Constitutionality of the Ken Henry appointment

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That’s why the provision has been superseded by various Acts of Parliament.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’.

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43 Responses to Constitutionality of the Ken Henry appointment

  1. JC says:

    I don’t understand why they went this route. Is this somehting to do with his compensation arrangement from the retirement?

  2. Aussieute says:

    Cos they can … Until they are drawn to account
    Yet another example of flaunting ethics and standards

  3. JC says:

    That’s not a reason. They don’t just capriciously go out of their way to flout a rule for no reason.
    There has to be a reason there lurking in the background.
    My hunch is that it had to do with Henry otherwise being unable to draw on two levels of comp if he went back to work for the government.
    So in effect this allows him to double dip is my guess
    The libs ought to start asking serious questions about this and not let them/him get away with it if he’s receiving two levels of comp.
    The Indeps ought to be put in the spotlight over this, if in fact my hunch is right.

  4. Samuel J says:

    You’re right JC. I’d like to know the reason behind this. There would be plenty of other ways of employing him if the Government was so minded (including as an Associate Secretary in PM&C, or as a principal adviser under the MOPS Act in the PMO etc.

  5. Antipodean says:

    Obviously studying hairy arsed wombats in Tassie wasn’t enough to keep Ken Henry busy enough in semi (?) retirement.

  6. JC says:

    No he’s not bored of studying wombats and they aren’t doing this deal for no reason as the other commenter suggested.
    I think he’s double dipping.
    Samuel, do you know of any restriction in the PS whereby a person is precluded from drawing two levels of comp?
    Perhaps the other reason why it’s being done is this….
    Remember Parkinson recently said that Henry hasn’t left the dept. at least officially. Perhaps this is a way of having him continue to accrue retirement comp while he’s he’s working for the PM’s dept..
    There’s a reason and I think it all has to do with Henry’s compensation.

  7. JC says:

    Always, always follow the money as Deep Throat said in that movie when they were chasing Nixon.

  8. Samuel J says:

    JC – I’m not sure, but I would be surprised if one could.
    I think this is a good avenue for the opposition to question the Government in Parliament.

  9. hc says:

    Who gives a shit?
    Ken Henry is a top guy and one of the most honest and able economists in the country. Gillard is lucky to have had him available as was John Howard.

  10. Sinclair Davidson says:

    Ken Henry is a top guy and one of the most honest and able economists in the country.

    Whatever happened to ‘shut up and support the government’?

  11. hc says:

    But to be fair I think you should get CL to check out his origins. He did a great job on Obama’s birth certificate although he has modestly kept quiet about those efforts in recent times.

  12. Sinclair Davidson says:

    Ken Henry wasn’t born?

  13. hc says:

    [Harry – that’s unacceptable. Sinc]

  14. JC says:

    You may not give a shit, but I certainly do, if he’s double dipping and a way of circumventing the spirit of the laws.
    I’m not suggesting he shouldn’t be allowed to work for the government. I’m saying there shouldn’t be any finagling with his comp.

  15. . says:

    Gillard is lucky to have had him available as was John Howard.

    She has the misfortune of having Swan as her Treasurer.
    The botching of five reforms from a possible 128 means any good Ken Henry can do will be foiled by Swan.

  16. Samuel J says:

    Harry – this is a post about the unorthodox method of an appointment and does not examine the merits of the individual being appointed.
    Still your comment is effectively “he is a good chap, let’s give him a job”. So what do you think about merit-based selection?

  17. Pedro says:

    The comment in the Explanatory Note is interesting. I should have thought section 67 had been exhausted whem the first PS Act was passed.
    Yeah Harry, the question would be worth while if the appointee was mother theresa.

  18. Taylor says:

    I doubt whether Henry will be an employee within the meaning of s 6 of the Public Service Act.
    Still, an interesting topic that demonstrates the extent of executive (including royal prerogative) power in Australia. Generally cause for celebration amongst more right-wing elements.

  19. Milton Von Smith says:

    “I doubt whether Henry will be an employee within the meaning of s 6 of the Public Service Act.”
    So what is he? An independent contractor? Sounds like a “sham contract” if ever there was one.

  20. Samuel J says:

    He can’t be an independent contractor – that is covered in section 6(3) of the Public Service Act and the power vest in the relevant secretary and his/her delegate.

  21. Taylor says:

    Looks like you have to be engaged by a Head of Agency or Secretary of Department to be a relevant employee or contractor though. Henry of course isn’t.

  22. Pedro says:

    Wombat to a whisker this is another example of where everyone just assumed the govt can do shit when it actually can’t.

  23. Dandy Warhol says:

    Good work Sam. And I think JC is onto something with his ‘double dipping’ suspicion. I hope the press and the opposition pick up on this, there are lots of questions to be answered.
    Yet more evidence that this mob couldn’t run the chocolate wheel at the local school fete without screwing it up.

  24. dover_beach says:

    Who gives a shit?
    Translation: Whatever it takes.

  25. Voodoo says:

    I’m pretty sure that, where an executive prerogative has been usurped by legislation, the prerogative no longer exists. The 2001 MV Tampa Case in the Federal Court goes to this very point very well.
    Also, without an actual proclamation from the GG, who would know what’s happened.
    With the stuff going on in Victoria Police, maybe it’s time for a national anti-corruption body.

  26. Robert C says:

    I can’t find the relevant case at the minute, but I remember from earlier research into s.46 of the constitution that the Barwick High Court found that any Act of Parliament in the scope of an “unless and until” clause rendered it a dead letter. The law in this case was the Common Informers (Parliamentary Disqualification) Act 1975 which removed the people’s right (under s.46) to sue to remove a fraudulently elected MP. Effectively it doesn’t matter if there is a loophole in the public service acts as their existence nullifies the “unless and until” clause.

  27. . says:

    Could someone launch an amicus brief if it’s a sham contract?

  28. Dharuk says:

    Its probably all very simply related to securing his benefits under the Commonwealth Superannuation Scheme whereby he can only receive benefits if he genuinely retired from the Public Service. If he just comes straight back to work as a public servant after retiring then he could be open at some time at the future be liable to repay his pension. Like all brave public servants like him who gained their PhD’s at taxpayer expense, lived in Paris under the Eiffel Tower doing effectively nothing at public expense and thought Canberra was like living everywhere else int he country he couldn’t possibly expose himself to a risk that his own economic welfare was not assured – he will also have a warm golden parachute as part of his deal I expect. That’s why his appointment is likely to bein the form it is. Suck it up.

  29. Voodoo says:

    Ruddock v Vadarlis (MV Tampa Case) [2001] FCA 1329

    “34 The question is, what is the test to determine whether a prerogative power has been displaced by statute? The accepted test is whether the legislation has the same area of operation as the prerogative. In De Keyser’s, Lord Dunedin said (at 526):
    “It is equally certain that if the whole ground of something which could be done by the prerogative is covered by the statute, it is the statute that rules. On this point I think the observation of the learned Master of the Rolls is unanswerable. He says: `What use would there be in imposing limitations, if the Crown could at its pleasure disregard them and fall back on prerogative?'”
    Lord Moulton said (at 554):
    “the statutory powers … are wider and more comprehensive than those of the prerogative itself. [The Parliament] has indicated unmistakably that it is the intention of the nation that the powers of the Crown in these respects should be exercised in the equitable manner set forth in the statute.”
    Lord Sumner said (at 561):
    “It seems also to be obvious that enactments may [abrogate the prerogative], provided they directly deal with the subject-matter, even though they enact a modus operandi for securing the desired result, which is not the same as that of the prerogative.”
    Lord Parmoor said (at 576):
    “[w]here a matter has been directly regulated by statute there is a necessary implication that the statutory regulation must be obeyed, and that as far as such regulation is inconsistent with the claim of a Royal Prerogative right, such right can no longer be enforced.”
    See also per Lord Atkinson (at 538).”

    Bradshaw v Commonwealth [1925] HCA 42; (1925) 36 CLR 585
    Per Knox J:

    “The first ground is clearly untenable. It is true that by sec. 67 of the Constitution the appointment and removal of officers in the Public Service of the Commonwealth is vested in the Governor-General, but only “until the Parliament otherwise provides.” Parliament has now by sec. 67 of the Commonwealth Public Service Act 1922 provided otherwise…”

    Someone has got a lot of explaining to do!

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  31. Taylor says:

    You’re right about the issue being the ouster of the prerogative power. But it’s the judgment of Justice French in the Tampa case (now Chief Justice of the High Court) that is now most relevant.
    French relied on stricter Australian (rather than UK) authorities and required a clear and unambiguous intention to divest the Executive of the power.
    I doubt that intention would be found if a case was brought on the Henry appointment.
    Section 39 of the PSA (as cited by Samuel) seems to preserve the Governor-General’s prerogative, while providing that it only has “effect” if the appointee also is an APS or Austrade employee. That isn’t consistent with a clear and unambiguous intention to oust the prerogative.
    Still, it would be a fascinating case. Hard to see who would have standing to bring it – unless Henry is dismissed.

  32. samuel j says:

    While I think s39 is very broad – it only exempts a volunteer or an ASIS employee – even if there was a prerogative power remaining then the issue is that the validity of the appointment is uncertain. Since there a other ways to make an appointment which are certain, why would the government wish to use this power and why would Henry agree? That’s just as interesting a question as is the question on whether the appointment is valid or not.

  33. Taylor says:

    I agree, the more political question is interesting.
    But I would be very interested to see other legal opinions on the constitutional question. I haven’t seen the view of any Australian constitutional lawyer reported in the press – perhaps I’ve missed it.

  34. Voodoo says:

    The MV Tampa case found that there were two prerogatives; one about whether the Crown could prevent persons entering Australia; and another about how to deal with people in Australia. The view (by majority) seemed to be that the Migration Act 1958 had not abrogated the prerogative in relation to preventing entry to Australia. The dissenting Judge found it had.
    Whether the Public Service Act 1999 abrogates the prerogative under Section 67 is a much more direct question, in my opinion.
    As to standing, surely the Attorneys-General of the States would have standing because it is a matter concerning the constitution and its interpretation. Section 78A of the Judiciary Act 1903 would allow them to intervene in such a case, but they may need to convince the High Court that a Special Case was warranted in the first instance. I think this would pass the test of a matter of general importance about which there is a division of opinion. The first test would be to find a State Attorney-General who did not like Dr Henry. ‘Go west young man, go west’; as they say in the classics.
    Also, it would be interesting whether the Shadow Attorney-General, George Brandis SC, would have standing by virtue of his position alone. Any question of standing in relation to a Shadow Attorney-General would itself likely be a matter of sufficient interest to get a Special Case up.
    They could have done it under the Public Service Act 1999 and the Administrative Arrangement Orders by creating a Department or administrative unit called ‘The Office of Special Advisor to the Prime Minister’ or similar, and then appointed Dr Henry to head it as Secretary. That may have had issues with regards to appropriations, remuneration tribunal, record keeping, and freedom of information etcetera, which may have made that – shall we say – not the preferred option.

  35. Taylor says:

    Good points Voodoo. Brandis should be taking a good look at the issue, even if the Canberra press gallery aren’t.

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  37. Voodoo says:

    The Ken Henry instrument of appointment is out:
    This is so plainly unconstitutional that is is just shocking.

  38. . says:


  39. Voodoo says:

    1. Section 67 is a transitional provision. It provides a prerogative allowing the GG to appoint officers of the Commonwealth “until the Parliament provides otherwise”. The Parliament provided otherwise in the Public Service Act 1922. [Bradshaw v Commonwealth [1925] HCA 42] It is a transitional and spent provision of the Constitution. [e.g. R v Pearson; Ex parte Sipka [1983] HCA 6]
    2. Even if a prerogative of the GG survived the enactment of the Public Service Act 1922 or the Members of Parliament (Staff) Act 1984 in relation to persons performing functions of an officer of the Commonwealth other than those of public servant or member of parliaments staff [see Ruddock v Vadarlis (MV Tampa Case) [2001] FCA 1329], Ken Henry has been appointed on the exact same terms as the Secretary of the Treasury. He is a public servant in everything but name. He has even agreed to be bound on the exact same terms as a public servant. The GG cannot appoint a public servant outside the Public Service Act 1999.
    Someone needs to issue a writ.

  40. . says:

    I’d chip in for that.

  41. . says:

    LOL they’d commission him as a Marshal of the RAAF if it helped their zany anti economics crusade to bring us new levels of managerial incompetence on the NBN, innovation destroying directives from Kim Ill Carr and magic pudding fiscal policy of Swannie (dumb cunt).

  42. Voodoo says:

    I just think he’s a socialist who despises evil “profits”.

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