Minister:…one appointed by (or under the authority of) the sovereign or executive head of government to some high office of state, especially to that of head of an administrative department.
THE MACQUARIE DICTIONARY
Government is traditionally divided into three branches—the legislature, which makes the laws; the executive, which administers the laws; and the judiciary, which hears and determines disputes about the law. The doctrine of the separation of powers, first enunciated by Baron Montesquieu in the 18th century, requires that the three branches of government operate independently of each other. Each branch acts as a check on the others and prevents the undue concentration of power. In some countries, such as the United States, the constitution clearly separates the executive (the President) and legislature (the Congress) by having them elected separately. In many parliamentary systems, such as those of Britain and Australia, the separation is not quite so clear-cut as the members of the executive (the Prime Minister and other ministers) must be drawn from among the members of the legislature (the Parliament). The ministry thus overlaps the boundaries of two branches of government or, as the 19th century English constitutional writer, Walter Bagehot, put it, the ministry is ‘a hyphen which joins, a buckle which fastens, the legislative part of the State to the executive part of the State’. This Senate Brief examines the constitutional provisions and conventions concerning executive government in Australia, outlines the powers accorded ministers in the Senate, and discusses the mechanisms by which ministers are held accountable to the Parliament in general, and the Senate in particular.
Section 61 of the Australian Constitution vests the executive power of the Commonwealth in the Governor-General as the Queen’s representative. In practice, however, the Governor-General acts only on the advice of ministers. The Governor-General appoints ministers to the Executive Council on the nomination of the Prime Minister. Ministers must be members of Parliament.
The Constitution requires that no minister ‘shall hold office for a longer period than three months unless he is or becomes a senator or a member of the House of Representatives’ (section 64). This requirement is the only reference in the Constitution to the practice of responsible or cabinet government, under which the ministry holds office so long as it retains the confidence of the House of Representatives. In practice this means that the Prime Minister is the leader of the party or coalition of parties which holds a majority in that house, and the other ministers are members of that party or coalition nominated by the Prime Minister or selected by the party or coalition.
Not all ministers need be members of cabinet. Except for the period of the Whitlam Labor government from 1972 to 1975, where all twenty-seven ministers were members of cabinet, ministers are normally divided between the inner-ministry (cabinet) and the outer-ministry (non-cabinet). Traditionally the Prime Minister and the Treasurer are members of the House of Representatives. When Senator John Gorton became Prime Minister following his election to the position of leader of the Liberal Party on 9 January 1968 he sought to become a member of the House of Representatives as soon as practicable. He resigned from the Senate on 1 February 1968 and was elected as a member of the House of Representatives on 24 February 1968.
The number of ministers and the maximum amount of funds that can be appropriated to cover their salaries is prescribed, under sections 65 and 66 of the Constitution, by the Ministers of State Act 1952 as amended. A 1987 amendment to that Act provides that the number of ministers shall not exceed thirty. The previous limit of twenty-seven had been set in 1971.
Although there are no constitutional or statutory requirements that any ministers be members of the Senate, all governments since federation have appointed senators to the ministry. In recent decades senators have usually comprised approximately one quarter to one third of the ministry.
All senators are entitled to a basic salary and an electoral allowance. A Senate minister responsible for a portfolio department is entitled to a staffing allocation of between eight and twelve staff including three electorate office staff. Ministers are entitled to additional salaries as decided by the Executive Government, within a total figure prescribed by the Ministers of State Act 1952.