Ken Henry and conspiracy theories
Posted by Ken Parish on Wednesday, November 30, 2011
I paid a visit to Catallaxy earlier today after my Google reader informed me that Rafe Champion had awarded me and Jason Soon something called the HL Mencken Award. Although it’s evidently not intended ironically, I was a bit taken aback given that my last interaction with Rafe involved threatening to sue him for defamation for falsely accusing me of conspiring to secretly alter a blog post about global warming.
In any event that seems to be ancient history now. Rafe even graciously apologised, while I’ve restored his commenting access here at Troppo (a magnanimous impulse I may live to regret next time we host a global warming thread).
While I was over there, I noticed that some of the Catallaxians seem to have a bee in their collective bonnet about the constitutional validity of the Gillard government’s appointment of former Treasury head Ken Henry as a special adviser to the Prime Minister under Constitution s 67. See this post by Sinclair Davidson and this one and this one by Samuel J.
I’m not at all sure why they’re worried about it. Presumably Henry is seen as a class traitor for taking a job with Juliar.
In any event the discussion provoked my interest because I’d never looked closely at s 67 before. Samuel J’s argument appears to be that s 67 should be regarded as a transitional provision whose effect was spent once the first Public Service Act was enacted in 1902. He appears to rest that argument mostly on the introductory words “Until the Parliament otherwise provides, …” . However those words also appear in s 96 (Financial assistance to States) and no-one argues that the Commonwealth no longer enjoys the power to make grants to the States under it. It’s certainly true that section 41 (Right of electors of States) was held to be a transitional provision whose effect was spent once the Commonwealth Parliament met and enacted the first comprehensive electoral legislation to provide for the franchise for federal elections. But that’s essentially because it was clear that that was the Founding Fathers intention.
By contrast, it is abundantly clear that the Founding Fathers did NOT intend s 67 to be a mere transitional provision. See the relevant part of the 1897 Convention Debates starting at page 916. As the ANU publication Public Sector Employment in the Twenty-First Century relevantly observes:



