On 27 April 2011, Ken Henry was appointed as a ‘special adviser’ for a five-year term under section 67 of the Australian Constitution. This was a part-time appointment with the salary benchmark being the Secretary of the Treasury. The Remuneration Tribunal puts the Treasury Secretary’s remuneration package at $746,500.
I wrote about the constitutionality of this appointment in November 2011 and in June 2011. I remain of the opinion that the appointment is wrong on many grounds: the wrong person (who had been appointed to Boards and had conflicts of interest that would prevent a public service or other statutory appointment) using the wrong method (a transitional provision of the Constitution) for the wrong purpose. As I noted then
All of the Acts [used when appointing people to the public payroll] 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.
So if the original appointment was for five years (the link to the instrument of appointment is dead so I can’t check) Henry would continue to be employed under section 67 of the Constitution until 26 April 2016.
Does anyone know?
Here is a copy of the original appointment document. Note that it is ‘at the Governor General’s pleasure’. That normally means that there should be a separate document signed by the Governor General terminating the appointment. Even though the letter from the then Secretary Terry Moran envisages a two-year term, the fact that the instrument doesn’t provide a term except ‘at pleasure’ indicates that the Governor General would need to formally terminate the appointment.