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24 April 2022

In the last two articles, we explored the roles of the Governor-General and Prime Minister in the executive branch of the Australian government. During this, we considered the difference between the Governor-General and the broader Governor-General in Council, as well as how the Prime Minister is ‘first among equals.’ In this article, we will look at the other elected members of the executive, known as the Federal Executive Council (FEC), of which the Prime Minister is the ‘first among equals.’

The FEC is first referred to in Section 62 of the Constitution, as people appointed by the Governor-General as advisors. As we have already seen, by constitutional convention this advice is binding. The Governor-General in Council consists of the Governor-General and FEC. This is similar to the councils that advised various British monarchs, known as the Privy Council. However, with the exception of the Judicial Committee of the Privy Council, which we will return to in The Australian Government #15, many of the powers of the Privy Council are now exercised by the Cabinet, just like how the powers of the monarch are exercised by the British Privy Council. Although Section 62 seems to give the Governor-General broad power in who they appoint to or dismiss from the FEC, Section 64 requires them to be Senators or MPs. There are two exceptions to this requirement. The first created an unelected FEC until the first election could be held. These elected politicians are called the Ministers. The second exception allows MPs from the House of Representatives to remain in the executive for three months after their term expires, in case the election is set for after the expiry of their elected term. As discussed in The Australian Government #5, an election must last for 33-68 days, which falls within the three-month window. This rule does not apply for the Senate, where the laws are stricter.

Although the Governor-General can appoint Ministers, according to Section 64, the Governor-General in Council must establish a department for the person to oversee as Minister. These departments are also referred to as ‘Portfolios,’ with a Minister’s portfolio being the departments they have responsibility for. Therefore, the elected government, as the Governor-General in Council, creates various departments, and then the Governor-General appoints Ministers, based on the advice of the FEC. All Ministers, including the Prime Minister, are part of the FEC. When the FEC convenes, it focuses on the constitutionality of government policies. These policies are set by the Cabinet. The Cabinet consists of senior Ministers and the Prime Minister, and which Ministers are part of it is determined by the Prime Minister, and while all Ministers can be part of Cabinet, this is unlikely. The Outer Ministry refers to all Ministers who are not part of Cabinet, generally junior Ministers or Ministers for smaller departments. In addition to Cabinet and the Outer Ministry, there are also Assistant Ministers. Once Cabinet has set the policies, the FEC determines if they lawful under the Constitution, and then they are enacted. Current members of the Cabinet can be found here.

Each Minister has a specific portfolio. Larger departments will consist of a senior Minister, junior Ministers, and Assistant Ministers. For example, the Department of Foreign Affairs and Trade (DFAT), arguably the most important ministry, consists of the following: Senator Marise Payne, Minister for Foreign Affairs; Dan Tehan MP Minister for Trade, Tourism and Investment; Senator Zed Seselja, Minister for International Development and the Pacific; Dr David Gillespie MP, Minister Assisting the Minister for Trade and Investment; and Michelle Landry MP, Assistant Minister for Regional Tourism. Dr Gillespie is a junior Minister in DFAT, and Payne is senior to Tehan, because even though they are both senior Ministers, Senator Payne is more influential. This is reflected in her position as Minister for Women. Dr Gillespie and Landry both have other portfolios, as Minister for Regional Health (junior Minister in the Department of Health) and Assistant Minister for Children and Families (Assistant Minister in the Department of Social Services). Senator Payne’s US and UK equivalents are the Secretary of State, and Secretary of State for Foreign and Commonwealth Services, respectively. Ministers are responsible for setting policy in their portfolios.

Becoming a Minister is not based purely on merit; rather, ministerial assignments are by nature very political. When the LNP forms government, the Liberal Party gives some portfolios to National Party politicians, as part of the Coalition agreement. Ministers can also be appointed, dismissed, or reassigned because of their relationship with the Prime Minister. For example, if a leadership spill occurs because a politician challenges the Prime Minister for party leadership, and the Prime Minister successfully defends their position, the challenger and their supports risk being reassigned to lesser ministries or being dismissed as a Minister altogether. There is an informal hierarchy of ministries, with Minister of Foreign Affairs and Minister of Defence usually being the most important. Senator Payne was moved from the latter to the former after Julie Bishop, the previous Minister of Foreign Affairs, resigned, suggesting that the Minister of Foreign Affairs is a more important position. The Minister of Foreign Affairs is a very strategic position. Important politicians who pose a threat to the Prime Minister can be assigned to this role, because in the past it meant that they were often overseas, and therefore couldn’t build a power base to challenge the Prime Minister. For example, Dr Herbet Vere Evatt, a former High Court of Australia judge, was made Minister of Foreign Affairs by Labor Prime Ministers John Curtin and Ben Chifley. As the youngest High Court judge and a person with connections in the United Nations, which he helped form and served as the Secretary-General of in 1948-49, he was seen as a threat. He would later replace Chifley after Chifley’s resignation, and served as Leader of the Opposition from 1951 to 1960, surviving several leadership spills. This demonstrates the threat he posed to the earlier Labor Prime Ministers. Another example of a strategic pick for Minister of Foreign Affairs was when Prime Minister Julia Gillard appointed Kevin Rudd, whom she had deposed in a leadership spill, to this portfolio. Social media and the Internet have meant that it is easier for the Minister of Foreign Affairs to communicate with other politicians at home, removing some of the position’s strategic importance in this manner. However, Payne and Bishop were both female Ministers appointed by the conservative Liberal Party, as part of an effort to be seen as promoting gender equality, which led to Payne to be called the ‘Prime Minister for Women.’

In addition to serving on the Federal Executive Council, advising the Governor-General, Ministers are responsible for setting and developing policies in their portfolios. However, there is often a strategic motive behind who is made a Minister in a given department, meaning that the person setting the policies may not be the most qualified candidate for the position.

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Stuart Jeffery, aka LibertyDownUnder, is the founder of the Australian Liberty Network. He is also the host of the Gumtree of Liberty and Gumtree of Liberty Live podcasts, and is editor of the Liberty Review. Stuart is currently studying a Bachelor of Laws and Bachelor of Arts, majoring in international relations, at the University of Southern Queensland.

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