As Sinclair wrote on 8 June it appears that the Government has appointed Ken Henry under section 67 of the Australian Constitution although I have not yet seen the Government Gazette notice signed by the Governor-General.
Section 67 of the Constitution, which is titled “appointment of civil servants” states
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 a law of the Commonwealth to some other authority.
This was designed as a transitional provision of the Constitution, allowing the appointment of Commonwealth Public Servants from 1 January 1901 from the States and Territories. As the first Parliament did not sit until 9 May 1901, it was necessary to have a provision to allow the appointment of civil servants, hence “until the Parliament otherwise provides”.
Well the Parliament has otherwise provided, firstly with the Public Service Act 1922 and presently with the Public Service Act 1999.
And this leads to the fundamental principle of the separation of powers. The Parliament makes laws as to how public servants and other Commonwealth employees should be appointed, dismissed and how they should be expected to behave.
Commonwealth employees – be they Ministers, Defence personnel, judges, public servants and so forth – are employed under various Acts. For example, defence personnel are employed under the Defence Act 1903. Reserve Bank employees are employed under the Reserve Bank Act 1959. Members of Parliament staff are employed under the Members of Parliament (Staff) Act 1984. And so on.
All of the Acts have provisions about how an employee is expected to behave. The Public Service Act 1999 lists the Australian Public Service Values and Code of Conduct.
These do not apply to a person appointed under section 67 of the Constitution. There is no constraint to the behaviour of such a person, and presumably they can be appointed by the Governor-General in Council for any specified time, perhaps even 50 years. And presumably such an appointment cannot be terminated.
That’s why the provision has been superseded by various Acts of Parliament.
Yet can the Governor-General in Council legally appoint Ken Henry under section 67?
In my opinion, no.
Section 6 of the Australian Public Service Act 1999 states
Engagement of employees in Department or Executive Agency
(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 Service
Here the Parliament has ‘otherwise provided’. It states clearly that all persons engaged must be under the APS Act or some other Act of Parliament. It gives two exceptions. First, for a person appointed on an honorary basis and second a person appointed to ASIS.
As the Canberra Times report (link above) shows, Ken Henry is appointed on a $523,860 salary – so he is not honorary.
And he hasn’t been appointed to my knowledge as an ASIS employee.
Hence I consider that if he has been appointed under section 67 of the Constitution it may not be valid.
I had a look at the Explanatory Memorandum for the Public Service Bill 1999 and noticed an interesting provision. Clause 4.62 – 4.64 noted
4.62 Heads of Mission (HoMs) are executive appointments made by the GovernorGeneral in Council as an exercise of prerogative power recognised by s.67 of the Australian Constitution.
4.63. Currently, APS officers who become HoMs take leave without pay from the APS and become unattached officers.
4.64. The 1922 PSA provides only very limited scope for discipline of ‘unattached officers’: the only grounds of misconduct for which they can be held responsible being ‘conduct bringing the (Australian Public) Service into disrepute’ (1922 PSA s.63J). This is not adequate, considering the level of managerial responsibility, in terms of both financial and personnel issues, that HoMs are expected to exercise and the delegations that they currently hold.
And so the Bill provided (and was subsequently enacted) that Heads of Mission must be employed under the Australian Public Service Act 1999 (section 39 of the Act). Today all Heads of Mission – including Kim Beazley and Brendan Nelson – are public service employees (Kim and Brendan are employed at the SES Band 3 level and are subject to the APS Code of Conduct).
Again, a demonstration of ‘until the Parliament otherwise provides’.