Executive Council Guidelines – 16 July 2019

EXECUTIVE COUNCIL GUIDELINES

These guidelines have been prepared by the Department of the Premier and

Cabinet to assist public sector officers in their understanding of the Executive Council process.

Enquiries regarding the Executive Council process should be directed to the:

Executive Government Branch Department of the Premier and Cabinet

Dumas House, 2 Havelock Street WEST PERTH WA 6005

Phone: (08) 6552 5225 or (08) 6552 5754

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CONTENTS

1. INTRODUCTION 3

2. CONFIDENTIALITY OF SUBMISSIONS 3

3. EXECUTIVE COUNCIL MEETINGS 3

3.1 Scheduled meetings 3 3.2 Special meetings 4

4. BRIEFING OF THE GOVERNOR 4

5. PREPARATION OF SUBMISSIONS 4

5.1 Executive Council Minutes 4 5.2 Executive Council Explanatory Notes 6 5.3 Supporting papers 6

6. LODGING SUBMISSIONS 7

6.1 Submission deadlines 7 6.2 Late submissions 7 6.3 Combining submissions 7 6.4 Delivery of submissions 7

7. PROCEDURAL ISSUES 7

7.1 Approval dates 7 7.2 Revocation of approvals 8 7.3 Cabinet approval 8 7.4 Appointments to Boards and Committees 9 7.5 Resignation of Office Holders 8 7.6 Proclamations and Orders in Council 9 7.7 Arrangements in the Governor's absence 9 7.8 Documents requiring the State Seal 9

8. CONTACT DETAILS 9

APPENDIX A: EXECUTIVE COUNCIL EXPLANATORY NOTE TEMPLATE 10

APPENDIX B: EXECUTIVE COUNCIL PROCESS FLOWCHART 12

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1. INTRODUCTION

The Executive Council is the supreme decision making body of government and consists of the Governor (as Chair) and all Cabinet Ministers. Its principal purpose is to advise the Governor on matters relating to the government of the State of Western Australia. The Executive Council also gives legal form to Cabinet decisions which have no legal status in their own right. Section 60 of the Interpretation Act 1984 provides that a reference to the “Governor” in any legislation is taken to mean the “Governor in Executive Council”. In general, this reference determines whether matters are referred to the Executive Council for consideration. These guidelines provide information about the Executive Council process and submission requirements. A process flowchart is included at Appendix B (page 12). Further enquiries should be directed to:

Senior Executive Government Officer (08) 6552 5225 Executive Government Officer (08) 6552 5754 Administration (08) 6552 5666

2. CONFIDENTIALITY OF SUBMISSIONS

Executive Council submissions are legal documents that should be treated with the utmost security and confidentiality, in the same manner as Cabinet papers. Copies should not be released to any party other than the responsible Minister or agency. Queries regarding the release of Executive Council documents should be directed to the Senior Executive Government Officer. 3. EXECUTIVE COUNCIL MEETINGS A quorum is required for each Executive Council meeting, comprising the Governor (as Chair) and two Ministers. Meetings are also attended by the Clerk of the Executive Council. 3.1 Scheduled meetings

The Executive Council meets fortnightly, usually on Tuesday mornings at Government House, irrespective of Cabinet meetings or ‘Caretaker’ periods related to State General Elections. Meeting dates and submission deadlines are determined biannually (January to June/July to December) and published on the DPC website. Ministerial offices receive advance notice as to which meeting(s) their Minister is required to attend. If a Minister is unable to attend a scheduled meeting, they are responsible for organising the attendance of an alternative Minister. The Executive Government team should be advised as soon as possible to ensure agenda papers are accurately distributed.

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3.2 Special Meetings Matters sometimes arise which require urgent Executive Council consideration prior to the next scheduled meeting. In such instances, the responsible Minister can obtain approval from the Premier for a special meeting to be convened. Enquiries should be directed to the Senior Executive Government Officer who will liaise with the Governor regarding a meeting date and arrange for the signing and distribution of agenda papers. The Minister requesting the special meeting is required to attend the meeting and organise the attendance of a second Minister. 4. BRIEFING OF THE GOVERNOR

Submissions are compiled and provided to the Executive Council approximately three working days before a scheduled meeting. The Executive Government team will contact ministerial offices if the Governor raises any queries. It is important that any requests for advice are provided by the specified deadline so the Clerk can brief the Governor before the meeting. Failure to do so may result in the submission being withdrawn from the agenda. 5. PREPARATION OF SUBMISSIONS Submissions must contain an Executive Council Minute and Explanatory Note, together with any relevant attachments (i.e. regulations, proclamations, plans, CVs, Cabinet Decision Sheet). Submissions must be printed on A4 paper and not hole-punched or stapled. Certain documents (i.e. plans, appointment commissions) can be submitted in a larger format if necessary. It is strongly recommended that agencies seek advice from the Parliamentary Counsel’s Office (PCO) when preparing submissions of a legal, complicated or non-routine nature. The PCO can be contacted on (08) 9264 1444. 5.1 Executive Council Minutes Wording Although there is no prescribed form of wording for Minutes, they must:

clearly articulate the proposal and legislative authority under which it is being made (i.e. the relevant Act and section);

include relevant details such as dates (“1 July 2015”), full names, terms of appointment;

not simply refer to supporting attachments (some papers such as regulations, by-laws and orders prepared by PCO are the exception);

be factually and grammatically correct;

not contain acronyms or abbreviations; and

include the relevant departmental file number(s) in the space provided.

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Signatures Three signatures are required on the Minute:

1. The Minister responsible for the Act under which the submission is being made must sign (not initial) in the space provided above their portfolio title*. This must be obtained prior to submission to the Executive Government team;

2. The Premier will countersign the Minute prior to its submission to Executive Council. This is arranged by the Executive Government Officer; and

3. The Governor, subject to approval in Executive Council. Ministerial offices should ensure any supporting documents also requiring the Governor's signature are clearly tabbed. * Joint ministerial submissions should include each of the relevant ministerial signatures on the Minute, if there is a legislative requirement for their approval. If additional Ministers have simply been consulted as part of the process, this can be outlined in the accompanying Explanatory Note.

Paper Agencies drafting their own Minutes can obtain a soft copy template from the Executive Government Branch (contact information on the front pages of these Guidelines). Minutes printed on poor quality, photocopied paper will not be accepted. Please do not hole-punch the Minute paper or widen its margins.

Multiple Pages Sometimes a Minute may contain a lengthy proposal that is unable to fit on a single page, such as a Minute appointing numerous persons to various positions. If a proposal extends beyond a single Minute paper, please ensure that the Minister signs each Minte page. Minute Number and Date

The Executive Government Officer will stamp the Minute with the meeting date and agenda item number following the Governor’s approval.

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5.2 Executive Council Explanatory Notes A template Explanatory Note is at Appendix A (page 10). Explanatory Notes should:

clearly articulate the proposal and legislative authority under which it is being made (i.e. the relevant Act and section);

include relevant details such as dates (“1 July 2015”), full names, terms of appointment, proposed changes to fees and charges*;

identify relevant attachments which the Governor should consider such as regulations or CVs (see Section 5.3);

indicate whether a Regulatory Impact Assessment was required and if so, the Regulatory Gatekeeping identification number (for further information visit http://www.finance.wa.gov.au/cms/content.aspx?id=16896);

be printed single-sided on agency or ministerial letterhead; and

be signed by the agency’s CEO or deputy to signify that the submission is accurate and complete.

* Submissions proposing changes to fees and charges must include the information highlighted in the table below, consistent with requirements for Explanatory Memoranda as outlined in ‘Premier’s Circular 2014/01 – Subsidiary Legislation’. Submissions which do not include this information will be returned for amendment.

Type of

fee charged / fee cap imposed

Date last amended

(Increase or Decrease)

Old fee / fee cap ($)

New fee / fee cap

($)

Increase / Decrease

(%)

Increase / decrease

($)

% of cost recovery achieved

Cross subsidisation

(Yes / No)

5.3 Supporting Papers Attachments requiring the Governor’s signature must be identified in the Minute and/or Explanatory Note (i.e. “approve Attachment 1”; “as outlined in the attached Order"; “sign the accompanying lease documents in triplicate").

Please note:

Regulations, orders, schedules, proclamations: one double-sided copy and one single-sided copy must be provided.

Bound documents (lease agreements, reports): one bound plus one unbound copy must be provided.

Diagrams, plans, maps: six colour copies must be provided. The subject land or area relating to the proposal should be clearly highlighted in the image.

Curriculum Vitae: To be provided for all appointments and reappointments. Must include referee details and be printed single-sided.

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6. LODGING SUBMISSIONS 6.1 Submission Deadlines

Submissions must be lodged with the Executive Government Officer before the relevant meeting deadline (usually 4 pm on the Wednesday prior to a scheduled meeting). This will enable submissions to be examined and any queries to be addressed prior to consideration at the intended meeting. Submissions lodged after the deadline may be held over until the next scheduled meeting.

6.2 Late Submissions

It is sometimes necessary for a submission to be considered urgently by Executive Council the day after it has been endorsed by Cabinet. In such instances, or where a ministerial office is aware that a submission is likely to be late, the Executive Government team must be advised. Late submissions that do get added to the agenda will be considered at the conclusion of normal business if time permits.

6.3 Combining Submissions

Wherever possible, agencies should combine similar proposals in one submission (i.e. numerous Board appointments made under the same Act).

6.4 Delivery of Submissions

Submissions should be hand-delivered or couriered to the:

Executive Government Branch Department of the Premier and Cabinet Dumas House, 2 Havelock Street WEST PERTH WA 6005

All documents should be delivered in secure packaging to avoid damage.

7. PROCEDURAL ISSUES

7.1 Approval Dates

Proposals are effective from the date of the meeting or a later date if specified in the Minute. The Executive Council has no authority to approve matters retrospectively.

As such, agencies must ensure sufficient time is allowed for a submission to be considered by Cabinet (if required) and Executive Council (i.e. that approval is received before the expiry of a current term of appointment or effective date for new regulations or fees). Consideration should also be given to any requirements to publish in the Government Gazette and associated deadlines set by the State Law Publisher.

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7.2 Revocation of Approvals In some circumstances, in the event of an error, it may be possible to amend or revoke a previously approved submission. The new Minute must specify the Minute number of the previous proposal which is to be amended/revoked and the date which that approval was received. A copy of the original Minute must also be included with the new submission. Minutes dealing with the making of subsidiary legislation, such as regulations or by-laws, cannot be amended or revoked. In these cases, please contact PCO for advice regarding the correction of any errors. 7.3 Cabinet Approval

The Cabinet Handbook provides information about the Cabinet process and submission requirements, and can be viewed on DPC’s website: http://www.dpc.wa.gov.au/RoleOfGovernment/Pages/CabinetHandbook.aspx

If possible, matters requiring Cabinet approval should include the Executive Council submission signed by the responsible Minister. Once Cabinet approval is received, the Executive Council submission can then be added to the relevant agenda. Unless prior arrangements have been made with the Executive Government team, submissions approved at a Cabinet meeting held on the day before an Executive Council meeting will not automatically be listed on that Executive Council agenda (see Section 6.2). The Cabinet Secretariat will arrange for the Premier’s consideration of the Executive Council submission. 7.4 Appointments to Boards and Committees

Appointments which are established in statute to be made by the responsible Minister or Governor must be considered by Cabinet prior to being submitted to Executive Council. The Explanatory Note should indicate the date of Cabinet’s endorsement.

7.5 Resignation of Office Holders

It is conventional for individuals appointed by the Governor to any government office, board or committee to also tender their resignation to the Governor.

The wording of the submission should reflect the relevant provisions of the Act under which the appointment was made and indicate whether the Governor is required to ‘note’ or ‘accept’ the resignation.

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7.6 Proclamations and Orders in Council

The purpose of a proclamation or order should be clearly outlined in the Minute and Explanatory Note. Proclamations must be signed by the responsible Minister prior to submission to Executive Council. The PCO has developed the following guidelines to assist: http://www.department.dotag.wa.gov.au/_files/Guidelines_drafting_proclamations_Orders.pdf 7.7 Arrangements in the Governor’s Absence From time to time, a deputy of the Governor or an Administrator will administer the State in the Governor’s absence. In such instances, the Executive Government Officer will notify ministerial offices of the formal titles to be used on paperwork presented for consideration by the deputy of the Governor or Administrator.

7.8 Documents Requiring the State Seal

The State Seal is held by the Executive Government Officer who arranges embossing of all relevant documents (i.e. proclamations, commissions, leases) prior to submission to Executive Council.

Where the imprint of the State Seal is required, a space should be allowed for a 62 mm diameter seal. Sufficient room must also be allowed for the Governor's signature beneath the Seal. 8. CONTACT DETAILS Enquiries regarding the Executive Council process should be directed to the: Executive Government Branch Department of the Premier and Cabinet Dumas House, 2 Havelock Street WEST PERTH WA 6005 Senior Executive Government Officer (08) 6552 5225 Executive Government Officer (08) 6552 5754 Administration (08) 6552 5666

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APPENDIX A: EXECUTIVE COUNCIL EXPLANATORY NOTE TEMPLATE Explanatory Notes provide plain language explanations of matters to be considered by Executive Council. They form a critical part of the submission and ensure the Executive Council is fully briefed. Agencies should follow the format below and provide responses under each applicable heading. The dot points are provide as a guide only.

(TO BE PRINTED ON AGENCY LETTERHEAD)

EXECUTIVE COUNCIL EXPLANATORY NOTE

Disclaimer: This Explanatory Note has been prepared as an aid to understanding this

Executive Council submission and must not be substituted for any part of the submission nor made available for public information.

Proposal

What is the legislative authority for the proposal (relevant Act and section)?

Clearly explain the proposal and what the Executive Council is being asked to approve:

o For regulations and bylaws: What is the general purpose? o For appointments: Who is the recommended appointee, what position will

they be appointed to and for what duration? o For the establishment of a new entity: What will its function be? o For changes to government fees: Include a table which highlights the

current and proposed fees and outline why the changes are necessary (see Premier’s Circular 2014/01 “Subsidiary Legislation – Explanatory Memoranda” for guidance)

What is the background to the proposal? Approval Process

Who has recommended and approved the proposal prior to its submission to Executive Council (e.g. Cabinet, Minister, CEO, Board, selection panel)?

Regulatory Impact Assessment

Should this proposal be subject to the Government’s Regulatory Impact Assessment (RIA) requirements? (Visit the Department of Finance’s website: http://www.finance.wa.gov.au/cms/content.aspx?id=16896);

If yes: o indicate whether a ‘Minister for Finance Exemption’ has been obtained or

whether RIA was satisfied through an approved Preliminary Impact Assessment or Regulatory Impact Statement; and

o provide the proposal’s Regulatory Gatekeeping number (if applicable). Consultation

Was consultation undertaken and what was the outcome? Details of positive and negative feedback should be included.

Have any concerns about the proposal been addressed?

Was legal advice sought? Is so, from whom?

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Appointments

Explain why the appointee is considered the most suitable person for the position;

Provide a brief background on the appointee and attach a copy of their CV (which includes referees);

Provide a copy of the Cabinet Decision Sheet, if applicable. Relation to Policy

Is the proposal relevant to Government policy or any Government or agency initiative?

Is a public announcement planned? When will this occur? Sensitivity

Does the proposal involve any sensitive or contentious issues (i.e. for the Government, community, business, individuals)?

Is it likely to be politically or commercially sensitive? Why?

For criminal matters, are there any victim or offender issues which require comment?

The details contained in this submission are accurate and complete.

_____________________________ Agency CEO / Deputy

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APPENDIX B: EXECUTIVE COUNCIL PROCESS FLOWCHART

RESPONSIBILITY KEY

Agency

Ministerial Office

DPC Executive Government

Agency prepares EXCO submission (Minute, Explanatory Note, supporting documentation)

Agency CEO approves EXCO submission (signature required on bottom of Explanatory Note)

Agency provides EXCO submission to ministerial office (allowing sufficient time for ministerial consideration before the EXCO meeting deadline)

Minister approves submission (signature required on Executive Council Minute and where relevant, supporting documentation)

Submission checked by Executive Government branch. If accurate and complete, submission will be added to the next EXCO meeting agenda. If amendments are required, contact will be made

with the ministerial office

Submission delivered by Executive Government branch to the Premier for consideration and signature

Submission delivered by Executive Government branch to the Governor for consideration before the EXCO meeting. If queries are raised, the Executive Government branch will contact the

ministerial office for advice. Failure to provide advice before the specified deadline may result in the submission being withdrawn from the EXCO meeting

If submission approved: A copy of the signed EXCO minute and supporting documentation will be delivered by the Executive Government branch to the ministerial office after the meeting

If submission withdrawn: Executive Government branch will notify ministerial office and return the

original submission after the meeting

Ministerial office processes EXCO submission as per their internal procedure

Note: If a copy of the approved submission is urgently required to enable publication in the Government Gazette, the Executive Government branch can email this to the ministerial office and agency after EXCO meeting. This must be requested by the ministerial office prior to the

EXCO meeting

Submission hand-delivered by ministerial office to Executive Government branch before the EXCO meeting deadline

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