08 November 2012


'The Appointment of Ministers from Outside of Parliament' by Alysia Blackham & George Williams in 40(2) Federal Law Review (2012) 253-285 notes that
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.
The authors conclude -
External ministerial appointments have the potential to bring desirable specialist expertise into Australian governments and to help forge stronger linkages between government and sectors such as business. As governmental responsibilities continue to increase in diversity and complexity, external Ministers with specific expertise are likely to become more attractive, as demonstrated by the appointment of Bob Carr from outside Parliament as Australia's Minister for Foreign Affairs.
While Australian governments have only limited experience in appointing external Ministers, this may be attributable to the absence of any urgent need for reform and legal and political uncertainty surrounding such appointments. In relation to the legal questions, it is clear that ministerial appointments from outside Parliament are constitutionally possible in the States and Territories, at most requiring legislative amendment to effect the necessary changes. Even at the federal level, despite the provisions of s 64, it is possible to appoint external Ministers via a Senate casual vacancy, as occurred with Carr's appointment.
While there are few insuperable constitutional limitations to the appointment of external Ministers, it is essential that such appointments are made in a strategic and principled manner. Comparative experience in the UK, Scotland and Canada demonstrates that external ministerial appointments can be politically and practically challenging and are not always well received by the electorate. Further, external Ministers can pose significant challenges to long held conventions of responsible government. Drawing on these comparative experiences, we propose a model of external ministerial appointments that builds upon existing appointment and termination processes for Ministers and includes specific accountability measures to ensure the responsibility of external Ministers to Parliament and compliance with ministerial codes of conduct. We also propose that the number of external Ministers be capped to ensure that they do not compromise Australia's representative system of government.
This model would allow external ministerial appointments within a framework of responsible government. It reflects a recognition that understandings of responsible government must evolve to fit contemporary circumstances. As governments internationally continue to experiment with new ways of improving governance, so too can Australia play a role in these debates through trialling new models and processes for the appointment of Ministers from outside of Parliament.