Government and Parliament
The relationship between the groups is governed by a combination of constitutional provisions, convention and political reality, which can be simplified as follows:
Members are individually elected to represent constituents within each electoral division and collectively form the House of Representatives.
In most cases Members belong to and support a particular political party.
The party (or coalition of parties) having the support of the majority of Members becomes the government party.
The party (or coalition of parties) opposed to the party supporting the government forms the ‘official’ Opposition.
The party having the support of the majority of Members elects one of its members as leader, who is commissioned by the Governor-General as Prime Minister to form a Government.
The party supporting the Government may elect, or the Prime Minister may appoint, a specified number of its members to be Ministers of State (the Ministry) who form the Federal Executive Council (the body which, in a formal sense, advises the Governor-General in the executive government of the Commonwealth) and who administer the Departments of State of the Commonwealth.
The full Ministry, or a selected group from within the Ministry, becomes the principal policy and decision-making group of government which is commonly known as the Cabinet.
With its membership drawn from the Parliament, the Executive Government is required to seek the Parliament’s approval of new legislation, including financial legislation. Thus, as many of the more important executive actions are subject to parliamentary approval, the Government is responsible to the Parliament and through it to the electors. In this lies the distinctiveness of the Westminster model—the interrelation of the Executive Government and the Parliament. It is the essence of what in Westminster terms is called ‘parliamentary government’.
A Government is subject to the judgment of the electors at periodical general elections, but between elections a Government can only maintain office while it retains the confidence of the House of Representatives. In 1975 a third element came into play when the Government was effectively subjected to the will of the Senate which, in the circumstances, forced the Government to the electors.
This basic dissection of the way Government relates to Parliament points to the fact that our system of parliamentary government is not entirely based on provisions of the written Constitution (see page 48). A full analysis can only be made from an understanding of the development of the Westminster system of responsible government adopted by Australia.
A note on separation of powers and checks and balances
The doctrine of separation of powers was popularised by Montesquieu in 1748 in his work L’Esprit des Lois. The doctrine held that there were three essentially different powers of government: legislative, executive and judicial; and that a country’s liberty depended on each of these powers being vested in a separate body. This theory had a marked effect on subsequent parliamentary and governmental development in democratic societies.
The doctrine of the separation of powers influenced the framing of the Australian Constitution to the extent that the powers of the main arms of government were set down in three separate chapters (s. 1, The Legislature; s. 61, The Executive; s. 71, The Judicature). However, as Ministers must be, or become, members of the legislature, there is a combining and overlapping of the legislative and executive functions.
According to Bagehot, the relationship between the legislative and executive powers in the Westminster system is better described as a ‘fusion of powers’:
The efficient secret of the English Constitution may be described as the close union, the nearly complete fusion, of the executive and legislative powers.
This fusion takes place in a Cabinet, which:
… is a combining committee—a hyphen which joins, a buckle which fastens, the legislative part of the State to the executive part of the State. In its origin it belongs to the one, in its functions it belongs to the other.
Although this fusion of powers in the Westminster tradition may be regarded as a strength, it is also recognised as a potential danger. It is accepted to be undesirable for all or any two of the three powers to come under the absolute control of a single body. There are therefore checks and balances which prevent the fusion of executive and legislative powers from being complete. The essence of a democratic Parliament is that the policy and performance of government must be open to scrutiny, open to criticism, and finally open to the judgment of the electors. When the Government puts its policy and legislation before Parliament it exposes itself to the scrutiny and criticism of an organised Opposition and of its own Members, who may be critical of, and suggest changes to, government policy and administration. Parliament is an important brake on the misuse of executive power of the Government collectively, or Ministers individually. It is essential that there be no erosion of Parliament’s role in scrutinising the actions of government, such as might cause the Parliament to become a mere ‘rubber stamp’ in respect of government policy. Through the procedures of the House and the will of individual Members, and especially through the institutionalised Opposition, the executive and legislative functions remain sufficiently distinct.
The Government and House proceedings
The Executive Government exercises a controlling influence over the decisions of the House of Representatives. The principal factors in this are that:
the Ministry is drawn from the legislature;
for the Government to continue in office it depends on the support of the majority of the Members of the House; and
the party system and its strong discipline help the Government to maintain its majority.
The capacity of the parties to control the votes of the majority of Members provides the means by which the Government, either directly or indirectly, may exercise its control over the House. At the same time the Government’s control is constrained by its accountability and responsibility to the Parliament in which the Opposition (the significance of which is discussed at page 79) and the Senate play vital and at times determining roles. Notwithstanding these factors, as all decisions of the House are taken by majority vote, the Government is able to exert substantial influence over the operations of the House.
Indicative of the significance of some of the matters governed by standing orders but subject to the will of the majority are:
the election of the Speaker and Deputy Speakers;
decisions on legislation;
additions to, and amendments of, standing and sessional orders;
the curtailment of debate under the various closure and guillotine provisions;
the suspension of standing orders;
the determination of the days and hours of sitting; and
the establishment and operation of parliamentary committees.
Other significant ways in which the business of the House is controlled by the Government under the standing orders include the provisions:
that government business takes precedence of all other business on each sitting day except the period on Mondays when non-government business has precedence; and
that the Leader of the House may arrange the order of government business as he or she thinks fit, and may move items of government business between the House and Federation Chamber by means of a programming declaration.
Priority for government business acknowledges the need for the Government to be provided with sufficient parliamentary time for the pursuit of its legislative program and the communication of its policies.
Other provisions of the standing orders which give a preference or latitude to Ministers are:
a motion for fixing the next meeting of the House (S.O. 30) may be moved by a Minister without notice;
a motion for the adjournment of the House (S.O. 32) may be moved only by a Minister;
a motion (or amendment) of no confidence in or censure of the Government may be allowed precedence over other business only if accepted by a Minister (S.O. 48);
a motion to discuss a matter of special interest (S.O. 50) may only be initiated by a Minister;
the initiation of financial proposals (partly for constitutional reasons) is restricted to Ministers (S.O.s 178–179);
documents may be presented by Ministers at any time when there is no other business before the House (S.O. 199); and
a motion to take note of a document, or to make it a Parliamentary Paper, at the time of presentation (S.O. 202) may be moved by a Minister without notice.
The principle of responsibility and accountability of Ministers to Parliament is to some extent recognised by standing orders in that:
a motion or an amendment which expresses a censure of or no confidence in the Government may be moved (S.O. 48) (there is no specific provision for a motion of censure of or no confidence in an individual Minister);
questions with or without notice may be asked of Ministers in accordance with the rules of the House governing questions (S.O.s 97–105);
the procedures in relation to grievance debate and matters of public importance (S.O.s 192b and 46) are used for the purposes of ministerial accountability;
by order of the House a Minister may be required to present documents for tabling (S.O. 200);
a document relating to public affairs quoted from by a Minister (unless stated to be confidential) shall, if required, be presented (S.O. 201); and
the Petitions Committee may refer a petition received by the House to the responsible Minister, and Ministers are expected to respond to the committee within 90 days (S.O. 209).
The Constitution and Executive Government
The executive power of the Commonwealth, although vested in the Queen, is exercisable by the Governor-General, and in the words of section 61 of the Constitution ‘extends to the execution and maintenance of this Constitution, and of the laws of the Commonwealth’.
The significance of this section is expressed by Quick and Garran:
This statement stereotypes the theory of the British Constitution that the Crown is the source and fountain of Executive authority, and that every administrative act must be done by and in the name of the Crown …
The Governor-General appointed by the Queen is authorized to execute, in the Commonwealth, during the Queen’s pleasure and subject to the Constitution, such powers and functions as may be assigned to him by Her Majesty (sec. 2) and by the Constitution (sec. 61). Foremost amongst those powers and functions will necessarily be the execution and maintenance of the Constitution, and the execution and maintenance of the laws passed in pursuance of the Constitution.
The succeeding sections of the Constitution supplement section 61 by establishing in broad terms how and by whom the executive power is in practice to be executed:
First (section 62)—There is a Federal Executive Council to advise the Governor-General in the government of the Commonwealth, and the members of the Council are chosen and summoned by the Governor-General and sworn as Executive Councillors. They hold office during the Governor-General’s pleasure.
The essence of this provision, read in conjunction with the succeeding provisions, is in the words of Quick and Garran:
Whilst the Constitution, in sec. 61, recognizes the ancient principle of the Government of England that the Executive power is vested in the Crown, it adds as a graft to that principle the modern political institution, known as responsible government, which shortly expressed means that the discretionary powers of the Crown are exercised by the wearer of the Crown or by its Representative according to the advice of ministers, having the confidence of that branch of the legislature which immediately represents the people. The practical result is that the Executive power is placed in the hands of a Parliamentary Committee, called the Cabinet, and the real head of the Executive is not the Queen but the Chairman of the Cabinet, or in other words the Prime Minister.
Ever since the resignation of Sir Robert Walpole in 1742, it has been recognized that the Crown could not for any length of time continue to carry on the government of the country, except through Ministers having the confidence of the House of Commons. That constitutes the essence of Responsible Government.
Although there is no constitutional restriction on who shall be appointed to the Executive Council, it has been composed, with a few exceptions, of Ministers of State. (For discussion of the Federal Executive Council, see page 77.)
Second (section 63)—The provisions of the Constitution referring to the Governor-General in Council are to be construed as referring to the Governor-General acting with the advice of the Federal Executive Council.
This section makes it mandatory, as a constitutional principle, that in such matters the Governor-General acts only with the advice of the Federal Executive Council which, by virtue of section 64, and by convention, is the Ministry. The import of this section is to give further constitutional recognition to the concept of responsible government.
Third (section 64)—The Governor-General may appoint officers to administer such Departments of State of the Commonwealth as the Governor-General in Council may establish. Such officers hold office during the pleasure of the Governor-General. They must be members of the Federal Executive Council, and are ‘the Queen’s Ministers of State for the Commonwealth’. Section 64 further provides that after the first general election no Minister of State can hold office for a longer period than three months unless he or she is or becomes a Senator or a Member of the House of Representatives.
This section provides the constitutional authority for the appointment of Ministers and determines that the Ministry, for all intents and purposes, forms the Executive Government of the Commonwealth. The requirement that Ministers must eventually sit in Parliament brings together the executive and legislative organs of government.
Fourth (sections 65–67)—The Constitution gives further recognition to the Ministry by empowering the Parliament to determine the number of Ministers and the offices they shall hold (see page 58) and the salaries they are to be paid (see page 72). The Executive Government in the broader sense is not only composed of the Ministry. The Constitution also makes provision, until the Parliament otherwise provides, for the appointment (and removal) of other officers of the Executive Government by the Governor-General in Council.
The existence of a wide range of conventions of the Constitution plays a fundamental part in Parliament/Executive Government relations. These conventions are numerous, and in some cases there is no universal agreement that they exist. Conventions are based on established precedent and practice and in many respects have their foundation in British law and practice established before 1901. They are subject to change by way of (political) interpretation or (political) circumstances and may in some instances be broken.
Constitutional conventions are of great significance in the exercise of the reserve powers of the Crown. This is particularly evident in the exercise of the power of dissolution, vested by the Constitution solely in the Governor-General but not normally exercised without regard to convention.
The workings of responsible government, the concept of ministerial responsibility (collective and individual) and the existence of Cabinet (not mentioned in the Constitution) are for all practical purposes the subject of constitutional convention. The Constitution made no mention of political parties until 1977 when section 15, relating to the filling of casual vacancies in the Senate, was amended. Also majority or minority groups and the offices of Prime Minister and Leader of the Opposition are not mentioned.
Constitutional convention and the way it is interpreted and applied may, on occasions, have the same force as, but be not superior to, the Constitution itself, and its existence has been recognised by important cases of the High Court. Crisp briefly defines constitutional conventions as:
… extra-legal rules of structure or procedure or principle, established by precedent, consolidated by usage and generally observed by all concerned. They will affect the operation of the Constitution and may affect the working of the law but they themselves have not the force of law.
Professor Gordon Reid interprets the phrase as follows:
… the expression is little more than an article of political rhetoric and … our academic constitutional lawyers were publicly [in 1975] using it as such.
It is well known that Australia’s written Constitution is silent on many important aspects of government. It says nothing about the Prime Minister, the Cabinet, responsible government, ministerial responsibility, electing a government, dismissing a government, parliamentary control, what is to be done if the Senate refuses to pass an appropriation Bill (or a supply Bill), and so on. In reality this void is filled-in by well established practice, methods, habits, maxims, usages, many of them of long-standing, which were inherited from colonial Parliaments, which in turn inherited them from Westminster. It is these practices, methods and usages which tend to be referred to, albeit vaguely, as ‘conventions of the Constitution’.
Although reference to constitutional conventions is made throughout this text, it is not intended to identify and separately examine in depth the full range and meaning of all of them, as they have been subjected to continuing political questioning which has left the status of many so-called conventions in doubt.
Even though the division is not always clear, there are other conventions which may fall under such headings as governmental, (party) political, and parliamentary. Parliamentary convention may be considered to be synonymous with parliamentary practice which is, as the term implies, of very broad scope.
Aspects of ministerial responsibility
Ministerial responsibility takes two forms—collective cabinet responsibility (or ‘cabinet solidarity’) and individual ministerial responsibility. Both concepts are governed by conventions inherited from Westminster and both are central to the working of responsible government.
Collective Cabinet responsibility
Cabinet is collectively responsible to the people, through the Parliament, for determining and implementing policies for national government. Broadly, it is required by convention that all Ministers must be prepared to accept collective responsibility for, and defend publicly, the policies and actions of the Government. The Cabinet Handbook states ‘Members of the Cabinet must publicly support all Government decisions made in the Cabinet, even if they do not agree with them. Cabinet ministers cannot dissociate themselves from, or repudiate the decisions of their Cabinet colleagues unless they resign from the Cabinet’.
Most importantly, the convention has also been regarded as requiring that the loss of a vote on a no-confidence motion in the House or on a major issue is expected to lead to the resignation of the whole Government (including Ministers not in the Cabinet) or, alternatively, the Prime Minister is expected to recommend to the Governor-General that the House be dissolved for an election. Such events are, in the ordinary course, unlikely, given the strength of party discipline. Further, contemporary thinking is that, should a Government lose a vote on a major issue, it would be entitled to propose a motion of confidence to test or confirm its position before resigning or recommending an election.
It has been stated that among the principles implicit in the convention each Minister is required to abide by the following:
he or she must be prepared not only to refrain from publicly criticising other Ministers and their actions but also to defend them publicly, or else resign;
he or she must not announce a major new policy without previous Cabinet consent—if a Minister does, Cabinet must either provide support or request his or her resignation;
he or she must not express private views on government policies nor speak about or otherwise become involved in a ministerial colleague’s portfolio without first consulting that colleague and possibly the Prime Minister; and
government advice to the Governor-General must be assumed to be unanimous.
Not all principles associated with the convention have always been scrupulously upheld. At times governments have perhaps chosen to espouse the convention for political expediency or have chosen not to follow it for the same reason. Where crucial political advantage or disadvantage has been involved party political considerations have sometimes predominated over strict adherence to the convention.
While there have been departures from the convention the following comment on the controversy concerning the vitality of the convention places the matter in perspective:
Most of the current disagreement turns on degree. Some critics have been concerned to point to the increasing number of deviations from the traditional rules; this article has been emphasising the overwhelming majority of cases in which the rules are still followed. The break with the past is less than has been thought.
For precedents of resignations by individual Ministers in accordance with the convention see page 66.
Individual ministerial responsibility
During this century there has been a change in the perceptions of both Ministers and informed commentators as to what is required by the convention of individual ministerial responsibility. The real practical limitations on strict adherence to the convention as it was traditionally conceived are now openly acknowledged.
The 1976 report of the Royal Commission on Australian Government Administration stated:
It is through ministers that the whole of the administration—departments, statutory bodies and agencies of one kind and another—is responsible to the Parliament and thus, ultimately, to the people. Ministerial responsibility to the Parliament is a matter of constitutional convention rather than law. It is not tied to any authoritative text, or amenable to judicial interpretation or resolution. Because of its conventional character, the principles and values on which it rests may undergo change, and their very status as conventions be placed in doubt. In recent times the vitality of some of the traditional conceptions of ministerial responsibility has been called into question, and there is little evidence that a minister’s responsibility is now seen as requiring him to bear the blame for all the faults and shortcomings of his public service subordinates, regardless of his own involvement, or to tender his resignation in every case where fault is found. The evidence tends to suggest rather that while ministers continue to be held accountable to Parliament in the sense of being obliged to answer to it when Parliament so demands, and to indicate corrective action if that is called for, they themselves are not held culpable—and in consequence bound to resign or suffer dismissal—unless the action which stands condemned was theirs, or taken on their direction, or was action with which they ought obviously to have been concerned.
As the Royal Commission and other authorities have noted, there are still circumstances in which a Minister is expected to accept personal responsibility and to resign (or be dismissed):
Resignation is still a valid sanction where ministers have been indiscreet or arbitrary in exercising power. In cases where the minister has misled parliament, condoned or authorized a blatantly unreasonable use of executive power, or more vaguely, where the minister’s behaviour contravenes established standards of morality, resignation or dismissal is the appropriate action. In these cases, the factors which may often excuse the minister from blame for administrative blunders do not operate to the same degree: the minister’s personal responsibility may be more easily isolated.
The responsibility of ministers individually to parliament is not mere fiction. An individual can be disciplined whereas the whole cannot. The events of recent years show that a minister can become too great a burden to carry. The parliament’s role has been to expose and demean. Forced ministerial resignations and dismissals have been the decision of the prime minister not the parliament by its vote. The chief of the executive has judged that the public would accept no less. The credibility of a number of other ministers has been rightly challenged in parliament. Whether the challenges were merited or not the right of parliamentary inquiry cannot be denied. For a government to deny the right may prove to be suicidal. Parliament is the correct forum, the only forum, to test or expose ministerial administrative competence or fitness to hold office. However, allegations of a different kind, that is, offences against the law, should not be tried by parliament. The proper forum for those allegations is the courts. In cases of moral misconduct by a minister, the sanction should be political, in the form of resignation or defeat.
I continue to believe that in the matter of ministerial responsibility, in the strict sense of actions done in his name for him or on his behalf in his role as a minister, his responsibility is to answer and explain to parliament for errors or misdeeds but there is no convention which would make him absolutely responsible so that he must answer for, that is, to be liable to censure for all actions done under his administration.
… If the compelling penalty for a ‘mistake’ is resignation then the compelling prerequisite for punishment is the establishment of proof. This is not easily done in the political arena. The gravity of the ‘mistake’ would be an essential factor to any requirement of resignation. Equally the premise is only as sound as ‘personal fault’ or ‘lack of reasonable diligence’ can be established. Penalty by compulsion is dependent on the establishment of guilt. For the purposes of political advantage, allegations of ministerial ‘mistakes’ of a baseless or minor nature are no less possible than ministerial or government defence in the interests of self-preservation. Executives and ministers will always find it hard to permanently cover-up allegations of serious maladministration or misconduct.
In a practical sense, a Minister may resign, not as an admission of culpability, but rather to remove pressure from the Government while serious criticisms of his or her capacity or integrity are properly and dispassionately assessed. Alternatively, a Minister may be given leave from ministerial duties for the same purpose (see page 69).
When responsibility for a serious matter can be clearly attached to a particular Minister personally, it is of fundamental importance to the effective operation of responsible government that he or she adhere to the convention of individual responsibility. However, the prime consideration in determining whether a Minister should resign or be dismissed has sometimes been the assessment of the likely political repercussions on the Government.
Excluding the most serious cases and those where a Minister is clearly culpable the records have shown that a Government can rely on party discipline to ensure that a Minister’s resignation is not forced by a direct vote of the House. Indeed there has been no occasion of an adverse resolution of the House in the nature of a no confidence or censure motion in an individual Minister (excluding the unusual events on 11 November 1975) on which resignation or dismissal would be expected. Some ministerial resignations, however, have been forced by pressure applied through questioning and criticism in the House. The effects of this pressure on public opinion have been such that the Minister concerned or the Prime Minister has been forced to take action.
The Senate has on several occasions passed motions of censure of Ministers (both Senate and House Ministers). It appears that in none of these cases did the Minister concerned feel compelled to resign as a result. These instances would seem to reinforce the principle inherent in the system of responsible government that Ministers collectively and individually (unless they are Senators) are responsible to the lower House.