The triumph of convention over law: ministerial advisers in the Australian system of responsible Government

2017-01-23T21:54:03Z (GMT) by Ng, Yee-Fui
The structure of the Executive has fundamentally changed in the last 30 years. Ministerial advisers have become major institutional actors within the Executive, interposed between Ministers and public servants. The number of ministerial advisers has expanded exponentially, and they exercise increasingly strong influence within the Executive. There has been a shift of the locus of power from public servants to ministerial advisers. Ministerial advisers are now a permanent and durable part of the Executive. Ministerial advisers are increasingly involved in scandals that appear on the front page of the newspapers. Compared to the strict hierarchy of the public service that creates predictable outcomes, ministerial offices operate like a primordial soup, in a fluid and unconstrained manner, with ministerial advisers taking up roles and responsibilities on an ad hoc basis with limited regulation. This thesis argues that this is a symptom of broader systemic failure, rather than failings at an individual level. This thesis utilises an empirical and doctrinal methodology to analyse the legal and political accountability of ministerial advisers within the Australian framework of responsible government. It is posited that constitutional and administrative law are not the best avenues to enhance the accountability of ministerial advisers. Although ministerial advisers post-date the Constitution, this thesis shows that the appropriation of the salaries of ministerial advisers is constitutional. Administrative law is an effective avenue of redress for individuals aggrieved by the actions of ministerial advisers, but only covers a small proportion of their actions. Thus, administrative law provides only a partial method of enhancing the accountability of ministerial advisers. This thesis argues that the most effective resolution of this issue lies at the parliamentary level. It is primarily through parliamentary committees that ministerial advisers and Ministers can be properly held to account. This thesis shows that, contrary to the assertions of former Prime Minister John Howard and former Victorian Attorney-General Rob Hulls, there is no constitutional convention at the Commonwealth and Victorian levels that ministerial advisers do not appear before parliamentary committees. It is argued that responsible government means that ministerial advisers should appear before parliamentary committees where it facilitates the accountability of Ministers.