Ministerial Advisers and the Australian Constitution

Ministerial advisers are relatively new institutional actors within the Commonwealth Executive. Ministerial advisers were not envisaged at federation and pose a challenge to constitutional theory, which largely focuses on the position of public servants and Ministers. This article analyses the position of ministerial advisers within the constitutional framework of the Australian Executive. It also considers the constitutional basis for the employment of ministerial advisers at the Commonwealth level, including the appropriation of their salaries and the power to contract for their employment. In doing so, it illustrates the practical operation of the tests in the cases of Williams v Commonwealth and Pape v Commissioner of Taxation. The author argues that ministerial advisers have become integrated within the constitutional framework of the Executive such that their activities fall within the ordinary and well-recognised functions of government as they play an integral role in assisting in the administration of a government department.