The Federation Press

Ministerial Advisers in Australia

The Modern Legal Context

Overview

From their origins in the shadows of Australian public administration, ministerial advisers have been increasingly thrust into the limelight through scandals that appear on the front page of the newspapers. This book traces the rise in the power and significance of Australian ministerial advisers. It shows the fundamental shift of the locus of power from the neutral public service to highly political and partisan ministerial advisers.

The book demonstrates that the introduction of ministerial advisers into the structure of the Executive has led to the erosion of the Australian system of responsible government. This is caused by a failure in the political, legal and managerial accountability frameworks surrounding ministerial advisers.

Ministerial Advisers in Australia is the first comprehensive study of the legal and political regulation of Australian ministerial advisers. This book features material from original interviews with Australian Ministers and Members of Parliament, as well as several former State Premiers.

Reviews

This is a most interesting monograph which considers an important area of uncharted public law; being the legal position of ministerial advisers. As at last 16 October 2015, there were 423 ministerial advisers appointed by Commonwealth Ministers. In general terms they inhabit an area between the Minister and the public service, yet they are neither subject to the obligations of public servants nor the responsibilities of Ministers. They are not referred to in the Constitution. Indeed, they were not part of the political landscape at the time when the Constitution was written. However, despite that they wield substantial power in the operation of government and, to a large extent, they remain unaccountable in a legal sense for their conduct. They are employed under Pt III of the Members of Parliament (Staff) Act 1984 and are paid for out of the public purse.
In her work Dr Ng carefully considers the history of the rise of the position of the ministerial adviser and the expansion of their roles over time. She observes that they are effectively unregulated in a public law sense, being only susceptible to the discipline of their ministers and thereby undermine the role of the public service:
“Ministerial advisers do not fit neatly into the structure of Australian public administration. The system of a neutral, impartial public service recruited and promoted on merit that Australia adopted from the United Kingdom was developed as a reaction against patronage and the inefficiencies that would result from a system of patronage. The emergence of ministerial advisers who are recruited largely on the basis of patronage poses a threat to this system.”
Dr Ng postulates that some regulation of ministerial advisers may occur through the use of judicial review on the basis that their exercise of power can be seen as that of the Minister. That, however, seems to be spectacularly inadequate. They may also be regulated through the Parliament, however, she observes that the main political parties have a substantial degree of self-interest when it comes to controlling such advisers and that attempts to have ministerial advisers appear before Parliamentary Committees has proven to be unsuccessful.
This work, whose author was a winner of the Holt Prize (which is a publishing award named after the late co-founder of The Federation Press) is a fascinating read. It raises legitimate concerns as to the role of ministerial advisers in all areas of government and offers some useful suggestions for reform. - Queensland Law Reporter – 7 October 2016 – [2016] 39 QLR

Table of Contents

Foreword by The Honourable John Cain
Acknowledgments
About the Author

Chapter 1. Introduction

     Accountability Framework
     Executive Regulation in Australia: Accountability as a Constitutional Value
     Chapter Outline

Chapter 2. The Expanding Universe and the Primordial Soup: Ministerial Advisers in a Framework of Australian Public Administration

    History and Roles
    Rise and Influence
    Decline of Public Service Influence
    Ministerial Advisers in the Australian System of Public Administration
            Public Servants and the Australian Constitution
            Ministerial Advisers and Patronage
            Playing the Game of Politics
    The Primordial Soup: The Unconstrained Nature of Ministerial Offices
            Public Servants
            Ministerial Advisers
    The Rise of Ministerial Advisers

Chapter 3. Regulation Through Law

    Statutory Judicial Review under the Administrative Decisions (Judicial Review) Act
           Unauthorised Delegation or Carltona Principle
           Acting under Dictation
           Benefits of the ADJR Act
    Judicial Review under Section 75 of the Constitution
           Purposes of Section 75(v)
           Are Ministerial Advisers ‘Officers of the Commonwealth’?
           Are Ministerial Advisers Covered by Section 75(iii)?
           Remedies
    Obtaining Evidence for Legal Actions against Ministerial Advisers
           Freedom of Information
           Discovery in Litigation
    Conclusion: Legal Regulation of Ministerial Advisers

Chapter 4. Regulation Through Parliament

    History and Role of Parliamentary Committees
    Responsible Government and the Upper House of Parliament
          Is the Executive Responsible to the Upper House of Parliament under the Doctrine of Responsible Government?
          Responsible Government in Reality
    Does Parliament Have the Power to Compel Ministerial Advisers to Appear?
          Ministerial Adviser Immunity
          Public Interest Immunity
    Why Does Parliament Not Use its Powers to Compel Ministerial Advisers to Appear before Parliamentary Committees?
    Is there a Constitutional Convention That Ministerial Advisers Do Not Appear Before Parliamentary Committees?
          Convention by Agreement
          Convention by Precedents
          Reason for Convention
          Public Servants and Parliamentary Committees
    When Should Ministerial Advisers Appear before Parliamentary Committees?
    Recommendations and Reform
          Incorporation of Ministerial Advisers into Integrity Framework
          Judiciary Enforcing Appearances of Witnesses before Parliamentary Committees
          Guidelines for Ministerial Advisers Appearing before Parliamentary Committees
    Conclusion: Ministerial Advisers and Parliamentary Committees

Chapter 5: Conclusion

Bibliography
Appendix A: Interview Questions
Appendix B: List of Interviewees
Index

Of interest...