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2022
THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA
HOUSE OF REPRESENTATIVES
MINISTERS OF STATE AMENDMENT BILL 2022
EXPLANATORY MEMORANDUM
(Circulated by authority of the Prime Minister, the Hon Anthony Albanese MP)
MINISTERS OF STATE AMENDMENT BILL 2022
GENERAL OUTLINE
Between March 2020 and May 2021, the then Prime Minister, the Hon Scott Morrison MP,
was appointed by the Governor-General to administer five portfolios, in addition to his
appointment to administer the Department of the Prime Minister and Cabinet. This
information was only made public through media reports in mid-August 2022.
The Government referred this matter to the Solicitor-General, Dr Stephen Donaghue KC, for
examination. On 22 August 2022, the Solicitor-General's advice was made public. It noted
that the principles of responsible government were fundamentally undermined by the actions
of the former Prime Minister Morrison.
On 26 August 2022, the Prime Minister, the Hon Anthony Albanese MP, and the
Attorney-General, the Hon Mark Dreyfus KC MP, announced the establishment of an
Inquiry into the Appointment of the Former Prime Minister to Administer Multiple
Departments, led by former High Court Justice, the Hon Virginia Bell AC.
The purpose of the Inquiry was to examine and report on the facts and circumstances
surrounding the former Prime Minister's appointments and implications arising from them.
It also examined the practices and policies which apply to ministerial appointments and
recommended procedural or legislative changes to provide greater transparency and
accountability. The final Report was provided to the Government on 25 November 2022.
The Ministers of State Amendment Bill 2022 forms part of the Government's response to
this Inquiry. The Bill amends the Ministers of State Act 1952 to provide for greater
transparency and accountability at the Commonwealth level of Australia's system of
government by ensuring the Australian people are able to access information in relation to
the composition of the Federal Executive Council, those who have been appointed to
administer which Departments of State, and the offices that Ministers of State hold.
Specifically, the Bill amends the Ministers of State Act 1952 to provide that the Official
Secretary to the Governor-General must publish by notifiable instrument, registered on the
Federal Register of Legislation, as soon as reasonably practicable, advising that the
Governor-General has:
• chosen, summoned and sworn an Executive Councillor to the Federal Executive
Council under section 62 of the Constitution, and any related revocation;
• appointed an officer to administer a Department of State under section 64 of the
Constitution, and any related revocation;
• directed a Minister of State to hold an office under section 65 of the Constitution, and
any related revocation.
The Bill also requires the notifiable instrument to specify the name of the relevant Executive
Councillor, officer and the department of State of the Commonwealth, Minister of State and
the office, and the date of effect. The notifiable instrument may comprise a copy of a
relevant instrument made by the Governor-General.
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FINANCIAL IMPACT
The Bill has no financial impact.
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STATEMENT OF COMPATIBILITY WITH HUMAN RIGHTS
Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011
Ministers of State Amendment Bill 2022
The Ministers of State Amendment Bill 2022 (the Bill) is compatible with the human rights
and freedoms recognised or declared in the international instruments listed in section 3 of the
Human Rights (Parliamentary Scrutiny) Act 2011.
Overview of the Bill
The Bill will amend the Ministers of State Act 1952 (the Act) to provide that the Official
Secretary to the Governor-General must publish by notifiable instrument, registered on the
Federal Register of Legislation, as soon as reasonably practicable, advising that the
Governor-General has: chosen summoned and sworn an Executive Councillor to the Federal
Executive Council; appointed an officer to administer a Department of State of the
Commonwealth; directed a Minister of State to hold an office, as well as any revocation of
these positions.
The notifiable instrument is required to include the name of the person, the name of the
Department of State (where appropriate) and the date that they were sworn, appointed and/or
directed; or the name, the name of the former office and the date that such membership,
appointment and/or direction was revoked. The notifiable instrument may also comprise a
copy of an instrument made by the Governor-General. The Bill makes clear that failure to
publish the notifiable instrument does not affect the validity of the decisions of the
Governor-General.
Human rights implications
This Bill engages the right to take part in public affairs in Article 25(a) and the right to
freedom of expression in Article 19(2) of the International Covenant on Civil and Political
Rights (ICCPR), in so far as that article includes freedom to seek, receive and impart
information.
Right to take part in public affairs
Article 25 of the ICCPR provides that:
Every citizen shall have the right and the opportunity, without any of the distinctions
mentioned in article 2 and without unreasonable restrictions:
a. To take part in the conduct of public affairs, directly or through freely chosen
representatives;
b. To vote and to be elected at genuine periodic elections which shall be by universal
and equal suffrage and shall be held by secret ballot, guaranteeing the free
expression of the will of the electors;
c. To have access, on general terms of equality, to public service in his country.
Schedule 1 of the Bill engages with, but does not alter or affect, the usual practices and
conventions by which a Governor-General exercises their powers, or the right of elected
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representatives to be sworn-in as an Executive Councillor of the Federal Executive Council
under section 62 of the Constitution, to be appointed an officer to administer a Department of
State under section 64 of the Constitution, or be directed, as a Minister of State, to hold an
office under section 65 of the Constitution.
Section 65 of the Constitution provides that Ministers of State shall hold office during the
pleasure of the Governor-General. Revocation of these positions can, therefore, be
undertaken by the Governor-General. The Bill does not confer additional powers on the
Governor-General, other than those provided for under the Constitution, to appoint or revoke
Executive Councillors or Ministers of State, or to appoint Ministers of State to administer
certain Departments of State.
While the Bill inserts amendments to require the Official Secretary to the Governor-General
to publish the aforementioned decisions of the Governor-General, the Bill makes it clear that
failure to do so does not affect the validity of the Governor-General's decisions. The Bill,
therefore, does not impact on the ability of, or powers conferred on or revoked from, elected
representatives in taking part in public affairs in specific roles even if public publication of
the notifiable instruments does not occur.
Freedom of expression
Article 19 of the ICCPR provides that:
1. Everyone shall have the right to hold opinions without interference.
2. Everyone shall have the right to freedom of expression; this right shall include freedom to
seek, receive and impart information and ideas of all kinds, regardless of frontiers, either
orally, in writing or in print, in the form of art, or through any other media of his choice.
3. The exercise of the rights provided for in paragraph 2 of this article carries with it special
duties and responsibilities. It may therefore be subject to certain restrictions, but these
shall only be such as are provided by law and are necessary:
(a) For respect of the rights or reputations of others;
(b) For the protection of national security or of public order, or of public health or morals.
The Bill will provide greater transparency and accountability at the Commonwealth-level of
Australia's system of government by ensuring that citizens are able to access information in
relation to the composition of the Federal Executive Council, those who have been appointed
to administer certain Departments of State, and the offices that Ministers of State hold. The
Bill will also provide for public access of specific information in relation to the appointments
and/or revocation, as well as possible copies of any instruments made by the
Governor-General.
Conclusion
The Bill is compatible with human rights; it supports the right of citizens to take part in
public affairs per Article 25(a) of the ICCPR, and strengthens citizens' right to freedom of
expression, including the freedom to seek, receive and impart information, as provided for in
Article 19(2) of the ICCPR.
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NOTES ON CLAUSES
Preliminary
Clause 1 - Short title
This clause sets out the short title for the Bill upon its enactment by the Parliament- that is
the Ministers of State Amendment Act 2022.
Clause 2 - Commencement
Clause 2 sets out the commencement dates of the Bill upon its enactment.
The proposed amendments in the whole of the Act are to commence the day after it receives
the Royal Assent.
Clause 3 - Schedules
This clause provides that each Act that is specified in a Schedule is amended or repealed as
set out in that Schedule, and any other item in a Schedule has effect according to its terms.
Schedule 1 - Amendments
Introduction
Schedule 1 inserts three sections into the Act (sections 5, 6, and 6A) to require that decisions
by the Governor-General in relation to the swearing of an Executive Councillor (section 5),
the appointment of an officer to administer a Department of State of the Commonwealth
(section 6), the direction to a Minister of State to hold an office (section 6A), and revocation
of these positions, must be published by notifiable instrument, registered on the Federal
Register of Legislation, by the Official Secretary to the Governor-General as soon as
reasonably practicable.
The Legislation Act 2003 establishes the category of Commonwealth legislation and related
notices called 'notifiable instrument'. Notifiable instruments are for notices of a legal nature
that are not legislative but still of long-term public interest and registered on the Federal
Register of Legislation, which is publicly accessible.
The new sections 5, 6 and 6A also stipulate that the notifiable instrument must specify the
name of the person, the name of the Department of State (where appropriate) and the date
that they were sworn, appointed and/or directed; or the name of the person, the name of the
former office, and the date that such membership, appointment and/or direction was revoked.
The sections also provide that the notifiable instrument may include a copy of any instrument
made by the Governor-General in relation to these decisions. It is also made clear that the
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validity of the Governor-General's decisions is not affected by any failure to comply with
these requirements.
This Schedule will commence on the day after this Act receives the Royal Assent.
Schedule 1 - Amendment of the Ministers of State Act 1952
Item 1 amends the title of the Act to indicate that it provides for matters relating to Ministers
of State and Executive Councillors, and for related purposes. Previously the title reflected
that the Ministers of State Act only determined the number of Ministers of State. However,
after the commencement of the Ministers of State Amendment Act 2022, the Ministers of
State Act will cover other requirements for Ministers of State and Executive Councillors of
the Federal Executive Council.
Item 2 inserts provisions into the Ministers of State Act to require the Official Secretary to
the Governor-General to publish by notifiable instrument, as soon as reasonably practicable,
when the Governor-General undertakes any of the following:
• Section 5 - The choosing, summoning and swearing of an Executive Councillor as a
member of the Federal Executive Council, under section 62 of the Constitution.
• Section 6 - Appointment of an officer to administer a Department of State of the
Commonwealth, under section 64 of the Constitution.
• Section 6A - The Direction that a Minister of State hold an office under section 65 of
the Constitution.
• The revocation of membership of the Executive Council, an appointment to
administer a Department of State, and a direction to a Minister of State to hold an
office.
There are additional requirements outlined in each section (5, 6, and 6A) which require the
inclusion in the notifiable instrument:
• The name of the person, the name of the Department of State (where appropriate) and
the date that they were sworn, appointed and/or directed.
• The name of the person, the name of the former office, and the date that such
membership, appointment and/or direction was revoked.
In addition, each section (5, 6, and 6A) provides that the notifiable instrument may comprise
a copy of the relevant instrument made by the Governor-General.
Item 3 makes it clear that Sections 5, 6 and 6A of the Ministers of State Act 1952, as inserted
by this Schedule, apply in relation to an exercise of power by the Governor-General that takes
place after the commencement of the Act (which is the day after it receives the Royal
Assent).
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