Doctrines and Institutions of Responsible Government

The foundation of the Australian Government reflects the values of religious tolerance, freedom of speech and association, and the rule of law. [1] Australia’s institutions and government practices which is what makes Australia unique, are in likeness of the British and North American models. [2] In 1901, after what was formerly looked at as British colonies and is now known as the six states, decided to federate, forming one of the oldest democracies in the world, the Commonwealth of Australia. [3] The first federal government implemented the democratic practices and principles which shaped the pre-federations colonial parliament. [4] “Australia’s founding fathers assumed largely that the principle of responsible government and its associated conventions were inherited from the United Kingdom with the grant of self-government” [5] Hence, the term of responsible government does not appear in the Australian Constitution and nor are conventions of responsible government visibly or explicitly written into the Constitution. [6] However, the founding father did expressly include requirements in the constitution to ensure it functioned effectively such as section 64 which states “ministers are required to be or become members of Parliament.” [7]

The High Court of Australia has also considered the notion of responsible government and has recognized it to be a doctrine that is implied in the Commonwealth Constitution. [8] This was concluded on the landmark Engineers [9] case, where the High Court acknowledged the ‘general influence’ [10] of the principle of responsible government in the Australian Constitution. Another example is that in the Boilermakers [11] case, where responsible government was clarified by the High court as being ‘the central feature of the Australian constitutional system’. [12] The principles of responsible government mainly deprived from the British and Australian conventions and Re Resolution to Amend the Constitution illustrates this.

Definition

The executive government is linked to Australian people by the doctrine of responsible government. [13] “The executive government is responsible to the lower house, which is itself responsible to the electorate via the doctrine of representative government. Responsible government is one way of ensuring parliamentary and therefore popular supremacy over the executive.” [14]

In Australia, responsible government is the phrase used to portray a political system based on the Westminster system, in which a group of parliamentarians dominate a majority of support in the House of Representatives, lower House of Parliament, and in turn form the executive government. [15] Hence, the executive government are Ministers of the Crown as under s64, which states that they “are directly accountable to the legislative organ of the state, being the parliament.” [16]

Furthermore, under this notion, government operation is performed by Ministers that form the executive branch and exercised on behalf of the Crown. Under s61 of the Commonwealth Constitution, the Governor-General, which act on behalf of the Crown, “does so on the advice of the ministers who take responsibility for government and who are accountable to parliament.” [17]

An elected parliament consists of two houses; the House of Representatives and the Senate and the Australia government is based on this popular bicameral parliament. [18] Majority of votes in the House of Representatives forms the government but will only remain government if they have the confidence of the house. [19] If the government losses the majority in the House of Representatives, then they are required to resign under convention. [20] However, the upper house, the Senate, acts as a House of review and the government does not need the majority support of senators. [21] Furthermore, as Barwick CJ in the case of New South Wales v Commonwealth [22] stated, “the crown acts on the advice of its ministers and, on the other hand, the ministers are responsible to the parliament…in the long run the parliament, comprising of the house of representatives and the senate, is in a position to control the executive government.” [23]

The Cabinet, which is the body that makes all the important policy decisions, is presided by the chief Minister-the Prime Minister, which in turn is the political head of the government. [24] The body of the Cabinet consists of all the ministers selected from the two houses, which act in accordance with cabinet policies. [25] They are responsible to parliament by being accountable for their actions as Ministers and the actions of the public service departments they control and also for executive government in the sense of being in charge of administrative activities. [26] For most purposes, “Crown representatives are figureheads who do not posses any independent discretion in the exercise of the authority invested in them.” [27] The principal of Cabinet unity bounds the ministers, which reflects the British model of Cabinet government responsible to parliament. [28]

Ministerial responsibility

The doctrine and institutions of responsible government describe the doctrine of collective responsibility. [29] Ministerial responsibility crucial means a minister’s individual duty to answer questions in parliament in regards to overall management of his or her portfolio. [30]

In this way, public service accountability is to ensure as “public servants are responsible to their Minister who is responsible to Parliament.” [31] However, the Minister may be required to resign their position if serious errors or offenses occur within a government department, or ‘Parliament has been misled over that department’s activities.’ [32] It has been argued that functions of ministerial responsibility still do function as intended, however there has been much more criticism that it is not practical effective.

The most common criticism is that ministers answer to Cabinet rather than the Parliament. [33] “The dominance of the executive is fortified by the rigid discipline of the political party system.” [34] While each house of Parliament evidently has the power to develop and implement the procedures it seems necessary to operate ministerial accountability, the form of those procedures usually replicate the requests of the executive rather than the parliament. [35]

Furthermore, the most serious debate refers to the performance of ministers, and more contentious decisions of the public servants who work within a minister’s department. [36] This debate states that the performance and decisions do not occur in Parliament or any other public forum. Hence, this argument links with the criticism of the appearance of ministers during parliamentary sessions, especially to answer questions and presenting information concerning their department. [37] “This is effectively designed to suit the demands of executive rather than to subject ministers to effective parliamentary scrutiny.” [38] Another popular cited symptom of the ineffective of the doctrine of ministerial responsibility is the increasing unwillingness of ministers to resign in the face of scandal. [39] There are two arguments to take into consideration when arguing the ineffective operation of ministerial responsibility. The first that we should have some faith in those parliamentarians which we as citizens have elected in this role to deal with these issues as they see fit, even if ministers are only responsible to parliament. [40] Secondly, “the increasing complexity and volume of the business of government makes it impossible for a minister to consider and decide all the things done on his behalf”. [41]

Former Attorney-General, William Sneddon argued in 1965 that while “Resignation or … dismissal may be the punishment for personal misconduct, there is no vicarious liability on the part of the ministers for the actions of his subordinates.” [42] Ministerial resignation as the structure of responsibility has become one of political expression even with those that support the effectiveness of responsible government. [43] Professor Lindell, for example, has argued that “some rules of constitutional convention have been transformed into rules of law and may therefore be constitutionally entrenched and perhaps even enforceable by the courts.” [44] Ministers should be able to persuade those under their command and demonstrated by the nature of a chain of command. This view results in a criticism on the foundation that it permits ministers to ignore or weaken the supervisory jurisdiction of the courts by veiling decisions made by the exercise of public powers in political clothes. [45] “It may be also be said to override the arrangement enacted by Parliament by effectively channeling statutory powers through ministerial hands irrespective of whether that is clearly required or enabled by legislation.” [46] Therefore, the public can ultimately hold both the minister and the government for the day responsible by voting them out at the next election, as some may say that ministers have no liability for the occurrences within their department. [47] This evidently argues that notion that responsible government is still operation effectively in Australia.

Original intention

The doctrine of responsible government can be seen to not operate as originally intended however, in order to determine whether this is evidently true, we must look at official records of pre-federation. As it was said in the 1891 convention, that being in favour of the persistence of the system of responsible government, the founding fathers did not hope to permit the concept responsible government. [48]

In fact the founders assumed they had “done well in avoiding the use of any expression which, it might be urged, would have the effect of preventing [them] from altering [the] practise with reference to responsible government in future as occasion may require”. [49]

Furthermore in R v Commonwealth Court of Conciliation and Arbitration and Merchant Service Guild [50] ,Isaacs J stated “The words of the Constitution … stand in all their simplicity and fullness, in an instrument of government, intended to operate as long as the instrument itself shall live, with unabridged force, whatever changing incidents time may bring to the industries of the Commonwealth.” [51]

However, the High Court judgment in Lange’s Case [52] offers some indication as to how responsible government should operate under convention, where it is was noted that the necessity that “the parliament meet at least annually (s6), the provision for control of supply by the legislature (s81 and s83), the requirement that ministers be members of the legislature (s64), the privilege of freedom of speech in debate (s49) and the power to coerce the provision of information (s49) provide the means of enforcing the responsibility of the executive to the organs of representative government.” [53] As illustrated by Sir Samuel Griffith the effect of responsible government “is that the actual government of the State is conducted by officers who enjoy the confidence of the people.” [54] However, Bagehot’s notion of a political party is far removed from the modern reality. [55] He thought, for instance, that in the Commons “the moderate people of every party must combine to support the government which, on the whole, suits every party best.” [56] Bagehot believed that authority of a prime minister to secure dissolution of parliament to be the key to sustaining some kind of party discipline. [57]

Law Reform

In order for the doctrine and institution to operate as they were intended under convention and by implications of the High Court, we need improvement or even new rules to ensure the intentions are maintained. This can be achieved in a number of ways.

Firstly, the Senate should remain a strong and independent House of Review. This can be achieved by removing Ministers from the State’s upper house to ensure it functions exclusively as a house of review, as recommended by the WA Commission on Government. [58] This will ensure the upper House acts as a valid house of review, not merely a rubber stamp for the Government or its opponents. Hence, this would “increase the effectiveness of bills as it will act as an interest to the public and not just a back up for the Government.” [59]

A UK procedure of assigning chairs of committees between the parties on a fair basis and abolishing the power given to ministers to control the activities of the committees should be introduced by the Australian House of Representatives. [60] This might not make a dramatic difference as ministers could most probably persuade their colleagues, “who nearly always have the majorities on the committees, to take the necessary actions.” [61] However, this would eliminate a public upset to the notion responsible government.

An introduction of a more holistic and stricter approach to review and what seems to be a broad reach, may have result in the review of decisions relating to ministers and cabinet. [62] This would lead to a more precise approach to review as it visibly places a greater burden on decision-makers to both explain and justify their actions. [63] Nevertheless, this change may make it complicated “for cabinet or individual ministers to justify decision by non-specific assertions about issues such as ‘the public interest’ without articulating more precisely how their decision may foster or take account of the public interest.” [64]

Conclusion

Overall, on one hand, introducing new rules such as ensuring the Senate acts as the house of review, introducing UK procedure of allocating the chairs of committees, and all the other reasons explained above, will ensure that responsible government remains as an executive arm of government which is responsible to Parliament. This is how it was originally intended and these rules will help further this intention.

However on the other hand, while responsible government can be understandably be seen to have errors and hence be in need of improvement, it is definitely still operating in the way in which was originally intended. It is absolutely clear that those who wrote the constitution avoided the use of express terms in the constitution in regard to responsible government as they recognized that this is a developing concept and therefore some flexibility is needed in the way it is to operate.

Bibliography

Articles/Books/Reports

Australian Democrats, Separation of Powers, http://www.democrats.org.au/docs/ActionPlans/PrimeMinister_SeparationPowers_2007.pdf) at 25 March 2009

Australian Government-Department of Foreign Affairs and Trade, Australian system of government, http://www.dfat.gov.au/facts/sys_gov.html at 2nd May

AustralianPolitics.com, Responsible Government< http://www.australianpolitics.com/democracy/terms/responsible-government.shtml> At 10 March 2009

Brian Galligan, Federal Republic-Australia’s Constitutional System of Government, (1st ed, 1995)

Griffith G, Egan v Willis & Cahill: The High Court Decision (1999), , viewed on 18/03/09.

K Booker, A Glass and R Watt, Federal Constitutional Law: An Introduction (2nd ed, 1998)

Lindell G, Chapter 4: Responsible Government, Essays on Law and Government: Volume 1, Principles and Values, The Law Book Company, 1995

Matthew Groves, Law and Government in Australia, (1st ed, 2005)

Ministerial Responsibility in Modern Parliamentary Government, quoted in J Fajgenbaum and P Hanks, Australian Constitutional Law (1973)

Murray Gleeson, The Constitutional Decisions of the Founding Fathers, Inaugural Annual lecture, 27 March 2007, viewed online on the 13th May,

Oz Politics, Responsible Government, http://www.ozpolitics.info/guide/rules/rg/ at 2nd May 2009

Parliament of Australia- Senate, Can responsible Government survive in Australia, viewed online on 14th May, 2009, http://www.aph.gov.au/SEnate/pubs/hamer/chap01.htm

Sarah Joseph & Melissa Casten, Federal Constitutional Law-contemporary view, (2nd,2006)

Sir Samuel Griffith, Re-writing the constitution, viewed online on 12th May, 2009, http://www.samuelgriffith.org.au/papers/html/volume%201/rewrite.htm

Case Law

Amalgamated Society of Engineers v Adelaide Steamship Co. Ltd (1920) 28 CLR 129

Lange v ABC (1997) 145 CLR 96

New South Wales v Commonwealth (1975) 135 CLR 337

R v Commonwealth Court of Conciliation and Arbitration and Merchant Service Guild (1912) 15 CLR 586.

R v. Kirby; Ex parte Boilermakers’ Society of Australia (1956) 94 CLR 254