The Appointment of Ministers from outside of Parliament
| Author | Alysia Blackham,George Williams |
| Date | 01 June 2012 |
| DOI | 10.22145/flr.40.2.6 |
| Published date | 01 June 2012 |
| Subject Matter | Article |
PARLIAMENT
Alysia Blackham and George Williams
ABSTRACT
Members of the executive in Australia and other Westminster nations are traditionally
appointed only from the ranks of parliamentarians, ostensibly to protect the principle
of responsible government. However, there is a growing international trend in nations
such as the United Kingdom for the appointment of ministers from outside of
Parliament. This article examines the extent to which Australia's constitutional system
can accommodate unelected members of a Commonwealth, State or Territory
executive. This question is analysed from the perspective of the principle of
responsible government and the text of Australia's various constitutional documents.
The article also reviews existing practice in comparative jurisdictions and Australian
law and practice in order to determine the form that such appointments might take.
I
INTRODUCTION
Australian Prime Minister Julia Gillard announced in March 2012 that Bob Carr, a
former Premier of New South Wales, would join her Cabinet as Minister for Foreign
Affairs. At the time, Carr did not hold a seat in federal Parliament. Rather, it was
announced that Carr would assume his ministerial position after being selected for a
seat in the Senate via a casual vacancy.1 The Carr appointment was particularly
unusual for Australia: historically, Ministers have been appointed from within the
ranks of parliamentary members, ostensibly to protect the principle of responsible
government.
Carr's appointment reflects a growing international trend for external ministerial
appointments. As the demands placed on governments become more complex, it has
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PhD student, Faculty of Law, University of Cambridge.
Anthony Mason Professor, Scientia Professor and Foundation Director, Gilbert + Tobin
Centre of Public Law, Faculty of Law, University of New South Wales; Australian Research
Council Laureate Fellow; Barrister, New South Wales Bar.
1
Emma Griffiths, 'Gillard's New Ministers Sworn In', ABC News (online), 5 March 2012
Casual
vacancies are filled by the procedure set out in s 15 of the Australian Constitution.
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Federal Law Review
Volume 40
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become increasingly desirable for Ministers to have specific and technocratic
expertise.2 Selecting Ministers from the pool of people who are not currently members
of Parliament is one means of enabling governments to draw on this expertise.3 The
need for additional expertise is also a result of the rising number of career politicians:4
as a consequence, technical expertise can be lacking from the narrow talent pool from
which Ministers are traditionally drawn.5 In addition, the appointment of external
Ministers can reflect the politicisation of the public service and a demise in the idea of
the independent career public servant as an expert advisor.6
Places such as the United Kingdom (UK), Scotland and Canada have recognised the
role that Ministers appointed from outside Parliament can play. On the other hand,
Australian academic discussion and public commentary has remained relatively silent
on the issue. While it has been suggested that the Commonwealth or the States should
permit the appointment of external Ministers,7 there has been only limited
consideration of whether appointing Ministers from outside Parliament would
enhance existing governance processes in Australia and improve the ability of
governments to respond to contemporary challenges. Further, there has been little
consideration of whether or how this practice could be adopted in Australia. Following
the Carr appointment, the issue warrants more detailed consideration in the Australian
context.
We do not seek in this article to draw final conclusions as to whether appointing
Ministers not elected to Parliament is a desirable practice. However, given the many
challenges facing modern government and overseas experience with the practice, we
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2
Ben Yong and Robert Hazell, Putting Goats Amongst the Wolves: Appointing Ministers from
Outside Parliament (University College London, 2011) 7; Lord Turnbull quoted in Public
Administration Select Committee, Goats and Tsars: Ministerial and Other Appointments from
Outside Parliament, House of Commons Paper No 330, Session 2009–10 (2010) Ev 1; Sir John
Major quoted in Public Administration Select Committee, Goats and Tsars, above n 2, Ev 36.
3
R J L Hawke, The Resolution of Conflict, Boyer Lectures (Australian Broadcasting
Commission, 1979) 23; Yong and Hazell, above n 2, 14; Public Administration Select
Committee, Goats and Tsars, above n 2, 13–14.
4
Bruce Hawker, 'The Problems of Political and Parliamentary Leadership' (2008) 23(2)
Australasian Parliamentary Review 3, 4; Sarah Miskin and Martin Lumb, 'The 41st Parliament:
Middle-aged, Well Educated and (Mostly) Male' (Research Note No 24, Parliamentary
Library, Parliament of Australia, 2006); Parliamentary Library, Parliament of Australia,
Handbook of the 42nd Commonwealth Parliament (2008) 270; Yong and Hazell, above n 2, 9, 14;
Public Administration Select Committee, Goats and Tsars, above n 2, 11–12; Professor King
quoted in Public Administration Select Committee, Goats and Tsars, above n 2, Ev 2; Patrick
Weller and Michelle Grattan, Can Ministers Cope: Australian Federal Ministers at Work
(Hutchinson of Australia, 1981) 34.
5
Miskin and Lumb, above n 4; Yong and Hazell, above n 2, 9, 14; Public Administration
Select Committee, Goats and Tsars, above n 2, 9–10; Powell quoted in Public Administration
Select Committee, Goats and Tsars, above n 2, Ev 1; Sir John Major quoted in Public
Administration Select Committee, Goats and Tsars, above n 2, Ev 30.
6
R A W Rhodes, John Wanna and Patrick Weller, 'Reinventing Westminster: How Public
Executives Reframe their World' (2008) 36 Policy and Politics 461, 464–5; Centre for Policy
and Development Systems, The Growing Case for a Professional Public Service (14 July 2001)
7
See, eg, Hawke, above n 3; Hawker, above n 4.
2012
Appointment of Ministers From Outside of Parliament
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do accept that appointing external Ministers is an idea with promise worthy of further
consideration and experimentation in Australia. Our focus is upon the extent to which
Australia's constitutional system can accommodate unelected members of a
Commonwealth, State or Territory executive. We analyse this question from the
perspective of the principle of responsible government and the text of Australia's
various constitutional documents. We also review existing practice in comparative
jurisdictions and Australian law and practice in order to determine the form that such
appointments might take.
II
THEORY AND PRACTICE OF EXTERNAL MINISTERIAL
APPOINTMENTS
A
Responsible Government
I
Defining responsible Government
Responsible government is a key tenet of the Westminster system.8 The classic theory
of responsible government states that the executive should be ‘chosen by, is
answerable to, and may be removed by’ a popularly elected Parliament.9 The concept
establishes a line of accountability from the people (who elect Members of Parliament)
to the executive (which holds office so long as it retains the confidence of
Parliament).10 The effect of responsible government is that the 'actual government of
the State is conducted by officers who enjoy the confidence of the people.'11 Ministers
should thus hold office 'at the pleasure' of the lower house of Parliament and should be
answerable to Parliament for their actions and those of their departments.12
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8
R S Parker, 'Responsible Government in Australia' in Patrick Weller and Dean Jaensch
(eds), Responsible Government in Australia (Drummond, 1980) 12, 19. Cf R A W Rhodes,
'Australia: The Westminster Model as Tradition' in H Patapan, J Wanna and P Weller (eds),
Westminster Legacies: Democracy and Responsible Government in Asia and the Pacific (UNSW
Press, 2005) 129, 150.
9
David Hamer, Can Responsible Government Survive in Australia? (Department of the Senate,
2004) xvii.
10 A H Birch, Representative and Responsible Government: An Essay on the British Constitution
(George Allen & Unwin, 1964) 20; Brian Galligan, 'Parliamentary Responsible Government
and the Protection of Rights' (1993) 4 Public Law Review 100, 103; Christos Mantziaris, 'The
Executive – A Common Law Understanding of Legal Form and Responsibility' in Robert
French, Geoffrey Lindell and Cheryl Saunders (eds), Reflections on the Australian
Constitution (The Federation Press, 2003) 126, 132; Parker, above n 8, 12; Marian Simms,
'Models of Political Accountability and Concepts of Australian Government' (1999) 58
Australian Journal of Public Administration 34, 34. See also Hamer, above n 9, 6.
11 Sir Samuel Griffith, Notes on Australian Federation: Its Nature and Probable Effects: A Paper
Presented to the Government of Queensland (University of Sydney Library, 2001) 19. See also
Lange v
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