Canberra, 13 February 1968
Amendment of the Papua and New Guinea Act, 1949–1966
In Decision No. 558 of 7th September, 1967, Cabinet approved amendments of the Papua and New Guinea Act1 to give effect to its acceptance of the recommendations of the final report of the Select Committee on Constitutional Development2 appointed by the Territory’s House of Assembly. This memorandum sets out the instructions for the drafting of a bill to give effect to Cabinet’s Decision. It should, however, be read together with the Select Committee Report, a copy of which is attached.
[ matter omiited ]
Administrator’s Executive Council
3. The Administrator’s Executive Council will replace the Administrator’s Council. The Administrator’s Executive Council will comprise—
- the Administrator;
- three official members of the House of Assembly;
- seven elected members of the House of Assembly who hold appointments as Ministerial Members;
In addition provision is to be made for the appointment of an additional elected member of the House of Assembly who does not hold office as a Ministerial or Assistant Ministerial Member if this is considered necessary or desirable.
4. The seven Ministerial Members will be ‘ex officio’ members of the Council. Other members will be appointed by the Minister for Territories on the nomination of the Administrator. Official members and the possible additional elected member referred to above will hold office during the Minister’s pleasure but provision should be made for other members to cease to hold office if they do not continue to hold appointments as Ministerial Members.
5. If an official member or the possible additional elected member wishes to resign he shall deliver a written resignation to the Administrator for transmission to the Minister, the resignation to be effective when accepted by the Minister.
6. Subsection 4 of section 19 of the Act provides that a member of the Administrator’s Council may remain in office up to three months after he ceases to be a member of the House of Assembly. This provision serves to retain the Administrator’s Council from prorogation of the House for a general election until the new House meets after an election. It is desirable to retain provisions on these lines but you might consider whether any amendment to this subsection is necessary arising from the fact that membership of the Council depends, in some cases, on the holding of office as a Ministerial Member.
Ministerial Members
7. Except for the change from ‘Minister’ to ‘Ministerial Member’ the Government accepted the Select Committee’s recommendation that seven elected members be appointed ‘to be responsible with the permanent Departmental Head for department policy and for the overall activities of the department’. In the context of the Select Committee’s Report, the responsibilities of a Ministerial Member in this regard must be read as being exercised within the framework of Administration policy laid down by the Minister. This aspect is referred to later in paragraphs 9–11 of this memorandum. The other recommendations which the Government agreed to and which are relevant in this respect are—
(i) that the Ministerial Member represent the department in the House of Assembly; and
(ii) that disagreements between a Ministerial Member and the Departmental Head be referred to the Administrator for decision.
8. Cabinet approved that the Papua and New Guinea Act amendments should provide for the appointment, duties and authority of Ministerial and Assistant Ministerial Members.
9. Increased participation by elected members in the executive government through the Administrator’s Executive Council and through the office of Ministerial Member will require changes to be made in the practical arrangements under which the executive government is now carried out. At the same time it is necessary to ensure that under the Act the Commonwealth Government has the authority necessary to discharge the responsibilities it will continue to have for the administration of the Territory.
10. Under the Act at present it seems that there is no restriction on the power of the House of Assembly to make Ordinances giving executive authority in various areas to holders of statutory offices. Unless there were provisions in the Act to prevent this, it therefore would be within the legislative powers of the House, for example, to make an Ordinance giving executive powers to a Ministerial Member. As it is not the intention that the House of Assembly should have the power to widen the scope or nature of the office of Ministerial or Assistant Ministerial Member it will be necessary to describe the functions and authorities of those offices in the Act in such a way as to prevent the House of Assembly conferring additional functions of an executive nature on such officeholders.
11. This might be achieved by providing that subject to section 13 of the Act3 (or some other appropriate words of limitation on the responsibilities of this office) a Ministerial Member may exercise such duties, powers, functions and responsibilities as may be set out in Governor-General’s instructions under section 15. of the Act.4 (Such instructions would cover the two matters listed at the end of paragraph 7.)
12. Another matter which bears on this question of the local legislature intruding into the area of executive responsibility concerns the position of the Administrator when exercising statutory powers under Ordinance. As part of the general re-organisation of the arrangements for the executive government of the Territory we would like to consider the possibility of provision in the Act to the effect that Ordinances made under authority of the Act shall not be construed in such a way as to limit the authority of the Governor-General to give instructions under section 15.
13. The basis of these provisions would be to ensure that so long as the Australian Government remains ultimately responsible for the Territory’s administration the responsible Minister can, if he considers it warranted, procure directions to the Administrator as to the exercise of any of his powers and functions.
14. This memorandum attempts only to set out very generally the nature of the provisions which might be included in the Act in this regard. I would appreciate the opportunity of discussing these matters with you in more detail when you have had the opportunity of considering the problems involved. I enclose a statement which sets out how it is proposed the system of Ministerial Members would operate in practice and this might be helpful to you in considering the drafting of appropriate provisions.
Assistant Ministerial Members
15. The relevant recommendation of the Select Committee regarding Assistant Ministerial Members is that in Departments not represented by a Ministerial Member, elected members be appointed to work with the Departmental Head, and to undertake specified work of a ministerial nature within the Department. Paragraph 30 of the Report sets out certain duties which it was considered the office of Assistant Ministerial Member should embrace.
16. It is not proposed that these duties should be specified by the Act. You may, however, consider it necessary or desirable to include some general description in the Act of the office of Assistant Ministerial Member which distinguishes the scope of that office from the office of Ministerial Member. Subject to this, it is thought sufficient that the Act should authorise the Minister to determine the duties which an Assistant Ministerial Member might exercise in relation to a department of the Administration.
Appointment of Ministerial & Assistant Ministerial Member
17. The method of appointment and removal will follow that set out in Chapter V of the Select Committee’s recommendations. The House of Assembly will appoint a committee of five elected members to consult with the Administrator and agree with him on a single list of 15 members (to be increased if number of Assistant Ministerial Members is increased) who are to be nominated for the positions of Ministerial Member and Assistant Ministerial Member. The list will then be forwarded by the Administrator to the Speaker of the House for the House’s approval.
18. Because the Committee of the House will have certain functions with regard to recommendations to terminate appointments, the Act should provide that a member is disqualified from continuing as a member of the Committee if he holds office as a Ministerial or Assistant Ministerial Member.
19. On the nomination of the Administrator the Minister will appoint seven of the nominated members to be Ministerial Members, and eight members (or a large[r] number if appropriate) to be Assistant Ministerial Members. The Administrator should be given the authority to determine which departments or functions of a particular department are to be represented by a particular Ministerial or Assistant Ministerial Member. The Act should also leave the Administrator free, at his discretion, to change the department or functions of a department represented by a Ministerial or Assistant Ministerial Member, and to make recommendations to the Minister for Territories for changes in the appointment of members as between the two classes of office.
20. There are fifteen departments of the Administration at present. It is possible however that the functions of some departments might be split for the purpose of appointing Ministerial or Assistant Ministerial Members. It is proposed therefore that the Act should provide for the appointment of a minimum of eight Assistant Ministerial Members with the Minister to have power to increase this number as considered necessary.
21. The removal of a member from office (other than a transfer of one member from one office to the other) would follow the same procedures as outlined for recommendations for appointment, i.e. if the Administrator and the House Committee agree they submit to the House of Assembly for its approval a recommendation that a member’s appointment be terminated and another member be appointed in that member’s place.
22. Suitable provisions would also need to be included in the Act to provide for resignations and filling casual vacancies in these offices.
23. The recommendations of the Select Committee mean that the Administrator would require the agreement of the House Committee, followed by the agreement of the House itself, before an appointment could be terminated. The Administrator could well be faced with a situation where a Ministerial or Assistant Ministerial Member had clearly demonstrated his unsuitability for holding an office of this nature but the Committee or the House will not support, for political reasons, a move to have the member removed from office. I should be glad if you would include a provision giving the Administrator an overriding power to recommend to the Minister that an appointment be terminated.
Oath of office
24. Persons appointed to either of the Ministerial-type offices shall be required to take an oath of office administered by the Administrator. It is thought that the oath should provide for the person concerned to faithfully carry out the duties and responsibilities of the office and not to divulge any information including the contents of any documents which he has become aware of by reason of the office he holds.
Quorum
25. Because of the enlarged House it will be desirable to amend the present section 42 fixing the number of members who constitute a quorum. The present quorum number is based on the principle of at least one third of the total number of members being present. The number for a quorum in the new House should therefore be 32 members.
26. The other recommendations of the Select Committee do not appear to require amendment of the Act. Some are matters which can be given effect to by administrative action: others are matters for action by the House of Assembly itself. In paragraph 15 of its report the Select Committee said that members of the Administrator’s Executive Council would not publicly oppose the advice of the Council and the policies laid down by it. In paragraphs 26 and 32 the Report states that this principle should apply to Ministers and Assistant Ministers (now Ministerial and Assistant Ministerial Members). We propose to establish this principle as a convention of the present constitutional arrangements instead of a requirement or obligation in the Act.
27. The bill should provide that the above amendments are to come into operation on a date to be fixed by proclamation.5
[ matter omitted ]
Attachment
ARRANGEMENTS FOR OPERATION OF ‘MINISTERIAL MEMBERS’
Where a Ministerial Member is appointed to a Department, the Ministerial Member would assume certain of the functions which now devolve on a Departmental Head but the Departmental Head would remain responsible for the general working and the efficient conduct of the business of his Department. The Ministerial Member would be responsible for the Department’s operational activities and make day to day decisions appropriate to those activities. There would be consultation between the Ministerial Member and the Departmental Head on policy proposals before the Ministerial Member made his decision.
2. Except in minor matters (where the Departmental Head is free to act at present) policy proposals would be cleared by the Administrator before they are referred to the Ministerial Member for decision. Where appropriate the Administrator would seek the Minister’s approval of the policy issues involved.
3. Where policy proposals originate with the Ministerial Member, they would (where necessary) be forwarded by the Departmental Head to the Administrator in the first instance. If Ministerial approval is necessary the Administrator would forward the matter to the Minister with his recommendation as in paragraph above.
4. In practice, it is not expected that cases would arise where the views of the Ministerial Member could not be reconciled with official views. The close working relationship of the Departmental Head with the Ministerial Member should enable agreement to be reached by compromise if necessary.
5. In cases where significant policy issues are involved the Administrator will submit the matter to the Administrator’s Executive Council for its advice before any firm decisions are made—if necessary the issue would be reviewed in the light of the Council’s advice.
6. The Ministerial Member would represent his Department in the House of Assembly by answering questions; by introducing legislation concerning his Department’s functions and taking responsibility for guiding the legislation through all stages of proceedings in the House of Assembly; and by giving his Department’s view on resolutions and motions affecting his Department. He would be a member of the Administrator’s Council.
7. In the House of Assembly he would defend his administration of his Department. As a member of the Administrator’s Council, he should support, or at least not publicly oppose or criticise policies or actions of the Administration. The {Ministerial Member} should only introduce Administration Bills which have been approved for this purpose.
8. At the departmental level, Ministerial Members would participate in the discussion on the draft Estimates at the earliest possible stage.
[NAA: A452, 1970/4519]
1 See footnote 4, Document 139.
2 Document 118.
3 Section 13 deemed that there would be an Administrator of the Territory who would be charged with administering its government on behalf of the Commonwealth.
4 Section 15 reads: ‘The Administrator shall exercise and perform all powers and functions that belong to his office in accordance with the tenor of his Commission and in accordance with such instructions as are given to him by the Governor-General’.
5 On 29 February, C.K Comans, the First Assistant Parliamentary Draftsman, replied at length and in largely technical terms. On the allocation and functions of ministerial office holders, Comans wrote that this should be determined not in relation to specific public service departments, but to ‘areas or aspects of … executive government … [ministerial] office will be a political one in a broad sense rather than that of a superior public servant’. Comans also argued that the functions of MMs and Assistant Ministerial Members (AMMs) should be delimited by the Minister, not the Governor-General. Regarding paragraphs 10 and 11 of the Swift’s memorandum, Comans asked whether, in view of legal complexities associated with meeting DOET’s request, ‘something less than a complete prohibition of the conferring of powers on ministerial members by Ordinance would meets your needs’; ‘May it not be the case that, as ministerial members increase their experience, the government might wish them to exercise powers requiring the backing of law—possibly with provision for appeal or review?’. In terms of appointments, Comans raised the possibility of disagreement between the Administrator and the nominations committee, and he also suggested that the Select Committee report—accepted by Cabinet—did not distinguish between appointment and the allotment of a portfolio; the Committee may have envisaged the House approving both. As such, the issue should be raised in the Legislation Committee. On the question of instructions to the Administrator, Comans remarked that the proposals of Swift’s paragraphs 12 and 13 brought ‘serious, and perhaps insurmountable, difficulties’ of consistency with ‘the rule of law’, ‘It would’, he noted, ‘be entirely contrary to accepted principles to give the Governor-General, or the Minister, power to instruct the Administrator to act otherwise than in accordance with the law as contained in the relevant Ordinance’. His personal view was that ‘it would be unwise to attempt to put on a strict legal basis a power of direction of the Administrator in the exercise of his powers under Ordinances … it seems likely that legal complications could ensue from such a course and that these could emerge in litigation with private citizens … I would think that the relationship between the Minister and Administrator should be a matter of co-operation rather than legal direction, and I consider that it would be proper for the Government to expect the Administrator to act consistently with Government policy, as communicated to the Administrator, to the extent that he can do so consistently with the terms in which powers are conferred on him by Ordinance’ (memorandum, AG’s (Comans) to DOET, 29 February 1968, NAA: A452, 1970/4520). Commenting on Comans’ response, Ballard minuted Warwick Smith: ‘I think that we would do better having a talk with Comans before we go too far. This may help resolve what can be done and what cannot be done by way of the amendments’ (March 1968 (no exact date cited), ibid.). For a detailed reaction to Comans’ memorandum, see paper by E.R. Kirkpatrick (Acting OIC, Government and Constitutional Section, DOT), 15 March 1968, ibid.