister was established Westminster practice at the time of the establishment of the Commonwealth. The occupant of the position has been variously described as the First Minister, primus inter pares (first among equals), Chairman of the Cabinet, Chief Adviser to the Crown and in contemporary usage Head (or Leader) of the Government. The Prime Minister is placed third in the Commonwealth of Australia Table of Precedence, immediately after the Governor-General and State Governors.
The first Prime Minister (Mr Barton) was officially appointed as Minister for External Affairs and it was not until 1913 that the Prime Minister (Mr Fisher) was appointed by the Governor-General to administer his own department.
In Australia the appointment (and removal) of a Prime Minister clearly rests with the Governor-General and the Governor-General alone, whose prerogative power is nevertheless limited by the rules of established constitutional conventions with the result that the choice is made for him or her. The selection of the Prime Minister is in practice made in the party political and parliamentary arenas. Since the appointment of Prime Minister Barton, excepting the 1975 incident noted below, the choice of Prime Minister has been limited to the person, for the time being, elected as leader of the party having the support, directly or indirectly, of the majority of Members of the House of Representatives.
The constitutional convention is that the Prime Minister remains in office while maintaining the support (leadership) of the majority party (or coalition) and the support of a majority of the Members of the House of Representatives. The only exception to this convention occurred in 1975 when Prime Minister Whitlam was dismissed as Prime Minister even though he retained the leadership of the majority party and majority support in the House of Representatives. (A deadlock had arisen between the House and the Senate over the appropriation bills, with the actions of the Senate in failing to pass the bills threatening the availability of funds necessary for the operation of government departments and programs.)
Apart from dismissal, Prime Ministers have ceased to hold office as a result of death, failure to be re-elected as a Member of the House, removal as leader of the majority party, failure to maintain majority support of the House of Representatives and retirement.
The Prime Minister’s prestige and power are largely due to the authority and control enjoyed as Chair of Cabinet and the ability, not available to other Ministers in the same manner, to make important decisions outside Cabinet. One of the most significant powers is the control over the composition of the Cabinet and the Ministry. The appointment and removal of Ministers, changes in the Ministry and the allocation of portfolios are made by the Governor-General on the advice of the Prime Minister.
A Ministry’s existence depends on the Prime Minister’s continuance in office. The resignation or dismissal of the Prime Minister, by convention, causes the resignation of the full Ministry. A Prime Minister may resign, hence causing the resignation of all Ministers, in order to reconstruct a new Ministry and continue in office.
The Prime Minister may make temporary ministerial arrangements without reference to the Governor-General. A Minister may act for another Minister on account of absence from Australia or from the Ministry or due to ill health. The Acts Interpretation Act confers upon an Acting Minister the same power and authority with respect to the absent Minister’s statutory responsibilities.
Another example of personal Prime Ministerial power is advice to the Governor-General on dissolving the House of Representatives, as this advice may be given by the Prime Minister without reference to the Cabinet. Most other major matters of State are subject to the collective decision of Cabinet (see page 74), but nevertheless the Prime Minister would exercise considerable authority and control.
In the past Prime Ministers frequently held an additional portfolio, usually that of Treasury or Foreign Affairs. Prime Minister Hughes was also Attorney-General between 1915 and 1921. Other than for brief periods, and with the exceptions of Prime Ministers Menzies and Whitlam, who also held the portfolio of External Affairs and Foreign Affairs respectively for substantial periods, the modern practice is for Prime Ministers not to administer more than one Department of State (the Department of the Prime Minister and Cabinet).
Prime Ministers of both the coalition parties and the Australian Labor Party have been assisted by another Minister who is appointed as Deputy Prime Minister. In the case of a coalition Government the Deputy Prime Minister has been the Leader of the Nationals, and in the case of a Labor Government the Deputy Leader of the party. The position is a formal one without portfolio per se for which the occupant is paid a higher salary than other Ministers (see page 72). It is the practice for the Deputy Prime Minister to be Acting Prime Minister when the Prime Minister is absent from Australia or absent on account of leave (for illness or brief recreation periods). The Deputy Prime Minister would normally be commissioned to become Prime Minister in a caretaker capacity in cases of emergency, for example, the death of the Prime Minister.
A Treasurer has been included in all Ministries since Federation, the first Treasurer being Sir George Turner. The requirement of a separate Department of State is implied by section 83 of the Constitution which provides, in part:
No money shall be drawn from the Treasury of the Commonwealth except under appropriation made by law.
The Treasurer has always been a senior member of the Government and is responsible for economic and financial matters. Although the Cabinet takes collective decisions and assumes collective responsibility, the Treasurer is nevertheless the focal point of the financial deliberations of Cabinet, not only within the scope of his or her own portfolio, but in relation to the financial implications of all other matters that come before Cabinet. The Treasurer introduces major financial proposals into the House as the responsible Minister, the preparation and presentation of the annual Budget being the most obvious manifestation of this responsibility.
That the duties of Treasurer have been considered to be more demanding than most other portfolios is recognised by the Remuneration Tribunal which grants the Treasurer a higher salary than other Cabinet Ministers excepting the Prime Minister and Deputy Prime Minister (see page 72).
A unique feature of the office of Treasurer is that it must always reside in the House of Representatives since under the Constitution it is in that House that financial legislation must be initiated.
In 1976 the functions of the Department of the Treasury were redefined resulting in the establishment of a separate Department of Finance (later Finance and Administration, then Finance and Deregulation). Initially the Treasurer administered both Departments but in 1977 a Minister for Finance was appointed to administer the new department. This portfolio has been held by both Members of the House and Senators.
The Attorney-General was another of the seven original Ministers appointed in 1901, the first Attorney-General being Alfred Deakin. The origins of the office of Attorney-General can be traced back in English history to the 13th century and many of the traditions surrounding it have continued to characterise the office in Australia.
The Attorney-General is the chief legal adviser to the Commonwealth Government and has overall responsibility for the conduct of actions brought by the Commonwealth Government in the legal system. He or she is the Minister responsible for the Office of Parliamentary Counsel the duties of which include the drafting of government bills and amendments.
Historically, the Attorney-General has been the First Law Officer of the Crown, having responsibilities in relation to the laws of the Commonwealth, and needing to make decisions about whether the laws of the Federal Parliament are being properly observed and whether people should be prosecuted for not observing the law (although since 1983 day-to-day responsibilities for the prosecution of offences have been given, by statute, to the Director of Public Prosecutions). As First Law Officer the Attorney-General gives advice on the basis of what is just, and must separate the advice from any political considerations. The principle of this independence of the office of Attorney-General was the subject of the resignation of Attorney-General Ellicott on 6 September 1977. In his letter of resignation to the Prime Minister he stated:
It is with great regret that I am forwarding herewith my resignation as Attorney-General.
I am doing so because decisions and actions which you and the Cabinet have recently made and taken have impeded and in my opinion have constituted an attempt to direct or control the exercise by me as Attorney-General of my discretion in relation to the criminal proceedings Sankey v. Whitlam and others.
In the circumstances I feel that I have no other course but to resign my office. I regard it as vital to our system of government that the Attorney-General’s discretion in criminal matters remains completely independent.
This resignation illustrates one Attorney-General’s view of the independent nature of the office of Attorney-General, notwithstanding the general concept of Cabinet responsibility.
The Second Law Officer is the Solicitor-General. The Solicitor-General may appear in court in the major cases in which the Government is involved, but importantly is a statutory appointee and not a Member of the Parliament. The Solicitor-General gives independent legal advice to the Government. This independence is reflected in the Law Officers Act 1964.
Leader of the House
The office of Leader of the House was created without legislation and without any formal decision of the House. By convention, it is now accepted as an office which is necessary for the proper functioning of the House. Because of the demands placed on the incumbent during the sittings of the House, the office has received special consideration by the Remuneration Tribunal by way of payment of an additional salary greater than that paid to other members of Cabinet.
The position of Leader of the House as a defined and separate office originated in 1951. In a press statement on 10 May 1951, Prime Minister Menzies announced the appointment of the first Leader of the House, the Hon. E. J. Harrison, then Vice President of the Executive Council and Minister for Defence Production. The Prime Minister’s aim was to improve the organisation and conduct of business in the House of Representatives, from which both he and the Deputy Prime Minister were of necessity often absent.
The appointment is made by the Prime Minister, and the Leader of the House is responsible to the Prime Minister who has ultimate authority and responsibility for government business. As it is a delegated function, it is not unusual for the Prime Minister, when in attendance, to intervene in the proceedings of the House and even to move procedural motions.
In broad terms the Leader of the House is responsible for the arrangement and management of government business in the House of Representatives. In respect of the daily business of the House, it is his or her responsibility, in consultation, as necessary, with the Prime Minister and other Ministers, and the Opposition, to determine the order in which the items of government business will be dealt with, and to ensure that, as far as practicable, the passage of government business is not unduly delayed or disrupted. The majority of formal or general procedural motions are moved on behalf of the Government by the Leader of the House.
The Leader of the House works closely with the government whips and consults with them regarding the selection of speakers from the government parties. He or she arranges the allocation of time for debates and, where problems arise in regard to the program, determines the tactics to be followed by the Government.
An important function of the Leader of the House is to undertake or oversee negotiations (often resulting in a ‘trading’ of available parliamentary time) with the opposition counterpart, the Manager of Opposition Business, on matters relating to the programming of the House. In respect of the programming of Federation Chamber business this function has been delegated to the Chief Government Whip.
There is a continuing process of negotiation with the Opposition on such matters as the order in which bills will be debated; arranging for cognate debates to be held on related bills; the making of, and the Opposition’s reply to, ministerial statements; the amount of time to be made available for particular debates; and on any other matter that may arise during the course of proceedings that may have a bearing on the progress of government business.
It is essential for the Leader of the House to ensure that a constant liaison is maintained with the Speaker and the staff of the House in regard to the arrangements for programming government business, and in regard to the wide range of procedural questions which arise from time to time. The Leader of the House must also be kept in touch with developments in the Senate that may have a bearing on the future programming of the House—for example, where it appears that the Senate may return a bill to the House with requests and/or amendments—and must also take into account the Senate’s own programming requirements when planning the program for the House. The Leader of the House is assisted in carrying out these responsibilities by the Parliamentary Liaison Officer, an employee of the Department of the Prime Minister and Cabinet.
Day-to-day functions must be set against the longer term policy objectives of the Government. The principal body concerned with these longer term objectives, apart from the Cabinet itself, is the Parliamentary Business Committee of Cabinet of which the Leader of the House is a member. This committee decides the composition of the Government’s legislation program for a period of sittings and undertakes a general supervisory role over the progress of legislation.
The office, combined as it is with a ministerial portfolio, can be demanding, especially during the sittings of the Parliament when the Leader of the House normally gives some priority to the functions of the office and spends a great deal of time in the Chamber itself. The Manager of Government Business in the Senate, also a Minister, performs an equivalent function in the Senate.
Cessation of ministerial office
Ministers may resign for personal reasons, or following defeat at a general election or resignation from Parliament. When a Government loses office, the Prime Minister resigns and, therefore, so do Ministers. A Prime Minister may resign and then be reappointed in order to form another Ministry. Ministers have also resigned in order for ministerial rearrangements to be made and, while remaining members of the Executive Council, have been subsequently reappointed as Ministers to administer other or new Departments of State. On occasions Prime Ministers, on questions of principle, have refused to accept voluntary resignations of Ministers who have then remained in the Ministry.
Convention requires that Ministers accept collective responsibility for the policies and performance of the Government (see page 49). If any Minister is unable to accept or publicly dissents from the opinion and policy of Cabinet, it has been said that it is his or her duty to resign.
Examples of ministerial resignations, other than for personal reasons, based on individual or collective ministerial responsibility and accountability to Parliament and the people, have been:
- publishing or expressing views opposed to government policy;
- disagreement with government policy;
- breaching Cabinet confidentiality;
- misleading the Parliament;
- misleading the Prime Minister, and through him the Parliament;
- a Minister’s department entering into contracts with a company in which the Minister held a position;
- initiation of legal action against a Minister for an alleged breach of the Commonwealth Electoral Act;
- private dealings with an officer of a company negotiating with a Minister’s department;
- disagreement with actions of the Prime Minister;
- adverse reflections on a Minister’s integrity in a Royal Commission report;
- allegations concerning the propriety of possible conflicts between a Minister’s public duty and personal and family financial interests;
- perceived attempts by Cabinet to control or direct a Minister’s independence and integrity as Attorney-General;
- allegations that a Minister had used his official position to assist business dealings of a relative and that he had misled the Senate about the matter;
- allegations of irregular payments of election and electorate office funds to a business partner;
- reports of the Auditor-General and a House of Representatives committee finding inadequacies in administrative procedures relating to the distribution of funds;
- breach of Prime Minister’s guidelines in relation to shareholdings of Ministers;
- following allegations of conflict of interest with the Minister’s private business affairs;
- allegations of irregularities in relation to travel allowance claims.
- breach of Prime Minister’s Standards of ministerial ethics.
Ministers have also resigned following disagreements with the Prime Minister over organisational and party matters and following allegations of impropriety in matters unrelated to parliamentary or ministerial duties.
Although there is no constitutional distinction between resignation and dismissal, reasons for ministerial dismissal would be expected to concern questions of ministerial responsibility and accountability. Resignation implies voluntary action, at least publicly, on the part of a Minister whereas dismissal implies involuntary removal or may reflect the seriousness of the situation or offence.
In 1918 the Hon. J. A. Jensen was ‘removed’ from the office of Minister for Trade and Customs having received unfavourable mention in the report of the Royal Commission on Navy and Defence Administration.
In 1975 the Hon. C. R. Cameron had his appointment as Minister for Labor and Immigration ‘determined’ after he had refused to resign during a rearrangement of the Ministry. Later, on the same day, he was appointed to another portfolio. Also in that year the appointment of the Hon. J. F. Cairns as Minister for the Environment was formally ‘determined’. Prime Minister Whitlam informed the House that this action was because of a total discrepancy between information supplied to the House by the Minister and a letter he had written earlier, and because reported activities of an officer of the Minister’s staff would make it possible for that officer to make a profit from his position. The Prime Minister had received no satisfactory explanation of these matters.
On 11 November 1975 the Governor-General ‘determined’ the appointment of the Hon. E. G. Whitlam as his Chief Adviser and Head of Government as, in view of the prevailing circumstances, he had refused to resign or advise an election. Concomitantly the appointments of all the Ministers of his Government were also ‘determined’.
Following the finding of the Royal Commission of Inquiry into Matters in Relation to Electoral Redistribution of Queensland, 1977, that a certain action of Senator the Rt Hon. R. G. Withers constituted ‘an impropriety’ within the meaning of the Letters Patent appointing the Royal Commission, his appointment as Minister for Administrative Services was ‘determined’ and his appointment as Vice-President of the Executive Council was ‘terminated’.
Ministers’ appointments have also been ‘determined’ by reason of ill health; and following defeat at a general election.
Leave of absence
The Hon. E. J. Ward, Minister for Labour and National Service, was ‘relieved of his administrative duties’ on 24 June 1943 during the inquiry of a Royal Commission into allegations by the Minister that an important document, relating to ‘The Brisbane Line’, was missing from the official files. The report of the Royal Commission was made public on 14 July 1943 and, on the same date, the Prime Minister directed Mr Ward by letter to continue to abstain from the administration of his office until the Parliament had dealt with matters arising from the report. A general election followed and Mr Ward continued on leave until his appointment to the new Ministry on 21 September 1943.
On a second occasion, in 1949, Mr Ward, as Minister for Transport and Minister for External Territories, was relieved of the administration of his ministerial offices from 1 January 1949 to 24 June 1949 while a Royal Commission investigated allegations of corrupt practices in relation to the handling of timber leases in Papua New Guinea. The findings of the Royal Commission were that the charges were completely without foundation.
The Hon. E. L. Robinson, Minister for Finance, was granted ‘leave from ministerial duties’ on 24 April 1978 while allegations against him were being examined by an inquiry into the 1977 electoral redistribution of Queensland. The report of the Royal Commission exonerated the Minister and he resumed his ministerial duties on 8 August 1978.
For 50 years following Federation it was not uncommon for Executive Councillors, formally or informally, to assist the Ministry without administering a Department of State. These positions have been referred to generically as that of ‘Assistant Minister’. At various times they were known as ‘Member of the Executive Council’, ‘Honorary Minister’, ‘Assistant Minister’, ‘Assistant Minister’ to assist a specified Minister or with specific duties, ‘Minister without portfolio’ and ‘Minister in charge of’ certain responsibilities. Further discussion of the role of Assistant Ministers historically is provided in earlier editions.
Assistance to Ministers was also provided by Members not appointed as Executive Councillors. They were known as Parliamentary Under-Secretaries or Parliamentary Secretaries (see below). Members have been ‘appointed’ to assist Ministers while not being given any title or recognition in the House. A more recent method of sharing the ministerial work-load has been the formal appointment of a Minister to assist a more senior Minister, such an appointment being in addition to the Minister’s appointment to a particular portfolio.
In earlier years Parliamentary Under-Secretaries and Parliamentary Secretaries (the latter term becoming preferred) were on occasions appointed to assist Ministers in the performance of their duties, but their function was never well established. They were not paid a salary for the duties they performed but did receive an allowance to reimburse them for expenses incurred. They did not have a ‘ministerial’ role in Chamber proceedings and did not answer questions in the House. The Parliamentary Secretaries Act 1980 provided, for the first time, a clear authority for appointment, by the Prime Minister, of Members or Senators to become Parliamentary Secretaries to Ministers.
In May 1990 the Government announced its intention of reinstituting, on a systematic basis, the institution of Parliamentary Secretaries. In contrast to previous practice, the new Parliamentary Secretaries were to have ministerial responsibilities in the Chamber. A resolution of the House gave authority to this innovation. The resolution was amended the following year to remove a qualification relating to bills, leaving Parliamentary Secretaries with the ability to take the role of Ministers in the Chamber in all respects (other than that of being able to answer questions on portfolio matters), including being in charge of the business of the House. The provisions of this resolution are now integrated into the standing orders.
In 1992 the Speaker issued guidelines on the role of Parliamentary Secretaries in relation to the procedures of the House and its committees. The guidelines may be summarised by saying that Parliamentary Secretaries may substitute for Ministers in the Chamber in all respects (apart from answering questions), and are subject to the same constraints—for example, Parliamentary Secretaries may not ask questions and are prevented from participating in Private Members’ business and Members’ 90 second statements. In relation to committees the guidelines state that, as a general rule, Parliamentary Secretaries should not be members of a committee of inquiry, but recognise that there may be occasions when special reasons make a strong case for them to serve.
Parliamentary Secretaries sit in the row of seats immediately behind the ministerial front bench. They address the House from the despatch box when in charge of the business before the House on behalf of a Minister, and from their places at other times.
Four Parliamentary Secretaries were appointed in 1990. Their number increased steadily and since 2000 there has been a legislated maximum of 12 (see below). In contrast to previous practice, since 1990 Parliamentary Secretaries have been members of the Executive Council. A Parliamentary Secretary may be appointed to assist more than one Minister.
For many years, as was formerly the case with Assistant Ministers, only strictly limited payments could be made to Parliamentary Secretaries because of the constitutional limitations relating to offices of profit under the Crown. These restrictions were circumvented when the Ministers of State Act 1952 was amended in 2000 to increase the number of Ministers appointed to administer a department of State by 12 additional positions, to be designated by the Governor-General as Parliamentary Secretary. Although Parliamentary Secretaries were now technically ‘Ministers of State’ for constitutional purposes, their functions of assisting Ministers inside and outside the House were not changed.
In January 2007 Prime Minister Howard announced the appointment of two senior Parliamentary Secretaries to be designated Assistant Ministers. As far as the procedures of the House were concerned the new Assistant Ministers had exactly the same rights and responsibilities as Parliamentary Secretaries and standing orders were amended to make this clear.
All Ministers receive a salary in addition to their salary and allowance as a Member of Parliament. Ministers are not parliamentary office holders (see page 53) but holders of (ministerial) office under the Crown. Authority is made in the Executive Government provisions (Part II) of the Constitution for salaries to be paid to Ministers of State in the following terms:
There shall be payable to the Queen, out of the Consolidated Revenue Fund of the Commonwealth, for the salaries of the Ministers of State, an annual sum which, until the Parliament otherwise provides, shall not exceed twelve thousand pounds a year.
In addition to determining the number of Ministers (see page 58), the Ministers of State Act appropriates a sum of money, in lieu of the sum stated in the Constitution, for the payment of ministerial salaries.
Increases in ministerial salaries can only be made by amending the Act to increase the annual sum appropriated. However, the manner in which the total appropriated is apportioned is a matter for the Government. The Remuneration Tribunal is required to report to the Government annually on the additional salary payable to Ministers.
The amount of additional salary varies according to each Minister’s level of responsibility, in the following descending scale:
Deputy Prime Minister
Treasurer, Leader of the Government in the Senate
Leader of the House
Other Ministers in Cabinet
Office of profit
The Constitution disqualifies any person who ‘holds any office of profit under the Crown’ from being chosen or sitting as a Member of Parliament. The Constitution goes on to provide that this restriction does not apply ‘to the office of any of the Queen’s Ministers of State for the Commonwealth’ who of necessity sit as Members of Parliament. There is therefore no constitutional inconsistency between this section and the later section which authorises the payment of salaries to Ministers of State.
No exemption exists, and no payment of salary can be authorised, for a Member of Parliament, who is not a Minister, performing the duties of Assistant Minister or similarly termed appointee, whether sworn of the Federal Executive Council or not. To be a Minister, and therefore constitutionally eligible to receive a ministerial salary of office, a Member, by definition, must administer a Department of State of the Commonwealth. Parliamentary Secretaries have been able to receive salaries since they became legally defined as Ministers of State in 2000 (see page 71).
Personal or pecuniary interest and related matters
Declarations of interests
In the House of Representatives the treatment of the personal and pecuniary interests of Members of Parliament is governed by precedent and practice established in accordance with sections 44 and 45 of the Constitution, standing orders 134 and 231 and resolutions of the House. The question of the interests of Ministers is of greater importance than that of other Members, having regard to the paramount place of Ministers in the decision-making process. The question has arisen from time to time in the House of Representatives and, on occasions, the Prime Minister of the day has stated the general understanding which the Ministers in his Government have had in the matter. (For detail on earlier precedents in this area see pages 111–2 of the second edition.)
Ministers are required to make full declarations of their own private interests and those of their immediate families as far as they are aware of them. In 1983 the Hawke Government instigated the practice of periodically tabling copies of Ministers’ statements of their interests, more detailed information including the actual values of such interests being retained by the Prime Minister on a confidential basis.
Following the adoption by the House in 1984 of standing orders and resolutions relating to the registration and declaration of Members’ interests, details of the interests of Ministers from the House of Representatives have been included with those of other Members in the Register of Members’ Interests presented at the commencement of each Parliament.
As well as the requirement for the formal registration of their interests, Ministers attending meetings of the Ministry, Cabinet or Cabinet committees are required to declare any private interests in matters under discussion which conflict or might conflict with their public duty as Ministers. Generally, declarations are required in all cases where an interest exists which could not be said to be shared with the rest of the community. Following such a declaration, which is recorded by Cabinet staff, it is open to the meeting to excuse the Minister from the discussion or to agree to his or her participation. Ministers should advise the Prime Minister if they have any concern about a conflict or potential conflict of interest in any area of their responsibilities. The same requirements apply to Parliamentary Secretaries.
Standards of ministerial ethics
Standards expected of Ministers have been made more explicit in recent years. In June 1995 Speaker Martin, on behalf of an all party working group, presented a draft framework of ethical principles for Members and Senators (see Chapter on ‘Members’) and a draft framework of ethical principles for Ministers and Presiding Officers.
At the commencement of the 38th Parliament in 1996 Prime Minister Howard presented a ministerial guide, which set out practices and principles to be followed by members of his administration. The section of the guide covering ministerial conduct stressed the importance of Ministers avoiding any appearance of using public office for private purposes, and imposed specific prohibitions or restrictions on engaging in professional practice, directorships of and shareholdings in companies, appointments of relatives or associates, and the acceptance of benefits or gifts.
In 2007 newly elected Prime Minister Rudd issued Standards of ministerial ethics to replace the section of his predecessor’s guide covering ministerial conduct. The Standards impose stricter requirements, and included additional restrictions on post-ministerial employment and on contact with lobbyists. The Standards state that Ministers will be required to stand aside if charged with a criminal offence, or if the Prime Minister regards their conduct as constituting a prima facie breach of the Standards. Ministers will be required to resign if convicted of a criminal offence, and may be required to resign if the Prime Minister is satisfied that they have breached or failed to comply with the Standards in a substantive and material manner.
Code of conduct for ministerial staff
In 2008 the Government issued the Code of conduct for ministerial staff, which sets out standards of behaviour expected from ministerial employees employed under the Members of Parliament (Staff) Act 1984, including ministerial advisers, Ministers’ electorate office staff, and consultants. It also covers the relationship between ministerial advisers and public servants.
Register and code of conduct for lobbyists
Since 2008 lobbyists seeking contact with government representatives have been required to be registered on a publicly accessible Register of Lobbyists, and to agree to comply with the Lobbying code of conduct.