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Vol 21 No 9 Sept/Oct 2016

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Ministerial Advisers in Australia: The Modern Legal Context

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ISBN13: 9781760020637
Published: September 2016
Publisher: The Federation Press
Country of Publication: Australia
Format: Hardback
Price: Price on Application

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.

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Other Jurisdictions , Australia

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
Conclusion: 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)?
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