Ken Henry and conspiracy theories

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:

The earliest appointments to the APS, apart from those State public servants transferred to the national government under the Australian Constitution when the Commonwealth was formed on 1 January 1901, were made under s 67 of the Australian Constitution:

Section 67 is still occasionally used, but it was not very long before the inaugural government of the Commonwealth introduced a Public Service Bill which was adopted in 1902. It was overtaken by another Act in 1922. As already noted, Australia’s third and latest Public Service Act dates from 1999 …

Samuel J attempts to enlist s 6 of the Public Service Act 1999 to support his argument.  It relevantly reads:

(1)  All persons engaged on behalf of the Commonwealth as employees to perform functions in a Department or Executive Agency must be engaged under this Act, or under the authority of another Act.

             (2)  Subsection (1) does not apply to:

                     (a)  persons engaged on an honorary basis; or

                     (b)  persons engaged to perform services in the Australian Secret Intelligence Servic

Samuel J argues:

Well the Parliament has otherwise provided, firstly with the Public Service Act 1922 and presently with the Public Service Act 1999.

However the problem with that argument is that on its face s 6 does not purport to provide exhaustively for the appointment of all officers of the Executive Government.  It only provides for those employed “to perform functions in a Department or Executive Agency“.  Manifestly that doesn’t include someone like Dr Henry who is being employed to work directly for the Prime Minister and not within any Department or Agency.

You would normally have expected someone in Dr Henry’s position to have been employed as a Ministerial Consultant under Part II of the Members of Parliament (Staff) Act 1984.  However, s 4 of that Act simply provides that a Minister “may” engage consultants under it.  It does not oblige a Minister to do so (in contrast to the situation with people being employed to work within a Department or Agency).  I don’t know why the government chose to rely on its constitutional power under s 67 to employ Dr Henry rather than employ him under the Members of Parliament (Staff) Act 1984.  If I was to take a guess, I suspect it has something to do with superannuation implications, which might have been adverse had Dr Henry been employed under the Members of Parliament (Staff) Act 1984.

Whatever the specific reason, there is no basis for concluding that it is something sinister, nor for a persuasive argument that appointment under Constitution s 67 is constitutionally invalid.  The High Court would be most unlikely to accept an argument that the multifarious Acts of Parliament authorising the employment of officers of the Executive Government in various capacities somehow together impliedly manifest an intention to cover the field exhaustively such that the direct constitutional executive power of appointment by the Governor-General in Council should be regarded as spent.

Refugee advocates mounted a somewhat similar argument  during the Tampa crisis in 2001. They argued that the Migration Act should be regarded as an exhaustive code regulating immigration, such that the previous constitutional/prerogative executive power to deal with aliens should be regarded as spent or in abeyance.  Refugee advocates argued that the Migration Act should be held to be an exhaustive code governing immigration.  It did not provide a power to refuse entry and send the Tampa asylum seekers to Nauru, and therefore no such power existed.  The Full Court of the Federal Court rejected the argument in Ruddock v Vadarlis and the High Court refused leave to appeal.  French J (as he then was – now Chief Justice of Australia) held:

The executive power can be abrogated, modified or regulated by laws of the Commonwealth. Its common law ancestor, the Royal Prerogative, was similarly subject to abrogation, modification or regulation by statute. …

The question is whether the Act operates to abrogate the executive power under s 61 to prevent aliens from entering into Australia. There are no express words to that effect. It is necessary then to look to whether by implication it has that effect. It is not necessary for this purpose either to determine the full extent of the executive power or the full effect of the Act upon it. It is sufficient to ask whether the Act evinces a clear and unambiguous intention to deprive the Executive of the power to prevent entry into Australian territorial waters of a vessel carrying non-citizens apparently intending to land on Australian territory and the power to prevent such a vessel from proceeding further towards Australian territory and to prevent non-citizens on it from landing upon Australian territory.

In considering what is the implied intention of the Act and in particular the provisions referred to earlier, it is necessary to have regard not only to the general approach, supported by authority, to the question whether executive power is taken to be abrogated by statute, but also the importance to national sovereignty of the particular power in question. In my opinion the Act, by its creation of facultative provisions, which may yield a like result to the exercise of executive power, in this particular application of it cannot be taken as intending to deprive the Executive of the power necessary to do what it has done in this case. The Act confers power. It does not in the specific area evidence an intention to take it away. …

It is no more likely that the High Court would decide that legislation governing public sector employment somehow impliedly manifests an intention to abrogate executive power conferred on the Governor-General by the Constitution itself.