Oz Politics

Introduction

Whereas the legislature or parliament makes the laws, the executive puts those laws into practice and polices them. The executive branch of government is responsible for the administration of government business.

According to the Australian Constitution (section 61) the “executive power of the Commonwealth is vested in the Queen and exercisable by the Governor-General as the Queen’s representative”. However, under the Westminster conventions of responsible government, the Prime Minister and his or her ministers and parliamentary secretaries effectively exercise the executive powers of the Commonwealth. These ministers are in control of government departments and run the business of government. For all practical purposes, the ministry is the executive branch of government.

The ministry is assisted in its executive role and functions by the public service. Hence, some commentators say that the executive branch of government has two arms:

• a policy-making and political arm, consisting of those elected politicians who are also ministers of state and members of the Federal Executive Council, the most senior of whom sit in Cabinet; and
• a policy implementation and administration arm, permanently staffed by expert, loyal and politically neutral public servants, whose job it is to support the ministers of state.

In this section, we will focus on the policy-making and political arm of executive government and in the next section the role of the Prime Minister as the head of executive government is discussed in more detail. In the following section, we focus on the public service as the policy implementation and administration arm of the executive.

Structure of executive government

A new executive government is formed each time the Governor-General sends for the leader of the majority party or coalition in the House of Representatives to become his chief adviser or Prime Minister. This happens following every general election for the House of Representatives and following the death or resignation of the current Prime Minister, or following a successful vote of “no confidence” in the Prime Minister on the floor of the House of Representatives. (See the section on the reserve powers).

Typically, an incoming Prime Minister would recommend new organisational arrangements for the business of government. This could include the establishment, renaming or abolition of government departments and/or the movement of functions between government departments. These arrangements are approved formally by the Governor-General and then published as the Administrative Arrangements Orders. These orders contain the names of each government department; a brief description of the matters dealt with by each department, and the legislation administered by the minister(s) responsible for each department.

The incoming Prime Minister would then recommend to the Governor-General a number of his parliamentary colleagues to fill the positions in the ministry. All ministers, including the Prime Minister, are created through a two-step process:

• if they are not already members of the Federal Executive Council, they are sworn in as executive councillors under section 62 of the Australian Constitution - this appointment is for life and allows the appointee to be referred to as “the Honourable”, or “the Hon” for short; and
• they are then appointed (with a title such as “Minister for Defence” or “Attorney-General”) to administer or help administer one or more government departments under sections 64 and 65 of the Australian Constitution, the most junior ministers are designated as parliamentary secretaries - this appointment is terminated when the Prime Minister is dismissed or a replacement minister is appointed.

It is the Prime Minister of the day who decides the titles of ministers and their departments. He or she also decides their seniority, those who will be in Cabinet and those who will be in the outer ministry. In this task, the Prime Minister can adopt any organisational arrangements he or she wants subject to the provisions of the Australian Constitution and the Ministers of State Act 1952, which places an upper limit on the number of ministers, currently 42 including 12 parliamentary secretaries.

Before the introduction of parliamentary secretaries in 1980 it was not unusual for governments to include one or two ministers without portfolio (often notionally designated as assistant ministers) who were sworn as executive councillors but who were not appointed to administer a government department as a minister of state. The most surprising example is the last Deakin government (1909-1910), in which Deakin did not hold the office of minister of state. As Prime Minister he was an executive councillor but not responsible for a government department and no executive actions were taken in his name. Deakin chose this arrangement because he wanted to focus on his responsibilities as the leader of the government. However, the constitutionality of Deakin’s approach was questioned at the time and has not been repeated by a Prime Minister since.

Parliamentary secretaries were introduced in 1980 as statutory positions to assist ministers and since 1990 they have also been sworn as executive councillors. Since 2000, parliamentary secretaries have been both sworn as executive councillors and appointed as ministers of state (albeit of a lower rank and status to the other ministers of state). The legality of parliamentary secretaries as ministers who jointly administer government departments was confirmed by the High Court in 2001 (Re Patterson; Ex parte Taylor [2001]). Before the creation of mega-departments in 1987, ministers did not jointly administer any government departments and many constitutional lawyers believed the Australian Constitution implicitly prohibited the joint administration of government departments.

Under the Australian Constitution, every member of the executive branch of government must be a member of parliament. However, the opposite is not true. Most members of parliament are not members of the executive government. In the Commonwealth Parliament, even most members from the party in government are not part of the executive branch of government. The relationship between the executive and legislature in the Commonwealth is modelled in the following diagram.

Prior to 1956, all ministers where members of Cabinet. Since then, with the exception of the Whitlam years between 1972 and 1975, only the more senior ministers have been members of Cabinet. This has proved the more workable arrangement as the size of the ministry has grown from 6 in 1901 to its current size of 42 (including parliamentary secretaries). In practice, Cabinet ministers are usually responsible for government departments. Most Cabinet ministers have one or two junior ministers or parliamentary secretaries who assist them in their portfolio and who are joint administrators of the government department with the senior/Cabinet minister.

When the current Prime Minister is reappointed as the head of a new executive government, we speak of the second or subsequent government. For example, the executive government following the 1998 election was the second Howard government. Following the 2001 election the third Howard government was appointed.

Cabinet

The Cabinet is the engine room of executive government. It is responsible for managing the policy directions and business of the government. Cabinet is chaired by the Prime Minister and operates as a sub-committee of the ministry. Currently, only the 18 most senior ministers are members of Cabinet. The remaining ministers, described as the outer ministry, and the parliamentary secretaries only attend Cabinet meetings when invited.

According to Weller (1990) and Davis (1997), Cabinet functions as

• a clearing house, endorsing routine business, making authoritative choices about new policy issues, legitimating the activities of the public sector;
• an information exchange, letting Ministers know what is happening across government;
• an arbiter, resolving disputes between government agencies and/or Ministers;
• a political decision maker, applying political judgements to bureaucratic advice;
• a coordinator, preventing overlap, duplication and inconsistencies across the range of government activity;
• the guardian of strategy, keeping the ‘big picture’ in front of the government, so that long-term strategic interests are not lost amid disputes over policy detail;
• allocator of resources, developing and monitoring a budget strategy, making major expenditure and savings choices;
• crisis manager, handling difficulties from internal party disputes to major world events, even wars; and
• a watchdog, ensuring individual Ministers and agencies are not making unilateral decisions without government consideration.

Cabinet meetings

Cabinet follows a form of collective decision-making where all ministers assume collective responsibility for their decisions. Cabinet ministers are expected to follow the convention of Cabinet solidarity. Even if a minister disagreed with a majority Cabinet decision in the Cabinet room, that minister is expected to support the decision in public or resign from the ministry. Junior ministers and parliamentary secretaries are expected to honour the convention of Cabinet solidarity in respect of any Cabinet decisions they have participated in.

The Commonwealth Cabinet usually meets at least weekly. It meets more frequently in the lead up to the Federal Budget and at other times of intensive policy development. The Cabinet room, where most Cabinet meetings occur, is deep within the bowels of Parliament House. At each meeting it is not uncommon for ten or more major policy items to be up for discussion. Major policy items are usually set out in Cabinet submissions of around ten pages in length. These submissions are circulated to Cabinet ministers one week prior to Cabinet meetings.

New Cabinet rules were introduced in 2002 to give the Cabinet more time to discuss long-term strategy and matters of political sensitivity. Now, submissions that are not particularly contentious or important are not discussed in Cabinet. They are distributed, and if after ten days no minister has concerns with the recommendations in the submission, a draft Cabinet decision based on the recommendations is prepared. This is circulated and again if no comments are received within 5 days, it is automatically agreed at the next Cabinet meeting. Where there are disagreements with Cabinet submissions that have not been listed for discussion, these can be resolved by having them listed for discussion in Cabinet, or outside of the Cabinet meeting by the Prime Minister in consultation with the affected ministers.

The heads of each government department that might be affected by a Cabinet submission are usually invited to provide “coordination comments” on the submission, which are then included with the submission before it is circulated to Cabinet ministers. Departments also brief their ministers before each Cabinet meeting. With some agenda items, especially in respect of crises or very sensitive political matters, Cabinet will consider a matter without a Cabinet submission.

The format for Cabinet submissions is set out in the Cabinet Handbook. The Prime Minister approves the agenda for each Cabinet meeting, and ministers can only place items on the agenda with the Prime Minister’s agreement. Cabinet meetings also consider a range of minor policy issues including appointments to government bodies, the tabling of government responses to parliamentary reports, the legislation program, and such like. To streamline the Cabinet process, a range of Cabinet sub-committees first deal with some business. For the Commonwealth Cabinet, two of the more important sub-committees are the Expenditure Review Committee and the Parliamentary Business Committee.

The Cabinet Policy Unit, located in the Prime Minister’s office, provides the Prime Minister with advice on issues before the Cabinet and on the strategic policy directions of the government. The head of the Cabinet Policy Unit is the Secretary to Cabinet and the chief note-taker in the Cabinet room.

The Cabinet Secretariat, located in the Department of the Prime Minister and Cabinet, collates and distributes Cabinet papers, organises the second and third note-takers, and notifies the rest of the public service of Cabinet decisions and implementation responsibilities. With the exception of the Secretary of the Department of the Prime Minister and Cabinet and the two official note-takers from the Department of the Prime Minister and Cabinet, public servants do not usually attend Cabinet meetings, although some senior public servants may be called in from time to time to explain the more complex matters.

Cabinet decisions are not normally taken to a vote; rather they are determined by the weight of opinion in the room as perceived by the Secretary to Cabinet (a member of the Prime Minister’s personal staff) and the Prime Minister if necessary. Cabinet decisions are recorded in Cabinet minutes under the signature of the three note-takers. Where there is no disagreement, the decision will mirror the recommendations a minister brought to Cabinet.

Cabinet confidentiality

Cabinet meetings are held in secret and the minutes from Cabinet meetings are confidential. Commonwealth Cabinet minutes are only released to the public after 30 years have elapsed and the Cabinet notebooks, in which Cabinet note-takers record the views of individual ministers, are only released after 50 years. The argument for Cabinet secrecy is that it enables ministers to have a free and frank discussion in private before coming to an agreed view. The Commonwealth’s Cabinet Handbook says,

“Collective responsibility is supported by the strict confidentiality attaching to Cabinet documents and to discussions in the Cabinet Room. Ministry, Cabinet and Cabinet committees are forums in which ministers, while working towards a collective position, are able to discuss proposals and a variety of options and views with complete freedom. The openness and frankness of discussions in the Cabinet Room are protected by the strict observance of this confidentiality.”

Cabinet confidentiality was has its origins in the Privy Councillor’s oath in Britain and the constitutional principle that Cabinet decisions are effectively advice to the monarch; requiring Royal permission for their disclosure. The secrecy provisions of the Privy Councillor’s oath are reflected in Federal Executive Councillor’s oath in the Commonwealth and the Executive Councillor’s oath in the Australian states. In the 1951 Communist Party case, the High Court upheld that the “counsels of the Crown are secret”. Commonwealth Cabinet secrecy is also ensured through a range of legislative provisions including those in the Crimes Act 1914, the Freedom of Information Act 1982, and the Archives Act 1983, to name just a few.

Commonwealth Cabinet documents are only available to public servants on a “need to know” basis. Public servants who work with Cabinet documents need a national security clearance at the “protected” level or higher. They can expect severe sanctions if they are found to have leaked any Cabinet documents.

Leaks of Cabinet documents are usually investigated by the Australian Federal Police, such as the October 1999 leak of the Education Minister’s Cabinet Submission “Proposals for reform in higher education” and the April 2001 leak of the Department of the Prime Minister and Cabinet’s Budget Sensitivities Brief. However, as noted in the television series, Yes Minister, such investigations rarely identify a culprit. This investigatory failure suggests that many (if not most) Cabinet leaks come from Minister’s offices, rather than the bureaucracy.

At a minimum, a calculated hesitation or an overhasty denial is all the skilled politician needs to leak the substance of a Cabinet decision or process to the perceptive journalist, without any obvious breach of the secrecy rules. In the television dramas, House of Cards and To Play the King, the scheming Francis Urquhart regularly achieved this outcome with his signature phrase: “You might well think that; I couldn’t possibly comment.”

The most obvious failure of Cabinet secrecy in recent times has been ex-ministers who publish their memoirs shortly after leaving government. The trend was established in the United Kingdom with Richard Crossman’s three volumes, The Diaries of a Cabinet Minister, published posthumously. Crossman’s diaries portrayed a government run by its bureaucracy and inspired the television series, Yes Minister. The British government sought to stop the publication of Crossman’s diaries in court, arguing that it was a breach of confidence. But the court rejected the ban as a disproportionate restriction upon the freedom of expression. It decided that 10 years or three elections was a sufficient period for the confidential nature of most Cabinet information to lapse.

While many Australian ex-ministers have discussed Cabinet processes and decisions in their memoirs, the most substantial breach of Cabinet secrecy in recent times is Neil Blewett’s, A Cabinet Diary: a personal record of the first Keating government. In contrast with Crossman’s motif of a government run by its bureaucracy, Blewett argued that a troika runs government, comprising the Prime Minister, the Treasurer and the Minister for Finance (and their key advisers). Former troika member, John Dawkins, observed about Blewett’s book,

“Had Michael Keating - the Cabinet Secretary during the period covered by this diary - written this book he would have been charged under Section 70 of the Crimes Act. It appears that former ministers can reveal cabinet secrets while former public servants cannot.” [The Age, 6 November 1999]

Perhaps the most compelling argument against the need for Cabinet secrecy is the practice of the new Welsh Assembly. The First Minister of Wales announced in March 2000 that the minutes of Cabinet meetings would be published on the Internet, as part of the government’s commitment to openness and freedom of information.

The Federal Executive Council

Neither the Prime Minister nor the Cabinet are mentioned in the Australian Constitution. Their roles and functions are assumed as a matter of convention. Some, jokingly, refer to the Australian system of cabinet government as “rule” by a body that has no legal existence. However this ignores the role of the Federal Executive Council in the Commonwealth and the executive council in each of the states.

In the Commonwealth, the legal instrument of the executive arm of government is the Federal Executive Council, established under the Australian Constitution (section 62). The Federal Executive Council provides the legal authority for the Cabinet to undertake and manage the business of government. Its function is to “advise the Governor-General in the government of the Commonwealth”. Under section 63 of the Constitution, the Federal Executive Council is involved whenever the Constitution vests power in the “Governor-General in Council”. In practice, all of the Governor-General’s executive actions are taken in accordance with the advice of the Federal Executive Council. In effect, the Federal Executive Council ratifies the decisions of Cabinet. Functionally, the Federal Executive Council and the executive councils in the states are modelled on the Privy Council in the United Kingdom.

All Commonwealth ministers and parliamentary secretaries are members of the Federal Executive Council. Appointments to the Federal Executive Council are for life; but only those Councillors who are in the current ministry are summonsed to meetings of the Council. Executive Councillors are given the title, “the Honourable”, which is abbreviated in correspondence to “the Hon”. In the past Australian Prime Ministers were also appointed to the Privy Council with the honorary title of “the Right Honourable”. However, Malcolm Fraser was the last Prime Minister to receive this honour. With the full independence of Australia from Britain in 1986, it is doubtful whether future Prime Ministers would be appointed to the Privy Council.

Meetings of the Federal Executive Council (typically weekly) are usually presided at by the Governor-General and attended by two or three ministers or parliamentary secretaries (on a rotating roster basis). Most meetings are held at Government House in Yarralumla, Canberra. Under section 126 of the Constitution, the Governor-General appoints (on advice) one of the Federal Executive Councillors as a Vice-President (there is no President of the Federal Executive Council) who acts as a deputy for the Governor-General in summoning and presiding at Council meetings at which the Governor-General is unable to be present.

The typical business of the Federal Executive Council includes: making proclamations and regulations; making appointments to certain commissions, councils, tribunals, etc.; authorising entry into international treaties; commissioning officers in the Defence Force; and the creation and abolition of government departments.

Conventions of Cabinet government

Under the Westminster conventions of responsible government, there are two critical conventions with which ministers and the ministry are expected to comply:

• individual ministerial responsibility; and
• collective ministerial responsibility.

These conventions are discussed in greater detail in the section on responsible government.

Want to find out more?

• The Federal Government
• The Governor-General
• Available from the website of the Department of the Prime Minister and Cabinet are:
  • Administrative Arrangements Orders;
  • The Ministry List;
  • Cabinet Handbook;
  • Federal Executive Council Handbook;
  • Legislation Handbook;
  • A Guide on Key Elements of Ministerial Responsibility; and
  • Guidance on Caretaker Conventions.
• An example Cabinet Submission on the public record is the leaked 1999 Submission on Higher Education reform, which became an item in evidence to Senate Employment, Workplace Relations and Education Committee. See Appendix Four of the Senate Committee’s September 2001 report Universities in Crisis. It is available here.
• Some interesting High Court case-law reports in respect of the executive government from www.austlii.edu.au and scaleplus.law.gov.au include:
  • FAI Insurance Ltd v Winneke (1982)
  • Lange v Australian Broadcasting Commission (1997)
  • Egan v Willis [1998]
  • Re Patterson; Ex parte Taylor[2001]
  • See also NSW Court of Appeal: Holly v Director of Public Works (1988)
• Cabinet minutes from the Welsh Cabinet are available on the Internet