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:

Until the Parliament otherwise provides, the appointment and removal of all other officers of the Executive Government of the Commonwealth shall be vested in the Governor-General in Council, unless the appointment is delegated by the Governor-General in Council or by the law of the Commonwealth to some other authority.

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.

About Ken Parish

Ken Parish is a legal academic, with research areas in public law (constitutional and administrative law), civil procedure and teaching & learning theory and practice. He has been a legal academic for almost 20 years. Before that he ran a legal practice in Darwin for 15 years and was a Member of the NT Legislative Assembly for almost 4 years in the early 1990s.
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16 Responses to Ken Henry and conspiracy theories

  1. Tom N. says:

    RAFE’S WIND-UP

    I have mixed feelings about Rafe’s readmission to Troppo. Free speech is (mostly) fine, but Troppo is Ken’s private property and, as an avid though often time constrained reader, I for one appreciate the maintenance of its standards.

    In this respect, Catallaxy is certainly a much better fit for Rafe’s long-winded Hayek and Mises eulogies, as it is for his simpistic rants on AGW; and while his “gracious” apology to Ken on Catallaxy sounds promising, some other recent ungracious remarks towards others – including dual HL Mencken medalist, Jason Soon – on other Cat threads makes one wonder how genuine the new cute-and-cuddly version of Rafe is. Still, at least over at Catallaxy Rafe doesn’t lower the tone, given its starting depths.

    Here at Troppo though, we tend to attract a more civil class of contributor, and simplistic arguments from talking point peddlers tend not to clog our comments threads. One concern in this respect is that, if a climate change thread gets going, Rafe will indeed clutter it, with links to facile pieces by Andrew Bolt, Jo Nova or, indeed, Lord Mockton, which Rafe will assure us proves that the entire body of science supporting AGW is part of a left wing alarmist conspiracy. In this respect, and to forewarn Troppists unaware of Rafe’s knowledge and credibility on AGW matters, it is worth mentioning a recent admission of his over at The Cat. Without a hint of intentional irony he wrote:

    Maybe I am biased because meeting him [Monckton] and watching his performance at the Press Club marked a turning point in my perception of the [AGW] issues which previously I had put in the too hard basket.

    That said, it would be churlish not to recognise that, even though he may be going a tad emeritus of late, Rafe does at least add some colour and interest to the odd debate. Given that he’s now been given back the keys to Troppo (and I may be partly responsible since I recently questioned why he’d been excluded), let’s hope he can recalibrate his contributions from the dross he’s been serving up over at The Cat to something more worthy of this club.

  2. Samuel J says:

    Ken – if you read my post on the section 67 appointment I have never criticised Ken Henry personally, except him accepting the appointment and taking a job with NAB. That aside, I have no problems with Ken taking a job as a special adviser with the Government. He is a fine public servant who has served several governments with distinction.

    My point is the misuse of section 67 which I think the Parliament has decided otherwise should not be used.

    Ken Henry could have been appointed under the public service act or under the members of parliament (staff) act. As far as I’m aware, there is no difference to the public service superannuation treatment under the latter act than under the former act. Many people who are full time public servants take leave without pay from the public service and get appointed under the MOPS Act. They keep their leave entitlements, they keep their superannuation entitlements etc. The only difference is the level of partisan activity allowed under the PSA.

  3. Patrick says:

    I’m pretty sure of at least two things:
    1) It takes two to tango
    2) Rafe is far from being the biggest problem!!

    Great post Ken; you do love your obscure Constitutional issues ;)

  4. Sancho says:

    “Founding Fathers”?

    Apart from being a gross Americanism, that’s not representative of Australia’s national origin, which was a dull administrative affair conducted by civil servants.

  5. Ken Parish says:

    The expression “Founding Fathers” and “Founders” has long been used to describe the delegates to Australia’s Constitutional Conventions of the 1890s. It certainly has an American derivation, but so what?

    As for “a dull administrative affair conducted by civil servants”, in fact the delegates were colonial politicians, lawyers, doctors, businessmen, graziers etc as well as some public servants i.e. the community leaders of those times. None of them were women, however, which makes Helen Irving’s article below something of a stretch.

    IMO the history of Australia’s Federation movement (and the lives of many of the leading actors) is fascinating and should be made into a TV doco series. I would argue that the reason why people like Sancho have such a disparaging view of our history is that few of us explore it and our culture does not celebrate it. Most of us know much more about American history because the pricks never stop inflicting TV docos about it on us. Mind you, most of them are great and well worth watching. Why can’t we do the same?

    J A La Nauze, The Making of the Australian Constitution, Melbourne, 1972.

    J A La Nauze, “Who are the Fathers?” (1968) 13 Historical Studies 333.

    L F Crisp, Federation Fathers, Melbourne, 1990.

    Helen Irving, “Who are the Founding Mothers?”, Papers on Parliament, Canberra (Department of the Senate), No 1 1995.

    J Quick & R R Garran, Annotated Constitution of the Australian Commonwealth, (1901) reprinted Legal Books, Sydney, 1976.

    The New Federalist: The Journal of Australian History, No 1, June 1998 (a range of articles on the 1897 Federal Convention).

  6. aidan says:

    Just popped into a Catallaxy comment thread. Wow am I glad they have somewhere to go and share their wild-eyed raving.

  7. Patrick says:

    Isn’t the Australian Constitution itself largely US derived?

  8. Richard Tsukamasa Green says:

    Remember Ken that real history involves killers, professional killers and the commanders of professional killers and a great deal of killing. People that manage to create great deals of political change without killing are oh so boring. Why else would a fairly event with fairly little ramifications like Eureka get so much more attention than Federation?

    Patrick – Far less than the Consitution Act of 1867 which provided the basis for another British federal dominion – Canada. The influence of the US constitution was limited mainly to how states would figure in the federal parliament, and even then the Senate was more radical than influenced by anyone given the US and Canadian senates were explicitly non democratic (US senators were appointed until a constitutional amendment in 1913) and the Lords was aristocratic. Even the state LCs all had property qualifications. The entire point of bicameralism up to that point was a bulwark against democracy.

  9. john says:

    Patrick
    Australia and NZ were the first countries in the world to have universal suffrage.

  10. Patrick says:

    John: did you post that in the wrong place?
    RTG: I think you have underestimated the influence of the US Constitution. Ken can hopefully opine on this from his own experience to save me refreshing my memory. But for example, did you know that Australia has an ‘establishment clause’ (freedom of religion) and a ‘commerce clause’ (the subject of the Obamacare litigation)?

  11. john says:

    No , there are heaps of examples of how Australia was anything but a timid follower of UK and US conventions

  12. Patrick says:

    Certainly, John, we also looked at Switzerland for example, and there was much debate of our own requirements and the value of those countries’ experiences.

    But we were pretty heavily influenced by the US example, we would have been stupid not to have been.

  13. Ken Parish says:

    Yes, Australia’s Constitution has very strong US influences. It’s commonly referred to as a “Washminster” constitution because it combines key features of the Westminster system (responsible government) with much of the structure and adaptations of quite a few of the actual sections of the US Constitution. Andrew Inglis Clark was an overt admirer of the US system and the first draft of Australia’s Constitution was essentially his. Sir Samuel Griffith redrafted the Commonwealth’s legislative powers provisions in sections 51 and 52, and basically did a mix and match copy and paste combination of provisions from the US Constitution and the British North America Act (Canadian Constitution).

    You can readily spot the influences of both the US and Canadian Constitutions throughout our Constitution e.g. the influence of US Article III on Aus Chapter III (Judicature) and US Article IV (States) on Aus Chapter V. Apart from s51 you can’t say Australia’s Constitution is a mere copy and paste job but the influences are obvious. You would hardly expect our Constitution to have emerged in a vacuum. This article by former Clerk of the Senate Harry Evans is worth reading as to US influences on the Founding Fathers. Also see this article on the role of Andrew Inglis Clark.

  14. john says:

    The odd thing about ‘Australian history’ between about 1880 and the 1920s, is how much of, so many different things, that actually happened has been ‘forgotten’ or replaced by a misleading stereotype of a country locked in timid culturally cringing imitation of The UK and or the US.

  15. Ken Parish says:

    john

    You’re misreading what I’m saying. Acknowledging and understanding the influence of US and Canadian influences on Australia’s Constitution is not the same as saying we were (or are) a “timid culturally cringing imitation”. Our Constitution is a unique and very successsful (though far from perfect) amalgam of the US, UK and Candian models with some specifically Australian twists. For example, although Chapter III clearly takes its inspiration from the US model, our Founding Father gave the High Court much more extensive powers, seeing it as the “keystone of the federal arch”. They also gave the Commonwealth the power to vest federal jurisdiction in state courts (which the US model did not have).

    Chapter IV (Finance and trade) is also a specifically Australian creation (albeit with some partial o/s models) designed to give effect to the internal free trade motivation for Federation and to underpin the financial aspects of responsible government.

    I agree that there isn’t much popular understanding of historical or constitutional developments in Australia leading up to and following Federation. It may be in part, as Richard Green suggests, because these key events in our history don’t involve lots of bloodshed, killing etc. Thus Eureka Stockade and Gallipoli are much better known and more frequently depicted in the media than the foundation of our nation. Apparently even depiction of the history of organised crime (viz Underbelly) is seen by movie and TV producers as more interesting to the viewing public than the foundation of our nation and the events and people who brought it about.

  16. john says:

    Ken
    I was definitely not suggesting that your interpretation of the history surrounding the foundation of the Australian Constitution was at all ‘cringey’. The following lecture – which is a week out of date – is another example of how innovative Australia was.

    Mothers of the Revolution: Sex, Suffrage and the Birth of a Nation
    At the turn of the twentieth century, one country audaciously broke global ranks by setting the gold standard for women’s citizenship rights. For the first time in modern history, women could both vote and stand for election in a federal parliament, a high water mark in the international struggle for democratic equality. That country was not at the heart of Empire. It was not the Land of the Free. That country was the world’s newest nation – Australia – admired and closely observed for its progressive pluck.
    Drawing on research from her upcoming ABC TV documentary, Utopia Girls, Dr Clare Wright will discuss the women and men who put Australia on the political map. At a time when the global community is calling for leadership on climate change and humanitarian policy, Clare will reflect on how history is made – and all too easily forgotten.
    Dr Clare Wright is an award-winning historian, author and public commentator who has worked in politics, academia and the media.
    Friday 25 November 2011, 5.30pm
    Village Roadshow Theatrette, State Library of Victoria, Entry 3 via La Trobe Street
    All welcome to attend, Entry $10/$5 concession
    Enquiries:
    Email: [email protected], Tel: 0418 353 266

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