Ministerial Advisers in Australia The Modern Legal Context

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.

CONTENTSForeword by The Honourable John CainAcknowledgmentsAbout 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: ConclusionBibliography Appendix A: Interview QuestionsAppendix B: List of Interviewees IndexCONTENTSForeword by The Honourable John CainAcknowledgmentsAbout 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: ConclusionBibliography Appendix A: Interview QuestionsAppendix B: List of Interviewees Index

Yee-Fui researches in the areas of political integrity and the law, as well as the interaction between public law and politics. She is particularly interested in the influences on the contemporary Executive, such as ministerial advisers, the media and lobby groups, which has led to reactive government decision-making and policy-making. She has conducted commissioned research in multidisciplinary teams on local government democracy and the regulation of political lobbying. Yee-Fui was awarded the Monash Silver Jubilee Postgraduate Research Scholarship, as the highest ranking PhD applicant in the University, as well as the Monash Postgraduate Law Dean's Award, as the top-ranking PhD applicant in the Monash Law Faculty. Dr Ng is a Victorian Convenor of the Electoral Regulation Research Network. She has previously worked as a Policy Adviser at the Department of the Prime Minister and Cabinet, a Senior Legal Adviser at the Victorian Department of Premier and Cabinet, as well as a Manager at the Victorian Department of Justice. Yee-Fui has also practised as a solicitor at top tier law firms in Melbourne, London and Canberra. She has researched and taught at the Australian National University and Monash University.