From their origins in the shadows of Australian public administration, ministerial advisers have been increasingly thrust into the limelight through scandals that appear on the front page of the newspapers. This book traces the rise in the power and significance of Australian ministerial advisers. It shows the fundamental shift of the locus of power from the neutral public service to highly political and partisan ministerial advisers.

The book demonstrates that the introduction of ministerial advisers into the structure of the Executive has led to the erosion of the Australian system of responsible government. This is caused by a failure in the political, legal and managerial accountability frameworks surrounding ministerial advisers.

Ministerial Advisers in Australia is the first comprehensive study of the legal and political regulation of Australian ministerial advisers. This book features material from original interviews with Australian Ministers and Members of Parliament, as well as several former State Premiers.

**Dr Yee-Fui Ng, Ministerial Advisers in Australia: The Modern Legal Context, was a finalists of the inaugural Holt Prize 2015.

CONTENTS

Foreword by The Honourable John Cain
Acknowledgments
About the Author

Chapter 1. Introduction

     Accountability Framework
     Executive Regulation in Australia: Accountability as a Constitutional Value
     Chapter Outline

Chapter 2. The Expanding Universe and the Primordial Soup: Ministerial Advisers in a Framework of Australian Public Administration

    History and Roles
    Rise and Influence
    Decline of Public Service Influence
    Ministerial Advisers in the Australian System of Public Administration
            Public Servants and the Australian Constitution
            Ministerial Advisers and Patronage
            Playing the Game of Politics
    The Primordial Soup: The Unconstrained Nature of Ministerial Offices
            Public Servants
            Ministerial Advisers
    The Rise of Ministerial Advisers

Chapter 3. Regulation Through Law

    Statutory Judicial Review under the Administrative Decisions (Judicial Review) Act
           Unauthorised Delegation or Carltona Principle
           Acting under Dictation
           Benefits of the ADJR Act
    Judicial Review under Section 75 of the Constitution
           Purposes of Section 75(v)
           Are Ministerial Advisers ‘Officers of the Commonwealth’?
           Are Ministerial Advisers Covered by Section 75(iii)?
           Remedies
    Obtaining Evidence for Legal Actions against Ministerial Advisers
           Freedom of Information
           Discovery in Litigation
    Conclusion: Legal Regulation of Ministerial Advisers

Chapter 4. Regulation Through Parliament

    History and Role of Parliamentary Committees
    Responsible Government and the Upper House of Parliament
          Is the Executive Responsible to the Upper House of Parliament under the Doctrine of Responsible Government?
          Responsible Government in Reality
    Does Parliament Have the Power to Compel Ministerial Advisers to Appear?
          Ministerial Adviser Immunity
          Public Interest Immunity
    Why Does Parliament Not Use its Powers to Compel Ministerial Advisers to Appear before Parliamentary Committees?
    Is there a Constitutional Convention That Ministerial Advisers Do Not Appear Before Parliamentary Committees?
          Convention by Agreement
          Convention by Precedents
          Reason for Convention
          Public Servants and Parliamentary Committees
    When Should Ministerial Advisers Appear before Parliamentary Committees?
    Recommendations and Reform
          Incorporation of Ministerial Advisers into Integrity Framework
          Judiciary Enforcing Appearances of Witnesses before Parliamentary Committees
          Guidelines for Ministerial Advisers Appearing before Parliamentary Committees
    Conclusion: Ministerial Advisers and Parliamentary Committees

Chapter 5: Conclusion

Bibliography
Appendix A: Interview Questions
Appendix B: List of Interviewees
Index

REVIEWS

In Ministerial Advisers in Australia: The Modern Legal Context, Yee-Fui Ng establishes herself as an exciting new authority on the institutional structure and accountability of the executive branch of government. Her research bridges the gap between public law and political science, and, refreshingly, she brings doctrinal as well as socio-legal methodologies to bear on the questions she explores.
        Her immediate topic, the rising phenomenon of ministerial advisers, is one sorely in need of sustained academic attention, analysis and critique. …
        Ministerial Advisers in Australia provides the first sustained consideration of the constitutional position and accountability of these officers. The book is predominantly dedicated to the question of accountability and Ng makes a persuasive argument that the current accountability vacuum is unjustifiable and in desperate need of remedy. After considering the inherent shortfalls of legal accountability (through the courts) given the nature of the ministerial adviser’s role and therefore the court’s jurisdiction over “only a small range of their functions” (p 93), she argues for nuanced reform of the current system of political (parliamentary) accountability. Ng forensically and ruthlessly interrogates and dismantles the claims for a blanket immunity against advisers giving evidence to Parliament (pp 123–130), and the pragmatic and principled reasons why Parliament has refrained from exercising its powers to compel attendance by ministerial advisers – including claims that a constitutional convention might exist (pp 131–167). Ng’s main salve is that ministerial advisers should appear before parliamentary committees and answer questions – under summons if necessary – in a number of specific instances where the accountability vacuum is most apparent …
        In short, Ng has achieved many important things in a concise book that really packs a punch. Not only has she made a forensic and persuasive contribution to the issue of how to remedy the accountability vacuum around ministerial advisers, she has established herself as an impressive and stimulating executive power scholar, confident to wade into contested and topical public law issues.

Gabrielle Appleby, Australian Journal of Administrative Law, 24, 2018

Ministerial Advisers in Australia is a thoroughly researched account of the changing role of ministerial advisers in the Australian political system and the challenge it poses to Australia’s Westminster style of government.
        Ng tracks the emergence of ministerial advisers in Australia from the 1970s onwards and the gradual shift in reliance on the counsel of advisers over that of the traditional public service. With the benefit of proximity and necessary expansion in their role and responsibilities, ministerial advisers have amassed a great deal of influence. However, with advisers unaccounted for in the traditional Westminster government, they occupy an awkward position — significant power coupled with limited accountability mechanisms. Ultimately, such an occurrence is at odds with Australia’s system of responsible government.
        In highlighting this issue, Ng has conducted an impressive amount of research on the topic, including hours of interviews with current and former parliamentarians, and has produced a work which is both authoritative and compelling. While Ng’s work highlights a very current and arguably overlooked issue, Ng goes further by identifying pathways to reform, including expansion in the powers of the Commonwealth Ombudsman and compelling appearances before Parliamentary Committees. As a consequence, Ng’s work is both academic and practical, a deserved winner of the 2015 Holt Prize.
        The book is particularly suited to government lawyers, who will appreciate the thorough examination of the existing legislative framework in which these advisers operate, and the balanced critique of the operation of modern ministerial offices.

Emma Lindfield, Ethos, ACT Law Society, June 2017

This work succinctly analyses relevant legal principles and is supported by evaluation, based upon primary interviews with former ministers. Throughout the work, there is an underlying theme as to how and whether ministerial advisers operate within the system of responsible government. This work suggests that the use of such advisers has, indeed, led to an “erosion of the Australian system of responsible government”. Read full review…

Dominic Katter, Hearsay, May, 79

… an impressive study of a contemporary issue of the utmost importance to the sustainability of the Australian system of responsible government, namely, the legal and political accountability of ministerial advisers. It argues that ministerial advisers should appear before parliamentary committees in the interest of executive accountability. The book is, first, a study of Commonwealth practices and, secondly, an outline of select case studies from the various state jurisdictions …
         The book powerfully combines empirical and doctrinal research strategies into an irresistible argument for the appearance of ministerial advisers before parliamentary committees. It finds support for this complete assessment on a myriad of references, unfailingly appropriate in their currency and rigour, in addition to numerous interviews and freedom of information (‘FOI’) requests. The book follows a perfectly logical structure — largely thematic — allowing the argument to develop incrementally, almost without interruption, while the appendices are a brilliant example of the positive significance of empirical research to legal scholarship. It complements a correct research methodology with an approach to juridical analysis that is both thorough in form and reflective in substance. …
         The book is an exemplary work of contemporary legal scholarship, one that benefits from interdisciplinary engagement and empirical research. The intent of the empirical research here is to explore and discover, which is laudable and shows a real curiosity for the topic. Dr Yee-Fui Ng is to be commended for her brave and brilliant intellectual initiative and Ministerial Advisers in Australia: The Modern Legal Context warrants thanks and praise as the first study of the regulation of ministerial advisers in Australia. Read full review…

Gonzalo Villalta Puig, Monash University Law Review, Vol 42, No 2, 2016

Yee-Fui Ng’s monograph is the first comprehensive study of the legal and parliamentary accountability of … advisers. The ambiguous status of the adviser in law and practice presents a challenge for anyone setting out to explain how they might be held to account. Indeed, Ng employs the ‘primordial soup’ as an analogy for their barely regulated status. Yet their ever increasing number, influence over policy and administration, and evolving function as gatekeeper, determining flow of information and access to ministers, warrant a formal scrutiny hitherto lacking.
         While the roles and functions of ministerial advisers at the Commonwealth level have been the subject of some fruitful study over the years, this has been largely confined to political science and public administration. Drawing on this research, Ng deftly sketches the origins and evolution of the adviser role since the Whitlam government. …
         Published as a finalist for Federation Press’ Holt Prize to commemorate its late co-founder, Chris Holt, ‘Ministerial Advisers in Australia’ will be a valued addition to the likes of Enid Campbell’s Parliamentary Privilege and the various parliamentary manuals on practice and procedure, as guides on the legal extent of and checks on political power. Read full review…

Stephen Murray, Alternative Law Journal, Vol 41:4 2016

This is a most interesting monograph which considers an important area of uncharted public law; being the legal position of ministerial advisers. As at last 16 October 2015, there were 423 ministerial advisers appointed by Commonwealth Ministers. In general terms they inhabit an area between the Minister and the public service, yet they are neither subject to the obligations of public servants nor the responsibilities of Ministers. They are not referred to in the Constitution. Indeed, they were not part of the political landscape at the time when the Constitution was written. However, despite that they wield substantial power in the operation of government and, to a large extent, they remain unaccountable in a legal sense for their conduct. They are employed under Pt III of the Members of Parliament (Staff) Act 1984 and are paid for out of the public purse.

In her work Dr Ng carefully considers the history of the rise of the position of the ministerial adviser and the expansion of their roles over time. She observes that they are effectively unregulated in a public law sense, being only susceptible to the discipline of their ministers and thereby undermine the role of the public service:

“Ministerial advisers do not fit neatly into the structure of Australian public administration. The system of a neutral, impartial public service recruited and promoted on merit that Australia adopted from the United Kingdom was developed as a reaction against patronage and the inefficiencies that would result from a system of patronage. The emergence of ministerial advisers who are recruited largely on the basis of patronage poses a threat to this system.”

Dr Ng postulates that some regulation of ministerial advisers may occur through the use of judicial review on the basis that their exercise of power can be seen as that of the Minister. That, however, seems to be spectacularly inadequate. They may also be regulated through the Parliament, however, she observes that the main political parties have a substantial degree of self-interest when it comes to controlling such advisers and that attempts to have ministerial advisers appear before Parliamentary Committees has proven to be unsuccessful.

This work, whose author was a winner of the Holt Prize (which is a publishing award named after the late co-founder of The Federation Press) is a fascinating read. It raises legitimate concerns as to the role of ministerial advisers in all areas of government and offers some useful suggestions for reform.

Queensland Law Reporter – 7 October 2016 – [2016] 39 QLR