Parliamentary Government in Australia [1 ed.] 9781922454478, 9781921875908

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Parliamentary Government in Australia

Alan Ward is Emeritus Professor of Government at the College of William and Mary, where he taught for 35 years. He also taught at the University of Adelaide, Flinders University, and the University of Leicester. He received his Ph.D. from the London School of Economics and Political Science and has conducted research on parliamentary governments in many countries. His publications on the subject include The Irish Constitutional Tradition: Responsible Government and Modern Ireland, 1782–1982 (Washington, D.C. and Dublin, 1994) and numerous journal articles.

Parliamentary Government in Australia Alan J. Ward

A us t r al i a n S ch o la r ly

To my wife Helene, who loves Australia as I do, and to my daughters, Lesley, who was born there, and Bronte, who bears an Australian name.

© Alan J. Ward 2012 First published 2012, by Australian Scholarly Publishing Pty Ltd 7 Lt Lothian St Nth, North Melbourne, Vic 3051 tel: 03 9329 6963 fax: 03 9329 5452 email: [email protected] web: scholarly.info Revised edition 2013 isbn 978-1-921875-90-8

all rights reserved All reasonable effort has been exercised to establish and acknowledge copyright; an apology is tendered for any omission. In the event of an oversight, enquiry should be addressed to the publisher. Design and typesetting Art Rowlands Printing and binding BPA Print Group This book is typeset in Adobe Garamond Pro 10.6/20pt

Contents

Acknowledgements ix Part I An Introduction to Parliamentary Government in Australia 01 Introduction 02 Defining Parliamentary Government 03 Introducing Parliamentary Government to Australia

3 10 25

Part II Modern Parliamentary Government in Australia 04 05 06 07 08 09 10 11 12 13

Fusion The Confidence of the Majority Political Parties The Prime Minister The Cabinet Parliament: The Lower House Parliament: The Upper House The Head of State Australian Federalism and Parliamentary Government Conclusion: Executive Democracy in Australia

69 75 101 129 147 166 190 220 252 265

Bibliography 295 Index 307

Acknowledgements

This book took many years to write and had the cooperation of many individuals and institutions, none of whom is responsible for the result. I am most indebted to the College of William and Mary, in Virginia, my employer for 35 years, which supported my research very generously. My first academic appointment was as Lecturer in Politics at the University of Adelaide, South Australia, from 1963 to 1966. Many friends that my wife, Helene, and I made then have remained so through the years and have made returning to Australia to work on this and other projects a joy for both of us. I particularly thank Tony and Helen Winefield, Lee Kersten, Wilfrid Prest and Sabina Flanagan for their extraordinary hospitality. I also want to thank Alex and the late Norma Diamantis, Trevor Wilson am and Jane Wilson, John and Pam Keeler, Don Debats and Margaret Ann Williams, Pam and Zoe Reid, Chris and the late Lorna Hurford, Andrew Parkin and Leonie Hardcastle, John Summers, Greg and Margaret Tobin, John and Angela Bannon, and Frank and Margaret O’Neill, for their friendship and support. In 1967 I moved to the College of William and Mary, where I spent the balance of my academic career, with periods of teaching and research in England, Ireland and Australia. I started to return regularly to Australia in 1986, and stopped first to visit my colleague from the Adelaide Politics Department, the late Gordon Reid, and his wife Ruth. Gordon was by then Governor of Western Australia. He inspired this book, and I miss him greatly. Since 1986 I have received help and advice from a number of University of Adelaide staff, including John Keeler and John Williams of the Law Department. I wish that Alex Castles were still with us because he always understood exactly what I was getting at and was very encouraging. I am also grateful to Clem Macintyre of the Politics Department for his help; to Carol Johnson of the Department and Bob Catley, formerly of the Department, for their advice; to Wilfrid Prest of the History Department for sponsoring me for a research appointment in the Centre for British Studies in 1998; and to Matthew Goode of the South Australian Attorney General’s Department.

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In 1988 I visited Flinders University for a semester to teach in the Department of American Studies, which was my first extended visit to Australia since 1966. I am extremely grateful to the Head of the department, Don Debats, and to Andrew Parkin and John Summers of the then Politics Department for cooperating in the U.S. Information Agency exchange program that brought me to Flinders. American Studies also brought me back on an exchange with Don Debats in 2000, and the Politics Department sponsored me for a visiting research appointment for periods in 1994 and 1995. In 1998 I was appointed to a brief research fellowship in the Australian Senate at a time when the Clerk was Harry Evans, the staunchest defender of the Senate that one could imagine. That time made a deep impression on me and I am grateful to the Department of the Senate for making me welcome, particularly Ann Millar and Wayne Hooper. I have had the privilege of knowing a number of senior Australian politicians as friends. All of them had an influence on this project, probably without knowing. I regret that all are on the ALP side but one never has all the friends one should have. Dr Neal Blewett ac, a federal minister, was my colleague in the Politics Department at the University of Adelaide. I stuffed election mailings for Chris Hurford ao, a federal minister, when he ran for the South Australian Parliament in the 1960s. Anne Levy ao was one of my earliest friends in Adelaide. She was President of the South Australian Legislative Council from 1986 to 1989, and was a state minister. And Dr John Bannon ao was Premier of South Australia for 10 years. I thank them all. Finally, this book could not have been completed but for the wealth of online resources now available. I am particularly grateful to Campbell Sharman and Alan Dodds for developing the superb Australian Government and Politics website at the University of Western Australia. I also want to thank those in federal, state and territory government responsible for placing their public records on line. The power of the Google search engine constantly amazes me, and I am much less sceptical of Wikipedia than many scholars. Its entries on Australian politics are consistently good. Alan Ward Department of Government The College of William and Mary Williamsburg, Virginia x

Part One An introduction to Parliamentary Government in Australia

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Introduction

This book is an introduction to parliamentary government in Australia, and more specifically, to how parliaments and governments in Australia work with each other. It has four distinctive features. First, it is analytical. It uses an explicit analytical framework, a model of parliamentary government, to help readers understand why the Australian political system is as it is. Second, the book treats the Australian political system comparatively. It argues that Australian parliamentary government can best be understood as a variant of a model of government that Australia shares with many other countries, not as something unique, and it traces the historical and constitutional roots of that commonality. Third, the book explores parliamentary government at every level in Australia, territory, state, and federal, and integrates them into a single narrative. Fourth, the book considers the ways in which executives have become dominant in Australia. The book is written as a scholarly monograph and presents a novel interpretation of Australian parliamentary government, but it is also written to be understood by students, as an introduction to the subject. I hope that experienced scholars will bear with me when they encounter sections that may appear to them to be elementary.

Westminster or Washminster or Neither? Because the book uses a parliamentary model as the framework some readers may suspect that I am simply repeating an academic interpretation of Australian politics that was fashionable in the past, when Australia’s British antecedents were stressed. This is not my intention. When I taught politics at the University of Adelaide in the 1960s, Australian political life was dominated by Robert Menzies, who listed heavily towards things English, and 3

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so did academic interpretations of Australian government. It was most often presented as a variant of the British, or Westminster, model of government. In 1964, an influential scholar, Gordon Reid, wrote, All seven units of government in Australia [the six states and the federal government] are based on the Westminster model. The model was first used in the design of constitutions for five of the Australian colonies in the 1850s, and for Western Australia in 1890, and finally for the federal compact in 1901. For Australians it was the sine que non of internal self government.1

There were significant deviations from the British model in Australia, of course, which Reid certainly recognized, but Australian constitutions were preponderantly British, and all Australian parliaments were decidedly British in their organization, furnishings and ceremonials. Perhaps the oddest example of the latter is that every bi-cameral parliament in Australia has an official known as the Usher of the Black Rod, or simply Black Rod, modeled on an official of the British House of Lords who was first appointed in the fourteenth century. Black Rod carries a black rod used to rap on the door of the lower house of Parliament to summon members to meet with the head of state and the upper house on ceremonial occasions. It was constitutionally eccentric, to say the least, for South Australia and Victoria to have waited until the 1950s to incorporate this medieval office into their parliaments. Of course, carrying a black rod for rapping on doors is not a full-time job so in Britain and Australia Black Rod manages support services for the upper house, which is why, as a visitor to the Australian Senate, I discovered that an official with a medieval English title had decided which Senate offices should have microwave ovens. Since Gordon Reid wrote, many Australian political scientists have preferred to describe the Australian Commonwealth political system as something quite different from the British, indeed, as something unique. This is because two elements of what David Butler called “the Canberra model” are said to be in tension in Australia but not in Britain.2 The first 1 2

Gordon S. Reid, “Australia’s Commonwealth parliament and the ‘Westminster Model’,” in Colin Hughes, ed., Readings in Australian Government, St Lucia, Qd: Queensland University Press, 1968, p. 109. David Butler, The Canberra Model: Essays on Australian Government, London: Macmillan, 1974.

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is a British-style executive, comprising a Prime Minister and Cabinet who must have the support of a majority in the lower house, the House of Representatives. The second is a powerful, supposedly American-style, Senate that can reject any measure, including a budget. The Senate may therefore destroy a government drawn from the majority in the House of Representatives by denying it a supply of money, or disable it by refusing to vote for its bills, neither of which the House of Lords may now do in Britain. The scene is therefore set for conflict between the Government and the Senate. In a book chapter published in 1980, Elaine Thompson described Australia as having a “Washminster” system of government, with Washington and Westminster elements. She wrote, “Of all the powers that make our system unique and as such worthy of being studied, foremost are the powers of the Senate. These are not variants or modifications of any other system; they are departures, innovations in their own right.”3 By 2001 Thompson had retreated and was conceding that the Australian House of Representatives is the stronger of the two Australian federal houses, but her 1980 interpretation was influential, and not unusual in its day.4 In a chapter in the same book, Brian Galligan wrote that the Australian constitution “is unique in combining a responsible government executive with a bicameral legislature consisting of houses that are essentially equal.”5 In 1995 he wrote that the problem for Australia “was in putting Westminster-style responsible government into a congressional-type structure.”6 And in his book on the Australian Senate, published in 2003, an American, Stanley Bach, argued that Australia has a unique political system that is analogous to an Australian platypus, a creature part mammal and part bird. The founders, he argued, engaged in an untried experiment when they wrote a constitution with incompatible ingredients, a government responsible to the House of Representatives and a powerful Senate that had to rely on the prudence, restraint and common sense 3 4

5 6

Elaine Thompson, “The ‘Washminster’ Mutation, in Patrick Weller and Dean Jaensch, eds, Responsible Government in Australia, Richmond, Victoria: Drummond, 1980, p. 33. ——, “The Constitution and the Australian System of Responsible Government, Responsible Government and Representative Democracy: Revisiting the Washminster Mutation,” University of New South Wales Law Journal, v. 23, no. 3, 2001. Thompson was “revisiting” the Washminster mutation, but she did not leave much of it standing. Brian Galligan, “The Founders’ Design and Intentions Regarding Responsible Government”, in Weller and Jaensch, eds, Responsible Government in Australia, pp. 1–9. Brian Galligan, A Federal Republic: Australia’s Constitutional System of Government, Melbourne: Cambridge University Press, 1995, p. 8.

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of politicians in order to work. “It may be unusual, it may be implausible, it may be unique”, he wrote, “but it works”.7 Dean Jaensch agreed with these scholars, and in 1991 he wrote, “Any analysis of parliamentary democracy in Australia which starts from the premise that we applied a Westminster model is doomed to irrelevance.”8 But since then Australian politicians and parliaments have persisted in identifying the supposedly irrelevant Westminster roots of Australia’s political systems. In 1995 Prime Minister Paul Keating opposed giving a popularly elected Australian President the discretionary powers of the Governor-General because such a person “would inherit a basis of power that would prove to be fundamentally at odds with our Westminster-style of government.”9 At the Constitutional Convention of 1998 Prime Minister John Howard spoke about “the Australian version of Westminster…,”10 and on his office web site one would have found that, broadly speaking, the Australian federal system was “based on the Westminster tradition.”11 The House of Representatives and five state parliaments publish information sheets which tell of their being based on the British or Westminster model. The House of Representatives, for example, tells us that Australia has a system of responsible government in which “the Executive Government is responsible to the Parliament. This is the central feature of a Westminster-style government following the United Kingdom model....”12 Where does this book stand in this controversy between Washminster, with its roots in academia, and Westminster, beloved of politicians? It acknowledges that Australia does not have, in a strict sense, a Westminster system of government because there are significant differences between the British and Australian political systems. For example, unlike Britain, the Commonwealth of Australia is a federation with a formal constitution. It has a High Court which interprets that Constitution and it has a very powerful upper house, modeled in some respects

7

Stanley Bach, Platypus and Parliament: The Australian Senate in Theory and Practice, Canberra: Australian Parliament, Department of the Senate, 2003, pp. 323–32, and, “A delicate Balance: The Accidental Genius of Australian Politics: A View From Washington”, Australia: Parliament, Senate, Occasional Lecture Series, 28 February 2003, p. 13. 8 Dean Jaensch, Parliament, Parties, and People: Australian Politics Today, Melbourne: Longman Cheshire, 1991, p. 214. 9 Sydney Morning Herald, 8 June 1995. 10 Malcolm Turnbull, Fighting for the Republic, Melbourne: Hardie Grant, 1999, p. 45. 11 http://www.pm.gov.au/aus_in_focus/government/index.html 12 Australian Parliament, House of Representatives, Infosheet Number 20, “The Australian System of Government,” 2004, p. 1.

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on the U.S. Senate, which can frustrate, and in one case has destroyed, the federal Government. However, the attempt to describe the Australian political system as unique, or a hybrid of Westminster and Washington, is even more problematic. When the scholars quoted above wrote about the uniqueness of the Australian system what they really meant was the uniqueness of the Australian Commonwealth political system, and even then they had it wrong. Had they considered Australia’s colonial constitutions and overseas parliamentary systems at the time of federation in 1901 they would have seen that there was nothing unique, and comparatively little that was American, about what the founders of the Commonwealth did when they combined a British-style executive and a powerful upper house in 1901. In fact, the powers assigned to the Commonwealth Senate were essentially the same as the powers possessed at that time by all six Australian colonial legislative councils, the British House of Lords, the New Zealand Legislative Council, and the Canadian Senate, none of which owed anything to American precedents. Thompson wrote in 1980, “The [Australian] Senate is powerful in its own right. It is a second chamber in the American sense,”13 but it would have been more accurate to say that the Senate is a second chamber in the colonial Australian, or British sense, circa 1901. Furthermore, Bach was wrong to write that the Senate was given powers in 1901 that were unknown in London at federation. They were known in London. In fact, the House of Lords used them in 1909 when it rejected the Government’s budget and created a full-fledged constitutional crisis.14 This book will argue that the most accurate way to describe Australia’s several political systems is not to argue that they are unique, except in the sense that every political system is unique to some degree, or to describe them as hybrid, part Westminster and part Washington, but to say that they are variants of a parliamentary model of government that Australia shares with many countries, including Britain, most Commonwealth countries, Japan, Portugal, Spain, and a number of others, several of which are federations, including Canada, Germany, and India. These countries differ in important respects but they are much more alike politically than they are like countries that have different models of government, such as Russia or the United States, and they all share the characteristics of the parliamentary model that will be presented in Chapter 2.

13 Thompson, “The ‘Washminster’ Mutation,” p. 37. 14 See below.

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Part One

Executive Democracy One of the characteristics parliamentary countries all share, because they are parliamentary, is that political power is heavily concentrated in the executive, the Government, to the corresponding disadvantage of Parliament. This phenomenon has been noted many times in parliamentary systems, under many names. In 1976, for example, a former and future British Cabinet minister, Lord Hailsham, described Britain as an “elective dictatorship” controlled by the Government. He wrote, [T]he sovereignty of Parliament has increasingly become, in practice, the sovereignty of the Commons, and the sovereignty of the Commons has increasingly become the sovereignty of the government, which, in addition to its influence in Parliament, controls the party whips, the party machine, and the civil service.15

Britain has no formal constitution to limit Parliament, which is why Hailsham refers to the sovereignty of Parliament, and if we accept with him that a sovereign parliament may make or unmake any law, it matters a very great deal who controls it. In his view it was the Government. However, the concentration of power in the Government that he described is a feature of parliamentary systems with formal constitutions, too. The Commonwealth of Australia has nine parliamentary systems, federal, state and territory, all with formal constitutions, and they all feature the concentration of power in the Government. Indeed, Prosser, Aroney and Nethercote use Hailsham’s term, elective dictatorship, to describe this.16 Writing about Western Australia, in 1991, O’Brien and Webb preferred to use the term “the executive state”,17 which I used in an essay to describe the Irish Republic in 1996.18 In 2005, Harry Evans, then Clerk of the Commonwealth Senate, argued that the concentration of power in the executive really meant the concentration of power in the Prime Minister. He wrote, We no longer have parliamentary government in any meaningful sense of 15 Lord Hailsham, “The Elective Dictatorship,” Richard Dimbleby Lecture, BBC, 1976. 16 Scott Prosser, Nicholas Aroney and J.R. Nethercote, Restraining Elective Dictatorship: The Upper House Solution, Perth: University of Western Australia Press, 2008. 17 Patrick O’Brien and Martyn Webb, The Executive State: WA Inc. and the Constitution, Perth: Constitutional Press, 1991. 18 Alan J. Ward, “The Constitution Review Group and the ‘Executive State’ in Ireland”, Administration, v. 44, 4 (Winter 1996–97), 60–61.

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the term ... There is in Australia an enormous concentration of power in the Prime Minister. People don’t realize this, that we have a sort of elective monarchy ...19

“Elective dictatorship” and “elective monarchy”, in my view, exaggerate what is happening in Australia and other parliamentary democracies. Julia Gillard cannot have felt like a monarch as she struggled to govern without a Labor party majority in either house of federal Parliament. But whatever term is being used, the phenomenon they describe is much the same everywhere and is real, and it is one of the central concerns of this book. The term used here to connote a parliamentary state in which political power is heavily concentrated in the Government is “executive democracy”, a less pejorative term used by the United Kingdom’s Democratic Audit, which monitors indices of democracy.20 Australia provides a particularly good test of theories of parliamentary government because it has nine parliamentary systems, federal, state and territory. This book considers them all and is therefore explicitly comparative, but it also draws upon the comparative study of parliamentary systems around the world to construct the model of parliamentary which is presented in Chapter 2 and then applied in the remaining chapters to help readers understand why Australia’s parliamentary systems behave as they do. The book comes with an Introduction and two parts. In the remainder of Part I, the concepts of Parliament and Government are considered, the nine-part model of parliamentary government is laid out, and the history of parliamentary government in Britain and Australia is presented. Part II examines Australia’s present day federal, state and territory political systems.

19 Sydney Morning Herald, 21 June 2005. 20 Democratic Audit of the United Kingdom, Democratic Findings No. 5, Colchester: Human Rights Centre, University of Essex, n.d.

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Defining Parliamentary Government

Parliament A book about parliamentary government should begin by defining Parliament and Government. The word Parliament was in use in Europe as early as the eleventh century and derives from the Norman French word parlement, meaning a conversation. It is also found in Italian as parlamento and Latin, as parlamentum. As a political institution Parliament has its origins in the great assemblies summoned by monarchs in medieval Europe to vote a supply of money for the Crown and consider petitions from citizens for the redress of grievances. Because individual grievances could be grouped into classes, they could be addressed in acts of Parliament, as laws, and these assemblies therefore became law-making bodies, or legislatures, in England, France, Germany, Spain, and Italy.1 Furthermore, because Parliament was asked to respond to the sovereign’s requests for money it also developed a scrutiny function which involved reviewing the conduct of the Crown. In the medieval period, the word Parliament referred to the assembly, the meeting itself, wherever it was held, but thereafter it came to mean a specific place, too. In Canberra, for example, the Australian federal Parliament is both an assembly of members and a building. Australia’s nine parliaments are descended from the English Parliament, which became a representative body in the thirteenth century when King Edward I summoned elected representatives of counties and towns to meet with him and his council of barons in Parliament in 1295. The most common meeting site was the Norman Great Hall at Westminster which still stands as 1

Antonio Marongiu, Medieval Parliaments: A Comparative Study, London: Eyre and Spottiswoode, 1969, p. 48.

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part of the United Kingdom Parliament, but early monarchs also summoned parliaments at Oxford and Bury St Edmunds. Even a parliament today might sit elsewhere than in a designated parliament building. In 2004, for example, the Western Australian Legislative Assembly, which ordinarily sits in Perth, sat for two days in Albany and the Legislative Council sat for two days in Kalgoorlie. In April 2007 the Northern Territory Assembly held a three day sitting in the Alice Springs Convention Centre rather than the territory Assembly building in Darwin. The origin of Parliament as a meeting with the King is reflected in British and Australian definitions of Parliament, which still include the monarch. Parliament is, literally, the “Queen in Parliament.” Section 1 of the Commonwealth Constitution states, for example, “The legislative power of the Commonwealth shall be vested in a Federal Parliament, which shall consist of the Queen, a Senate, and a House of Representatives ... ” This formula is also used in the New South Wales and Victorian constitutions, and the Queen’s representative, the Governor, is part of Parliament in the Tasmanian Constitution. Even some republics use this formula, the Indian and Irish, for example, by substituting a President for the Queen. In practice, however, a reference to Parliament customarily means the houses of Parliament, and that is how the term will be used in this book. The Queen attends the British Parliament only for formal state openings, and in Australia she only appears in special sessions when visiting Canberra or the states. It is her representatives, the Commonwealth GovernorGeneral and state governors, who customarily attend ceremonial events in Australian parliaments. In the fourteenth century the English Parliament divided into two chambers which came to be known as the House of Commons, where sat representatives of the counties and towns, and the House of Lords, an aristocratic chamber, where sat nobles and bishops. The name “lower house” has customarily been attached to the House of Commons, the popular or representative chamber, and “upper house” to the House of Lords, the less representative chamber, and this usage is followed in other countries. The Australian colonial and federal parliaments were all established as bicameral bodies with upper and lower houses. In the eighteenth century Parliament, in what by then had become the United Kingdom, acquired a new function. It became the source of the Government. Hitherto, ministers were appointed by and responsible to the monarch but in the eighteenth century it became clear that he should appoint 11

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ministers who could command the support of the lower house of Parliament. Early in the reign of Queen Victoria (1837–1901) the monarch lost any discretion in the matter. Rather than appointing ministers who could secure the support of the House of Commons she had to appoint ministers who were, in effect, the choice of the house.

Government The word government is used in at least four ways. It may mean the aggregation of all state institutions, including the head of state, ministers, Parliament, the public service, and the judiciary. In this sense, government is a synonym for state. Government may also denote all the politicians who hold office as ministers, a group sometimes called “the ministry”, but the word may also mean an inner group of the ministry, a committee of senior ministers, who meet together as a body under the chairmanship of a Prime Minister. The Irish Constitution calls this inner group “the Government” but elsewhere it is most often known as “the Cabinet”. Finally, government may denote the activity of governing, including making laws, and administering government departments. To illustrate these differences, we can present all four in a single sentence: “In government [an activity], the government [the cabinet], which is a committee of the government [the ministry], directs the government [the state]”. There is almost no way to avoid using the word government in more than one way. It would not be outrageous, for example, to hear a Prime Minister say, “My government [ministry or cabinet] is responsible for government [governing].” This book will try to minimize confusion by making the context in which the word is used clear. For the most part the Government, with a capital “G”, will mean a ministry, which is to say, all the politicians who hold office under a Prime Minister. The word Cabinet will be used for an inner group or committee of the Government, chaired by the Prime Minister. Government with a small “g” will mean the activity of governing and/or the state.

The Parliamentary Model There are basically two kinds of parliamentary government, and this book is about one of them. They both share a fundamental constitutional rule, which is that the Government must have the support of a majority in Parliament, but they differ according to whether members of the Government must have voting 12



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seats in Parliament or not. In other words, they differ according to whether the Government, is internal or external to Parliament. Australia is one of many parliamentary countries that use the internal model. All its ministers, federal, state and territory, sit in Parliament as regular voting members. They share this characteristic with all the other parliamentary countries of the British Commonwealth, plus Japan, Germany, Spain, and Ireland, amongst others. By contrast, the external model is found in Belgium, the Netherlands, and parliamentary countries in Eastern Europe. In these countries the Government must have the support of a majority in Parliament, but ministers do not have voting seats there. They come to Parliament to answer questions and introduce legislation, and they have assigned seats, but they do not vote. In this sense, the Government is external to Parliament. This book is about the internal variant of parliamentary Government, and that is what “parliamentary Government” means in the chapters that follow. The internal variant of the parliamentary model used here has nine parts. Some of these describe constitutional rules and others describe political behaviours that follow from rules. I make no claim that this is the only conceivable way of describing parliamentary systems, although I discount models adhering too closely to the British model, such as the six part model used by Weller and Rhodes in their introduction to a book of essays on countries that adopted the British system. They include characteristics of parliamentary systems discussed in this book, the concentration of power in the executive, a collective and responsible Cabinet, and ministerial accountability to Parliament. However, they also include parliamentary sovereignty, which is unique to Britain and has no comparative value, an opposition recognized as an executive in waiting, which is indistinguishable from the special status accorded oppositions, or minorities, in all mature democracies, parliamentary or not, and a nonpartisan and expert public service which, again, is a characteristic of all mature democracies.2 I find the model presented here to be a convincing description of specifically parliamentary systems and I tested it in almost this form in my book, The Irish Constitutional Tradition: Responsible Government and Modern

2

Haig Patapan, John Wanna, Patrick Weller, eds, Westminster Legacies: Democracy and Responsible Government in Asia and the Pacific, University of New South Wales Press, Sydney, 2003.

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Ireland, 1782–1992 (1994).3 Its nine parts will be identified very simply just below in this chapter and then discussed in much greater detail with reference to Australia in Part 2 of the book.

1. Fusion In the internal executive form of parliamentary government ministers who form the Government sit in Parliament as full voting members. In this sense there is a physical connection between the executive, a body of Government ministers, and Parliament, a body of law-makers. Walter Bagehot used the word fusion in 1867 to describe this relationship. He wrote, “The connecting link is the cabinet. By that new word we mean a committee of the legislative body selected to be the executive body.”4 In Bagehot’s day every member of the Cabinet could sit in the Government but nowadays the Cabinet is a sub-set of the full Government in all but the smallest political systems. The general rule remains, however, that members of the Government, whether in the Cabinet or not, sit in Parliament as voting members. There are slight deviations from this rule. Japan, for example, permits a minority of the Cabinet to be appointed from outside Parliament, and in 1993 and 1995, to resolve a parliamentary crisis, the Italian President appointed a temporary Cabinet, none of whose members held parliamentary seats. In Australia, however, ministers have always sat in Parliament, and they must do so according to the constitutions of the Commonwealth, New South Wales, South Australia, Tasmania, Victoria, the Australian Capital Territory and the Northern Territory. Section 64 of the Commonwealth Constitution, for example, requires all ministers to have seats in Parliament within three months of their appointments. Legally, the Governor-General can appoint ministers who are not members of Parliament but they must find seats within three months.

2. Majority Government To take office, the Government must have the support of a majority in the lower, or only, house of Parliament and it must resign immediately if it loses this support. This fundamental rule of parliamentary government is based on the 3 4

Alan J. Ward, The Irish Constitutional Tradition: Responsible Government and Modern Ireland, 1782–1992, Washington, D.C.: The Catholic University of America Press, 1994. In that iteration the model had eight parts. Walter Bagehot, The English Constitution, London: Chapman and Hall, 1867, p. 12.

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proposition that the Government must go to the popular house of Parliament for legislation and a supply of money. If the Government lacks the support of a majority, it can be denied a supply of money and forced out of office. At a minimum, as practiced in Britain and Australia, the rule requires the government to have a majority on confidence motions and major budget votes, but in some countries it means more. In Spain, for example, Articles 99 and 100 of the Constitution require the lower house, the Congress of Deputies, to nominate the Prime Minister for appointment by the King, and to approve both his program of proposed legislation and his list of ministers before he may take office. Each decision is by a majority vote. Majority government does not mean that the Government has to have the active support of a majority of members. The acquiescence of some is sufficient if they are willing to support the Government on two votes it absolutely must win to remain in office: votes of confidence in the Government and votes on a supply of money. In a bicameral parliamentary system, with two houses of Parliament, a further rule is that the Government must have a majority in only one house, the lower house, which traditionally has the most representative membership. Italy is the exception in having a constitution that requires the Government to secure the support of a majority in both houses. Fortunately, the two usually have similar compositions and can be brought into agreement over government formation. We will return to this later.

3. Party Government Parliamentary government is party government, which is a behaviour that follows from the constitutional rule that the Government must have a majority. No constitution requires that there must be political parties but, without them, parliamentary systems cannot function effectively except in very small parliaments where compromise and accommodation may be possible between friendly rivals. Parties are important in all democracies, whether parliamentary or not, because they aggregate large numbers of individuals into manageable political groups. They educate voters about the interests and values of each group, supply candidates for elections, formulate policies to present to voters at election time, and mobilize voters. But there is an additional reason for why parties

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have become necessary in parliamentary systems. If the Government must have the support of a majority in the lower house to take office, there is a powerful incentive for like-minded people to organize themselves into political parties outside Parliament in order to win a majority of seats to form the Government. There is also a powerful incentive to form disciplined parties inside Parliament in order to take and retain office, because without disciplined parties, the Government would be open to defeat and resignation at any time and would have to construct its majorities day by day and issue by issue. Disciplined parties give members of Parliament who share values and policies the best chance of forming a Government, and the best chance of staying in office long enough to implement their policies. Giovani Sartori writes, Parliamentary democracy cannot perform ... unless it is served by parliamentary fit parties, that is to say, parties have been socialized (by failure, duration, and appropriate incentives) into being relatively cohesive and/or disciplined bodies.

He adds that without disciplined parties, “parliamentary systems become nonworking assemblies”.5 During most of the period of Australian colonial selfgovernment in the nineteenth century and the first ten years of the Commonwealth Australian parties were undisciplined and governments were regularly forced out of office because they did not have the standing support of a majority.

4. The Dominance of the Prime Minister In a parliamentary system, the Government is, in effect, a committee which must have a chairperson with some authority to shape its membership and oversee its business. In a parliamentary system this person is the leader of a political party who can assemble a majority in the lower house. The chairperson is the dominant member of the Government and is most often known in English as the Prime Minister, although the Austrian and German heads of Government are known in English as Chancellor. The Irish Prime Minister always goes by a Gaelic title, Taoiseach, meaning “chieftain”. In the Australian states and Canadian provinces the title Premier is used, and in the ACT and the Northern Territory, the title is Chief Minister. In Italy, which has a President as head of state, the Prime 5

Giovanni Sartori, Comparative Constitutional Engineering: An Inquiry into Structures, Incentives and Outcomes, New York: New York University Press, 2nd. ed., 1997, p. 93.

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Minister is formally the “President of the Council of Ministers”, but English language media always refer to the holder as Prime Minister. But whatever the head of the Government is called, the job is very much the same from country to country and the term Prime Minister will be used in this book as generic, unless a specific exception is being discussed. Prime Ministers preside over the Government, but they have sources of power that make them more than simply chairpersons. In this context it is important to remember that power is not something fixed that adheres to a particular office. Power is the ability to get others to do what you want them to do, and in that sense it is a relationship between people who have various interests to protect and promote and various resources to trade to achieve this end. However, unless the Prime Minister is unusually weak, relationships within the Government are not symmetrical. The Prime Minister is almost invariably the leader of a major political party, able, within reason, to command the disciplined support of party members in Parliament and the resources and support of the party organization in the country. The Prime Minister is the preeminent adviser to the head of state, and as the Government’s major spokesperson in an age of twenty four hour media coverage is responsible for publicizing and defining the policies of the Government. The Prime Minister also has the leading, and sometimes the exclusive, role in forming the Government and assigning ministers to departments, Prime Ministers have different styles and resources, and they operate in different environments, but they invariably have the personal and institutional resources to dominate the Government if they want to.

5. Cabinet Government The Prime Minister may be dominant but he or she operates within a team of senior members of the party or coalition that forms the majority in the lower house of Parliament. In eighteenth century Britain, this team came to known as “the Cabinet”, the room where the monarch met with ministers. The name was attached to the group of ministers themselves when they began to meet independently, and soon afterwards the Prime Minister emerged as leader of this body.6 In its early days, every minister in a parliamentary system could be a member of the Cabinet but most governments are now too large for that. There are 6

John Mackintosh, The British Cabinet, 2nd ed., London: Methuen, 1968, pp. 35–72.

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about 130 appointed ministers in Britain, senior and junior, for example, and approximately 60 in India. Eighteen of the 42 ministers in John Howard’s Coalition Government sat in Cabinet, and 20 of Kevin Rudd’s 42 in 2008. The Cabinet is therefore an executive committee of the whole Government. Only in relatively small political systems does the whole Government sit in Cabinet, in Denmark, the island states of the Pacific and the Australian Capital Territory (ACT), for example. The Cabinet is the focus of decision-making in parliamentary systems and acts, to a significant degree, collectively, meeting regularly for this purpose. By contrast, the U.S. Cabinet is not a decision-making body, in law or practice. It meets infrequently and does not make policy collectively. The Cabinet derives its power from several sources. Like the Prime Minister, Cabinet ministers are party leaders who are able, within reason, to command the support of a disciplined parliamentary party. They also direct the major departments of state and armies of public servants who provide advice and information, draft bills and implement laws, and they have significant discretionary powers granted by law. Since the 1990s, political scientists have often used the term “core executive” to describe the network of persons, institutions and formal and informal practices that make and coordinate government policy in parliamentary systems.7

6. The Dominance of the Government in the Lower House Using party discipline, the Prime Minister and Cabinet ordinarily have the means to control at least the lower house of Parliament, in which they lead the majority. Through the lower house they control the parliamentary schedule and both financial and legislative initiatives. Their power can be diminished if the Government lacks a single-party majority and has to compromise to secure support from other parties or independents, which means that the Government’s power varies from time to time, depending on the composition of Parliament. However, weak party discipline or a highly factionalized parliament without a clear majority can weaken the Government and lead to what Sartori calls “assembly government.8 Gordon Smith writes, “Parliamentary systems can always slide towards ...’ government by assembly’, 7 8

See Robert Elgie, “Core Executive Studies: Two Decades On”, Public Administration, v. 89, no. 1, 2011, pp. 64–77. Sartori, Comparative Constitutional Engineering, p. 110.

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whenever governments are unable to control parties for any length of time.”9 But when the Government has the disciplined support of a majority in any house, it can dominate that body, particularly the lower house in which it must have a majority of some kind.

7. The Primacy of the Lower House About one third of the world’s legislatures are bicameral, with upper and lower houses. In bicameral parliamentary systems the lower house has primacy, even, as we will see, in Australia where upper houses are very powerful. This rule applies most obviously to the process of government formation because, with the exception of Italy, the Government is drawn from the majority party or coalition in the lower house only. It would be difficult, or even impossible, to form the Government were it to require the support of a majority in both houses and the two were to have different majorities. Italy requires the Government to win votes of support in both houses, but by good fortune they have been similarly composed. The primacy of the lower house is evident in other ways, too. Most importantly, it controls the financial and legislative initiatives, even in Italy, where in most respects the two houses are equal.

8. A Weak Head of State The head of state is always a weak office in a parliamentary system. The concentration of executive power in the Prime Minister and Cabinet, backed as they are by disciplined parties, leaves no scope for a head of state with substantial independent powers. A parliamentary head of state is never the head of Government except in Nauru and Kiribati, two very small Pacific states, where the head of state, the President, serves as Prime Minister, too. Nauru has a population of about 12,000 and Kiribati only 94,000, so they no doubt exercise economy in government, but their constitutions make the point that a separate head of state is not absolutely necessary. The usual tasks of the office, such as appointing ministers, assenting to bills, dissolving Parliament, appointing judges and senior military officers, and so on, can be carried out by Parliament itself, by the Government, the Clerk or Speaker of

9

Gordon Smith, Politics in Western Europe, 3rd ed., New York: Holmes and Meier, 1980, p. 116.

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Parliament, or the Chief Justice, for example. In Australia the ACT functions very well without a local head of state. In practice, of course, the great majority of parliamentary countries have a head of state, either an hereditary monarch, as in Australia, a popularly elected president, as in Ireland, or a president elected by Parliament, as in Germany. These may have useful constitutional roles but they have no role in policy making, only a very limited role in government formation, and act on the advice of the Government, unless a constitution provides otherwise. Arcticle 7 of the Japanese Constitution provides a useful guide to the powers of a typical parliamentary head of state.

9. Executive Democracy: The Concentration of Power in the Government Everything said so far leads to the conclusion that the parliamentary model concentrates power in the hands of the Prime Minister and Government. Fusion focuses political power in Parliament, and the lower house in particular. Majority Government and party discipline further focus power in the Prime Minister and Cabinet. The upper house plays a secondary role and the head of state has little independent power. Of course, in any democracy, the concentration of power is far from absolute. Leaders cannot stray too far from the interests and prejudices of their followers, and they require the cooperation of many individuals and organizations to implement their policies. Democratic governments are also constrained by law and the need to face the electorate periodically, but there has certainly been a concentration of power in all parliamentary systems.

Other Models of Democratic Government There are ways to structure the relationship between the Government and the legislature in a democracy that do not fit the parliamentary model outlined here, three in particular: the external variant of the parliamentary model, the presidential model, and what Maurice Duverger, describing France, called the semi-presidential model, un régime semi-présidentiel.10

10 Maurice Duverger, “A New Political System: Semi-Presidential Government”, in Arend Lijphart, ed., Parliamentary versus Presidential Government, Oxford: University of Oxford Press, 1992, pp. 142–9.

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The parliamentary model with an external executive is found in many continental European countries. The model is parliamentary in the sense that the Government must have the support of the lower house, but ministers do not vote in Parliament. In many cases, for example, in Austria, Belgium, Bulgaria, Greece, the Netherlands and Slovakia, the constitution says ministers may not be members of Parliament, or must suspend their activities as members during their terms as ministers. In other cases, Estonia, Hungary, and Latvia, for example, the constitution implies that ministers will not be members by recognizing that they may attend and address Parliament. In yet others, the Czech Republic, Poland, Romania and Spain, for example, it is simply a convention, a customary practice. In each case ministers are permitted to attend Parliament to answer questions, make statements, or present bills, and they have assigned seats, but they do not vote. There are several differences between a system where ministers sit in Parliament and actively contribute to its management, and a system where they do not. One is more apt to find “technocrat” ministers, for example, in the external than in the internal model. These are experts in some field of public policy who have not served in Parliament but have expertise in a particular field, or administrative skills. Parliamentary skills are less important for external ministers than for internal ministers. Legislatures in the external parliamentary model are also more successful in organizing themselves independently of the Government, to a degree, than in the internal model. In the presidential system used in the United States and Latin America, the President and legislature are separate institutions, independently elected to fixed terms of office. The President is head of state and head of government and neither he nor the members of his Government depend on the legislature for election or dismissal, except in a case of impeachment for a serious offence when the trial is conducted in the legislature. Absent this very unusual circumstance, the President does not have to leave office on losing the support of a majority in Congress. The presidential model provides for separate branches of government to share power, which enables them to check each other. Given that the President and Congress are elected separately, that the Government is independent of Congress and that votes in Congress do not affect a President’s right to stay in office, there is less need for disciplined parties than in parliamentary systems 21

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and important legislation is often the result of deals across party lines with at least some party members voting on both sides. A presidential system has in-built opportunities for stalemate, particularly when different parties control the executive and legislature, which is quite common in the United States. In a parliamentary system a stalemate between the Prime Minister and Parliament can be resolved with the resignation of the former or an election for the latter, but in systems where the executive and legislature serve fixed terms, they must live with each other and find ways to manage their differences. Sartori argues that “stalemate is [usually] avoided ... by party indiscipline”,11 meaning that cross-party majorities can often be constructed to resolve disputes and a President may have to tailor his proposals to attract at least some support from the opposition for it to pass. In his first year in office, in 1993, the Democratic U.S. President, Bill Clinton, only won Senate approval for the North American Free Trade Area with substantial Republican support, and on financial regulatory reform in 2010, some Democrats voted against President Obama’s preferred bill but a number of Republicans voted for it. Finally, France, Russia, and other former Soviet republics, Cyprus, Sri Lanka, and others have semi-presidential models which have presidential and parliamentary elements. Each country has a powerful, popularly elected President and a Government appointed by the President that must have the support of a majority in the legislature. The French President, for example, is elected by popular vote for a five-year term and has the power to appoint and dismiss the Prime Minister and dissolve the National Assembly, but by law the Prime Minister must have the support of a majority in the Assembly and the Government is constitutionally responsible for the policies of the French state. The President can therefore gain nothing by appointing a Prime Minister who does not have the support of the National Assembly, or by dismissing one who does. The French President and Prime Minister have to get along somehow if they represent different parties. The Socialist President, François Mitterand (1981– 95), twice suffered through periods of “cohabitation” with conservative Prime Ministers, from 1986 to 1988 and 1993 to 1995, and the conservative President, Jacques Chirac, had to cohabit with a Socialist Prime Minister, Lionel Jospin, 11 Sartori, Comparative Constitutional Engineering, 1997, p. 93.

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from 1995 to 2002. Cohabitation has been less likely to occur since 2002 when the presidential term, hitherto seven years, was changed to five, which is the maximum term of a Parliament. The likelihood now is that with presidential and parliamentary elections held close together the outcomes will be similar. In 2007, for example, Nicolas Sarkozy, the candidate of the Union for a Popular Movement (UPM), was elected President and a few weeks later his party won 62% of the seats in the National Assembly. Nonetheless, the possibility of returning to cohabitation remains if the margin of victory in presidential and parliamentary elections is small, with the results going in opposite directions by narrow margins.

What to Call the Model? The nine part model I have presented here is often described as, or confused with, the specifically British, or Westminster, model of parliamentary government. This usage suggests too close a parallel between the British and Australian systems than actually exists and we should try to avoid it. Unlike Australia, for example, Britain is unique in having no formal constitution so that Parliament is sovereign. It also has an idiosyncratic second chamber, the House of Lords. David Butler has written about the “the Canberra model” to represent the distinctiveness of the Australian system.12 The most widely used name for parliamentary government in Australia is “responsible government”, a term with strong historical roots used in Britain as early as the late eighteenth century and in the campaigns for self-government in the Australian, Canadian and New Zealand colonies in the first half of the nineteenth century. Reformers demanded that ministers should be responsible to Parliament, not to the Crown. The official history of the Commonwealth Senate refers to the Australian system as responsible government and one finds it so described in every state parliament.13 However, the term can be criticized by literalists because quite who is responsible to whom has changed over the years.14 Responsibility once meant that the Government owed its existence to Parliament, should account to Parliament for its policies, and could be dismissed 12 David Butler, The Canberra Model : Essays on Australian Government, Melbourne: Cheshire, 73. 13 Australia, Parliament, Senate, The Origins of the Senate, Senate Brief No. 9, March 1998. 14 Ian Thynne and John Goldring identify five uses of the word “responsibility” in their article, “Government ‘Responsibility’ and Responsible Government”, Politics, v.16, 1996, pp. 197– 207.

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by Parliament if it lost the support of a majority, but political parties have become so powerful that the Government is now responsible to Parliament only in a very formal way. Governments usually have enough party support in Parliament to avoid censure or dismissal, and because of party discipline members of the majority party find themselves, in effect, responsible to the Government, rather than the other way round. Sometimes the phrase “Cabinet Government” is used to describe this transformation, but it has also been argued that the Prime Minister rather than the Cabinet dominates the parliamentary system. A distinguished British Cabinet minister and scholar, Richard Crossman, wrote in 1963 that the period since 1945 had seen “the final transformation of Cabinet Government into Prime Ministerial Government”.15 In 1993, however, Michael Foley referred to the “British Presidency” to describe the Prime Minister’s accumulation of power,16 and in 1965 F.W.G. Benemy described the prime minister as “a sort of elected monarch.”17 The parliamentary model practiced in Australia, Britain, Canada, New Zealand and elsewhere has therefore been called “Westminster”, “responsible”, “cabinet”, “prime ministerial”, “presidential”, and “elective monarchy”. I will refer to it as “parliamentary government” in this book. This is simple, descriptive and, I hope, uncontroversial.

15 Walter Bagehot, The English Constitution, ed. R. Crossman, Ithaca, N.Y.: Cornell University Press, 1963, pp. 51–53. 16 Michael Foley, The Rise of the British Presidency, Manchester: Manchester University Press, 1993. 17 F.W.G. Benemy, The Elected Monarch: The Development of the Power of the Prime Minister, London: Harrap, 1965.

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Australia practices parliamentary government in nine political systems, federal, state and territory, but with the sole exception of the Australian Capital Territory (ACT), this is not what any of its constitutions say. They describe political systems that have more in common with eighteenth century Britain than with countries that have contemporary parliamentary constitutions, such as Ireland, Germany, Japan or Portugal. In particular, the fundamental rule that the Government must have the support of a majority in Parliament is recognized in only one of Australia’s nine parliamentary constitutions, the newest, in the ACT. The best way to understand this odd phenomenon is to explain how it came about, historically, which is the subject of this chapter. We will first examine the distinction between constitutional law and constitutional conventions which was first explained comprehensively by the British constitutional lawyer, A.V. Dicey, in 1885.1 Then we will consider the evolution of parliamentary government in Britain up to the nineteenth century, the introduction of parliamentary government in the Australian colonies in the 1850s, the establishment of the Commonwealth of Australia in 1901, and the introduction of self-government in the Northern Territory and the Australian Capital Territory in 1978 and 1988.

Constitutional Law and Constitutional Conventions Why begin with Dicey? The answer is that without understanding his distinction between two kinds of constitutional rules, constitutional law and constitutional

1

A.V. Dicey, Lectures Introductory to the Study of the British Constitution, London: Macmillan, 1985, pp. 24–30, 343–4.

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conventions, most Australian constitutions make no sense as literal guides to Australia’s political systems. A constitution is a set of rules for governing and in most countries it is found in a document, “the Constitution.” This identifies the major institutions of the state, their powers, and their relationships with each other and with citizens. It usually identifies some fundamental rights of citizens, too, such as freedom of speech and religion, and sometimes recognizes interests that the state should promote in its laws, such as support for the family or education for its citizens. The Constitution of the Irish Republic includes all three elements in one document: the political and legal institutions of the state, citizens’ rights, and what it calls “directive principles of social policy”. Britain, by contrast, does not have a constitution at all in this formal sense. Its constitution is a collection of rules derived from law and customary practices, or conventions, which are not brought together in a single document. With the exception of the Australian Capital Territory Self Government Act, which is the constitution of the ACT, Australia’s federal, state and territory constitutions all lie between these Irish and British extremes. They identify some constitutional rules in law but make no mention of others, even some of the most important, which are the subject of conventions. Constitutional law is a body of constitutional rules enshrined in law. The source of the law might be a founding convention whose recommendations are ratified in some way by the people or their representatives, as was the case with the American Constitution. Alternatively, the source might be an act of Parliament. The self-government constitutions of the Australian colonies were all acts of parliament, either colonial or British, and most of their provisions have been amendable by act of Parliament ever since. John Waugh writes that state constitutions “are patchworks, accretions of years of amendment around the skeletal remains of 19th century originals”.2 The Australian federal Constitution was approved by the people of the Australian colonies in referenda but it was actually contained in a British act of Parliament, the Commonwealth of Australia Constitution Act 1900. The source of constitutional law might also be the English common law, a case-based system which has emerged as precedent from judicial decisions over a very long period of time.

2

John Waugh, “Australia’s State Constitutions, Reform and the Republic”, Agenda, v. 3, no. 1, 1996, p. 59.

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The most important body of Australian constitutional law is found in the Commonwealth, state and territory constitution acts, with subsequent amendments. The original Queensland, South Australian and Tasmanian constitutions were acts of colonial legislative councils. The New South Wales, Victoria, Western Australia and the Commonwealth constitutions were acts of the British Parliament, and the constitutions of the Australian Capital Territory and the Northern Territory were acts of the Australian Commonwealth Parliament. Some Australian constitutional law also derives from British acts of Parliament which preceded self-government, including the Act of Settlement 1701, which regulates the succession to the throne in Britain and Australia. Finally, some Australian constitutional law derives from British common law, including the powers, privileges and immunities of the sovereign, known as royal prerogatives.3 Most British royal prerogatives were assigned to the Queen’s representatives in the Australian Commonwealth Constitution and, to a lesser extent, in state constitutions, too, which means that the formal role of the Crown is more clearly articulated in Australian constitutional law than in Britain. However, some important royal prerogatives are not recognized in Australian constitution acts, including the power of the sovereign to make war, conduct foreign relations, and sign treaties on behalf of the Commonwealth. These powers must lie somewhere in a sovereign state so they lie with the monarch, as before federation, and are formally exercised by the monarch’s agent, the Governor-General. Constitutional conventions are customary practices recognized as binding constitutional rules by those who operate a political system but not enshrined in law. Conventions may be essential to the operation of particular political systems but Dicey illustrated their non-legal character by calling them “constitutional morality”, and the historian, E.A. Freeman, on whose work Dicey drew, called them “political morality”.4 Conventions may be recognized by a court, but they may not be enforced by it. They may change over time without a process of formal amendment, and there may be some dispute as to what they actually are at any point in time because they have no formal source and there is no authoritative definition, but they exist because there is some reason or need for them.5 3

Lucinda Maer and Oonagh Gay, The Royal Prerogative, United Kingdom, House of Commons Library, SN/PC/03861, 2008, passim. 4 Dicey, Lectures Introductory to the Study of the British Constitution, pp. 25, 343. 5 See Ch. 2, “Conventions – What Are They?” in Ian Killey, Constitutional Conventions in Australia: Melbourne: Australian Scholarly Publishing, 2009, pp. 7–46.

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The most important constitutional conventions in Australia, as in Britain, regulate the constitutional powers of the Crown. Specifically, they regulate how the head of state should appoint and dismiss ministers, summon and dissolve Parliament, and assent to acts of Parliament. For example, by convention, since the beginning of Australian colonial self-government in the 1850s, heads of state have appointed ministers drawn from the majority in the Parliament and, with few exceptions, have acted on their advice, although there is no constitutional law on these subjects. They are conventions, and others deal with parts of the system other than the head of state, For example, the rules that the Government must resign if it loses a general election, and that Cabinet deliberations are confidential. We can date modern parliamentary constitutions to 1921 when the Irish Free State, the predecessor of the Irish Republic, and Latvia adopted constitutions that wrote British-style constitutional conventions into constitutional law. By contrast, and with the exception of the ACT constitution, Australian constitutions are all pre-modern because they combine constitutional law and constitutional conventions.

The Evolution of Parliamentary Government in Britain The Australian colonies began to receive self-government from Britain in the 1850s and the form it took reflected British political developments to that time. The British political system had completed a transition from monarchy to constitutional monarchy and had substantially completed a second transition, from constitutional monarchy to parliamentary government. The first transition was accomplished by law and the second by convention. The first English Parliament was summoned by King Edward I in 1295, but because England has never had a formal constitution there followed four centuries of disputes between Parliament and the monarch concerning their respective powers. The rights of Parliament were finally determined after King James II was removed from the throne in the “Glorious Revolution” of 1688. He was succeeded by King William III and his wife, Queen Mary, a daughter of James II, who assented to a bill of rights that became the first act of Parliament of their reign in 1689. This provided that no monarch might suspend or dispense with acts of Parliament and that only Parliament might levy taxes, grant money to the Crown and raise an army in peacetime. The monarch was also required to

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summon the houses of Parliament on a regular basis. Constitutional monarchy, or government by a monarch under laws established by Parliament, had arrived in an act of Parliament. Following the Glorious Revolution, the British monarch was still the chief executive, the head of the Government, and until Queen Victoria came to the throne in 1837, he or she selected and dismissed the Prime Minister. However, in 1717, three years after the German-speaking George I of Hanover came to the throne, royal ministers began to meet as a Cabinet, separately from the King, in part because the king could speak little English.6 The title of Prime Minister dates from about 1730 and was first attached to Sir Robert Walpole, the First Lord of the Treasury, an office British prime ministers still retain. The title of Prime Minister was not used officially until 1878, when Lord Beaconsfield signed the Treaty of Berlin as Prime Minister.7 Monarchs continued to appoint ministers in the eighteenth century but the fact that the Bill of Rights had confirmed the rights of Parliament meant that ministers had to secure legislation and money from Parliament by being acceptable to it. As Vernon Bogdanor points out, “the Hanoverian kings, unlike their Stuart predecessors, had to operate through parliament. They had to persuade parliament. They could not, in the last resort, overcome it.”8 Long-standing tensions between monarchs and Parliament reached a crisis in the 1830s. In 1834 King William IV dismissed his Prime Minister, Lord Melbourne, who had the support of a majority in the House of Commons, and appointed another, Sir Robert Peel, who did not. Peel was defeated six times in six weeks in the House of Commons and had no choice, finally, but to resign. He failed to win a majority in the general election of January 1835 and the King was obliged to appoint Lord Melbourne, who won a majority. When Melbourne lost a vote of confidence in the House of Commons in 1841 he advised the young Queen Victoria that she should appoint Peel as Prime Minister because he now had the support of the majority. In effect, she lost discretion in the matter. Melbourne also advised Victoria that she should accept the Prime Minister’s advice on ministerial appointments and other matters. Victoria sought to influence successive British

6 7 8

Killey, Constitutional Conventions in Australia, p. 49. Killey, Constitutional Conventions in Australia, p. 54; John P. Mackintosh, The British Cabinet, 2nd ed., London: Methuen, 1968, pp. 35–72; Ann Lyon, Constitutional History of the United Kingdom, London: Cavendish, 2003, pp. 56, 281–85. Vernon Bogdanor, The Monarchy and the Constitution, Oxford: Clarendon Press, 1995, p. 10.

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governments but the choice of ministers had passed de facto from her to the majority in the House of Commons and she ordinarily had to accept ministerial advice. These new rules were never stated in an act of Parliament. Instead, they were conventions. Until 1902, when Lord Salisbury resigned, the Prime Minister could sit in either the House of Commons or the House of Lords, but he had to command the support of the Commons. Since Salisbury, the convention has been that Prime Minister must sit in the lower house. What brought matters to a head in 1841 was the Reform Act of 1832, which expanded the electorate, abolished a number of constituencies which had few, if any, voters, and created new constituencies for the expanding cities of the industrial revolution. These changes created a new kind of membership in the House of Commons which was less susceptible than before to royal and aristocratic influence, and within a few years the line of accountability in the state was turned upside down. The monarch became a figurehead just before the Australian colonies won self-government in the 1850s. By the 1850s, modern parliamentary government was very nearly complete in Britain, with six of its nine characteristics in place. Fusion had existed since the beginnings of Parliament when the monarch’s advisers, the royal council, sat with him in Parliament. They sat there still, as ministers. Majority government was at least partially recognized by 1779 when the Prime Minister, Lord North, said, “Whenever the majority of the house [of Commons] should disapprove of a minister’s conduct, he must give way. Like a torrent, their disapprobation must and ought to sweep ministers before it.”9 The monarch still had the right to appoint and dismiss ministers but new ones had to be acceptable to the lower house, but by the 1840s the monarch had lost any discretion in the matter. The primacy of the Prime Minister was recognized in the eighteenth century and immensely strengthened in the 1840s when it became clear that the leader of the majority in the House of Commons must become Prime Minister. Cabinet government also began to take its modern form in the eighteenth century, and John Mackintosh writes, “[By] 1830, the Cabinet was a long-standing feature of British government”.10 Its membership had grown from five or six members of Parliament in the 1740s to an average of about 13 in the 1830’s. The primacy of the lower house was recognized in financial matters as soon as the House of 9

William Cobbett, ed., The Parliamentary History of England from the Earliest Period 1066 to the Year 1803, London: T.C. Hansard, 1814, v. 20, col. 1109. 10 Mackintosh, The British Cabinet, p. 70.

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Commons began to meet separately from the Lords in the fourteenth century because it was the primary source of revenue for the Crown, but the house was immensely strengthened in the eighteenth century when its primacy was recognized in government formation. Finally, from the 1840s the monarch was a weak head of state, and in 1867 Walter Bagehot famously was able to write that Queen Victoria had three rights, “the right to be consulted, the right to encourage, the right to warn”.11 She did not reign in any meaningful sense. Three elements of modern parliamentary government had yet to mature. The first was party government and from that we get government control of the lower house and the concentration of power in the Prime Minister and Cabinet. By the middle of the nineteenth century the British House of Commons could make and unmake governments but it was relatively undisciplined because parties were not yet modern political organizations. Mackintosh writes, “Parties were ... loose entities which grew up around Cabinets rather than well-defined organizations which could produce them.”12 In particular, parties could not discipline their supporters in the House of Commons. One result was that every British government between 1841 and 1868 lost office because it was defeated on a House of Commons vote, not in a general election.13 In time two developments combined to eliminate this instability. The first was the gradual recognition that stable and successful government required stable majorities in the House of Commons, and this required disciplined parliamentary parties. Bagehot wrote in 1867 that a large assembly can accomplish nothing without organization, and he added that the principle of Parliament is obedience to leaders. “The penalty of not doing so,” he wrote, “is the penalty of impotence. It is not that you will not be able to do any good, but you will not be able to do anything at all.”14 The second development was an expanding electorate, the result of the extension of the vote in Britain in 1832, 1867 and 1884. National political parties now became necessary to mobilize voters in order to win the elections that would produce parliamentary majorities. Embryonic parties began to appear in the 1830s in the form of committees to register voters. The Conservative Party was formed in 1868 and the Liberal Party in 1877. Increasingly, members of Parliament entered the House of Commons as party members prepared to 11 12 13 14

Bagehot, The English Constitution, p. 75. Mackintosh, The British Cabinet, p. 76. Bogdanor, The Monarchy and the Constitution, p. 22. Bagehot, The English Constitution, p. 175.

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accept party discipline on legislation and parliamentary management, and the selection of the Government moved from relatively independent members of the House of Commons acting as an electoral college in the 1840s to members of disciplined political parties. This set the scene for the two final characteristics of parliamentary government in Britain, the Government’s dominance in the lower house and the concentration of power in the Government, both of which were the result of party discipline. The leader of the majority party became the Prime Minister and he nominated senior party colleagues to be ministers and members of the Cabinet. Ministers had long exercised the powers of their departments but now they were able to use party discipline to control the legislative process and the parliamentary schedule. The evolution of parliamentary government in Britain as described here was well understood by politicians in mid-nineteenth century Australia, Canada, and New Zealand, at least in its first six characteristics, and by the 1840s colonial politicians were demanding what Britain had acquired, which is to say, government by “responsible ministers”, meaning ministers selected by, and answerable to, Parliament. The British Government agreed and granted what was then popularly referred to as “responsible government” to the colonies, starting with Nova Scotia, Canada, in 1848, and moving to Australia and New Zealand in the 1850s.

From Colonial to Parliamentary Government in Australia Britain settled the eastern part of Australia as the colony of New South Wales in 1788, a prison colony. It was administered at first by a military governor who was bound by British law and instructions, but with masters six months or more away by sea he made ordinances with the power of law in the colony. Renfree describes him as exercising “an absolute and despotic military authority, being responsible only to the Imperial Government.”15 But well before colonial self-government arrived in the 1850s, military government was modified in New South Wales and the three other Australian colonies that were created; Tasmania in 1825, South Australia in 1834, and Victoria in 1851. The pattern, beginning with New South Wales in 1823, was for the Governor to appoint 15 H.E. Renfree, The Execuive Power of the Commonwealth of Australia, Sydney: Legal Books. 1984, pp. 35–6.

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two councils, an Executive Council of senior colonial officials to advise him on the administration of the colony and a Legislative Council composed of the same officials to make laws. The Governor presided over both bodies. In time, non-official and elected members were added to the Legislative Council and the Governor withdrew as its presiding officer, but he remained the chief executive and continued to preside over the Executive Council of colonial officials. The transition to parliamentary government was marked by a British act of Parliament, the Australian Constitutions Act 1850, which authorized each colony to prepare a constitution for self-government. Constitutions were enacted for New South Wales, Tasmania and Victoria in 1855, and South Australia in 1856. Queensland was separated from New South Wales in 1859 and used the New South Wales Constitution until it consolidated its constitutional law into a state document in 1867. Western Australia adopted a constitution in 1890. All these constitutions were written by local politicians and amendments were made by the British Government. The constitutions of New South Wales, Victoria and Western Australia were enacted by the British Parliament, and the rest were enacted by local legislative councils, as permitted by the Australian Constitutions Act. These constitutions are extremely important because they became the constitutions of the Australian states at federation and many of their provisions are intact today.

Colonial Executives At the time of colonial self-government there was no particular interest in spelling out the executive, the institution responsible for administering the state from day to day, because the colonies remained under the Crown. Queen Victoria remained sovereign and in none of the constitutions was it thought necessary to recognize her as head of state. In addition, no constitution explicitly recognized that a bill would require the royal assent. This rule was implicit in New South Wales, Queensland, Victoria and Western Australia because their constitutions authorized the Queen to make laws “with the Advice and Consent of the Council and Assembly.” In South Australia and Tasmania earlier British acts establishing the Legislative Council had created the royal assent in law and it was carried over to the new constitutions. Before self-government each Australian governor had an Executive Council composed of senior colonial officials to advise him on the administration of the colony, but these councils were not re-established in

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any of the new constitutions. They were retained by letters patent, which were instructions from the sovereign, and were later recognized by constitutional amendments in several states. All the colonial constitutions made references to the Governor, but none of them actually established the office or identified all its powers. The Governor was simply the representatives of the Queen. Everywhere but Tasmania he was constitutionally responsible for appointing the Government, or “public officers”, but the only gubernatorial powers specified in every colonial constitution were to summon Parliament and dissolve the Assembly. The Crown was therefore incompletely, and differently, recognized in colonial constitutions, but the Premier and Cabinet fared much worse because they were not formally recognized at all, even though colonial politicians intended that they should be the executive de facto. The intent of the founders can be gleaned from constitutional allusions to the parliamentary rule that the Government must have the support of a majority in the lower house. Here is language, with emphasis added, from Section 37 of the New South Wales Constitution Act of 1855: The appointment to all public offices under the Governor hereafter to become vacant, or to be created ... shall be vested in the Governor with the Advice of the Executive Council with the exception of officers liable to retire from office on political grounds which appointments shall be vested in the Governor alone.

The founders intended that ministers would be “liable to retire from office on political grounds” were they to fail to retain the support of a majority in the lower house. Section 37 therefore meant that the Governor would not have to consult outgoing ministers, identified in this case as the Executive Council, on the appointment of their successors. A similar provision still exists in Section 88 of the Victorian Constitution. The New South Wales, South Australian, and Tasmanian constitutions alluded to majority government by providing pensions for senior colonial officials who might lose office after the first elections “by reason of their inability to become members of parliament or to command the support of a majority of members”. In Victoria pensions were given to officials “who on political Grounds may retire”, and the Western Australian Constitution of 1890 declared

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that five principal executive offices of the Government were liable to be vacated on political grounds.16 Majority government was also alluded to by provisions in all the colonial constitutions that there should be maximum terms for the lower house, varying from three to five years, but allowed that they were “subject nevertheless to be sooner dissolved by the Governor”, to quote from Section 16 of the Tasmanian Constitution. This exception permitted the Governor to dissolve the Assembly and call a general election if the Government were to lose the support of the majority in the lower house before the end of a parliamentary term. As in Britain, this came to mean that the Premier could advise a dissolution at any time. Fusion, the rule that ministers must sit in Parliament, was alluded to in Section 32 or the South Australian Constitution Act 1856 which required the five major public offices to be filled by members of either house of Parliament. The primacy of the Government in the lower house was alluded to by the rule in every colonial constitution except the Western Australian that tax and appropriations bills must be introduced in the lower house accompanied by a resolution from the Governor. The founders anticipated that the Governor would act on the advice of ministers so this provision assured the Government control of the financial initiative in the lower house. The founders therefore intended parliamentary government to operate in the colonies but the offices of Premier and Cabinet were not created by law and the executive would depend, for the most part, on conventions. As R.D. Lumb writes, “[T]he operation of the doctrine of responsible [parliamentary] government in the Australian colonies was based more on convention than on formal law.” In New South Wales there was no constitutional provision that ministers had to appointed from a majority in Parliament, but from the beginning of colonial self-government, Lumb writes, “it was recognized that the administration of the affairs of the colony would very soon come to a halt if the ministry was selected in any other way”.17 Not everyone was pleased that fundamental constitutional rules in the Australian colonies were not written into law but were based on allusions to

16 South Australia Constitution Act 1856, Secs 29 and 39; Tasmanian Constitution Act 1855, Sec. 32; New South Wales Constitution Act 1855, Sec. 51; Victoria Constitution Act 1855, Sec. 50 and Schedule D; and Western Australia Constitution Act 1889, Secs. 6 and 28.

17 R.D. Lumb, The Constitutions of the Australian States, 4th. ed., St Lucia, Queensland: University of Queensland, 1977, p. 28.

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British constitutional conventions. In 1888, for example, Chief Justice George Higinbotham of Victoria criticized the colonial founders who, he wrote, adopted the curious and very hazardous expedient of attempting to enact in a written law, by means of allusions suggesting inferences rather than by express enacting words, the provisions not only unwritten but unrecognized by English law, which regulate and determine the formation and action and the conditions of existence of government in England.18

This extraordinarily tortuous sentence accurately describes what the founders had done. The “allusions suggesting inferences” to conventions “unrecognized by English law” were the closest the founders would come to identifying the executive that they intended for the colonies. When it came to appointing ministers for the self-governing colonies, governors followed British convention by replacing their appointed colonial officials with a Premier and ministers who had the support of a majority in the lower house of the legislature, the Assembly. B.T. Finniss, the first Premier of South Australia, called them “responsible ministers”, and they formed what he called a “Cabinet”, although there were no constitutional definitions of either term.19 Governors were also instructed to act, for the most part, on ministerial advice, although for a while some sought to retain their previous powers. In 1856 Governor Dennison of New South Wales believed that his Executive Council would continue to be the centre of the colony’s government but he was disabused of this by the Premier, who met separately with the Cabinet.20 In most respects, then, parliamentary government had arrived in the Australian colonies by the 1850s not by constitutional law but by instructions from the Crown and the operation of British constitutional conventions. What was missing, as in Britain at the time, was party government and its consequence, the further concentration of power in the Prime Minister and Cabinet. We might ask at this point why, if it was clear that the self-governing Australian colonies were going to practice parliamentary government, with premiers and 18 Quoted in George Winterton, Parliament, the Executive and the Governor-General: A Constitutional Analysis, Melbourne: Melbourne University Press, 1983, p. 195. 19 B.T. Finniss, The Constitutional History of South Australia During Twenty-One Years, Adelaide: W.C. Rigby, 1886, Ch.10, passim. 20 David Clune, “Donaldson, Stuart (later Sir Stuart) Alexander”, in David Clune and Gareth Griffith, eds., The Premiers of New South Wales, Sydney: Federation Press, 2005, v. 1, p. 24

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cabinets, this could not be stated in plain English in the new constitutions? There appear to be a number of reasons. The first is that parliamentary government was in its infancy in the 1850s, and as the historian, John W. Cell, reminds us, its implications had not quite been thought through. “[Responsible government] had been regarded by the colonists as a suitable slogan for agitation and by the Colonial Office...as a graceful means of ending it. Beyond these vague generalities no one, either in England or Australia, had bothered to go.”21 Trusting in the good sense of the Governor to arrange and supervise an executive responsible to Parliament may have been prudent in the circumstances. It was also the case that colonial politicians in the 1850s were imperialists and loyal monarchists. Given that there was only one imperial Crown, they thought it unwise, even improper, to limit the constitutional powers of the monarch in the colonies in ways they were not limited in Britain. Leaving the monarch as an imprecisely identified chief executive meant that Britain retained the power to intervene in the colonies through instructions to the Governor from the monarch, or more precisely, from the monarch’s British ministers. The Governor became thereby the critical actor in the management of the self-governing colonies in Australia, as well as in Canada and New Zealand, both of which attained self-government during the same period. The Governor ordinarily accepted the advice of local ministers on local affairs but he had several ways to protect British or imperial interests. The Governor could appoint and dismiss ministers at his own discretion, or dissolve Parliament and call for new elections. His assent was necessary before a bill became law and his instructions from London included a list of subjects on which he should not give the royal assent, including treaties, bills relating to military and naval matters, and bills to restrict the freedom of worship, create divorce, or create new coinage.22 In addition, all the colonies recognized reservation and disallowance, either in their new constitutions or by the incorporation of earlier British legislation creating legislative councils.23 The Governor could reserve a bill, which is to say, he could send it to the Britain where the monarch would give or refuse the royal assent on the advice of British ministers. Or the 21 J.W. Cell, British Colonial Administration in the Mid-Nineteenth Century: The Policy-Making Process, New Haven: Yale University Press, 1970, p. 157. 22 W.G. McMinn, A Constitutional History of Australia, Oxford: Oxford University Press, 1979, p. 79. 23 Anne Twomey, The Chameleon Crown: The Queen and Her Australian Governors, Annandale, New South Wales: Federation Press, 2006, pp. 10, 11.

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monarch might disallow a bill to which the Governor had already given his assent, again on the advice of British ministers. And to reinforce the authority of the Crown, the British Parliament passed the Colonial Laws Validity Act in 1865 which stated that a colonial act would be void if it were “repugnant to” a United Kingdom act of Parliament. This formula, with the Governor acting for the crown as the formal executive, served quite well to handle the relationship between the colonies and Britain in the second half of the nineteenth century. British ministers interfered very little in colonial affairs and McMinn records that by the end of the nineteenth century, only five colonial bills had been disallowed in London.24 However, colonial governors asserted themselves more actively in the Australian colonies than Queen Victoria did in Britain, in large part because of the instability of colonial governments in the years before Australian political parties matured. Governors also felt able to intervene because they were not local appointees. Indeed, local advice was not solicited on their appointments until the 1880s. Hudson and Sharp write, [Governors] were Colonial Office officials appointed on the advice of the Colonial Secretary, a United Kingdom minister ... A governor was given instructions by the Colonial Office; he reported regularly to the Colonial Office on the affairs of `his’ colony; if he found himself in political difficulties, he looked to the Colonial Office for advice or support. A governor could be sacked by London, but not by a colonial government or parliament ...”25

In addition, the Governor could intervene in colonial affairs without imperilling the institution of the Crown itself, a luxury Queen Victoria did not enjoy. If the Governor went too far, he could be removed without a revolution. For the most part, however, the Governor acted on the advice of his colonial ministers who thereby acquired control de facto over his very substantial powers.

24 McMinn, A Constitutional History of Australia, p. 90. 25 W.J. Hudson and M.P. Sharp, Australian Independence: Colony to Reluctant Kingdom, Melbourne: Melbourne University Press, 1988, pp. 11–14.

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Colonial Parliaments The parliaments of the self-governing colonies were much more satisfactorily and accurately defined in the colonial constitutions than were the executives. At self-government every Australian colony was assigned a bi-cameral parliament with a popularly elected lower house, the Legislative or House of Assembly, and a much less representative upper house, the Legislative Council. The New South Wales and Queensland councils had members appointed by governors, and in the other colonies members were elected on very restrictive educational or property franchises. In many respects Australia was much more democratic than Britain. It had elections by secret ballot by 1857, payment to MPs by 1900, adult manhood suffrage for all lower house elections by 1905, and votes for women by 1906, but legislative councils were not democratic until the second half of the twentieth century.26 Nonetheless, all the colonial legislative councils were extremely powerful because their powers were modelled on the nineteenth century House of Lords. With one exception, the Queensland Legislative Council, which was abolished in 1922, they remain extremely powerful today because they have undergone much less reform than the House of Lords. Legislative councils were not hereditary chambers but they represented wealth, property and the upper levels of colonial society, and their role was to constrain democracy as represented in the Assembly. Each colonial Council was therefore assigned almost co-equal legislative powers with its Assembly. Constitutions prohibited councils from initiating “money bills”, which dealt with appropriations and taxes, and in some colonies the Council might not even amend these, but every Council had the right to reject any bill, including a money bill. This gave it the power to frustrate the Government’s legislative program by rejecting its bills, or to force it out of office by rejecting its appropriations. The latter happened rarely but the Victorian Parliament was the scene of particularly frequent battles between the colonial Government and the Council over finance.27 Disagreements over legislation continued when the colonies became states because, John Waugh writes, “The Upper and Lower Houses of Australia’s State Parliaments were designed to disagree.”28 26 Gerard Carney, The Constitutional Systems of the Australian States and Territories, Melbourne: Cambridge University Press, 2006, p. 47. 27 McMinn, A Constitutional History of Australia, pp. 65–71. 28 John Waugh, “Deadlocks in State Parliaments”, in George Winterton, ed., State Constitutional Landmarks, Annandale, New South Wales: Federation Press, 2006, p. 185.

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Parliamentary Government in the Commonwealth of Australia29 The Constitution of the Commonwealth of Australia which came into effect in 1901 was novel in several respects but it was built upon the British and colonial precedents we have just considered. It was the result of years of deliberations that included the Australasian Federation Conference of 1891 in Melbourne and the National Australasian Conventions which convened in several capital cities in 1891, 1897 and 1898. The core of the document was drafted in Sydney, in March and April 1891, and it was amended in Adelaide, Sydney and Melbourne in 1897 and 1898. The final version included amendments offered by state legislatures, the colonial Premiers’ Conference, and the British Colonial Office. New Zealand delegates attended the 1891 conference but subsequently withdrew. The draft Constitution was endorsed by five Australian colonies in 1899 and by Western Australia in 1900. It came into effect on 1 January 1901, the consequence of the Australian Commonwealth Constitution Act, passed by the United Kingdom Parliament in July 1900. The sessions of the constitutional convention that met from 1891 to 1898, Greg Craven writes, were “probably the most politically accomplished assemblies ever to convene in Australian history.”30 Delegates included three future Australian prime ministers and thirty-three past, present, or future colonial or state premiers. These men, for there were no women, understood all there was to know about parliamentary government in Britain and the colonies at the time and most of them wanted a British-style parliamentary democracy, but they also wanted to form an American-style federation, an idea that had been debated since the 1820s. Richard Baker, a delegate from South Australia, prepared a manual to guide his colleagues on the federations of the day, Canada, Switzerland, and the United States.31 In the debates it was clear that four features of the Canadian federation were unacceptable to Australians: the Canadian Senate is appointed by the Governor-General, the Canadian enumeration of federal and provincial 29 Citations in this chapter for the debates in the Constitutional Conventions of the 1890s are drawn from the Australian Senate Publications’ record of debates. They are cited as Australasian Federation Conference. 30 Greg Craven, “The Founding Fathers, Constitutional Kings or Colonial Knaves?” in Parliament and the Constitution: Some Issues of Interest, Australia, Parliament, Senate, Papers on Parliament, No. 21, 1993, p. 4. 31 Richard Baker, A Manual of Reference to Authorities for the Use of Members of the National Australasian Convention, Adelaide: W.K. Thomas, 1891.

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powers assigns residuary powers, which are those not specifically assigned by the Constitution, to the federal government, provincial governors are appointed by the Governor-General, and the Governor-General may disallow a provincial act. These provisions collectively gave altogether too much power to the federal government. The Australian Commonwealth Constitution therefore limits federal powers to those enumerated in Sections 51, 52 and 90, residuary powers are left to the states, the Governor-General has no role in the appointment of state governors, and he may not disallow a state act. The Swiss federal Constitution was cited a number of times in the Convention debates but it had little influence on the Commonwealth Constitution other than that Section 128 (that constitutional amendments must be approved by referendum) was based on Swiss law.32 The Swiss Federal Council, the executive, received some attention, but ultimately little support. A more substantial contribution was made by the United States Constitution, to federation and the upper house, but not to the executive. Australia was to have a House of Representatives and a Senate, but its executive would be British.

The Commonwealth Executive In a parliamentary system the head of government must be selected from the majority in the lower house and a weak head of state ordinarily acts on the advice of ministers. These rules were not written into colonial constitutions in the 1850s, and they were not written into the Commonwealth Constitution, either, despite the best efforts of Sir Henry Parkes, the Premier of New South Wales, who presented the first set of resolutions to the Sydney Constitutional Convention on 4 March 1891. He wanted the Constitution to include fusion, the rule that ministers should sit in Parliament, and majority government, the rule that ministers must have the support of a majority in the lower house. He did not propose to recognize the Prime Minister and Cabinet specifically, and referred instead to “advisers”, but the rule of majority government was very clear. He proposed that there should be An Executive, consisting of a Governor-General and such persons as may from time to time be appointed as his advisers, such persons sitting in Parliament, and whose term of office shall depend upon their possessing 32 Craven, “The Founding Fathers”, p. 7.

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the confidence of the House of Representatives expressed by the support of the majority.

Parkes intended, he said, that the Constitution should “call into existence a ministry to conduct the affairs of the new nation as similar as can be to the ministry of England ...”33 Delegates to the Constitutional Convention had no objection to codifying fusion, as Parkes proposed, so Section 64.3 of the Commonwealth Constitution requires “Ministers of State” to have seats in Parliament within three months of their appointments, but delegates rejected an explicit statement of majority government. Instead, Section 61 of the Constitution reads, “The executive power of the Commonwealth is vested in the Queen and is exercisable by the Governor-General as the Queen’s representative ...” There is no mention of the Prime Minister and Cabinet or of their requiring the support of a majority, or of the Governor-General acting on ministerial advice. It is true that Section 64.2 requires ministers to be members of the Executive Council, but the Council is not the Cabinet. In 1982, the Australian High Court noted that the Executive Council is an “authenticating”, not a decision-making, body, which the founders already knew in 1891.34 Having decided to assign executive powers to the monarch, the Constitutional Convention did a much better job than colonial constitutions of assigning to the Governor-General a number of powers that are common law prerogatives of the Crown in Britain. In Section 5, for example, he sets the times for parliamentary sessions “as he thinks fit”, and he may prorogue Parliament or dissolve the House of Representatives. In Section 28, sessions of the House of Representatives may sit for a maximum of three years “but may be sooner dissolved by the GovernorGeneral”. In Section 56, he recommends appropriation bills to the House of Representatives. In Section 57 he may dissolve the House of Representatives and the Senate simultaneously if they are deadlocked over legislation and, following the subsequent general election, he may summon a joint session of Parliament to resolve disputes. In Section 58 he assents to bills “according to his discretion.” In Section 64, ministers are appointed to serve “during the pleasure of the Governor-General”, not the pleasure of the House of Representatives, and in Section 68 he is commander in chief of naval and military forces. These provisions 33 Australasian Federation Conference, 4 March 1891, pp. 23, 26. 34 R.D. Lumb, Australian Constitutionalism, Sydney: Butterworths, 1983, p. 74.

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read like the prerogatives of King George III, but no-one at the Constitutional Convention expected the Governor-General to exercise them in a routine way. It was understood by delegates that he would respect British conventions. He would appoint ministers who had the support of the House of Representatives and would act on their advice. His constitutional powers would be “reserve powers”, to be used at his discretion only in exceptional circumstances, the first of which occurred on 1 January 1901, the first day of the new state, when the Governor-General, the Earl of Hopetoun, appointed the first Prime Minister, Edmund Barton, before the first Commonwealth election was held. This constitutional formula for the executive, with a very powerful GovernorGeneral whose legal powers would be limited by non-legal conventions, was not forced upon the Australian founders. Rather, every attempt to democratize the Constitution by restricting the legal powers of the Crown and writing constitutional conventions concerning the Government and other matters into constitutional law was rebuffed by delegates themselves. Sir Samuel Griffith, Premier of Queensland, for example, insisted that if Australia was to have the monarch as part of Parliament, he or she must have the power to deny the royal assent to bills.35 Griffith also argued that requiring the Government to have a majority in the House of Representatives would restrict the Constitution’s flexibility: What I maintain is this: the genius of the English people has shown itself for the last 200 years to be capable of moulding the constitution, so as to suit it to the exigencies of the times. Who can tell what the exigencies of the future will be.36

Even naming the Governor-General’s advisers “responsible ministers of the Crown” received little support, and when John Cockburn of South Australia proposed that the Governor-General’s powers of pardon and dissolution should be vested in “responsible ministers”, he lost.37 When Sir George Reid (NSW) tried to persuade delegates that the Governor-General should always act on the advice of the Executive Council, in which ministers would sit, Edmund Barton (NSW) opposed it as unnecessary. A.V. Dicey, he said, had explained in 1885 that the powers of the Crown were really controlled by the Cabinet. Of course, 35 Australasian Federation Conference, 6 April, p. 764. 36 Australasian Federation Conference, 18 March 1891, p. 467. 37 Australasian Federation Conference, 1 April, 1897, p. 560.

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Dicey was describing constitutional conventions that had evolved over a period of seven hundred years in Britain, not a modern constitution for a new state in a new century. This led Joseph Curruthers (NSW) to counter: Mr. Barton ... recites Dicey to show what occurs under the unwritten Constitution of England. But here we are framing a written Constitution ... [and] it is better to let that Constitution clearly express what it is intended to effect; do not let us have to back it up by quoting whole pages of Dicey ... This is a Constitution which the unlettered people of the community ought to be able to understand38

Curruthers was correct, but he lost the argument, and it has been lost ever since, most recently in the Australian republic debate of the 1990s. It is astonishing that the President proposed in the republic referendum of 1999 would have had the original powers of the Governor-General and the Prime Minister and Cabinet would have remained unrecognized in Commonwealth constitutional law. We should ask again, therefore, why executive powers were assigned to the Crown when everyone expected the executive de facto to be the Prime Minister and Cabinet? It could no longer be argued, as it could in the 1850s, that parliamentary government was in its infancy and imperfectly understood, but other reasons were advanced. We will discuss one of these in a few pages when we consider the powers of the Senate, but for the moment we should consider that many delegates were loyal monarchists who agreed with Sir Samuel Griffith that, “To ask the Crown...to surrender in respect to Australia, all its prerogatives is rather an extraordinary thing to do.”39 In very practical terms, however, the most important reason for writing the monarchy so prominently into the Commonwealth Constitution was its role in the British Empire. Australia’s colonial and Commonwealth constitutions did not simply define a set of domestic arrangements, they also defined Australia’s relationship with the Crown and the British Empire, and in this respect those who wrote the Commonwealth Constitution faced a more difficult task than those who wrote the colonial constitutions. In the 1850s there was no doubt that the colonies were colonies, subordinate to Britain, and the role of the Crown simply 38 Australasian Federation Conference, 19 April 1897, p. 913. 39 Australasian Federation Conference, 6 April 1891, p. 772.

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recognized this, but the Commonwealth of Australia was to be independent, or very nearly so. The term “dominion” was coined in 1907 for a handful of independent members of the British Empire, Australia, Canada, New Zealand, Newfoundland and South Africa, but it was not clear for another twenty-five years what constitutional form a so-called empire of independent dominions could take. In these circumstances, assigning executive powers to the monarch was a way of cementing a dominion into the British Empire without having to define that body, a task which Australia could not undertake alone. John Quick and Robert Garran wrote in 1901 that the Crown was “a concrete and unequivocal acknowledgment of a principle which pervades the whole scheme of government; harmony with the British constitution and loyalty to the Queen as the visible central authority uniting the British Empire with its multitudinous peoples and its complex divisions of political power.”40 As far as Britain was concerned, the dominions would be self-governing but the British Government would set imperial policy and the Crown would be the instrument of imperial cohesion. Indeed, among the few things the British Colonial Office insisted upon were that the monarch, not the Commonwealth Parliament, would make treaties and declare war, using prerogative powers. In addition, in Section 74, the Privy Council in London was retained as the highest court of appeal for Australia. The Constitution also continued to recognize reservation and disallowance in Sections 58 and 59, and the Colonial Laws Validity Act 1865 remained in effect, so that Britain could reject a dominion law that was “repugnant to” British law. This arrangement, which placed the sovereign at the heart of the Australian Commonwealth Constitution, solved the imperial problem for Britain, at least for a while, but it left the Governor-General in the ambivalent position already held by colonial governors; he was a local head of state, acting on the advice of local ministers, and he was the representative of the monarch, acting on the advice of British ministers. No-one can have doubted that if the two sets of advice were to conflict, British advice would prevail. This constitutional ambivalence was clearly unsatisfactory. The fact that Britain declared war on Germany in 1914 on behalf of British Empire without seeking the consent of the dominions hardly showed respect for their

40 John Quick and Robert R. Garran, The Annotated Constitution of the Commonwealth of Australia, Sydney: Angus and Robertson, 1901, p. 294.

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independence, and although dominion prime ministers settled in London in 1917 and 1918 to participate in the Imperial War Cabinet, this took them away from their domestic responsibilities at a time when travel to Britain by sea took many months. It was clearly untenable as a permanent arrangement. Sooner or later Australia and the other dominions would have to clarify their relationship with Britain. In 1917 an Imperial Conference of British and dominion prime ministers began the process by recognizing that the Empire would be an association of constitutionally co-equal states known as the Commonwealth of Nations.41 This still lacked constitutional precision, so the dominions began to interpret it in their own ways. For example, in 1919 Prime Minister Billy Hughes, not the British Prime Minister, David Lloyd George, represented Australia at the Versailles Peace Conference and signed the World War I Peace Treaty, and in June 1921 Hughes opposed a permanent imperial Cabinet because, he wrote, “The great merit of the constitutional relationship existing between Britain and the dominions is and always has been its elasticity.”42 The pace of change accelerated with a series of Imperial Conferences in 1923, 1929 and 1930, the result of which was that Britain accepted several propositions: a dominion might sign treaties for itself and appoint diplomats, the reservation and disallowance of dominion bills by the sovereign and the Colonial Laws Validity Act would lapse in practice, and British law would no longer bind a dominion, except with its consent. In addition, the Governor-General would no longer act as both British government agent and dominion head of state. A new diplomatic class was created to represent the members of the Commonwealth in their relations with each other, the High Commissioner. Finally, Britain agreed that changes in the law affecting the Crown would require the consent of all the dominions. These undertakings were written into British law in the Statute of Westminster 1931. It was left to each dominion to decide when to implement it, and Australia only did so in 1942, which is why Prime Minister Menzies believed that Britain’s declaration of war against Germany in September 1939 committed Australia too.43

41 Nicholas Mansergh, The Commonealth Experience, 2nd. ed., v. 1, London: Macmillan, 1932, p.24; David Harkness, The Restless Dominion: The Irish Free State and the British Commonwealth of Nations, 1921–31, New York: New York University Press, 1970, pp. 3–4; 42 Quoted in David Harkness, “Britain and the Independence of the Dominions: The 1921 Crossroad”, in T.W. Moody, ed., Nationality and the Pursuit of National Independence, Belfast: Appletree Press, 1978, p. 149. 43 Harkness, Restless Dominion, pp. 13, 149–228; 240–8; Mansergh, The Commonealth Experience, p. 31.

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Vernon Bogdanor concludes that “the concept of a single Crown uniting the members of the Commonwealth was coming to be replaced by that of several crowns linked by the person of the sovereign. This paved the way for explicit recognition of the divisibility of the Crown.”44 Since the 1952 Commonwealth Prime Ministers’ Conference, the sixteen Commonwealth states that recognize the Queen as head of state have accepted that her title may vary from country to country, and in 1973 Australia decided that she should be Queen of Australia.45 When India became a republic in 1949 it was agreed that a republic could be a member of the Commonwealth, a suggestion Sir George Grey, a New Zealand delegate, had made to the Constitutional Convention in 1891.46 Since 1949 the monarch has been recognized as “head of the Commonwealth of Nations”, an honorary role with no constitutional significance, and a majority of Commonwealth members have become republics. There were still some constitutional anomalies to work out after the Statute of Westminster. Australia could be the master of its own affairs but until 1975 the British Privy Council was still the final court of appeal for Australian cases. In addition, the Commonwealth Constitution was still contained in a British act of Parliament and state constitutions continued to be, in many respects, the original colonial constitutions because the states had opted for exclusion from the Statute of Westminster in 1931. This changed when the Australia Acts were approved by the British, Australian Commonwealth, and Australian state parliaments and came into effect in 1986. Britain surrendered, or “patriated”, its residual constitutional powers to the several Australian parliaments and there is no way now for the Queen, even theoretically, to be offered conflicting advice on Australian domestic affairs by her British and Australian state ministers. Section 7.6 of the act states, “The advice to Her Majesty in relation to the exercise of the powers and functions of Her Majesty in respect of a State shall be tendered by the Premier of the State.” The reservation and disallowance of state bills by the Queen, long obsolete, was finally abolished in the states, though not the Commonwealth, and the British Privy Council ceased to be the final court of appeal for state cases. Unless the Queen is actually present in Australia, acting on the advice of local ministers, royal powers are exercised by state governors or the 44 Vernon Bogdanor, The Monarchy and the Constitution, Oxford: Oxford University Press, 1997, p. 252. 45 Harkness, Restless Dominion, p. 268; Australia, Royal Style and Titles Act (1973). 46 Australasian Federation Conference, 9 March 1891, pp.138–41.

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Governor-General, except for the appointment or dismissal of a governor or the Governor-General, when she acts on the advice of state or federal ministers.47 Clear winners in this process of separating Australia from Britain were Australia’s prime ministers, premiers and cabinets who assumed the residual powers that the British Government had retained to use through its advice to the monarch. The failure to adopt a republic in 1999, and the abandonment of constitutional amendments that were to accompany it, means that reservation and disallowance remain in the Commonwealth Constitution, in Sections 59 and 60, but the Statute of Westminster and the Australia Acts have removed any imperial reasons for refusing to recognize the Prime Minister and Cabinet properly in Commonwealth and state law. The fact that many republics have become Commonwealth members has also opened the door to Australia becoming a republic without leaving the Commonwealth of Nations.

The Commonwealth Parliament There was very little controversy in the federal Constitutional Convention about creating a bicameral Commonwealth Parliament, about the composition of the two houses, or about their names. Delegates agreed to Section 1, “The legislative power of the Commonwealth shall be vested in a Federal Parliament, which shall consist of the Queen, a Senate, and a House of Representatives ...” Section 24 provides that the House of Representatives shall be directly elected by the people and that the number of members chosen per state shall be proportional to its population. Its membership is also set, “as nearly as practicable”, at “twice that of the Senate”. Section 7 set the number of Senators per state at six, “until the Parliament otherwise provides”, and requires that the original states shall always be equally represented. This opens the possibility that the Northern Territory and the ACT might be admitted to the federation with less than equal Senate representation because they are not original states. Section 27 allowed Parliament to enlarge the lower house and this has been done twice to accommodate Australia’s growing population, but Section 24 required the Senate to be enlarged, too. The House of Representatives now has 150 members and there are 12 senators per state. In 1974 the Northern Territory and the ACT

47 Australia Acts, Section 7; See P.H. Lane, An Introduction to the Australian Constitutions, 5th ed., Sydney: The Law Book Company, 1990, pp. 194–8.

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were assigned two senators each, but they do not count in the ratio of lower to upper house members. Section 28 of the Constitution provides that the maximum term of the House of Representatives is three years, unless sooner dissolved by the GovernorGeneral. As in the colonies, this is an allusion to parliamentary government because it permits the lower house to be dissolved for an election should the Government lose its majority there and no replacement can be found in the existing house. Section 13 gives senators fixed, six-year terms, with one half retiring every three years. There is no rotation of territory members who are elected at the time of House of Representatives elections. The only occasion on which the Constitution calls for both houses to be dissolved, and then elected, simultaneously is under the rarely used dispute resolution procedure in Section 57, which is considered below. Because House of Representatives elections may be called in less than three years and senators ordinarily serve fixed six-year terms, with half elected every three years, the possibility exists that House and half-Senate elections may be called at different times. In practice, they are usually held on the same day but senators may have to wait many months to be seated. For example, elections were held on 21 August 2010 and the new House of Representatives sat on 28 September, but new senators had to wait to be seated until 1 August 2011 for the previous senators’ terms to expire and a new Senate term to begin. There was much more controversy about the powers of the two houses of parliament than their composition, and this revolved around the relationship between the Government and the upper house. The bedrock constitutional rule in a parliamentary system is that the Government must have the support of a majority in Parliament. Implicit in this rule is another; in a bicameral parliament one house should have primacy in government formation because the Government cannot, or cannot easily, have the support of majorities in both houses if those majorities represent hostile parties. With the exception of Italy, parliamentary systems assign primacy to the more representative house, the lower house, whether by constitutional law or constitutional convention, and who will form the Government is determined by the lower house alone. This has been the convention in Australia since the 1850s, but it raised a question which consumed a huge amount of time in the constitutional debates of the 1890s; should the upper house be allowed powers that would permit it to incapacitate, or even destroy, a government drawn from the majority in the lower house 49

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alone? The colonial legislative councils all had such powers but should they be given to the Senate, too? Since the federation debates in the 1890s, the great majority of parliamentary systems, including the British, have limited the powers of the upper house by law. They may not reject money bills and their rejection of non-money bills may be overridden by the lower house after a period of delay. The founders rejected this formula for the Commonwealth because the less populated colonies insisted on a very powerful Senate to protect them from predatory behaviour by the two most populous states, New South Wales and Victoria, which together held 43 out of 67 seats in the first House of Representatives. In addition, some delegates thought of the Senate as a states’ house that would be a barrier to centralized power. J.A. Cockburn of South Australia, for example, argued that “central authority constitutes a sort of vortex towards which power gradually attaches itself ... Those who advocate state rights advocate local government, under whose shadow alone democracy can exist.”48 The Constitutional Convention settled on three features of the U.S. Constitution to protect the states. First, residuary powers, those not assigned to the Commonwealth in the Constitution, rest with the states. This is implied in Sections 51, 52 and 90 which lay out the powers of the Commonwealth, but not those of the states. Second, in Section 7, each state has equal representation in the Senate. Third, in Section 53 the Senate has the right to refuse to consider, or to reject, any bill, including a money bill. This was borrowed from South Australia, not the USA, but what distinguishes the Senate from a Legislative Council, and makes it more like the American Senate in one respect, is that Section 53 was designed to protect the federal settlement, not to protect the interests of elites. Some Constitutional Convention delegates wanted to name the upper house the Council of States, or States Assembly, which would probably have conveyed more about states’ rights than was intended.49 Harry Evans argues that the prevailing theory was not that each state’s senators should represent state interests but that there should be a double majority for legislation. Bills would require the approval of a majority of representatives of the people and a majority of representatives of the states, but each state’s senators would not have

48 Australasian Federation Conference, 8 April 1891, p. 707. 49 See Richard Baker (SA), Australasian Federation Conference, 16 March 1891, pp. 371–2.

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to agree with each other on every vote.50 This contrasts with a more authentic states’ house, the German Bundesrat, whose members are all ministers in Lander (state) governments and Section 51.3 of the German Constitution says that the “votes of each Land may be cast only as unit.” Before the very substantial powers of the Senate were accepted into the Constitution they went through years of debate and modification. Convention delegates zeroed in on the constitutional problem that a powerful Senate, able to reject any bill and deny the Government a supply of money, might so obstruct a government drawn from the House of Representatives that the parliamentary system would become dysfunctional. In 1897 Richard Baker of South Australia expressed this concern: I venture to suggest that if we adopt this Cabinet system of Executive it will either kill Federalism or Federalism will kill it, because we cannot conceal from ourselves that the very fundamental essence of the Cabinet system of Executive is the predominating power of one chamber. We know ... that it would be impossible for any Government to carry on if they were obliged to have majorities in both chambers.51

In his opening resolution to the Sydney Convention, in 1891, Sir Henry Parkes (NSW) proposed a modest compromise; the House of Representatives would have the sole power to initiate and amend money bills dealing with appropriations and taxes, which would assure the lower house primacy in finance, but the Senate would be able to reject the whole of a money bill and would have co-equal powers with the House of Representatives over non-money bills.52 In other words, Parkes accepted that the Senate would be able to destroy a government by denying it money, or disable it by rejecting its bills. Those in favor of a weaker Senate used arguments from popular sovereignty. Arthur Deakin, of Victoria, for example, argued that it was unfair for states with small populations to have the same Senate representation as states with large 50 Harry Evans, “Federalism: an idea whose time has come”, Australia, Parliament, Senate Publications, 1997, pp. 1–2. 51 John A. La Nauze, The Making of the Australian Constitution, Melbourne: Melbourne University Press, 1974, p. 41. 52 Australasian Federation Conference, 1891, pp. 380–81. See also Brian Galligan, “The Founders’ Design and Intentions Regarding Responsible Government”, in Patrick Weller and Dean Jaensch, Responsible Government in Australia, Richmond, Victoria: Drummond, 1980, p. 8.

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populations. Furthermore, if there were state rights they should be specifically protected in the Constitution, not left to the Senate to secure. “Let us know what state rights are”, Deakin argued, “and let us be careful to secure them under our constitution, so that they may never be liable to be swept away.”53 His more important argument, however, concerned what he described as the “certain conflict and inevitable deadlock” that might arise between a powerful Senate, “a body entirely foreign to the British Constitution”, and a Britishstyle executive drawn from the lower house. In fact, he said, “to introduce the American Senate into the British Constitution is to destroy both.” It should be possible to devise a scheme “which should endow the senate, or states house, with all the powers with which a second chamber can be endowed, without bringing the progress of legislation absolutely to a standstill ...”54 To this end Deakin’s Victorian colleague, Henry Wrixon, proposed that the Senate should be empowered to reject non-money bills and appropriations bills for new programs, but should not be able to force the Government out of office by denying it operating funds.55 Wrixon insisted that “the body that really controls finance unquestionably controls the government”,56 and this body should not be the Senate. His argument was rejected by the Constitutional Convention in 1891 but since federation both New South Wales and Victoria have amended their constitutions as he suggested. I should point out that Deakin was addressing two issues, the composition of the Senate and its powers, and in both cases he was unreasonably critical of American influences. He was right that the equal representation of states in the Senate is an American principle but he was wrong to see the Senate’s powers as American because every Australian colonial Legislative Council had the same powers, and this had nothing to do with America. A powerful upper house was absolutely not “a body entirely foreign to the British Constitution” in the 1890s, as he alleged. In fact, Deakin really knew this very well. He admitted that colonial Victoria had been wracked by frequent conflict between the Government and the Legislative Council. “[W]e should have been false to our obligations, not only to our own colony, but also to this Convention, if we had

53 Australasian Federation Conference, 5 March 1891, pp. 82 and 385. 54 Australasian Federation Conference, 16 March 1891, pp. 384–5. 55 Australasian Federation Conference, 16 March 1981, p. 381. 56 Australasian Federation Conference, 16 March 1981, pp. 419–20.

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not warned hon. members of the rocks upon which we [in Victoria] have been nearly shipwrecked.”57 The preference of delegates like Deakin and Wrixon was to weaken the Senate’s financial powers to the degree that it would not be able to deny the Government a supply of money for operating expenses under existing law but other delegates preferred that the Senate be able to reject any money bill, even if this jeopardized parliamentary government. To avoid this dilemma some delegates suggested changing the executive from the British model into something weaker, the Swiss in particular, rather than weakening the Senate. The Swiss Federal Council was elected by both houses of Parliament for a fixed four-year term and was not dismissible by Parliament. In addition, the President of the Council was a presiding officer, elected annually by Parliament from the Council’s membership, not a dominant Prime Minister in the parliamentary sense.58 But this was a weaker executive than the great majority of convention delegates preferred. They wanted the British model that they were used to, although La Nauze estimates that in 1891 about half the delegates were dubious that parliamentary government could be reconciled with a powerful Senate.59 The case for a strong Senate ultimately won. As finally adopted, Section 56 requires money bills proposing appropriations and taxes to be introduced in the House of Representatives with a message from the Governor-General. The founders assumed he would act on the Government’s advice but chose not to say so. Section 53 precludes the Senate from amending money bills but permits it to suggest changes. The Senate may reject a whole money bill if its suggestions are ignored but the founders thought it unlikely that it would want to bring down the Government by doing so.60 Money bills aside, the Senate may reject or refuse to consider any other legislation sent to it by the House of Representatives. Given that all the Australian colonies had survived with British-style executives and very powerful upper houses since the 1850s, we should ask what this fuss over the Senate’s powers was really about. The answer appears to be that the significance of the Senate to the founders was less its powers, which were unexceptional at the time of federation, than its legitimacy. As a democratic

57 Australasian Federation Conference, 16 March 1891, p. 385. 58 Switzerland Constitution of 1874, Articles 92, 96 and 98. 59 John A. La Nauze, The Making of the Australian Constitution, Melbourne: Melbourne University Press, 1974, p. 40. 60 Galligan, “The Founders’ Design”, p. 8.

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chamber it would have sufficient legitimacy to assert itself in ways that a less legitimate upper house, the House of Lords, for example, might not. In fact, many in Australia thought, quite wrongly, that a British convention existed that the House of Lords would never kill an important Government bill or reject a budget. In fact, the Lords did reject a budget, in 1909. Nonetheless, in 1891 Samuel Griffith was one who believed that the House of Lords “can exercise at most a power of delay to prevent undue haste in government; but sooner or later it has to give way.”61 However, delegates could easily imagine serious deadlocks arising between an elected, and therefore legitimate, Australian Senate and the Government over legislation, and this led them to conclude that there had to be a constitutional procedure to resolve extreme deadlocks between the two houses which might otherwise cripple the system. They adopted Section 57, which has no equivalent in the United States. It provides that the Governor-General may dissolve Parliament and call elections for the whole of both houses should the Senate reject, or fail to pass, one or more measures submitted to it twice by the House of Representatives with an interval of three months. Should the election fail to produce two chambers that agree, the Governor-General may convene a joint sitting in which the two chambers vote together on the disputed legislation. A double dissolution is the only occasion on which the Senate ceases to be a continuous body. The double dissolution procedure provides some advantages to the Government because it allows the Prime Minister, through his advice to the Governor-General, to threaten senators with a dissolution which puts all their seats at risk. The House of Representatives also has a numerical advantage in a joint sitting because its membership is twice that of the Senate. But the founders did not anticipate that Section 57 would be used very often, and this has been the case. Double dissolutions are threatened, or muttered about, quite often when governments find themselves frustrated by the Senate, as in 2009 when the Senate rejected the Government’s emissions control proposals. But there have only been six since federation, and only one, called by Prime Minister Whitlam in 1974, led to a joint sitting after a general election. It enacted six disputed bills. Double dissolutions in 1914, 1975, and 1983 led to the defeat of the Government in the ensuing election. A double dissolution in 1951 led to Government majorities in both houses and no need for a joint sitting to 61 Australasian Federation Conference, 4 March 1991, pp. 31.

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secure passage of disputed legislation, and in 1987 it led to the return of the Government in the House of Representatives which lacked a majority in a joint sitting to pass a disputed bill.62 Section 57 may give the Government certain advantages but a double dissolution is not a particularly attractive option because it requires a general election that puts all of both houses at risk and, as will see below, the Government’s chances of winning control of the Senate are now small. The procedure also takes four or five months to complete and is much too cumbersome to resolve a budget crisis if the Government is running out of money, which was the case in the 1975 constitutional crisis discussed in Chapter 10. Despite the adoption of Section 57, many Convention delegates remained apprehensive about conflicts between the Senate and the lower house, but most of them still wanted a powerful Senate and an executive responsible to the lower house. It was in this climate of uncertainty that an additional reason emerged to those cited above for assigning executive powers to the Queen and the Governor-General and leaving the Prime Minister and Cabinet to conventions. This formula did not lock Australia into any particular executive model, parliamentary or otherwise. If the Government drawn from the majority in the House of Representatives were unable to work with the Senate, the GovernorGeneral could abandon the conventions of parliamentary government and adopt some other executive model without a constitutional amendment. Charles Kingston, who favoured the Swiss executive, praised this arrangement: [I]t is highly desirable to allow the utmost room for alteration in practice – to allow the greatest elasticity, so that from time to time such amendments may be made in the practical working of the constitution as may be found necessary.63

Kingston’s South Australian colleague, Richard Baker, added that the Constitution should be “so elastic as to enable the evolution of events to bring about another form of election, or appointment of an executive government which will work in harmony with the main principles of a federation.”64 And Sir Samuel Griffith, of Queensland, added that “we should not make our 62 Australia, Department of the Prime Minister and Cabinet, Resolving Deadlocks: A Discussion Paper on Section 57 of the Australian Constitution, Canberra, 2003, Executive Summary. 63 Australasian Federation Conference, 9 March 1891, p. 162. 64 Australasian Federation Conference, 18 March 1891, p. 466.

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constitutions so rigid as to insist upon any particular ... relationship between the executive and parliament ... I propose to leave to the future the avoiding of these difficulties, and that we should not make difficulties in advance.”65 Given this view, assigning the executive to the Crown and leaving the Prime Minister and Cabinet to the workings of conventions was a pragmatic arrangement.

Comparing the American and Australian Senates? Since the Constitutional Convention debates of the 1890s much has been made of the argument that the Australian Senate is an American institution. As we saw above, Alfred Deakin made exactly this comparison in 1891. It is true that the Australian federal model was drawn from the United States, with one house representing the people by districts of approximately equal populations and the other representing them by states, but the two systems have always differed in composition and powers. The U.S. Senate has always had two senators per state and the 17 U.S. territories have no representation. The Australian Senate began with six senators per state, moved to 10 for the 1949 election, and to the present 12 for the 1984 election, plus two each for the Northern Territory and the ACT. When the Commonwealth Constitution was adopted U.S. senators were selected by processes determined in each state. Only in 1913 did the 13th amendment to the U.S. Constitution provide that all senators would be elected by the people, a principle Australia adopted in 1900. In terms of constitutional powers, the Australian and American senates differ markedly. The U.S. Senate may both reject and amend a money bill but the Australian Senate may not amend. The U.S. Senate is required to approve all senior executive, diplomatic, and judicial appointments but in Australia these are made by the Governor-General in Council, and effectively by the Government. In the U.S.A. both houses of Congress must vote to declare war and the Senate must vote to approve a treaty. These are Crown prerogatives in Australia, controlled by the Prime Minister through his advice to the Governor-General. The American Senate is the court for impeachment trials against the President and federal judges, but there is no provision for impeachment in Australia. Finally, the Prime Minister may advise the Governor-General to dissolve both houses of Parliament to resolve a deadlock with the Senate. There is no deadlock

65 Australasian Federation Conference, 18 March 1891, p. 467.

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provision in the United State Constitution. If the President and Congress have crippling disagreements they have to live together until the next election. The U.S. Senate clearly has more power and responsibility than the Australian Senate and it is interesting that the differences between the two work very much to the advantage of the Australian Prime Minister because of the constitutional role of the monarch. Unlike the U.S. President, the Prime Minister may, through her advice to the Governor-General or the Queen, make public appointments, sign treaties, declare war, dissolve both houses of Parliament, and hire and fire the Governor-General, without any formal participation by Parliament. Why the U.S. and Australian senates should differ in so many ways is not hard to explain. Whatever its structure, the powers of the Australian Senate are based on colonial legislative councils and the nineteenth century House of Lords, not on the U.S. Senate. In addition, the Prime Minister owes many advantages to peculiarly British conventions that regulate the Crown, for which there are no American equivalents. So when Australian prime ministers insist that the Australian Senate is too powerful, which is frequently the case, it is not because they envy the President of the United States or would prefer to deal with the American Senate. It is because they envy prime ministers in parliamentary countries with weak upper houses, which is most of them.

Parliamentary Government in the Commonwealth Territories66 We can end this historical overview of Australian constitutions and parliamentary government by considering the constitutions of two Commonwealth territories, the Northern Territory and the Australian Capital Territory (ACT). Both have limited self-government under Commonwealth supervision and practice parliamentary government, and both have constitutions granted by the Commonwealth Parliament in which the executive is very powerful. But whereas the Northern Territory (Self-Government) Act 1978 is an old fashioned document, very much like an Australian colonial constitution, the ACT (SelfGovernment) Act 1988 is one of the most modern parliamentary constitutions in the world.

66 Norfolk Island has a parliamentary form of government but with a population of only 2100 it is best regarded as local government and will not be considered here.

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The Northern Territory The Northern Territory is a huge area, one sixth of the land mass of Australia, with a population of about 205,000. It was claimed by Britain in 1824, administered by New South Wales until 1863, and then assigned to South Australia. In 1910 its administration was transferred to the Commonwealth. In 1922 it was assigned an elected, non-voting, member of the Commonwealth House of Representatives. That member acquired voting rights on territory matters in 1936 and full voting rights in 1968. The territory currently has two members in the House of Representatives and, since 1975, two elected Commonwealth senators serving the same terms as the House of Representatives, with full voting rights. From 1911 the Northern Territory was the responsibility of a Commonwealth Administrator appointed by the Governor-General on the advice of the Commonwealth government. He administered the territory, subject to instructions from Commonwealth ministers. Following the precedent of the Australian colonies before self-government, a Legislative Council was created in 1947, with the Administrator as President and seven official members who were heads of government departments in the territory. There were also six elected members. Following complaints by the latter that they were outnumbered, the non-official membership was increased by three in 1959. In 1965 the Administrator was replaced in the Council by a President elected by its members, but he continued to serve as the chief executive of the territory. In 1968, the number of elected Council members was increased to eleven and official appointees were removed. In 1974 the Council was replaced by a new, wholly elected, unicameral Legislative Assembly with nineteen members. Finally, in 1978 the territory was given selfgovernment in the Northern Territory (Self-Government) Act, the present constitution, which increased the Assembly’s powers. The Assembly was expanded to its present size of twenty-five members in 1982. The act assigns executive powers to the Administrator, who acts in the capacity of a state Governor save that he is appointed by, and responsible to, the Governor-General, not the sovereign. The self-government act created the Executive Council to advise the Administrator, and by law its members are ministers.67 67 Alistair Heatley, Almost Australians: The Politics of Northern Territory Self-Government, Darwin: ANU North Australia Research Unit, 1990, pp. 15–16; Alistair Heatley and Graham Nicholson, Selected Constitutional Documents on the Northern Territory, Darwin: Northern Territory Department of Law, 1989.

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The most significant powers retained by the Commonwealth in the Northern Territory concern uranium mining, aboriginal land rights, industrial relations, and national parks, but the Governor-General has the power to disallow a territory act within six months of its passage. By convention the Administrator acts on local ministerial advice but Section 9 of the Constitution obliges him to accept instructions from the Commonwealth. The Commonwealth Parliament also has the right to override territory legislation with which it disagrees, as it did in 1997 when it passed the Euthanasia Laws Act which amended the Northern Territory (Self-Government) Act in such a way as to nullify a 1995 Northern Territory act that permitted physician assisted suicide for certain terminally ill patients. In effect, the constitutional relationship of the Commonwealth to the Northern Territory is very much the same as Britain’s relationship with the selfgoverning colonies in the nineteenth century. The Commonwealth has several ways of intervening in territory affairs, but interventions are rare and in most respects the territory is treated as if it were a state. The Administrator is appointed by the Governor-General, by convention on the recommendation of the Northern Territory Government, and he has most of the formal powers of a colonial Governor.68 By law he determines the number of government departments and appoints ministers from the membership of the Assembly, to serve at his pleasure. He is required by law to recommend all money bills to the Assembly. He also assents to bills and determines if they shall be reserved to the Governor-General for the assent. The Administrator is required to act on instructions given to him by the Commonwealth Minister for the Territories, much as colonial governors acted on instructions from a British minister. A significant difference between the Northern Territory Constitution and the constitutions of the states and the Commonwealth is that there is no reference to an early dissolution of Parliament in the Northern Territory. When the Northern Territory Act was being written, the Governor-General’s power to dissolve the House of Representatives was a sensitive topic because of the Commonwealth constitutional crisis of 1975, which is considered in Chapter 11. Section 17.2 of the Northern Territory Act simply sets the Assembly term as four years, but early dissolutions may be arranged de facto through Section 22.1, which allows the Administrator to prorogue the Assembly, meaning end a session, and Section 17.1, which allows him to set a date for an election. 68 Northern Territory (Self-Government) Act 1978, Sec. 3 and Part IV.

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By law, therefore, the Administrator has powers that parallel, in many respects, those of the Governor-General and state governors. Ministers are recognized in the Constitution but not the Chief Minister or Cabinet specifically. As in the states and the Commonwealth, they exist by convention. Ministers sit in the Executive Council but they meet separately under the Chief Minister as the Cabinet, although it is unrecognized in the Constitution.69 By convention the Administrator appoints the Chief Minister and other ministers from the Assembly majority and he ordinarily acts on their advice which means that the huge executive powers of the Administrator are ordinarily controlled by the Chief Minister and Cabinet. From the beginning of self-government it was anticipated that the Northern Territory would become a state when its population and local revenues were adequate to support statehood. The Legislative Assembly would then obtain additional legislative powers and the Commonwealth’s right to intervene in territory affairs would cease. In anticipation of this the Assembly prepared a draft state constitution in 1996 that would have broken from colonial and Commonwealth precedents by substantially recognizing the conventions of parliamentary government in law for the first time in Australia. In particular, the Governor would appoint a Premier and ministers from the majority in the Assembly, and would act on their advice.70 The following examples illustrate how this was to be done, with emphasis added in each case. In draft Section 4.7, “There shall be such number of Ministerial Offices, having such respective designations, as the Governor, acting on the advice of the Premier, from time to time determines.” In Section 4.8.1, “The Governor shall, from time to time, appoint as the Premier the member of Parliament who, in the Governor’s sole opinion, commands or is likely to command the general support of a majority of the Parliament.” In Section 4.8.3, the Governor appoints and terminates ministers “on the recommendation of the Premier.” And, decisively, in Section 4.2.3, “the Governor shall act, in administering the government of the Northern Territory, only in accordance with the advice of the Executive Council”, unless he believes the advice to be unconstitutional. As in the states and the Commonwealth, the Executive Council was to be composed of ministers 69 Northern Territory (Self-Government) Act, 1978, Secs. 8–9, 11, 32–36. 70 Northern Territory, Legislative Assembly, Sessional Committee on Constitutional Development, Final Draft Constitution for the Northern Territory, 1996, passim.

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sitting with the Governor, but even this relatively progressive constitution contained no specific recognition of the Cabinet. However, in most respects the draft quite elegantly combined the powers of monarchy, which are found in the state and Commonwealth constitutions, with parliamentary government, which is not. The draft is very similar to the constitutions of former British colonies in the Caribbean. In the event, statehood was narrowly rejected in a territory referendum in October 1998, by 51.9% to 48.1%, despite having the support of both the Northern Territory and Commonwealth governments. Had it been approved, the proposed constitution would have been submitted to a further referendum for adoption.71 Statehood would have forced the Commonwealth Parliament to decide what to do with the Northern Territory’s representation in the Senate. Would it have been fair to give a state with a population of only 205,000 the same representation as New South Wales, with nearly seven million, or Victoria, with 5.1 million? The closest state in population size is Tasmania, with about 490,000. The answer could lie in Section 7 of the Commonwealth Constitution which provides that the original six states would have equal representation of the states in the Senate. Equality need not apply to new states and the Northern Territory might have settled for fewer than 12 senators.

The Australian Capital Territory (ACT) The Commonwealth Constitution provided that land would be carved out of New South Wales to house the Commonwealth government. Until this was done, the capital would be Melbourne. In 1911 the land that is now the ACT was ceded to the Commonwealth by New South Wales. In 1913 the city of Canberra and the ACT were both named and work began on the national capital. The Commonwealth Parliament was transferred from Melbourne to Canberra in 1927 and in 1930 an ACT Advisory Council was formed to advise a federal minister on the administration of the territory. The ACT was assigned one member of the House of Representatives in 1948, with limited voting rights, and two members to each of the House and Senate in 1975, with full voting rights. A fully elected ACT Legislative Assembly 71 David Carment, “Political Chronicle: Northern Territory, July to December 1998”, Australian Journal of History and Politics, v. 45, no. 2, 1999, p. 301.

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was created in 1974–5, but with limited powers because the Commonwealth and a federal minister retained considerable discretion in territory matters. Furthermore, self-government was rejected by 63% in a territory referendum in 1978. Nonetheless, the Labor Commonwealth Government pressed the issue in the 1980s and self-government was approved by Parliament in 1988. A unicameral Assembly was elected in 1989, with 17 members elected by proportional representation in three districts. It is not until we arrive at the ACT Constitution, the Australian Capital Territory (Self-Government) Act 1988, that we find the first unambiguous statement of parliamentary government in Australian constitutional law. Australians, and there are many, who insist that the conventions which regulate Australia’s other constitutions cannot be written into law should read this act carefully. It was prepared by the Joint Committee on the Australian Capital Territory of the Commonwealth Parliament. When he introduced the bill on behalf of a Labor Government, A.C. Holding MHR said it would create a government for a “city-state” which would assume the functions of the federal government department that heretofore administered the territory. This was a modest ambition, but Holding went on to say that the territory would have the same legislative, executive and financial powers as the states and the Northern Territory, which was not a modest ambition at all. Section 59.1 of the act states, “The Commonwealth shall conduct its

financial relations with the Territory so as to ensure that the Territory is treated on the same basis as the States and the Northern Territory....” Holding also said that the self-government bill “provides for fully responsible [parliamentary] government for the people of the Territory.” There was no recognition in any of the speeches in the brief parliamentary discussion of the bill that this was momentous because the bill contained an explicit description of the parliamentary model of government for the first time in Australia, with no need for constitutional conventions.72 Part V of the ACT Constitution defines parliamentary government very clearly. Section 3 establishes the territory as a “a body politic under the Crown”, but there is no local head of state, even a weak one, and an act goes into effect not on the royal assent but on its publication in the territory’s official electronic

72 Australia, House of Representatives, Hansard, 19 October 1988, p. 1922. See also 3 November 1988, pp. 2422–38.

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legislation register. There is a Cabinet, however, known as “the Executive”, comprising a Chief Minister and five ministers drawn from the Assembly. The Chief Minister is elected by the Assembly, not appointed by a head of state, and ministers are appointed by the Chief Minister from the Assembly. Only the Assembly may remove a Chief Minister, by a vote of no confidence. Only a minister may move an appropriation of public money, or an amendment to increase an appropriation, which gives the Executive the financial initiative. Fusion, majority government, the dominance of the Prime Minister (Chief Minister), and Cabinet (Executive) government are therefore all established by law. The primacy of the lower house is not an issue because there is no upper house, and there is no local head of state. As a territory, the ACT is, of course, subordinate to the Commonwealth. Sections 23 and 8 of the constitution precludes the territory from making law with respect to a number of federal responsibilities and Section 35 permits the Governor-General to disallow a bill. By convention this would be on the advice of the Commonwealth Government, not the Chief Minister, as in 2006 when an act to permit civil unions of same sex couples was disallowed. The Governor-General also has a role in replacing the Government in extenuating circumstances. In the parliamentary model there must be some way of replacing a government if it fails to secure a majority in the legislature, and everywhere else in Australia this is achieved by permitting the head of state to dissolve Parliament before the expiration of a parliamentary term. In the ACT the Government must resign if it loses a vote of confidence but there is no provision for an early dissolution and election. The expectation is that a new Government will be found without an election, but there is a fall-back position. Section 47 permits a federal minister to assume executive powers should there be no ministers in the ACT and Section 16 permits the Governor-General to dissolve the Assembly short of its full, four-year, term if he believes it is “incapable of effectively performing its functions”, or is conducting its affairs “in a grossly improper manner”. Failing to elect a Chief Minister would certainly qualify. If this were to happen, the Governor-General would appoint a Commissioner to act as the Executive until an election could be held. It is clear from the Constitution, however, that the Governor-General would act on the advice of the Commonwealth Government because a federal minister must specify

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the date for a new Assembly election and must present the reasons for the dissolution to Parliament and the Commonwealth Gazette.

Conclusion When the Commonwealth of Australia was formed in 1901, the colonies became states. All of them have enacted new constitution acts to consolidate or replace earlier legislation, and there have been many constitutional amendments, but the colonial constitutions remain the bases of state constitutional law. Notably, the basic rules of the parliamentary government have still not been written into state law and state executives are very much as they were in the 1850s. This remains the case, too, in the Commonwealth since 1901. The dependence of the executive on constitutional conventions continues and the formal powers of state governors and the Governor-General have changed very little. As a result, no-one could claim that any constitution other than that in the ACT describes Australian executives as they actually operate, or the huge powers that prime ministers, premiers, and the Northern Territory Chief Minister enjoy by virtue of being able to advise the Governor. The recent constitutional histories of the Northern Territory and the ACT have shown, however, that modern parliamentary government can be written into Australian constitutional law, if the will exists. The Northern Territory Assembly draft constitution of 1996 preserved the formal powers of the Governor but made clear that he should respect majority government and act on ministerial advice, and the ACT Constitution unabashedly recognizes majority government in legal form for the first time in Australia. There have been more constitutional changes in Australia’s parliaments than in its executives, but less than we find overseas. All foreign bi-cameral parliaments except for the Italian have followed the example of the reformed British House of Lords, which lost its power to reject money bills in 1911 and has had to accept that the House of Commons can override its opposition to non-money bills after a period of delay. This kind of limitation is unknown in Australia. Queensland abolished its Legislative Council in 1922 and New South Wales and Victoria have amended their constitutions to prevent their legislative councils from rejecting money bills for the ordinary annual expenses of government, which means they may not destroy a government by denying it a supply of money, but both councils retain huge powers to reject or refuse to consider

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money bills for new programs and all non-money bills. More significantly, the legislative councils in South Australia, Tasmania and Western Australia, and the Commonwealth Senate, all retain their original powers to reject any bills and they rank among the most powerful parliamentary upper houses in the world.

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4/

Fusion

In Part I of this book one we considered the parliamentary model of government and its introduction into Australia. In Part II, we will consider how the model operates today, proceeding part by part, with one exception, Chapter 12, which considers the effects of federalism on Australian parliamentary government. Parliamentary states may be federal or unitary but Australian federalism deserves consideration because of how it affects the way parliamentary government operates. We begin the discussion of contemporary Australia with fusion, the first characteristic of the internal model of parliamentary government. This requires that ministers, or at least a majority of ministers, must sit in Parliament as full voting members.

Ministers and Parliament Fusion is the most clearly articulated rule of parliamentary government in Australia, and the simplest. By constitutional law in the Commonwealth, South Australia, Tasmania, Victoria, the Northern Territory and the ACT, and by constitutional convention elsewhere, ministers are members of Parliament. In the Commonwealth, South Australia, and Victoria they are allowed three months from their appointment to find seats, but in practice they are selected from sitting members. In Tasmania, the Northern Territory and the ACT they must be sitting members on appointment.1 In the states where fusion is a convention, constitutions approach the subject elliptically, at best. Section 43 of the Western Australian Constitution, 1

See the Commonwealth Constitution Sec. 64; South Australia Sec. 32; Tasmania Sec. 8B.1; Victoria Secs. 50–51; the Northern Territory Secs. 36 and 74; and the ACT Secs. 40.1, 41.1.

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for example, states that one of “the seventeen principal executive offices of the Government liable to be vacated on political grounds”, that is to say, ministers, must sit in the Legislative Council. This seems to be predicated on the convention that the rest of the Government will sit in the Legislative Assembly, as they always have. The New South Wales Constitution permits ministers to sit and vote in either house, but does not require them to have seats.2 The present Queensland Constitution was adopted in 2001, but fusion is not required by law there either. Oddly, in both New South Wales and Queensland junior ministers, known as a parliamentary secretaries, must be sitting members of Parliament, but the law does not require this of their senior colleagues.3 It is a convention. Where fusion is a convention, the theoretical possibility exists that the head of state might appoint ministers who do not sit in Parliament, and there are foreign precedents for this. During a particularly tumultuous time in the Italian Parliament, for example, two governments were appointed by President Scalfaro from non-parliamentarians because it was impossible to appoint a sitting MP as Prime Minister who could secure a stable majority. The first of these was led by Carlo Ciampi, Governor of the Bank of Italy, in 1993 and 1994, and the second was led by Lamberto Dini, a former minister, in 1995 and 1996. In 2011 Mario Monti, a lifetime senator and former European Commissioner, was appointed by President Napolitano to lead another government of unelected professionals to manage an economic crisis. But these were exceptions to the convention that Italian ministers sit in Parliament. With the exception of Western Australia, where one minister must sit in the Legislative Council, and Victoria, where the number of ministers in the Council is limited to six, Australian constitutions say nothing about where a minister shall sit. By convention, however, the Prime Minister and most other ministers sit in the lower house, and it is very rare for the finance minister to sit in the upper house, although this has happened in New South Wales and Tasmania in recent years. In 1856 Governor Sir William Dennison of New South Wales sought to appoint a member of the Legislative Council as the first Premier of the colony but was prevented by Stuart Donaldson, an Assembly leader, who refused to serve in the Government. Donaldson himself was then appointed and the convention was established that the head of government sits in the Legislative Assembly.4 2 3 4

New South Wales, Sec. 13.4A.a. New South Wales, Sec. 38B.1; Queensland, Sec. 24.1. Clune and Gareth Griffith, eds., The Premiers of New South Wales, v. 1, p.24.

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So well established is this convention in Australia that few upper house members aspire to lead the Government, and where they do they understand that they must find a way into the lower house. The Labor leader in the New South Wales Legislative Council, Barrie Unsworth, was appointed Premier by the Governor on 4 July 1986. He resigned his Council seat on 15 July and became a member of the Legislative Assembly on 2 August, after having won a seat in by-election. But for eleven days he was Premier with a seat in the upper house, and for 18 days he had no seat in either house. This flexibility was possible because everywhere in Australia except the ACT ministers serve at the pleasure of the head of state, which permits exceptional transitions to be managed without detailed constitutional provisions. Only one Commonwealth Prime Minister, John Gorton, was appointed from the Senate. When Prime Minister Harold Holt was lost at sea in December 1967, the deputy leader of the Liberal/Country Party Coalition Government, John McEwen, became interim Prime Minister pending the election of a new party leader by the Liberal caucus. Gorton was elected and was sworn in as Prime Minister on 10 January 1968. He resigned his Senate seat on 1 February and won a by-election for Holt’s House of Representatives seat on February 24, but for most of February Gorton was a member of neither house. The Commonwealth Constitution provided him with up to three months to find a new seat in Parliament. The first Prime Minister of Australia, Edmund Barton, was also appointed Prime Minister for a while without sitting in Parliament. He was sworn in on 1 January 1901, the first day of federation, before the first election for the Commonwealth Parliament was held on 29 March, and he was reappointed after the election as a member of the House of Representatives. Most modern constitutions require the Government in office at the time of Parliament’s dissolution to remain in office until its successor is sworn in. This is not the case in Australia, even in the ACT, which has the most explicit provisions on the appointment of the executive. Nonetheless, the convention is that the Government remains in office pending the appointment of its successor, and since 1951, governments in Australia have adopted rules, usually now included in Government handbooks as “caretaker conventions”, which apply to the Government during the period of an election, including that there should be no decisions on policy or new laws without consultation with the Opposition.

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Fusion and the Roles of Ministers Fusion significantly affects the way a parliamentary system operates. Appointing ministers from inside Parliament necessarily limits the pool of appointees to members of Parliament, and then to members who support the government. It also means that the skills of ministers are unlikely to be highly specialized. In parliamentary systems with external executives, in the Netherlands and Belgium, for example, ministers may be appointed for their technical or administrative expertise, not their political experience or parliamentary skills. In Australia, by contrast, members stake out their claims to office by their membership of a house of Parliament, their seniority and prominence in a political party, their parliamentary performance in debates and committees, and their prior experience in the Government. With the exception of the Attorney General, who is always a lawyer, ministers are rarely appointed because of technical competence in the affairs of their departments. Indeed, in small legislatures ministers have responsibilities for several departments simultaneously and cannot be skilled in all of them. The ACT Legislative Assembly, for example, has a total of only 17 members, divided into government and opposition, and in 2009 the government of John Stanhope had himself and 5 ministers to run 22 departments. Stanhope himself was Chief Minister, Minister for Transport, Territory and Municipal Services, Business and Economic Development, Indigenous affairs, and Arts and Heritage. In 2011, his successor, Katy Gallagher, held three portfolios in addition to Chief Minister. In bi-cameral parliaments, a member of the government may sit in only one house so a substitute minister usually stands in for the minister in the other house at Question Time, or when legislation or department business is being considered. However, a useful amendment to the New South Wales Constitution permits ministers from the Legislative Assembly to appear, but not vote, in the Legislative Council, and an amendment to the Victoria Constitution permits a minister from either house to appear, but not vote, in the other.5 This is a common procedure in European parliaments and it improves communication by allowing the minister with primary responsibility for a matter to present the department’s case to both houses, instead of a deputy.

5

New South Wales Sec. 38A, Victoria Sec. 52.

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The custom in Australia is to appoint ministers who are experienced members of Parliament, rather than brand new members, but this does not rise to a convention because there are many exceptions. Parliamentary experience is important in forging party discipline because members who aspire to join the Government are unlikely to risk the wrath of party leaders by opposing them from the back benches. Experience is also important in socializing members into the rules and norms of Parliament. New members have time to see how ministers deal with legislation and other matters, and they have opportunities to interact with them in committees, private meetings, party caucuses, and socially. As a result, by the time a member becomes a minister, he or she ordinarily will have been socialized into the practices and expectations of office holding. But this is not always possible in small legislatures where the supply of members of ministerial calibre may be limited. Members may find themselves appointed to the government on their very first day in Parliament, as happened to Jane Lomax Smith and Jay Weatherill, members of the South Australian House of Assembly, in 2002, when a Labor government was elected. One effect of fusion is that parliamentary governments are composed of people who are generally not experts in the affairs of their departments, particularly at the time of their appointments. It is, in a sense, government by amateurs, and qualified professionals may find themselves in departments with interests far from their professional training. In South Australia in 2002, for example, Dr. Lomax Smith, a pathologist, found her first ministerial appointments were as Minister for Tourism, Small Business, Science and Information, and Employment, Training and Further Education. The Minister for Health was Lea Stevens, a former high school principal. This is not to say that ministers come to office unequipped. Those who serve for long periods in the Government typically moved through several departments, acquiring expertise and administrative skills, much of which is transferable to each new assignment. Furthermore, opposition MPs serve as “shadow ministers”, as opposition spokespersons specializing in the business of certain government departments, and they frequently move into those departments when they enter government. But ministers always have a great deal to learn on the job. Paul Keating, for example, had no formal training in public finance. He was Minister for the Northern Territory for two months in the waning days of the Whitlam government in 1975, and then opposition spokesman for energy and minerals for seven years from 1976, but he had been 73

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shadow Treasurer for only two weeks when Labor won the Commonwealth general election in March 1983 and he was appointed to the intimidating job of Treasurer. He mastered the portfolio, at least to the point of knowing what he did and did not know, and as his biographer writes, “Ultimately he found success in combining a public assurance that all was under control and well understood with a private and increasing scepticism in relation to any proposition put to him ...”6 He proved to be a dynamic and reforming minister, but his was on-the-job training.

6

John Edwards, Keating: The Inside Story, Ringwood, Victoria: Penguin Books, 1996, p. 184.

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The Confidence of the Majority

The defining rule of parliamentary government is that the Government must have the support, or the confidence, of a majority in the lower house of Parliament, or the only house of a unicameral Parliament. This rule applies to both the internal and external variants of the parliamentary model. The Government does not have to have the active support of the majority in every matter, but it must not be actively opposed by a majority to the point that it has lost the capacity to govern.

Majority Government and Government Formation1 Modern parliamentary constitutions often put the issue of the Government’s right to govern to a simple test by requiring the lower house to nominate, elect, or approve a Prime Minister by vote. Section 67 of the Japanese Constitution, for example, says, “The Prime Minister shall be designated from among the members of the Diet by a resolution of the Diet.” In Australia, the ACT Constitution is the only one that calls for a vote. Section 40 requires the Chief Minister to be elected by the Legislative Assembly from its own membership in a secret ballot after each election, or whenever the office shall become vacant, and the Chief Minister then appoints the rest of the Government. Where no vote is required by a modern constitution the head of state has the legal authority to appoint a Prime Minister but is directed by the Constitution to appoint a member of Parliament who appears to have the necessary support to lead a government. Section 65 of the Barbados Constitution, for example, 1

In this section data on elections and government formation come from the Australian Government and Politics website at .

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says, the Governor-General “shall, acting in his discretion, appoint the member of the House of Assembly who, in his judgment, is best able to command the confidence of a majority of the members of that House.” In Britain, Canada, New Zealand, and Australia, with the exception of the ACT, there is no constitutional law to require a parliamentary vote for Prime Minister or to direct the head of state as to how to make the appointment. As a result, majority government is determined by convention, and has been since the beginning of colonial self-government in the 1850s. In their book on the premiers of New South Wales since 1856, for example, Clune and Turner write, “No Governor ever imagined he could decline to swear in the leader of the party or parties that had won a majority of seats in the Assembly.”2 Majority government was first codified in Australian law in 1988 in the ACT, but since then two Australian constitutions have been amended to recognize it without quite saying so. Since 1993, Section 24B.6 of the New South Wales Constitution has provided that if the Legislative Assembly rejects, or fails to pass, a money bill for the “ordinary annual services of the Government”, which would ordinarily lead to a dissolution and general election, the Governor may choose not to dissolve the Assembly having considered “any motion passed by the Legislative Assembly expressing confidence in an alternative Government in which a named person would be Premier.” In this case, known in Europe as a “constructive vote of no confidence”, members of the New South Wales Assembly may vote for a Premier, but the opportunity depends on unlikely contingencies; the Government must lose a budget vote in the lower house, which it ordinarily controls, and the Governor must decide to refuse to dissolve the Assembly against the advice of the outgoing Premier, which ordinarily would not happen. The procedure has not been used. In South Australia majority government was recognized obliquely in an amendment to Section 83.1 of the Constitution, the so-called “fairness clause”, adopted after Labor retained office in the 1989 election despite trailing the Liberal Party in the state-wide vote. The amendment directs the Electoral Districts Boundaries Commission, which revises House of Assembly electoral boundaries after each general election, to attempt to draw new boundaries so that a group that wins more than 50% of the state-wide vote in a

2

David Clune and Ken Turner, The Premiers of New South Wales, 1856–2005, Sydney: Federation Press, 2006, v.1, p. vii.

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subsequent election will win enough seats to form the majority, and hence the Government. A group is defined as “candidates whose political stance is such that there is reason to believe that they would, if elected in sufficient numbers, be prepared to act in concert to form or support a government”, which is a fair definition of majority government. The Commission has a difficult task, of course, because it must make estimates of future voting intentions when drawing electoral boundaries. New constitutions have been drafted in the Northern Territory and Queensland since 1988 that could have identified majority government in constitutional law, but did not. Section 4.8.1 of the 1986 draft constitution for a new state in the Northern Territory proposed that the Governor shall “appoint as the Premier the member of Parliament who, in the Governor’s sole opinion, commands or is likely to command the general support of the majority of members of Parliament”, but this came to naught when statehood for the Northern Territory was rejected in a 1998 territory referendum. Queensland by contrast, did adopt a new constitution in 2001 but chose to ignore majority government altogether. Section 42 requires the Governor to appoint a Premier and Cabinet but there is nothing that requires them to have the support of a majority. In fact, Section 34 preserves the colonial fiction that “Ministers hold office at the pleasure of the Governor who, in the exercise of the Governor’s power to appoint and dismiss the Ministers, is not subject to direction by any person and is not limited as to the Governor’s sources of advice.” The Government of the day said it would refer the question of ministers’ appointments to a committee but, as of 2012, majority government remains unrecognized in Queensland law and depends on convention.3

Meanings of Majority Government There is a temptation to treat the word “majority” as if its meaning were selfevident, but this is not the case in parliamentary politics. The position taken in this book is that majority government can be satisfied if the Government can win the support of at least 50% plus one members of the lower, or only, house of Parliament on at least three critical votes. These are votes to select the Prime Minister or Government, where these are required, votes of confidence in a sitting Government, and votes on a supply of money for on-going government 3

Queensland, Parliament, Hansard, 9 November 2001, pp. 3715 ff.

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operations. If it can win these votes the Government has the means to continue in office even if it loses votes on other matters. By this definition, there are five scenarios for majority government, although the last three are customarily called minority government.4 The five are (1) single party majority government, (2) majority coalition, (3) loose coalition in which a major party governs with guarantees of support from small parties or independents, some of whose members participate in the Government or hold offices in Parliament which are in the gift of the Government, (4) minority government with guarantees of support from other parties or independents, none of whom hold office, and (5) minority government with tacit support from other parties or independents, but no guarantees. All five scenarios will give the Government majorities on the votes it must have to take office or survive, and all five have occurred in Australia in recent years, with a growing number of scenarios three, four and five because governments have increasingly come to rely on independent and small party MPs. A declining percentage of first preference votes going to major parties has worked to the advantage of independents and minor parties who hold the balance in some parliaments, including, as this is written in 2012, the Commonwealth House of Representatives.

Scenario 1: Single Party Majority Majority government most obviously means that a single party has an absolute majority of seats in the lower house and can form the Government by itself. This scenario is the most common in Australian states. In 132 state elections between 1901 and 2009, 60% produced single party majority governments, most often formed by the Australian Labor Party (ALP). At the Commonwealth level single party majorities were achieved in 40% of the 42 elections for the House of Representatives between 1901 and 2007, again most often by the ALP. The Liberal Party won overall federal majorities in 1913, 1975, 1977 and 1996, but it only formed a single party government in 1913. On the other occasions, it respected pre-election agreements with the National Party, or its predecessors, and formed coalitions. 4

This list adapts categories used in Alan J. Ward, “Minority Government and the Redefinition of Parliaments in Australia and New Zealand”, Legislative Studies, v. 11, no. 2, 1997, pp. 1–12 , and Gareth Griffith, “Minority Governments in Australia, 1989–2009: Accords, Charters and Agreements”, New South Wales Parliamentary Library Research Service, Background Paper No. 1/10, 2010.

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Between the first election under self self-government in 1974 and the election of 2008, every Northern Territory election led to a single party government with a majority of seats. The first eight, and the most recent, in 2012, were formed by the Country Liberal Party and the other three by the Labor Party. In the ACT, however, which uses proportional representation, only one single party government won an overall majority of seats between the first election under self-government in 1989 and 2008. This was in 2004 when the ALP won 9 seats in the seventeen seat Legislative Assembly.

Scenario 2: Majority Coalition Majority government can also mean that the Government is composed of two or more parties in coalition, with both or all parties participating as substantial partners, committed to full support of an agreed program for government. No party can govern alone but together two or more in coalition may form the Government with the support of a majority. The federal Liberal Party is the second largest party in the House of Representatives but it always takes office in coalition with the National Party, the third largest, which has particular strength in Queensland, New South Wales and Victoria. Of 42 Commonwealth governments between federation and 2007, 47.6% were majority coalitions of this kind and the arrangement is so routine that it is known as the “Coalition”, with a capital “C”. There were 33 majority coalitions in the states in the same period, and a Liberal-National Coalition was the most common, with 21. In most coalitions the leader of the Liberal Party is the Prime Minister and the National Party supplies the Deputy-Prime Minister, but in Queensland from 1960 to 1980 the Premier came from the National Party, or its predecessor, the Country Party, and the Liberal Party was the junior partner. A coalition has the effect of transforming two or more parties into a majority government but in some ways the Government has more than one leader. Both the federal Liberal and National Party leaders have national prominence, for example, and speak for their own parties as well as for the Coalition. Each leader assigns the ministerial positions allocated to his party and the partners caucus separately in Parliament. The Coalition is maintained by leader-toleader diplomacy, and the members of both parties are expected to support

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the Government in full, although some National members have defected on particular votes. A coalition can come about from a pre-election or post-election agreement. In the former, parties agree to a common election platform and to share ministerial and parliamentary offices should they win. The parties undertake not to compete against each other in all or certain electorates, particularly for the seats of sitting members, and they assign transfer preferences to each other where they do compete. The Liberal and National parties have had preelection agreements of this kind for most Commonwealth elections, and at times in New South Wales, Queensland and Western Australia. Post-election coalition agreements occur most often in multi-party systems that use proportional representation so that elections produce “hung parliaments”, with no single party in a majority, and governments are formed after negotiations between party leaders. These agreements have been rare in Australia because only Tasmania and the ACT use proportional representation for lower house elections. In most of Australia small parties and independents rarely win enough seats to bargain to be in a full coalition. Governments with characteristics of post-election coalitions were formed in Western Australia in 2008 and Tasmania in 2010, but in both cases the word coalition was ostentatiously avoided and the smaller party insisted on maintaining its own identity. These are considered below as loose coalitions, in scenario 3. When a majority coalition takes office, ministerial positions are distributed in rough proportion to the number of seats won by each party. In 2000, for example, the National Party contributed 16 seats (20%) to the Coalition’s total of 80 seats in the House of Representatives, and four seats (11.5 %) to the Coalition total of 35 seats in the Senate, and it secured nine seats (20%) in the Government. The National Party strongly influences federal Coalition policies on regional and rural Australia, and the ministerial portfolios it receives are particularly important to its supporters, such as Agriculture, Fisheries and Forestry, Transport and Regional Services, and Trade.

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Scenario 3: Loose Coalition5 There are three circumstances in which a Government may take office without having a secure majority of seats in the lower, or only, house of Parliament, and these are considered in scenarios three, four and five. Common to all of them is a hung Parliament in which no party or fixed coalition has a majority, but the Government is able to win sufficient support from minor parties and/or independents after an election to win confidence and appropriations votes. Scenarios three and four are based on agreements between a large party and partners, but in scenario five, support is tacit. Governments formed by agreement have been called “contract minority governments” by Bale and Bergman but they could as easily be called “contract majority governments”, because the object of the contract is to secure a majority on critical votes.6 The procedure is seen in Sweden and New Zealand, and there are several examples in Australia. Scenario three deals with one kind of contract government, loose coalition, where a party with a minority in the lower or only house forms the Government with the support of independents or small party MPs, some of whom accept positions as ministers or as officers of Parliament, such as Speaker of the Assembly, which are in the gift of the Government. In either case, those appointed agree to support the Government on confidence and supply votes, and, if appointed Speaker of the house, on tied votes. The arrangement falls short of full coalition because small parties and independents have attached conditions to partnerships that permit them to oppose the Government on some matters. They also try to maintain a political distance from the major party and avoid using the word coalition. The September 2008 agreement between Premier Barnett of Western Australia, and the National Party leader, Brendan Grylls, for example, says, “The Liberal/National Government will operate as a partnership between the Liberal Party and the National WA and will not be a coalition.”

5

6

Unless otherwise inicated., the details of governments formed under scenarios 3 and 4, are drawn from New South Wales, Parliamentary Library, “Minority Governments in Australia – Texts of Accords, Charters and Agreements”, Issues Backgrounder, 01/ 2010. See also Gareth Griffith, “Minority Governments in Australia 1989–2009”, and Brian Costar and Jennifer Curtin, Rebels with a Cause: independents in Australian Politics, Sydney: University of New South Wales Press, 2004. Tim Bale and Torbjörn Bergman, “Captives No Longer, but Servants Still? Contract Parliamentarianism and New Minority Governance in Sweden and New Zealand”, Government and Opposition, v. 41, no. 3, 2006, pp. 422–5.

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In South Australia, loose coalitions have been formalized in written, published agreements since 1997, but they have existed there in unwritten form since the 1970s. In 1975, for example, an independent Labor member controlled the balance in the otherwise evenly divided South Australian Assembly. Labor offered him the Speakership of the Assembly and, Anne Levy writes that “he faithfully gave his casting vote to the Labor Government on every single matter of contention.”7 After the 1989 South Australian state election, Labor held only 22 of 47 seats in the House of Assembly but there were two independent Labor members. Premier John Bannon offered one the Speakership and the other the important post of Chairman of Assembly Committees so that the Government could count on the support of 24 members. When a defection from Labor reduced its seats to twenty-one members in 1992, Bannon offered the defector the Chairmanship of the Assembly Finance and Economic Committee. By then three of the most powerful positions in the lower house, all essentially in the gift of the majority and traditionally held by members on the Government side, were held by independent Labor members who had agreed to support the Government. When Bannon resigned in 1992, his Labor successor, Lynn Arnold, moved two of these independents into the Cabinet and the third remained in the Speaker’s chair.8 In 2002 Labor resorted to elaborate contract parliamentarianism in South Australia. It had 23 seats to the Liberals’ 20 in the 47 seat Assembly, with the balance being held by three independents and one National Party member. Labor needed the support of one more member and its leader, Mike Rann, turned to Peter Lewis, an independent who had been expelled from the Liberal Party. Lewis signed identical agreements, each called a “Compact for Good Government”, with the Liberal and Labor parties before deciding to support Labor. He was subsequently elected Speaker of the Assembly on Labor’s nomination, giving Labor a friend in the chair. In return Lewis required Rann to call a state constitutional convention and promise an expensive set of programs for his electorate.9 When furious Liberals insisted that the Compact would break

7 8 9

Anne Levy, “Experiences of Minority Government in South Australia”, Legislative Studies, v. 11, no. 2, 1997, p. 57. Levy, “Experiences of Minority Government in South Australia”, p. 58. Scott Bennett, “South Australia Election 2002”, Australia, Parliamentary Library, Research Note 32, 2001–2, 2002.

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the state budget, Lewis replied that they had “signed the [same] document in toto.”10 A Constitutional Convention was held in 2003, but then Rann secured a majority without Lewis’ help and the reform effort was abandoned. Rann secured this new majority by bringing Rory McEwen, a former Liberal, into the Cabinet in 2002 and Karlene Maywald, of the National Party, in 2004. Both signed “agreements to disagree”, which allowed them to vote against the government on certain issues but required them to support it on votes of confidence and appropriations. McEwen and Mayfield both dissented from government policy on some matters, notably industrial relations, but they never had to vote against the Government in Cabinet because Rann operated by consensus and took no votes.11 They retained their Cabinet seats after the 2006 election, although by then Labor had an overall majority of its own. In 2009 McEwen resigned from the cabinet, and he retired from Parliament in 2010. Maywald was defeated for reelection that year, but Rann secured a single party majority in the election and was able to form a single party government. In the ACT a loose coalition was formed in 1998 when the four person ACT Executive led by the Liberal, Kate Carnell, was expanded by one person, an independent, Michael Moore, who signed an agreement with Carnell which was published. Moore agreed to support Carnell on confidence and supply votes and votes concerning his own Health, Housing and Community Services portfolio, but he absented himself from Cabinet discussions on matters of disagreement with the Government. In 2008 a loose coalition was formed by the ACT Labor leader, John Stanhope, and the Green Party. Stanhope agreed to a program of parliamentary reform designed primarily to create greater collaboration between the Assembly and the Executive and a program of reforms on climate change, energy, waste disposal, water, housing, health and small business. The Greens did not join the Government but the conditions for a loose coalition were minimally satisfied when one of their number, Shane Rattenbury, was elected Speaker and the Government supported the election of Green chairpersons for four major committees.12

10 Adelaide Advertiser, 21 February 2002. 11 Norman Abjorensen, “Remaking Westminster: South Australia’s Cabinet Experiment”, Democratic Audit of Australia, Discussion Paper 30/06, October 2006. 12 ACT Greens, Parliamentary Agreement for the Seventh Legislative Assembly for the ACT, 31 October 2008.

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In Western Australia the Liberal Premier, Colin Barnett, formed a loose coalition in 2008. Labor had won 28 seats in the 59 seat Assembly to the Liberals 24, but the latter were able to form the Government by including in the Cabinet three of the five National Party members and one of three independents, and they also secured the support of another independent. The independent minister signed no agreement but the Liberal and National parties agreed on a partnership which they denied was a coalition. The Nationals agreed to support the Government on confidence and supply votes but were not obliged to support it on other matters. In a separate letter to Brendon Grylls, the Nationals’ leader, Barnett agreed to provide 25% of the state’s revenues from mineral royalties to regional Western Australia. After the 2010 election in Tasmania the Labor Party formed a loose coalition with two Green Party members after the Labor and Liberal parties won 10 seats each in the 25 seat Assembly and the Greens held the balance with five. Premier Bartlett avoided describing this agreement as a coalition and there was no formal accord or agreement between the two parties on policies, but in an exchange of letters the two Green ministers agreed to support the Government on confidence and supply votes, and on any matters they had agreed to support in Cabinet, but they were free to vote against the Government on other matters in the Assembly. The three non-Cabinet Green MPs were not committed to the agreement. Indeed, they became shadow ministers, which are normally appointments assumed in opposition. When the Green ministers agreed with the Cabinet, Premier Bartlett said, they would “use their best endeavours to persuade other members of the political party to which they belong to also vote for the Government’s position.” The Greens required that seats in the 25 member Assembly should be arranged in three party groups, not as Government and Opposition, and there was more than a little indication that they wanted to be both in and out of the Government.13 As this is being written in 2012 the most recent example of a loose coalition formed by a post-election agreement was in the ACT when the sole Green member of the Assembly, Shane Rattenbury, joined the Labor minority government of Katy Gallagher. Loose coalitions have quickly become institutionalized in Australian politics with very similar language being used from case to case. For example, independent 13 Tasmania, House of Assembly, Hansard, 4 May 2010, pt. 2, pp. 3ff; Richard Phillips, “Australia: Tasmanian Greens in government and ‘opposition’”, World Socialist Web Site, 25 May 2010.

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and minor party ministers promise to vote with the Government on confidence and supply motions, unless the Government has engaged in corruption or gross maladministration. They must inform the Premier if they intend to vote against the Government, must return Cabinet papers on those subjects, and must maintain Cabinet confidentiality on all matters. Loose coalition agreements generally say less about policies than about procedures for partnership, but the agreement between Chief Minister Kate Carnell and Michael Moore in the ACT in 1998 included a long list of agreed policies on the environment, justice, community services and other matters. However, even if a detailed list of policies is not written into a loose coalition agreement, ministers from minor parties and independents gain privileged access to policy-making because they run departments that address their particular interests. Moore, for example, became ACT Minister for Health, Housing and Community Services in 1998. In South Australia, Rory McEwen, an independent, became Minister for Trade and Regional Development, Local Government and Federal/State Relations in 2002. In 2004, Karlene Maywald, a National Party member, became Minister for the River Murray, Regional Development, Small Business and Consumer Affairs. And in Western Australia, the Nationals WA leader, Brendon Grylls, became Minister for Regional Development and Minister for Lands in 2008.

Scenario 4: Minority Government with Guarantees A minority party in the lower house may be able to form the Government without a coalition, and without appointing minor party MPs and/or independents to ministerial or parliamentary offices, if the latter will guarantee to support the Government on confidence and supply votes. In return the Government promises to respect their interests. The result is that whilst the Government does not have a majority, there are insufficient votes in the lower house to turn it out of office. In a number of cases, independent and/or small party MPs have backed the party they thought most likely to provide stable government, as in Queensland in 1996 and 1998 and the Northern Territory in 2009, but in most cases they have secured special benefits for their regions or have been able to promote special interests, such as environmental protection or parliamentary reform. In recent years governments have agreed to consult them on proposed legislation, provide resources for their offices and districts, and introduce parliamentary and constitutional reform.

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The pattern for minority government with guarantees was set in Tasmania in 1989. An agreement known as “the Accord” was signed between the Labor Party and five independent Green members who held the balance in the 35 seat Legislative Assembly. They agreed to support the Government on supply and confidence votes and Labor accepted the Greens’ substantial program on the environment and parliamentary reform. The Accord accomplished a minor miracle because it enabled Labor to form a government with only 13 out of the then 35 Assembly seats. After electing a Labor Speaker, Labor and the Liberals were tied in the Assembly and the Speaker assured the Government of his casting vote. However, the agreement discomfited the Governor, Sir Philip Bennett, who insisted on personal assurances from the five independent Greens that they would support Field.14 Labor continued in office with Green support after the election in May 1991, but the Accord collapsed in disagreement the following September and the Assembly was dissolved in January 1992. Premier Field describes the period of the Accord as a time of living on the edge, with very unreliable allies, although the Greens’ offence may have been that they were too zealous in defence of their own interests.15 The Liberal Party took office after the subsequent election in 1992 with a clear majority and Labor went into opposition. In 1996 no party won a majority and neither of the two major parties would enter an agreement with the Greens. Instead, the Liberals formed a minority government without guarantees, under scenario 5, which lasted until 1998. Labor returned to office with single-party majorities from 1998 to 2010, and then formed the loose coalition government with two Green Party members which was considered in scenario 3, above. In New South Wales, in 1991, the Liberal/National Coalition of Premier Nick Greiner won 49 seats in the 99 seat Assembly and signed a “Memorandum of Understanding”, better known as “The Reform Charter”, which contained guarantees of very significant parliamentary and constitutional reforms, some of which were approved in referenda, including a qualified fixed term Parliament.16 14 Marcus Howard and Peter Larmour, The Tasmanian Parliamentary Accord and Public Policy, 1989–92: Accommodating the New Politics, Canberra, ACT: Federalism Research Center, Australian National University, 1993, pp. 1–12. 15 Michael Field, “Progressive Government in Minority – A Contradiction in Terms?” Legislative Affairs, v. 11, no. 2, 1997, p. 62. 16 David Clune and Gareth Griffith, Decision and Deliberation: the Parliament of New South Wales, 1856–2003, Sydney: Federation Press, 2006, pp. 540–5.

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In Queensland, in 1996, Labor and the Coalition were tied with 44 seats in the 89 seat Assembly after Labor lost a special election and the minority Liberal Government of Rob Borbridge took power with the support of Liz Cunningham, an independent. She agreed in writing to support the Government on confidence and supply votes, but on nothing else, and there was no agreement on policies. She voted for the Government on a no confidence vote but with the Opposition on a vote of no confidence in a particular minister, the Attorney General. Noel Preston suggests that Ms. Cunningham generally voted with the Government but demonstrated a keen concern for the rights of Parliament.17 After the 1998 election, the Labor Party had 44 seats in the Queensland Assembly and formed a minority government with the support of an independent, Peter Wellington. The non-Labor side was heavily fragmented and Wellington opted for the greater stability likely under a unified Labor Party. In an exchange of letters, Premier Beattie committed the Government to support parliamentary reform and Wellington agreed to support it on supply and confidence votes, but Beattie secured an overall Labor majority of one later in 1998 and the agreement was stillborn. In South Australia, in 1997, the Liberal Party, with 23 seats in the 47 seat Assembly, formed a minority government with the support of independents. One of these was Rory McEwen, who signed an agreement to support the Government on confidence and supply votes. In 2002 he switched sides to support the Rann Labor Government in a loose coalition, noted above, and he became a Cabinet member under scenario 3. In Victoria, in 1999, there was an agreement to form a government between the Labor Party and three independents when the ALP held 42 seats in the 88 seat Legislative Assembly. Independents published a charter that was very similar to the New South Wales Reform Charter of 1991, and they and Premier Bracks signed a Memorandum of Understanding in October 1999. The independents agreed to vote with the Government on supply and confidence votes. In return they sought reforms to the machinery of government and programs to benefit rural Victoria, but substantial reform of the Legislative Council which they wanted was actually delayed until Labor won overall majorities in both houses in 2002 and fulfilled its commitment.

17 Noel Preston, “Parliament Rediscovered? Parliament Under Minority Government in Queensland”, Legislative Studies, v. 11, no. 2, 1997, pp. 88–95.

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In the Northern Territory in 2009, a defection from the majority Labor Party left the Labor Chief Minister, Paul Henderson, with 12 seats in the 25 seat Assembly. He signed an agreement with one of two independents, Gerry Wood, who was primarily interested, he said, in stable government. Wood agreed to support the Government on confidence and supply but set conditions which included reform of parliamentary procedures and reforms in prisons, property law, public housing, environmental protection, local government and other areas. As this is being written in 2012, the most recent example of a minority government with guarantees has been the federal Labor Government formed by Julia Gillard after the election of July 2010.18 The Coalition won 73 seats to Labor’s 72 in the House of Representatives but the Labor Party was able to secure formal agreements for a minority government with guarantees from the only Green member and three of four independents, Bob Oakeshott and Tony Windsor, both former National Party members, and Andrew Wilkie, a former Green. An attempt to form a loose coalition was abandoned when Oakeshott declined to serve as Minister for Regional Development.19 The Government secured guarantees for supply and confidence votes and accepted an independent Speaker, a number of reforms to Question Time and committees, greater opportunities for back benchers to participate in proceedings, consultations with the Prime Minister on legislation, briefings from the Treasurer and Minister for Finance on budgets, and other matters. Oakeshott and Windsor secured protections for regional Australia, including a House of Representatives Standing Committee on Regional Australia. Wilkie won additional funds for the Royal Hobart Hospital, in his home state of Tasmania.20 Somewhat overlooked in the process of government formation in 2010 was an agreement between Gillard and the single Green Party member of the House of Representatives and nine Green senators. It called for a House of Representatives Climate Change Committee, which was created as a Standing Committee in 2010. Amongst other matters, it also committed the Government 18 Paul Williams, “House Divided: The Australian General Election of 21 August 2010”, Australian Journal of Political Science, Research Note, v. 46, no. 2, 2011, pp. 325–6. 19 Oakshott independent, website, 10 September 2010. 20 All three agreements were published on-line by the ALP at . They were The Australian Greens and the Australian Labor Party (‘the Parties’) – Agreement, 1 September 2010; The Hon. Julia Gillard and Mr Andrew Wilkie (‘the Parties’) – Agreement, 2 September 2010, and , The Australian Labor Party and the independent Members (Mr Tony Windsor and Rob Oakeshott,) (the Parties) – Agreement, 7 September 2010.

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to work for the reform of campaign donations, for legislation on truth in political advertising, for additional time for private members bills and a fairer allocation of questions in Question Time, for weekly meetings on legislation between Gillard and Green leaders, and for budget briefings for Green members by the Treasurer and Finance Minister.21 Gillard managed to form the Government in 2010 with great difficulty, but it almost immediately began to lose votes in the House of Representatives, including one on a new standing order on the second day of the new Parliament.22 In June 2011 the Government was defeated in both the House of Representatives and the Senate on a Green motion to condemn a refugee swap agreement with Malaysia when Greens joined with the Coalition.23 Gillard had promised independents that she would not call an early election and there was an expectation that the Government would serve a full, if shaky, term, but she was able to stretch her majority in November 2011 when the Speaker of the House of Representatives, Harry Jenkins, returned to his seat in the house and to the Labor caucus. A member of the Liberal National Party of Queensland, Peter Slipper, was elected, and he resigned from his party. The net gain for the Government on the floor of the house was two seats.24 In 2012 Slipper resigned, and a Labor Speaker was elected. Slipper sat as an Independent, committed to supporting the Government. As with loose coalitions, agreements to disagree, in Scenario 4 have become institutionalized very quickly in Australia. The policies they promote vary according to local circumstances and partners’ interests. The Tasmania Accord in 1989, for example, was heavily weighted towards protection of the environment but the Northern Territory agreement in 2009 set out a more comprehensive list of reforms under thirteen headings. However, where parliamentary and constitutional reforms are major concerns, the agreements are very similar in their objectives and language, which we will consider in Chapter 12. They also agree that support for the Government is contingent on it behaving legally and ethically. The Victorian agreement of 1999, for example, obliges the Government not to commit “fraud, misappropriation, or illegal activities”.

21 The Australian, 2 September 2010. 22 Sydney Morning Herald, 29 September 2010. See also 18 October 2010. 23 Sydney Morning Herald, 16 June 2011. 24 The Australian, 24 November 2011.

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Scenario 5: Minority Government with Tacit Support Finally, minority governments can survive without loose coalitions or guarantees of support if they have tacit support on confidence and supply votes from other parties and/or independents. These members, for whatever reason, would rather not force an election by defeating the Government. This was the case in Tasmania in 1996 when Labor had 14 seats to the Liberals’ 16 in the 35 seat Assembly but neither would sign a contract with the Greens. The Liberals survived for two years with Labor’s tacit support.25 The ACT has seen several periods of minority government with tacit support. In eight elections between self-government and 2012 only one single party majority government was formed in the 17 seat ACT Legislative Assembly. This was in 2004 when Labor won 9 seats. The other governments were minority governments formed in fragmented assemblies, and only three times after an election did they have guarantees of support. These were loose coalitions formed by Carnell in 1988, Stanhope in 2008 and Gallagher in 2012. Gallagher formed a fourth loose coalition without an election after Stanhope retired in 2011. Five governments had only tacit support. Rosemary Follett, the Labor Chief Minister from 1991 to 1995, writes that during these periods, ACT budgets were approved, although only after substantial consultation with members, and other bills were approved, albeit with many amendments. She writes that in the ACT, “The requirement for compromise is a fact of life ...”26

Government Termination Majority government requires a government to have a majority, or at least not find itself opposed by a majority, and the corollary is that it must resign if it loses that majority. However, the most common cause of government termination at the Commonwealth level has not been the loss of the Government’s majority but a change of party leadership during a parliamentary session when the leader who is Prime Minister is changed for another. Technically, a new government is sworn in but the Government retains a majority in the lower house. It selects a new leader who is appointed Prime Minister without an

25 Field, “Progressive Government in Minority”, pp. 63, 65–6. 26 Rosemary Follett, “Minority Government in the Australian Capital Territory: The ALP Experience”, Legislative Studies, v. 11, no. 2, 1997, p. 54.

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election. Eighty-one changes of government in Australia between federation and 2001 were of this kind. A change of leader can occur for a number of reasons. One is the death of the Prime Minister, as when Joseph Lyons died in 1939 and Harold Holt died in 1967. Another reason is voluntary retirement. Between 2006 and 2007 premiers Gallop of Western Australia, Bracks of Victoria, and Beattie of Queensland, and Chief Minister Martin of the Northern Territory all retired during parliamentary sessions and new governments were formed without elections. Prime Ministers may also be forced out of office by their parliamentary caucuses. The federal prime ministers John Gorton, Bob Hawke and Kevin Rudd were all forced out by their parliamentary colleagues, in 1971, 1992, and 2010, as were state premiers Dean Brown of South Australia in 1996, Morris Iema of New South Wales in 2008 and Nathan Rees of New South Wales in 2009. In each case the new leader of the party formed the new Government, without an election. The second most common form of government termination is when the Government loses its majority in the lower or only house in a general election. The convention is for the head of state to appoint a Prime Minister from the new majority on the advice of the outgoing Prime Minister, although in the ACT the Assembly must elect a new Chief Minister when it assembles after an election. If it is clear from an election result that the Government has lost its majority, the convention is for the Prime Minister to resign immediately so that a new Government may be appointed. If the result is unclear as, for example, when there is a hung Parliament in which no party has a majority, it is acceptable to wait until the first day of the new Parliament when the vote on the adjournment may be used to determine if the sitting government has retained a majority. In South Australia in 2002, for example, when election results were disputed, the Liberal Premier who called the election, Rob Kerin, remained in office until he lost the adjournment vote at the first sitting of the new Assembly. He was replaced by the ALP leader, Mike Rann. Seventy-two changes of federal government in Australia between 1901 and 2001 came about after elections. The third form of government termination is when the Government or Prime Minister loses the confidence of the majority during the term of a Parliament and has to be replaced. The loss of confidence is usually expressed in vote of confidence moved by the opposition but there are examples around the world of the Prime Minister moving it himself, or stating that a particular vote, on a major piece of legislation would be treated as a vote of confidence. The Government 91

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may also lose a vote on the supply of money, although in 2000, when the ACT Government was defeated on the annual appropriations bill, it returned with amendments to the bill, and won.27 Forty-four government changes occurred in Australia as a whole in the period from federation through 2001 because a government resigned after losing a critical vote in Parliament, but 19 of these were in the first decade of federation when parties were weak and no government had the fixed support of a majority in any parliament. It happened most often in the Commonwealth (5), South Australia (4) and Western Australia (4). Since 1911, party discipline has ensured that Government defeats in the lower house are rare. They occurred only 25 times between 1911 and 2001, and only three times in the federal Parliament; to James Scullin in 1931, Arthur Fadden in 1941, and Malcolm Fraser in 1975. The last case is anomalous because Fraser was appointed without a House of Representatives majority after Gough Whitlam was dismissed, so the result of the vote of no confidence, which came before Fraser could request a dissolution, was no surprise. Some parliamentary constitutions, such as the Spanish, state that a majority in the lower house may vote to dismiss the government.28 In Australia this is only the case in the ACT where Section 40 of the Constitution provides that if the Legislative Assembly passes a vote of no confidence in the Chief Minister it must elect a new one. Elsewhere in Australia it is a convention that Government resigns if it loses its majority, but two no-confidence motions in Tasmania show that there can be confusion on this point. In April 1991 the Tasmanian Greens, who were committed to support the Government by the Accord of 1989, objected to the policies of the Labor Minister of Education, the Deputy Premier, Peter Patmore, and introduced a motion of no confidence in him personally. Because it had Liberal support this motion was going to pass. The Greens insisted that the Assembly could force the resignation of a single minister without bringing the Government down, but Premier Field took the opposite view. He argued that the Government was collectively responsible for policy and a vote of no confidence in one minister was necessarily a vote of no confidence in the Government as a whole, and must lead to its resignation, an outcome the Greens did not want.29 Over the opposition of his Premier, Patmore resigned before the vote could be held, and he was 27 Australian Capital Territory, Legislative Assembly, Hansard, 10 July 2010, 2371–426. 28 Spanish Constitution, Secs 112–14. 29 Field, “Progressive Government in Minority”, p. 65; The Australian, 11 April 1991.

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reinstated to the government as a minister and Deputy Premier, but the Greens had succeeded in getting him out of education. The effect of his resignation was to leave unresolved, in Tasmania at least, the question of whether the whole Government must resign if a single minister loses the confidence of the lower house.30 In Queensland, by contrast, in 1997, when the Assembly passed a vote of no confidence in the Attorney General, the Premier, Rob Borbidge, supported the minister who refused to resign.31 A second Tasmanian case occurred in 1991. The minority Labor Government had been returned to office after a general election in May 1991 with Green support, but in October the Greens and Liberals moved a vote of no-confidence against the government as a whole, which succeeded. In most parliamentary systems, this would call for the Government’s resignation, by law or convention, but Premier Field chose not to resign because the confidence motion was specific to a single bill, the Forest Reform Bill. His Government withdrew the bill, and remained in office with Green support. Two weeks later it reintroduced the bill as part of a Public Land Bill, and this time a Green no-confidence motion failed without Liberal support.32

Parliamentary Terms and Early Dissolutions An important rule of parliamentary government is that the Government must be replaced at any time if it loses the confidence of the majority in the lower, or only, house of Parliament, so there have to be constitutional ways of doing this. In principle, a new government may be formed by replacing one prime minister with another, without a general election. This often happened during the period of colonial self-government and the early years of federation when parties were weak, but since then it has happened very rarely, as in 1941, when John Curtin replaced Arthur Fadden as federal Prime Minister, and in 2000, when the ACT Assembly replaced the Liberal Chief Minister, Kate Carnell, with her deputy, Gary Humphries. Ordinarily, however, a head of government in Australia who loses a majority will advise the head of state to dissolve Parliament and call a general election before the end of a full parliamentary term. To accomplish 30 The Australian, 11 and 17 April 1991; Hobart Sunday Mercury, 13 April 1991. 31 Peter Browne, “The fabulous fiftieth NSW parliament , and other minority governments”, Inside Story, 10 September 2010. 32 Michael Howes, Power, Democracy and the Tasmanian Greens, unpublished B.A. thesis, University of Adelaide, 1993, pp. 7–8.

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this, all Australian constitutions, except in the ACT, specify a maximum term for the lower house but permit the head of state to dissolve the lower house early and call an election. Section 27 of the Commonwealth Constitution, for example, says that every House of Representatives shall continue for three years “but may be sooner dissolved” by the Governor-General, and this is the law or convention, with either a three or four year maximum term, everywhere in Australia but the ACT. Because Australian heads of state ordinarily act on the advice of ministers, prime ministers have claimed the right to use the early dissolution at their discretion. This enables the Prime Minister to set an election date that gives his party maximum electoral advantage, as Malcolm Fraser did in March 1983, with seven months left in the three-year Parliament, and Bob Hawke did in December 1984, with more than a year to run. However, South Australia, New South Wales and Victoria have adopted constitutional amendments that constrain Premiers in this respect, without eliminating early dissolutions in all cases. The reforms were incidental to extending maximum lower house terms from three to four years. Reformers argued that three-year terms were too brief to allow the Government to develop policies effectively, but having argued for an extension of parliamentary terms to four years for the sake of government efficiency, it made little sense to continue to allow the Premier to dissolve the lower house at any time and for any reason. But the reforms had to include ways by which the Government can be replaced if it loses its majority. In 1985 South Australia adopted a constitutional amendment, Section 28, that provides for a minimum House of Assembly term of three years and a maximum of four, but permits the Governor to dissolve the house early during the fourth year and at any other time if the Government loses or wins a vote of confidence in the Assembly. This allows an early election to be held if the Government loses its majority in a confidence vote but discourages frivolous votes of no confidence because the opposition risks a general election if it moves a confidence vote that it knows it will lose. Section 28A also allows the Government to seek an early dissolution if a bill which it designates “of special importance” is defeated in the Legislative Council. This could include a budget. The reform in New South Wales was a result of the Reform Charter that Premier Nick Greiner signed with three independents in 1991. Section 24B of the Constitution now provides that each Legislative Assembly will serve four years but the Governor may call an early election if the Assembly passes a vote 94

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of no confidence in the Government which is not reversed within eight days, or rejects a supply of money for the “ordinary annual services of the Government.” Given that the Government ordinarily controls the Assembly, neither of these outcomes is likely, so Section 24B effectively ensures that a government will serve for four years, absent extraordinary circumstances. There is a constitutional oddity in this New South Wales reform, however, because it tries to write the concept of a constitutional convention, a non-legal rule, into the constitutional law of the state. Section 24B.1-4 was written to set limits on when the Governor may dissolve the Assembly, and it appears to eliminate discretion in the matter. But Section 24B.5 goes on to say, This section does not prevent the Governor from dissolving the Legislative Assembly in circumstances other than those specified ... despite any advice of the Premier or Executive Council, if the Governor could do so in accordance with established constitutional conventions.

So, the Governor loses discretion to dissolve the Assembly in constitutional law in one part of Section 24B but regains it a few sentences later, subject to supposedly “established”, but of course unwritten, constitutional conventions. Many New South Wales Assembly members had serious qualms about placing what they called a “fixed” parliamentary term into the New South Wales Constitution because an early dissolution is permitted only if the Government loses the confidence of the Assembly or a vote on its supply of money. This means that a government that cannot get its important non-money bills through the upper house will be doomed to spending years seeing its programs fail without being able to call an early election for a fresh mandate. South Australia handled this problem by permitting the Government to designate “bills of special importance” which, if defeated in the Legislative Council, can trigger early dissolutions, but independents were calling the shots in New South Wales and nothing of this kind was agreed there.33 Reform of the early dissolution came to Victoria in 2002 after the Labor Party gained an unusual majority in both houses of Parliament. The Government introduced a four year term for both houses of Parliament, with no minimum term, and eliminated the Legislative Council’s right to amend or reject an annual appropriation for the ordinary annual services of government, which 33 Sydney Morning Herald, 29 March 1995.

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eliminates one reason for calling an early election. But Sections 8A and 65E permit the Governor to dissolve Parliament earlier than the four year term if the Government loses a vote of confidence in the lower house which is not reversed within eight days, or if the Premier recommends a dissolution after a bill has been declared “deadlocked”, which is to say, if the two houses of Parliament are unable to agree on a bill following the report of a disputes resolution committee appointed by the two houses. So Victoria joined South Australia and New South Wales in having what many call a fixed term Parliament, but they all permit early dissolutions of the lower house in exceptional cases. In 1989 the Tasmanian Premier, Michael Field proposed an amendment to restrict early dissolutions in the state but the Government was defeated in an election before it could act. In 1991 the Queensland Labor Government of Premier Wayne Goss proposed to extend the parliamentary term from three years to four but refused to accept any constraints on the Premier’s power to advise an early dissolution. He insisted that there must ... be enough flexibility in the system to allow for exceptional circumstances and to allow for early elections if a Government loses confidence on the floor of the House, the business of Government becomes unworkable, or an extraordinary mandate might be required.34

The National Party disagreed. Without a guarantee that four year terms would in almost all cases be achieved, the legislation, in its view, was useless. The Goss proposal was approved in the Legislative Assembly by a vote of 52 to 25, with Labor and Liberal support, but was narrowly defeated in a referendum in March 1991. One element that the reforms in New South Wales, South Australia and Victoria have in common is that they permit early dissolutions if the Government loses a vote of confidence in the lower house, which it ordinarily controls, but this opens the possibility of the Government manipulating the process. To secure an early election a Government with a majority could move a motion of no-confidence in itself and instruct its supporters to vote for it. Three Chancellors of Germany have used this tactic to by-pass a constitutional restriction on early dissolutions, Brandt in 1972, Kohl in 1982, and Schroeder in 2005, and the German Federal Constitutional Court has ruled the practice 34 Queensland, Parliament, Hansard, 46th Parl., 1st sess. (1990), cols 5472–3.

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legal. The same tactic might be used in Australia, although Greg Taylor argues that a Governor would be justified in refusing such a dissolution in Victoria.35 In the ACT, the Chief Minister has never had the power to call an early election but, in a case where the Commonwealth may clearly intervene in one of its territories, the Governor-General may dissolve the ACT Assembly under Section 16.1 of the Constitution if she believes it is incapable of effectively performing its functions or is conducting its affairs in a grossly improper manner. If the Assembly is unable to replace a Chief Minister who loses a majority, the Governor-General would surely intervene on the advice of the Commonwealth Prime Minister, and an early election could follow. In the Northern Territory there is no provision for an early dissolution of the Assembly, either, but the Administrator may use Section 22.1 of the Constitution to prorogue the house, which is to say, to terminate a session, and this has the effect of a dissolution. There is no case in Australia, therefore, where an early dissolution to replace a government that loses its majority is prohibited by constitutional law.

Exceptions to Majority Government In recent years a number of parties that lacked lower house majorities have been able to form majorities with the aid of loose coalitions, guarantees from independents or minor parties, or tacit support. There are also a very few occasions when an Australian head of state has appointed a government that had no majority of any kind in the lower house as an interim measure. In 1901, for example, the Governor-General appointed Edmund Barton as the first Commonwealth Prime Minister several months before the first general election for the House of Representatives was held, so he could not have had a majority on appointment. In 1975, Sir John Kerr dismissed the Labor Prime Minister, Gough Whitlam, without notice and appointed the Liberal leader, Malcolm Fraser without a majority, on condition that he would request a dissolution, which he did. He won the subsequent general election. A similar case occurred in May 1932, when Governor Sir Philip Game of New South Wales dismissed the Premier, J.T. Lang for, in Game’s view, acting illegally during a crisis over funding state debts. Game appointed Bertram Stevens, the United Australia

35 Greg Taylor, The Constitution of Victoria, Annandale, New South Wales: Federation Press, 2006, p. 31.

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Party leader, as Premier without a majority in the lower house and Stevens quickly advised a dissolution. He also won the subsequent election.

Conclusion A feature of Australian politics in recent years has been the frequency, formality and complexity of the agreements used to form loose coalitions and governments with guarantees. The agreements allow minorities to take office with some confidence that they will have majorities on critical votes. There is a clear incentive for independents and small parties who want to have an impact on policy to enter into agreements to support or join governments because instead of having a relatively impotent life on the back benches they acquire a substantial opportunity to influence policy. As Michael Moore, who became an independent member of the ACT Executive in 1998, said: I have achieved more in the three and a half years that I spent as a minister than the [nine] years I spent on the cross-benches ... I make no bones, it was a trade-off and in accepting a ministry I did lose some of my independence, but not all by any means.36

There are incentives for major parties to sign agreements, too. If a party can form a government by making concessions that do not compromise its core values, the incentive will be to sign. But the price may be too high, as it was in Tasmania in 1996 when neither the Labor Party nor the Liberal Party would sign an agreement with the Greens and the Liberals formed a minority government with Labor’s tacit support on confidence and money votes. In the ACT Labor’s John Stanhope formed a minority Labor government in 2001 without a loose coalition or guarantees of support because, he said, these kinds of government clashed with his view of what parliamentary government should be. He wrote, Too often this has led to the practices and traditions of Westminster being compromised; to a blurring of the necessary distinction between executive and legislature; to the requirement of cabinet government and the demands of ministerial responsibility, that are a fundamental characteristic of the system, not being met.37

36 Quoted in Griffith, Minority Governments in Australia, p. 21. 37 Quoted in Griffith, Minority Governments in Australia, p. 22n.

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Stanhope was correct that agreements to form governments have compromised Australian parliamentary practices and traditions in significant ways, but in 2008 he joined the parade and signed a loose coalition agreement with four Green members of the Assembly. This committed the Greens to support the Government on confidence and supply votes, and gave them the Speakership and significant committee chairs. It also required the Government to support a number of Green policies and other matters that were not objectionable in principle to the Labor Party. In this respect the agreement was similar to the agreements discussed above in South Australia, Victoria and Western Australia which provided benefits to supporters of minority parties or independents that were possible because they were not contrary to the central concerns of a major party. Furthermore, agreements in Tasmania, New South Wales, Victoria and the ACT called for parliamentary or constitutional reforms that, whilst routinely opposed by major parties, often have merit which allowed governments to accept them under duress. Indeed, as we will see in Chapter 13, most of the constitutional and parliamentary reforms in Australia’s lower houses in recent years have been the result of agreements by independents or small parties to support minority governments. One of the advantages of loose coalitions is that independent and small party ministers have been given responsibilities for matters for which they were well suited. Rory McEwen, the independent minister for trade, regional development and local government in the Rann Government in South Australia had ten years of experience in regional government in the south-west part of the state. Karlene Maywald, the National Party minister for the River Murray and water security in the same government, represented the rural seat of Chaffey, on the River Murray, an area suffering severe water shortages. And Brendan Grylls and Terry Redman, National Party members of the Barnett government in Western Australia, held ministries responsible for regional development, lands, agriculture and forests, all of them core interests of the National Party. These appointments all had much to commend them. There is, however, a significant problem for democratic government and transparency posed by forming governments by agreements following elections. The handful of members who hold the balance in a hung parliament acquire a wholly disproportionate amount of influence and the agreements could not have been known by voters at the time of the general election. Gareth Griffith writes, 99

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These agreements ... suggest that balance of power holders are well positioned to gain certain pay-offs, be it in terms of official positions, constituency interests, broader policy interests and/or constitutional and parliamentary change.38

Graham Maddox states this sentiment more strongly: A small group of independents striking agreements in conclave and certainly beyond the public gaze, are now in a position to propose, and demand action upon policies which have never been presented in a coherent way to the ... electorate.39

38 Griffith, Minority Governments in Australia, p. 41. 39 Quoted in Brian Costar, “independent Parliamentarians and Accountable Government”, Australasian Parliamentary Review, v. 23, no. 1, 2008, p. 97.

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The third characteristic of the parliamentary model used in this book is party government. Parliamentary systems cannot work in anything like an optimal way without political parties. For Australia, Dean Jaensch writes, [P]arties and the party system are not just among the most important, they remain the critical components of the polity ... Government is party government. Elections are essentially party contests. ... Legislatures are overwhelmingly party members. The majority of electors follow their party identification. Politics in Australia, almost entirely, is party politics.2

Jaensch’s description is true of all democratic parliamentary systems, and the right of parties to exist “and participate in the formation of the political will” is recognized in Article 21.1 of the German Constitution. This chapter will examine why parties are so important and how they operate in Australia. Political parties come in all shapes and sizes. At one end of the spectrum are single-interest parties with a small number of members and little formal organization that use electoral politics to promote the interest, sometimes by winning a legislative seat. At the other end of the spectrum are complex organizations with wide ranging interests, and it is these that most concern us because they form governments. Parties are particularly important in parliamentary systems because of the constitutional rule that the Government must have the support of a majority 1 2

In this chapter data on Australian parties and elections are drawn from the Australian Government and Politics Data Base, University of Western Australia, at . Dean Jaensch, Power Politics: Australia’s Party System, 3rd. Ed., Sydney: Allen and Unwin, 1994, pp. 1–2.

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in the lower or only house of Parliament. This provides a powerful incentive for like-minded MPs to form parliamentary parties in order to form the Government, and to accept party discipline so that the Government can be assured a parliamentary majority for a sufficient period to implement its policies. Without disciplined parties in Parliament, the Government would have to construct its majorities day by day and issue by issue to remain in office, and it would be vulnerable to defeat at any time. The most important instrument of party discipline, according to Christopher Kam, is the leader’s ability to deny political advancement to MPs if their loyalty is suspect. In a presidential system, such as the USA, where the executive and legislature are separated, a politician can have a very satisfactory career in the legislature and a great deal of policy influence without joining the executive, as speaker of a house or chair of a major committee, for example. In parliamentary systems with disciplined parties, however, a successful career must include a period in the Government. Given that, Kam writes, “[P]arties matter; they alter MPs behaviour in observable ways, chiefly by controlling paths of parliamentary career advancement but also by strategically applying discipline.”3 Majority government also provides a powerful incentive for like-minded citizens to form parties outside Parliament with the goal of electing MPs in sufficient numbers to form governments. To this end, parties formulate policies, educate the public about their goals, nominate candidates for elections, finance and organize election campaigns, and structure campaigns so that a vote for a candidate becomes a vote for a particular set of policies and a preferred government. Without parties outside Parliament, voters would be poorly informed and weakly integrated into the political process. In one important respect, however, the role of parties is different in Australia than in most other democracies because there is compulsory registration of voters and compulsory voting everywhere in Australia. Therefore, Australian parties do not have to engage in voter registration campaigns or organize to turn out the vote on election day, activities that are extremely costly in time and money for parties in countries where voting is voluntary.

3

Christopher Kam, “Parliaments, Parties and MPs: A Comparative Perspective on Bachbench Dissent, Party Discipline and Intra-Party Politics”, Ph.D. dissertation, University of Rochester, 2002, p. 112. Published as Christopher Kam, Party Discipline and Parliamentary Politics, Cambridge: Cambridge University Press, 2009.

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The Emergence of Parties The emergence of disciplined, nationally organized political parties marked the decisive stage in the evolution of modern parliamentary government. Before the end of the nineteenth century, British election campaigns had become contests between national political parties, and parliamentary parties were disciplined, with MPs following party orders. The Australian colonies acquired self-government in the 1850s before the British party system had matured, and parties took quite a long time to establish themselves. Colonial MPs generally considered themselves to be liberal or conservative, but they were not well organized. They were brought together, Premier James Martin of New South Wales wrote in 1863, “by such accidental combinations as might appear to be able to command a majority in the Legislature”.4 The first party-based government in the New South Wales colony was formed in 1887 by Henry Parkes’ Free Trade Party, but it did not have a single party majority in the lower house and it was not a signal that a party political system had arrived.5 The absence of disciplined parties in the Australian colonies meant that governments were much more likely to lose office because of defeats in Parliament than from defeats in elections. Nineteen of the 29 New South Wales governments between 1856 and 1901, for example, were terminated by defeats in Parliament and only three by elections, and only 56% of bills introduced by colonial ministers became law.6 If the Government were defeated a new one could ordinarily be formed without a general election by MPs realigning, and it was common for ministers from defeated governments to join new ones. We see similar government instability in other parliamentary systems at the time. The province of Canada, for example, had 18 governments between 1841 and 1867 because, George Stanley writes, “Men changed their political allegiances as readily as they might change their shirts.”7 It was not until the second decade of federation that a modern party system began to stabilize in the Australian states. Parties had contested elections before this time, but governments were most often “ministerialist”. They took

4 5 6 7

Clune and Griffith, Decision and Deliberation, p. 111. P. Loveday and A.W. Martin, Parliament, Factions, and Parties: The First Thirty Years of Responsible Government in New South Wales, 1856–89, Melbourne: Melbourne University Press, 1966, p. 22. Clune and Turner, eds, The Premiers of New South Wales, v. 1, pp. 3–4, 8–9. G.F.G. Stanley, A Short History of the Canadian Constitution, Toronto: Ryerson, 1969, p. 71.

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office with the support of MPs who did not accept party discipline, and they frequently collapsed. In 1909, however, parties began to win enough seats in state lower houses to form stable, single-party governments. In Tasmania the Anti-Socialist Party won 17 seats to Labor’s 12 in the 30 seat Assembly that year, and it contested the 1913 election as the Liberal Party, again winning a majority. In 1910 Labor won majorities in the New South Wales and South Australian assemblies. In Victoria the Liberal Party formed a single-party government in 1892, but thereafter the party system was very confused until the 1911 election when the Liberals won a majority in the Assembly. In 1911 and 1914 Labor won majorities in the Western Australia Assembly, and in 1915 it won a majority in the Queensland Assembly. The federal party system also took some years to stabilize. The first ten years of federation were particularly confusing, with Protectionist, Labor and Fusion minority governments, the later being an anti-Labor alliance of protectionists and free traders that contested the 1909 federal election. It was not until 1910 that a government won a single party majority in the House of Representatives when the ALP won 43 of the 75 seats. It appeared then as though the federal Parliament was set for modern party competition between the Labor Party on one side and a conservative party or coalition on the other, but a schism in the Labor Party delayed this for many years. A great many groups have identified themselves as political parties in Australia over the years. At the time of the 2010 federal election the Australian Electoral Commission registered 29 parties, excluding the separately registered state branches of national parties and the Young National Party. However, only three parties have shown substantial strength over time. On the left is the Labor party, and on the right are two that have changed their names but are now the Liberal and National parties.

The Australian Labor Party The Australian Labor Party (ALP) is the oldest Australian party in continuous existence. It contested the 1891 election in New South Wales as the Labor Electoral League after trades unions decided to endorse candidates for colonial assemblies, and it won 36 of the 141 lower house seats. In 1901 Labor candidates won 14 of the 75 seats in the first election for the House of Representatives, eight Senate seats, and Labor MPs formed a federal party. The name, the Australian

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Labour Party, was adopted at a federal conference in 1908. The party dropped the “u” from Labour in 1912, although this spelling had been used in state politics for a number of years. The first Labor Government anywhere in Australia was formed in Queensland in 1899, as a minority government, and it lasted only a week. Federal minority Labor Governments were formed in 1904 and 1908, but the party formed single party, majority governments in the Commonwealth, South Australia and New South Wales in 1910, in Western Australia in 1911, and in Queensland in 1915. Despite this early success, only 20 of the 64 federal governments formed between 1901 and the federal election of 2010 were Labor Governments because of the party’s tendency to schism. The first schism came in 1916, during World War I, when the pro-conscription policy of the Labor Prime Minister, Billy Hughes, split the party. After a short period leading a National Labor government with Liberal support, Hughes joined with Liberals to form the Nationalist Party of Australia, which he led as Prime Minister until 1923. Labor formed a single party majority Government in 1929, but it suffered another schism in 1931 over economic policy during the depression, with members defecting to the right and left. On the right, the Acting Treasurer, Joseph Lyons, and four others joined with the Nationalist Party to create the United Australia Party (UAP), the forerunner of the modern Liberal Party. Labor still had a majority in the House of Representatives but it lost this in 1931, when five members on the left resigned from the party because the Government was insufficiently radical. The rift with the left was particularly serious in New South Wales where two Labor parties contested state elections from 1932 to 1936 and the state branch of the party, led by Premier Jack Lang, was expelled from the federal party.8 In 1931, the Lang Labor Party won four seats in the federal House of Representatives, and nine in 1934. Labor did not form another federal government until 1941 when it needed support from independents, but it formed single party majority governments after elections in 1943 and 1946. It lost to the Liberal/Country Party Coalition in 1949, 1951 and 1954, and then suffered yet another schism when a largely Catholic group of party members opposed Communist infiltration of Laboraffiliated trades unions. After the 1954 election the dissidents were expelled 8

Jeremy Moon and Campbell Sharman, eds, Australian Politics and Government: the Commonwealth, the States, and the Territories, New York: Cambridge University Press, 2003, p. 60.

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but they campaigned in the 1955 election as the Anti-Communist Labor Party. In 1958, as the Democratic Labor Party (DLP), they drew 9.32% of the first preference vote for the House of Representatives. The DLP never won a seat in the House of Representatives, and won only one lower house seat in the whole of Australia, in New South Wales in 1971, but it helped keep Labor in opposition until 1972 by directing its preferences in lower house elections to the Liberal party.9 The party was much more successful in winning Senate seats because of proportional representation, which was introduced for Senate elections in 1949. In five elections from 1958 to 1970 the DLP’s first preference Senate vote rose to 11.11% and six of its candidates won a total of 10 Senate elections. In 1970, there were five DLP senators, but the party lost all its seats in the 1974 election, and soon ceased to function nationally. It polled only 1.32% of first preference votes for the House of Representatives in 1975. Weller and Fleming write that it was only in the 1970s that the ALP developed the ability to manage internal disputes without splintering.10 The party is still divided but has organized itself into factions, each with support among individual members and trades unions. The most powerful Labor faction has been the right wing Labor Unity, from which a majority of federal and state leaders have been drawn. Faction leaders arrange business in Parliament by accommodation and negotiation, but faction fighting often breaks out when local branches select their parliamentary candidates. There are complaints of “branch stacking”, with factions accusing each other of enrolling new members in questionable ways to accumulate selection votes. In 1999, the South Australian Supreme Court found that 2000 new ALP memberships were invalid because they violated party rules,11 and in 2004 the National Executive ordered membership audits of major unions in Western Australia because of allegations that they were inflating their branch member numbers.12 Branch stacking is contentious because just a few new members can determine selections. When the former federal Labor leader, Simon Crean, was challenged for reselection as a Labor candidate in his seat of Hotham, Victoria, in 2006, only 284 party members participated in the

9 Jaensch, Party Politics, p. 33. 10 Patrick Weller and Jenny Fleming, “The Commonwealth”, in Moon and Sharman, eds, Australian Politics and Government, p. 26. 11 Andrew Parkin, “Political Chronicles: South Australia: July to December 1999”, Australian Journal of Politics and History, v. 46, no. 2, June 2000, pp. 258–9. 12 The Australian, 3–4 April 2004.

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vote in a seat which had 41,000 first preference Labor votes in the 2004 federal election.13 Many Labor politicians are disenchanted with factions, including the former Labor premier of Queensland, Peter Beattie,14 the former Senate leader, John Faulkner,15 and the present Leader of the party, Julia Gillard, who said, in 2006, “It’s time to stop mincing words and acknowledge that factionalism in the Labor Party is out of control and destructive.”16 When he became Labor Prime Minister in 2007, Kevin Rudd formed his Cabinet without consulting factions.17 In June 2010, however, he was forced to resign when faction leaders in the Labor caucus, antagonized by his leadership style, turned on him. He resigned before a caucus vote could be held that he knew he would lose. Gillard was elected and was appointed Prime Minister. Tony Wright, the national affairs editor of the Melbourne Age, wrote on the day of the Rudd’s resignation, Kevin Rudd boasted he had all but got rid of factional influence at the highest levels of government when he became the first Labor Prime minister to choose his own frontbench. But … the factions are back, and they have produced a new Prime Minister. Without the usual months of arm twisting, cajoling and deal-making, shadowy factional figures struck and within a day, the Rudd era was over. This was less a challenge than an execution.18

The ALP is a federal party. Its state and territory divisions are branches, not parties in their own right. Members belong to the state or territory branches where they live and this is where almost all of the practical management of the party takes place between federal elections. The party has individual members, but much of its support comes from affiliated trades unions. To avoid party conferences being dominated by unions, individual branch members must comprise at least 50% of all conference delegates. Unions once contributed as much as 80% of party funds but their contribution is said to be down to about 15%.19 Nonetheless, the ALP has been stronger financially than the Coalition, 13 14 15 16

World Socialist Web Site, 22 March 2006; Weekend Australian 4 March 2006. Australian AP, 24 October 2000. ABC News, 22 October 2005. Julia Gillard, “Courage, Convictions and the Community: The Next Ten Years”, Speech to the Sydney Institute, 6 March 2006. 17 Sydney Morning Herald, November 27 & 29 2007. 18 Sydney Morning Herald, 24 June 2010, 19 Senator Robert Ray, “Are Factions Killing the Labor Party?” Address to the Sydney Fabian Society, 20 September 2006.

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and draws donations from unions, corporations and individuals. In the financial year 2007–8, a federal election year, the party had state and federal receipts of $125.5 million. The Coalition had $45.6 million. In the 2006–7 financial year, when there were three state elections, Labor’s reported receipts were $56 million to the Coalition’s $40.5.20 Federal, state and territory Labor party conferences elect their respective party presidents and executive committees, but the party leader at each level is selected by a parliamentary caucus, and they sit on their respective executive committees. Labor’s national policies are formally decided by the National Conference, which meets at three year intervals, but as Dean Jaensch points out, the “caucus is in continuous existence, and policy making has increasingly devolved to the parliamentary wing of the party. ... ”21 Party leaders often bring matters to the conference with a view to setting new policy or changing direction, as in 2007 when Rudd persuaded the ALP to change its 25 year ban on new uranium mines.22 Party leaders, whether in government or opposition, decide how to integrate party policies into election strategies, and party leaders in government decide when and how to implement those policies. The Labor Party’s organization is distinctive because Labor MPs must accept policy direction from the National Conference. In addition, every Labor candidate must pledge to accept the decisions of the parliamentary caucus. There is no pretence that Labor MPs are independent, and in October 2010, the President of the New South Wales Legislative Council, Amanda Fazio, was suspended from the party for voting against it on a bill dealing with the sale of pornography.23 Labor’s parliamentary candidates are selected by local party branches, but the federal ALP Executive has the power to place nominees in districts as candidates. In 2007, for example, it placed 10 candidates in New South Wales seats for the House of Representatives.24 The party may also refuse to re-select a sitting member who breaks with party discipline, although this is rare. Members of Labor governments and shadow ministries are usually elected by the parliamentary caucus, with the Prime Minister or party Leader making assignments to particular portfolios, but Kevin Rudd broke this rule in 2007

20 Australian Electoral Commission, Political Party Annual Returns, 2006–8. 21 Jaensch, Power Politics, p. 128. 22 Sunday Mail (Adelaide), 29 April 2007. 23 Sydney Morning Herald, 20 October 2010. 24 Sydney Morning Herald, 4 May 2007.

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by forming the new Labor federal Government before the caucus met, as did his successor, Julia Gillard, in 2010. In 2009, Nathan Rees, Premier of New South Wales, persuaded the state ALP conference to permit him to appoint a Cabinet without reference to the caucus, which was in disarray.25 The ALP norm, however, is that caucus elections of ministers and shadow ministers are pre-arranged by faction leaders after bargaining with the leader. The ALP Constitution states that it is a democratic socialist party, with a number of socialist objectives, such as the redistribution of social and economic power, the establishment of public enterprises, and the democratic control and “strategic social ownership” of natural resources, but the party also supports a “competitive non-monopolistic private sector” and private property.26 It is actually a pragmatic party and in the interests of making Australia competitive in the global economy, the Labor governments of Hawke and Keating adopted a number of conservative economic policies between 1983 and 1996, including the privatization of the Commonwealth Bank and Australian Airlines, the partprivatization of Qantas, the substantial deregulation of business, and free trade.

The Liberal Party The Liberal Party is the second largest party in Australia, with antecedents almost as old as the ALP because it was the aggressive growth of the Labor Party that led to anti-Socialist alliances that evolved into the Liberal Party. At the federal level and in some states it operates in pre-election coalitions with the National Party. In Queensland it operates as part of the Liberal National Party and in the Northern Territory as part of the Liberal Country Party, both of which are affiliated with the federal Liberal and National parties. Federal MPs from those parties may sit with the party caucus of their choice in Canberra. The federal Liberal Party dates back to the merger of conservative Protectionist and Free Trade parties in 1909, and it contested the 1910 federal election. For the 1917 federal election the Liberals were absorbed into the Nationalist Party, led by Billy Hughes, and in 1931 this became the United Australia Party (UAP). The UAP formed a single party majority government in 1931 and a coalition with the Country Party in 1934. Robert Menzies became the Coalition Prime Minister in 1939 and remained so until 1941, when the Country party left the 25 Sydney Morning Herald, 16 November 2009. 26 ALP National Constitution, Sections A2–3.

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Coalition and Menzies was rejected by the UAP. Arthur Fadden of the Country Party led a minority coalition government from August 1941 until a Labor minority government was formed in October, and after the 1943 election Labor formed a majority government. In February 1945, frustrated by debilitating factional warfare within the UAP, Menzies formed the Liberal Party, which won control of state governments in Western Australia, South Australia and Victoria in 1947. In 1949 he formed a majority federal Liberal/Country Coalition Government and remained Coalition Prime Minister after the next six federal elections. The Coalition won two more elections under his successors, Harold Holt and John Gorton, in 1966 and 1969. From 1972 to 1975 Labor formed the federal Government but the Coalition returned to power in 1975 and 1977, led by Malcolm Fraser. He had sufficient majorities to form single party Liberal majority governments but respected pre-election coalition agreements with the Country Party. After the 1980 election Fraser needed the Country Party once more for his majority but Labor governments were formed from 1983 to 1996. The Coalition broke down before the 1987 election, but was renewed and has remained in effect for federal elections ever since. In 1996, the Liberal leader, John Howard, began his long term as Prime Minister. He won four elections and formed Coalition governments with the National Party until 2007, although his party won a majority of seats in 1996. The Liberal Party is more loosely organized than the ALP. The state and territory organizations of the party are “divisions”, with their own constitutions, rather than branches. The Liberal Federal Council is composed of state representatives and federal parliamentary leaders and is the national coordinating body of the party. Between meetings of the Council, the party’s affairs are vested in the Federal Executive, composed of federal office holders, division presidents and the federal parliamentary leadership group. For many years the states had a great deal of autonomy but in 1994 the Federal Council won the power to overturn local pre-selections, discipline MPs, and intervene to correct local financial mismanagement. In 1996, for example, it de-selected Pauline Hanson from the election for the federal seat of Oxley, in Queensland. The Liberal Party outside Parliament is a source of advice, funds and election support for the parliamentary party, but party policy is determined by Liberal parliamentary leaders. Liberal MPs do not pledge themselves to accept the decisions of the party or caucus, but in practice the party is well disciplined in 110

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Parliament. In 2009 Tony Abbot successfully ran for the leadership of the federal party in part because his preferred candidate, Joe Hockey, wanted to permit a free vote in the Senate on the Labor Government’s energy bill, which had seriously divided the party. Abbott said, “[I]t is just not possible for a credible party to have a free vote.”27 In European and American terms the Liberals are conservatives although, until the 1970s, they operated within an economy that had high tariffs and a strong public sector. In the late 1970s the party moved towards the economic rationalist, free market policies advocated by the Conservative Party in Britain and the Republican Party in the United States. These included deregulation of markets, privatization of public corporations, industrial relations reforms to limit the power of trades unions, and reductions in taxes and government programs. The Labor Party implemented parts of this agenda between 1983 and 1996 but in 1996 John Howard pressed forward with a vigorous program of privatization and other reforms. Labor governments had raised $6,767 million from the sale of government assets from 1983 to 1996, but Liberal governments raised $61,651 million from 1996 to 2006.28 The Liberal Party is associated with social conservative values, including loyalty to the monarchy, respect for religion, a belief that Australia’s core values are derived from Australia’s nineteenth century Anglo-Celtic settlers, and a commitment to the British legal tradition, with its respect for law and the legal equality of citizens. Liberals believe that immigrants should assimilate these values. They also believe in self-reliance and equality of opportunity, rather than equality of outcomes through state intervention. Where the Labor party has endorsed multi-culturalism, gender equality, and alternative life-styles, Liberals have been much less supportive.29 The Liberals do not have formal factions but commentators frequently identify Right and Moderate (or Left or Progressive) factions. In 2010 the South Australia Liberal leader, Isobel Redmond, attacked factions but conceded they might have to be recognized formally in the party.30 Such as they are, Liberal factions are defined by their degrees of enthusiasm for economic rationalist 27 Sydney Morning Herald, 30 November 2009. 28 Chris Aulich and Janine O’Flynn, “John Howard: The Great Privatiser?”, Australian Journal of Political Science, v. 42, No. 2, June 2007, pp. 380–1. 29 Carol Johnson, “John Howard’s ‘Values’ and Australian Identity”, Australian Journal of Political Science, v. 42, no. 2, June 2007, pp. 195–210. 30 Adelaide Now, 27 April 2010.

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and social conservative agendas but the Right–Moderate dichotomy weakens when one tries to combine the two on a single continuum. John Howard and the present leader, Tony Abbot, are on the right by both measures but many party members who support economic rationalist economics are moderates on social conservatism. Howard’s deputy, Peter Costello, for example, and Abbott’s predecessor as leader, Malcolm Turnbull, are economic rationalists who supported an Australian republic in the 1999 referendum.

The National Party The junior partner in the federal Coalition is the National Party which was founded in 1920 as the Country Party to represent rural interests. It contested its first national election in 1922, drawing support from state farmers’ parties that had already won seats in the New South Wales, Victorian and Western Australian parliaments. It changed its name to the National Country Party in 1975, and became the National Party in 1982. The National Party primarily is a party of regional and rural eastern Australia, with small pockets of support elsewhere, and its electoral record has been uneven. Between 1984 and 2007 it won between six and ten New South Wales seats per election in the House of Representatives, between three and eight in Queensland and two or three in Victoria, but it won no federal seats in South Australia, Tasmania, Western Australia, or the ACT. In 2010 it won four seats in New South Wales, two in Victoria and one in Western Australia, but none in South Australia, Tasmania or the ACT. In its new manifestation as part of the Liberal National Party of Queensland, it won 21 federal seats. The Northern Territory Liberal Country Party is affiliated with both the Liberal and National parties and has won a total of five House of Representatives’ seats since selfgovernment in 1978. The National Party has had a similarly uneven record in the Senate where its numbers have ranged from one in 1946 to eight in 1975. It has won at most four Senate seats in a single state in a federal election, in Queensland in 1987, but in no state has it won more than one federal Senate seat per election since then. After the 2010 federal election the party held only three Senate seats, two in New South Wales and one in Victoria, but the new Queensland Liberal National Party won three seats and there is one Country Liberal Party senator from the Northern Territory.

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At the state and territory levels, the National Party has won its most Assembly seats in New South Wales, but it has had its greatest success in Queensland, where it dominated state government between 1957 and 1989. In 2008, however, it merged with its state junior partner, the Liberal Party, to form the Liberal National Party, which won 34 of 89 Queensland Assembly seats in the 2009 election and 78 seats in 2012. In other lower houses in 2011 the National Party held 18 seats in the New South Wales Assembly, ten in Victoria, five in Western Australia, and none in South Australia. It is not an organized party in Tasmania or the ACT. In the Northern Territory, the Liberal Country Party formed the first eight governments under self-government until Labor took power in 2001. It sank to four seats in the 25 seat Assembly in 2005, but returned to viability in 2008, with 11 seats. After the 2012 territory election, it formed the Government with 14 seats. In 2011 the National Party held seven Legislative Council seats in New South Wales, three in Victoria and six in Western Australia. Since 1923 the National Party and its predecessors have been important in federal politics because of their almost continuous record of participation in conservative coalitions. Unlike the Free Democratic Party in Germany or the Irish Labor Party, the Australian National Party does not form coalitions with parties of either left and right. It is always on the right, and even when the Liberals won absolute majorities in 1975, 1977 and 1996 they took the Nationals into the federal Government because of pre-election coalition agreements. For a short period in 1941, at the time of fierce conflict within the UAP, the Country Party supplied the Coalition with its Prime Minister, Arthur Fadden, but the Liberals have otherwise led federal Coalitions. Liberal/National coalitions have been common in some states, too. The Liberals have always formed governments with the Nationals in New South Wales and Western Australia, and, with five exceptions, when it governed alone, in Victoria. In South Australia from 1933 to 1970 conservatives were represented in government by the Liberal Country League. Before that period Liberals often governed on their own, and there have been three Liberal governments since 1970, but no Liberal/ National coalitions. In 2004 the single National Party member of the South Australia Assembly, Karlene Maywald, joined the state Labor government, but her party did not regard this as a coalition and her agreement with the Government permitted her to vote against it on certain issues. She lost her seat in 2010. The ALP was the dominant party in Queensland until 1957 but between 1957 and 1989 the Nationals were the senior partners in many coalitions with 113

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Liberals, including eight National Party led governments between 1957 and 1989, most of them under Premier Joh Bjelke-Peterson. He also led single party National Party governments after elections in 1983 and 1986. There have been no National governments or Liberal/National coalitions in Tasmania or the ACT since self-government, but there have been four Northern Territory governments organized by the Liberal Country Party, which represents both the Liberals and the Nationals in the Territory. Electoral support for the National Party has been trending down in recent years. The party won most federal seats, 21, in the 1975 election, which was 19.7% of the then 127-seat House of Representatives, but its greatest relative success was in 1937 when it won 16 seats, on 21.33% of the vote for the then 74 seat house. There are clear signs of decline, however. The party won 16 federal seats in 1998, 13 in 2001, 12 in 2004 and 10 in 2007. It won 11.52% of the first preference vote in 1987, but failed to reach 6% in the four elections after 1996. In fact, it was outpolled by Pauline Hanson’s One Nation in 1998 and by the Greens in 2004, 2007. Neither of these parties won a seat in the House of Representatives but National Party candidates won with the aid of Liberal preferences. The National Party’s federal vote declined in 2010 in large part because, since the 2008 merger, the party now contests elections in Queensland as the National Liberal Party. However, Cockfield and Botterill calculate that the effective National Party vote was 5.75%. This was a 0.26% increase of over 2007, but was much lower than in earlier years. Furthermore, the factors that have caused the Nationals’ decline persist; a decrease in the relative population of agricultural and pastoral Australia, the continued expansion of urban areas, the emergence of competition from rural independent MPs, and competition from the Liberal Party.31 The National Party is a party of rural and regional Australia and in federal and state coalitions its members hold portfolios that are of interest to its supporters, such as trade, transport, regional services, agriculture, and forestry. Members of the party tend to be social conservatives but they have a 31 Geoff Cockfield and Linda Courtenay Botterill, “Back from the Brink? The National Party after the 2010 Federal Election”, Research Note, Australian Journal of Political Science, v. 46, no. 2, June 2011, pp. 341–51. They calculated a national vote for the National Party by combining National Party votes with the votes of MPs for the Liberal Country Party of the Northern Territory and the Liberal National Party of Queensland who sit with the Nationals in the House of Representatives, and the votes of losing candidates for those two parties who indicated that they would have sat with the Nationals.

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pragmatic self-interest on economic issues, favouring government programs to assist rural Australia. This contributes to tension within the Coalition because the National Party’s insistence on government support for rural and regional Australia is at odds with the economic rationalist agenda of the Liberal party. In 2005, for example, the Nationals forced the Government to provide $3.1 billion in services to rural Australia in return for their support for the full privatization of TELSTRA, the national telecommunications company.32 There is also sensitivity to the fact that in some settings one coalition partner can best grow at the expense of the other. In 2006 the defection of the National Senator Julian McGauran to the Liberal Party caused great consternation in the National Party which accused the Liberals of disloyalty to the Coalition. In addition, federal and state parties often have different interests from their federal colleagues and state coalition agreements have been more contentious than federal Coalitions. Because of what they perceive to be the National Party’s poor long-term prospects, several of the party’s former leaders proposed in 2008 that it merge with the Liberal Party. “If we do not merge,” wrote Doug Anthony, the leader from 1971 to 1984, “the party will slowly fade out of existence”.33 The then federal Liberal leader, Brendan Nelson, supported a merger but the federal National Party leaders were opposed, and in August 2009 the party federal council endorsed a program of policy independence from the Liberals.34 In 2008 the Queensland Nationals jumped the gun by merging with the Liberals to become the state Liberal National Party, but Cockfield and Botterill suggest that a comprehensive merger would damage the National Party nationally. In the 2010 election the party tried to reposition itself as a regional party but, they write, the “tight and enduring federal Coalition constrains their policy options”. Furthermore, the ambivalence of their relations with the Liberals in the states does not help them clarify their image. There is the new Liberal National Party in Queensland, the traditional Liberal Country Party in the Northern Territory, a Coalition in New South Wales, and separate parties in South Australia and Western Australia.35

32 Adelaide Advertiser, 18 August 2005. 33 The Australian, 13 March 2008. 34 The Australian, 24 August 2009. 35 Cockfield and Botterill, “Back from the Brink?”, pp. 344–9.

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Other Parties Two characteristics of Australian elections have allowed, and even encouraged, minor parties and independents. The first is the preferential, or alternative, voting system in single member districts which exists for the House of Representative and all but two assemblies, those in Tasmania and the ACT. Preferential voting allows minor parties and independents to affect election outcomes by how they transfer their second preferences. The system requires successful candidates to secure 50% + 1 one of the votes in a district. Voters are asked to identify their candidate preferences on the ballot and in seats where no candidate secures an absolute majority on the first count, the second preferences of the candidate securing the least votes are distributed to the remaining candidates, at full value. The process continues as necessary, eliminating the least favoured candidate round by round until one candidate has a majority by combining first preference votes and transfers. The system allows voters to express first preferences for candidates who have little hope of winning whilst having their second or subsequent transfers counted as full votes. In this way, the DLP, which never won a seat in the House of Representatives, contested lower house elections and directed its transfers against the ALP, which did not form a government during the DLPs heyday. The Australian Democrats regularly outpolled the National Party but never won a seat in the House of Representatives, whereas the Nationals won seats because of Liberal transfers. The second electoral characteristic that encourages minor parties and independents is the system of proportional representation in multi-member districts used in every Australian upper house except in Tasmania and the ACT, where it is used for Assembly elections. In this system candidates are elected in proportion to the number of votes received. The larger the number of seats contested in a district, the smaller the quota of votes required for election and the more likely that minor party candidates or independents might win.36 They stand the best chance in New South Wales Legislative Council elections where 21 seats, half the house, are contested at each Council election with the whole state as a single district. In federal half-Senate elections only 6 seats are contested per state but proportional representation allowed the DLP and

36 Where n = the number of votes cast and c = the number of vacancies, a quota = ( n / c+1 ) + 1. This assures that the number of candidates elected is at least as many, and no more than “c”, the number of vacancies.

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the Australian Democrats, in particular, to win substantial numbers of these. Once again, if a candidate does not win enough votes to fill a half Senate election quota, which is 14.286%, he or she might win by securing transfers from other candidates or parties. The Democratic Labor Party, considered above, was the first party to benefit from the system of proportional Representation adopted for Senate elections in 1949. The second was the Australian Democratic Party, founded in 1977 by a disaffected former Liberal minister, Don Chipp.37 It burst onto the political scene that year with 11.13% of Senate first preference votes and two seats, eclipsing the DLP as the most important minor party. Its highest first preference vote in the Senate was 12.63% in the 1990 half-Senate election, when it won five seats and held a total of eight, and its greatest electoral success was in 1987 when it won seven seats on a first preference vote of 8.47%. Its largest number of Senate seats, new and continuing, was nine, following the 1998 election, but it was never able to win a seat in the House of Representatives. After a period of intra party conflict, the Democrats suffered a devastating loss in the 2004 Senate election, polling only 2.09% of the first preference vote for the Senate, and none of its candidates won. In 2007 it again won no Senate seats on 1.27% of the first preference vote, and lost all four of its remaining Senate seats. For the first time in 30 years the party was not represented in the Commonwealth Parliament, but during the period of its greatest strength it had controlled the balance in the upper house and was able to influence the legislation of both ALP and Coalition governments. If supported environmentalism, biodiversity, human rights, industrial democracy, multiculturalism, and community based politics. As Democrat support declined, the Green Party emerged with a commitment to protect the environment and sustainable development. The Greens began with environmentalist opposition to dam construction in Tasmania in the 1970s and 1980s, and in 1989 and 1992 five Greens were elected by proportional representation to the 35 seat Tasmanian Assembly. The Labor and Liberal parties, both of which had found it difficult to cooperate with the Greens, voted together to reduce the Assembly to 25 members for the 1998 election, which had the effect of raising the quota for election. As anticipated, the Greens lost

37 John Warhurst, “1977–1997: twenty years hard democracy”, in John Warhurst, ed., Keeping the Bastards Honest: The Australian Democrats’ First Twenty Years, St Leonards, NSW: Allen and Unwin, 1997, pp. 3–23.

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ground, winning only one seat in 1998, but they rebounded to win four seats in 2002 and 2006, and five in 2010. The Greens contest federal, state and territory elections but in mid-2011 their only other representation in a lower house was one seat in the House of Representatives, one in the New South Wales Assembly, and four seats in the ACT Assembly, which uses proportional representation. The party has done better in upper houses elected by proportional representation. Indeed, the Greens have replaced the Australian Democrats as the leading minority party. In 2011 they held nine seats in the Senate, five seats in the New South Wales Legislative Council, two in the South Australian Council, three in the Victorian Council, and four in the Western Australian Council. As a parliamentary party, and since 2010 as a partner in the Tasmanian Government, the Greens have had to develop policies on more than environmental issues. They take left wing positions on, for example, child care, public education, public transport, multiculturalism and government supported health services. In recent years the Family First Party has appeared to promote the Australian family and social conservative values. It was founded in South Australia in 2002 with strong ties to the Assemblies of God Church but was quickly organized in all the states. As of mid-2011, however, its only representation was two members in the South Australian Legislative Council. In October 2004 one member was elected to the federal Senate from Victoria. The party polled only 1.76% of first preferences for that seat but reached a quota with the support of transfers from others candidates. It lost the seat in 2010. One finds some small parties represented in Australian parliaments that are more like interest groups than conventional political parties. New South Wales has had the most of these and in 2011 the Shooters and Fishers Party and the Christian Democrat Party, a social conservative party, had two seats each. In Victoria, a locally revived Democratic Labor Party won a federal Senate seat in 2010, but it lost the Council seat it had won in 2006. The DLP has shown little continuity over time but a number of parties with the name have contested elections in Australia. In South Australia Nick Xenophon won a Legislative Council seat in 1997 as a “No Pokie” independent, campaigning against the introduction of poker machines in the state. In 2006 he had enough support to carry a second independent into the Council with his surplus preferences, and in 2007 he 118

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won a South Australian seat in the federal Senate. There he has had to develop positions on a range of policies and has been an important swing vote on, for example, the Labor Government’s economic stimulus package in 2008, which passed with his support only after he had bargained strongly for concessions to South Australia. In 2006 and 2010, Ann Blessington, an advocate for drug treatment and rehabilitation was elected to the South Australian Legislative Council as an independent, and in 2010, Kelly Vincent won a seat as a candidate for Dignity for Disability. For a while, between 1996 and 2001, Pauline Hanson’s One Nation seriously intimidated the National and Liberal parties, particularly in Queensland. In 1996 Hanson’s nomination as federal Liberal candidate for the safe Labor seat of Oxley, in Queensland, was reversed by the federal Liberal Party but her deselection came too late for her name to removed from the ballot and she won Oxley with 48.61% of the first preference vote and a swing of 19.31% away from the ALP. She sat in the House of Representatives for one term as an independent and formed One Nation in 1997. It was a quasi-party with a large number of donors and supporters but without a conventional member base and democratic procedures. It was autocratically run by its founders, Pauline Hanson, David Ettridge and David Oldfield. One Nation ran populist campaigns against immigration from Asia, free trade, neo-liberal economics, globalization, multiculturalism, aboriginal preferences, and a host of other supposed threats to traditional Australia which struck a chord with a substantial group of alienated Australians troubled by the country’s social and economic trends. The party won 22.7% of first preference vote and eleven seats in the 1998 Queensland Assembly election. Thereafter it won a Senate seat in Queensland in 1998 and three Legislative Council seats in Western Australia in 2001. For a while, One Nation was a major threat to the National Party in particular, and by extension to the Coalition, but all the major parties refused to transfer preferences to it and John Howard adopted populist policies to discourage Liberal defections to Hanson. But what finally killed One Nation was its internal disarray and lack of formal structure. The party declined precipitously in state and federal votes and in 2007 polled only 0.3% of the first preference vote for the House of Representatives and 0.4% for the Senate. In 2009 it polled just 0.4% for the Queensland Assembly. In 2011, Hanson lost her bid for a seat in the New South Wales Legislative Council. 119

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The Institutionalization of Political Parties in Australia As political parties became part of the fabric of Australian politics their role was recognized in parliamentary standing orders and other parliamentary practices, in election law, and, to a small degree, in constitutional law.

Parties in Standing Orders and Parliamentary Practices Parties are widely recognized in standing orders, the rules regulating organization and behaviour in legislative chambers, and in parliamentary practices. We can consider a sample of these. For example, every parliament assigns special rights to party leaders. By law, standing order or convention, the leader of the largest nongovernment party is designated Leader of the Opposition and is given precedence in parliamentary proceedings and the management of business. Section 5A of the Australian Territory (Self Government) Act, for example, says the Leader of the Opposition “shall be the Leader of the largest non-government party ...” In the Victoria Legislative Assembly party leaders form a business committee that meets weekly to determine how government business will be handled, and each party is represented on select committees.38 In South Australia parliamentary business is arranged in a meeting of the Premier and the Leader of the Opposition.39 In every Parliament ministers and opposition party leaders or their nominees are permitted to speak for longer periods than other members in debates,40 and opposition party leaders have priority in Question Time, the period allotted each day for questions to ministers.41 In the Senate, the Leader of the Opposition nominates the chairs of two standing committees which deal with the private business of the house, the Committee on Privileges and the Committee on Senators’ Interests.42 In the ACT Assembly Standing Order 221 states, “Membership of committees shall be composed of representatives of all groups and parties in the Assembly as nearly as practical proportional to their representation in the Assembly.” Laws on allowances for members in every Parliament recognize parties by providing salary supplements and expenses for non-government party leaders.43 38 Victoria Legislative Assembly, Standing Orders 94.1.a, 202. 39 South Australia Legislative Assembly, Standing Order 115. 40 See House of Representatives, Standing Order 1 and South Australia Legislative Assembly, Standing Order 144. 41 See Queensland Legislative Assembly, Standing Order 113.2 42 Senate Standing Orders 18.4 and 22A.3. 43 Leanne Manthorpe, Parliamentary allowances, benefits and salaries of office, Australia, Parliamentary Library, E-Brief, 1 July 2006.

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These usually include the Leader, Deputy Leader and Whip of recognized parties in each house. Queensland may have the most comprehensive system, providing salaries, office expenses and official cars for the Leader, Deputy Leader, Whip, Deputy Whip and Secretary of the official Opposition, the party next in size to the Government, as well as for the Leader, Whip and Secretary of any other recognized party with more than 10 members in Parliament, and for the Leader of any party with fewer than ten members. In addition, the official Opposition Whip receives an entertainment allowance and the Leader of the official Opposition may designate up to 16 spokespersons, about the size of the Shadow Cabinet, to receive supplements. Given that salary supplements or allowances are also given to the Speaker, Chair of Committees, committee chairs, committee members, and government ministers, it would be a very unfortunate MP in Queensland who had no official way to augment a parliamentary salary.44 Recognized political parties also usually receive allowances to support party work in Parliament. To qualify in the federal Parliament a party must have at least five members in the House and/or Senate, and the allowance is sufficient to support about 12 staff for research, media relations, and administration. In Western Australia, a party must have at least five members in the lower house, in Victoria eleven members of Parliament, and in Tasmania four members of Parliament to qualify.45 By convention or standing orders, parties have assigned seats in each house of Parliament. Government ministers sit on the front benches to the right of the presiding officer, with party colleagues sitting behind them. Opposition parties sit on the opposite side of the chamber, with the official Opposition, the largest opposition party, sitting immediately to the left of the presiding officer and other parties and independent members sitting farther to the left, on what are sometimes called the “cross benches”. The Standing Orders of the Victorian Assembly recognize party discipline by stating that party leaders will cast votes on behalf of all their members present in the chamber, unless a vote is a conscience issue, when members may vote independently.46 Every parliament provides some time for non-government members to introduce private members’ bills. In the British House of Commons MPs ballot 44 Queensland, Parliament, Members’ Entitlements Handbook. 45 Norm Kelly, “Determining Parliamentary Parties – A Real Status Symbol,” Democratic Audit, Australian National University, December 2004, pp. 1–3. 46 Victoria, Legislative Assembly, Standing Orders 163, 165.

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for this opportunity, but in Australia the time is generally controlled by political parties. In 2009, for example, the Tasmanian House of Assembly Standing Orders assigned six hours of private members time per two week period to the opposition Liberals, four hours to the Tasmanian Greens, and two hours to Labor, the governing party.47 A federal handbook on the conventions of caretaker governments, which serve in the interim between a general election and a new government, states that opposition party leaders are allowed to have confidential discussions concerning the machinery of government with officials in the three months before an election in anticipation of a possible change of government.48

Parties in Election Law Election law has been written to benefit parties for many years. Compulsory voting, for example, relieves parties of the burden of organizing registration and voter turnout campaigns. Group ticket voting permits voters to cast a single vote for a party or group which is identified “above the line” on ballots for several legislative councils and the Senate. This simplifies voting in proportional representation elections where voters would otherwise have to identify a large number of preferences for individual candidates, but it hands the allocation of preferences to party managers and handicaps independents. Parties receive free time on television and radio to promote their campaigns, benefits denied to independents, and parties also have resources which independents can rarely match to deal with quite complex election law involving disputed returns, fund raising and expenditure reports. The public funding of elections also benefits parties. Independents receive funds, too, but the largest sums by far go to parties.49 Candidates or parties in federal elections are eligible if they can obtain at least four per cent of the first preference votes in the elections they contest. In 2010 the formula was set at just over $2.31 per eligible vote received, and this is adjusted periodically according to the cost of living. In 2007 the election fund totalled nearly A$49 million and the allowance was $2.1 per vote. In return for federal financial support, parties must disclose major donations to their funds to the Australian Electoral 47 Tasmania, House of Assembly, Standing Order 53 and Appendix, 2009. 48 Australia, Department of Prime Minister and Cabinet, Guidance on Caretaker Conventions, 2004, Section 7.5. 49 Data on party funding are from the Australian Electoral Commission.

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Commission. New South Wales, Queensland, Victoria and the ACT also have public funding for elections but in 2010 the New South Wales Electoral Commissioner described the New South Wales system as unworkable. Large donations by individuals, unions and corporations were said to be corrupting the election process.50 Two New South Wales funds, both used to fund parties between elections, are not open to independents, the Administration Fund and the Policy Development Fund.51 Finally, contributors to parties receive tax deductions not available to independents.52 An example of a law designed to benefit a party that backfired was the replacement of preferential voting by proportional representation for elections after 1949, discussed in Chapter 9. The ALP controlled both the House of Representative and the Senate at the time and the change was designed to prevent the Coalition from taking control of the upper house at the following election. The change accomplished this but it led to neither Labor nor the Coalition being able to control the Senate for more than a few years from 1955.

Parties in Constitutional Law Australian constitutional law is slowly recognizing political parties. The most celebrated example is an amendment to Section 15 of the Commonwealth Constitution dealing with so-called “casual vacancies” caused by the death or resignation of senators between elections. The original Section 15 required state parliaments to fill vacancies, without conditions, but in 1951 the convention began that if the person vacating a seat was a party member, the replacement would be the nominee of that party’s executive so that the party balance in the Senate produced by the previous election would be preserved. Twenty-four vacancies were filled this way from 1951 to 1975, but then the New South Wales and Queensland parliaments selected replacements for ALP senators who were ostensibly ALP members but were not the party’s nominees, with dramatic consequences. In the Senate they voted with the Coalition and it was their votes that gave it the Senate majority to block the Labor government’s budget in 1975, leading to its dismissal.53 50 Joo-Cheong Tham, Towards a More Democratic Political Funding Regime in New South Wales, New South Wales Electoral Commission, February 2010. 51 New South Wales, Election Funding Authority, Fact Sheet. 52 Jennifer Curtin, “Getting elected as an independent: electoral laws and party favouratism,” Democratic Audit of Australia, 2005. 53 Malcolm Colston, “The Stacked Senate of 1975”, Politics, v. 11, no. 1, May 1976, pp. 57–61.

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In 1977 Section 15 of the Commonwealth Constitution was amended by referendum, but little changed. Henceforward, a casual vacancy would be filled by the state Parliament with someone from the same party or group but there is mischief in the amendment because it does not require the replacement to be the official nominee of the party or group. In fact, Standing Order 290 of the Queensland Assembly provides procedures for a contested election for a Senate vacancy, and in April 1987 John Devereux, Labor’s official nominee for a vacant Tasmanian Senate seat, was rejected on a tied vote in a joint session of the Tasmanian Parliament. The seat remained empty until he won it at the next Senate election, in July 1987. Section 55.2 of the South Australian Constitution and Section 27A.4 of the Victorian Constitution have both added provisions to use the same procedures to fill casual vacancies for their legislative councils. In 1991 South Australia tried to ensure that the party that wins a majority of the state-wide vote in an election will win a majority of seats in the Assembly, and hence form the Government. Section 83 of the Constitution was amended to require the Electoral Districts Boundaries Commission to ensure, so far as practicable, that boundaries should be drawn so that if the candidates of a particular group or party attract more than 50 per cent of the state-wide first preference vote in the next election its candidates will be elected in sufficient numbers to form the Government.

Parties and the Public Service In the last quarter of the twentieth century, parties were introduced into the Australian public service in controversial ways. Hitherto, Australian ministers were served by politically neutral, career public servants who were recruited and promoted on merit. They served every government loyally and confidentially, and could expect employment security. In 1972 Gough Whitlam introduced non-public service advisers, usually party political advisers, into ministers’ offices, with approximately eight working with each minister and 21 working with the Prime Minister. Every government since then has followed this practice, with numbers growing substantially over time.54 Many political advisers have 54 James Walter, “Ministers, Minders and Public Servants: Changing Parameters of Responsibility in Australia”, Australian Journal of Public Administration, v. 65, no. 3, September 2006, pp. 22–7, and “Prime Ministers and their Staff”, in Patrick Weller, ed., Menzies to Keating: The Development of the Australian Prime Ministership, London: Hurst, 1993, p. 50.

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backgrounds in party organization, as research officers, branch officials, and assistants to MPs, for example, or have worked for Labor affiliated trades unions, and some advisers have had prior experience as public servants, including Michael L’Estrange, John Howard’s Cabinet Secretary, and Max Moore-Wilton, the Secretary of Howard’s Prime Minister’s Department.55 Although it is not a party political issue, the politicization of the public service has to be seen in conjunction with Prime Minister Keating’s decision to introduce performance based employment contracts for public service department heads. This ended employment security in the senior public service. When John Howard became Prime Minister in 1996 he dismissed six department heads and replaced them with his own nominees. The incentives are likely to be very different for these appointees than for people promoted through a public service merit system.56 Political advisers may be extremely competent but, unlike career public servants, their responsibility is not only, or even primarily, to the public interest but to their ministers, the Government, the party they represent, and their own political careers. James Walter writes that many advisers are political activists, recruited from party or electorate office backgrounds, with clear political ambitions. Their employment is precarious; there is no induction, performance management or professional development; the co-dependent relations between ministers and their staff encourages competition and partisan zealotry; progress depends upon an ability to protect and advance the interests of their minister; and the system relies on the skill and energy of individual ministers in establishing frameworks within which staff roles are performed.

Walter adds that the government has imposed a barrier to the scrutiny of political advisers by Parliament. They may not be questioned by Parliament and are largely invisible to the public, but they provide “a firewall around ministers”.57 The problem is compounded in Canberra where federal ministers 55 Anne Tiernan, “Advising Howard: Interpreting Changes in Advisory and Support Structures for the Prime Minister of Australia”, Australian Journal of Political Science, v. 41, no. 3, September 2006, p. 312; Paul Kelly, “Re-thinking Australian Governance – The Howard Legacy”, Australian Journal of Public Administration, v. 65, no. 1, 2006, p. 11. 56 Richard Mulgan, “Politicisation of Senior Appointments in the Australian Public Service”, Australian Journal of Public Administration, v. 51, no. 1, 1998, pp. 3–14. 57 Walter, “Ministers, Minders and Public Servants”, pp. 24, 26.

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spend most of their working day not in their departments, surrounded by the public service, as in Britain, but in office suites in Parliament House surrounded largely by political advisers. No government is going to dispense with a strong public service, because it depends on disinterested information, evaluation and advice, but there has been a marked shift away from the public service towards party loyalists in ministers’ offices.

Conclusion: The Decline of Parties? Parties are still extremely powerful political actors in Australia, with significant recognition in parliamentary procedures and election law, a significant presence in the public service, and embryonic recognition in constitutional law, but the major parties, at least, have shown signs of weakening. This is particularly true in their percentages of the vote. In 1975, the ALP and the Coalition between them secured 95.89% of first preference votes for the House of Representatives. In 1987 this percentage was down to 91%, and by 2001 it was 80.85%. The combined vote rose to 85.68% in 2007 but went down again to 81.61% in 2010. Meanwhile the Democratic Labor, Australian Democrat, Green, One Nation, and Family First parties, and independents, have been securing votes and seats in upper and lower house elections. Membership also appears to have fallen in the major parties, and is certainly weak. Labor’s Senator Robert Ray said in 2006, “Membership fees contribute barely 5% of total Labor Party expenditure in any one year.”58 The rest comes from public funding for elections and donations from individuals, corporations and unions. The Australian Bureau of Statistics estimates party membership at about 1.3% of adult Australians, although parties themselves are secretive on this point.59 We know, however, that a Liberal Party review in Victoria put state membership at 13,000 in 2003, which was a little over 1.3% % of the 985,680 votes cast for Liberals in the federal election in Victoria the previous year. The intensity of party identification has also declined, and the electorate appears to be more volatile than in the past. Many voters are less likely to vote for the same party in every election than they once were, and they are more likely to vote for a minor party. The ALP, in particular, was hurt by a decline in the relative proportion of blue collar industrial jobs in the Australian economy, by cuts in 58 Senator Robert Ray, “Are Factions Killing the Labor Party?” Address to the Sydney Fabian Society, 20 September 2006. 59 Norman Abjorenson, “The parties’ democratic deficit”, Inside Story, 10 February 2010.

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the public sector workforce, and by a decline in union membership, all of which were highly correlated with support for the party. Labor even saw an erosion to the Coalition of some of its traditional blue collar support, particularly amongst the self-employed and the least well educated in the workforce, and it saw many managers and professionals cross to the Australian Democrats and the Greens. The major Australian parties were once class-based but Goot and Watson note that the Coalition and Labor now have occupational bases that are increasingly similar.60 We should also note that parties are less differentiated by ideology than hitherto, with the Labor Party, in particular, moving away from policies rooted in working class interests towards pragmatic problem solving. Robert Ray notes, “It is often difficult to inspire passion from such a pragmatic approach, yet it reflects an Australian society that marginalizes ideological imperatives.”61 In this political environment, in which parties have become less differentiated and loyalties less intense, parties in Government use armies of media and public relations officials to project an air of authority and competence whilst parties in opposition struggle with much fewer resources to impress voters that they are better qualified to form the Government. Approaching the tenth anniversary of the Howard Coalition’s 1996 election victory, Paul Kelly wrote, For the Liberal and Labor parties the prize of executive power has never been more so alluring. The major parties are weak, beset by falling membership, decline of voter loyalty and ideological confusions. In Opposition these weaknesses are crippling, witness the demoralization of the Liberals over 1983–96 and of Labor since 1996...Without executive power, they look non-viable. In government, weakness becomes strength, demoralization becomes empowerment and a modest leader becomes a giant killer.62

The weakness of parties in opposition is evident in their dramatic decline on leaving government. After 1995 Labor took power in New South Wales, Queensland, South Australia, Victoria, Western Australia and the Northern Territory, in each case very narrowly at first. In Queensland, South Australia, 60 Murray Goot and Ian Watson, “Explaining Howard’s Success: Social Structure, Issue Agendas and Party Support, 1993–2004, Australian Journal of Political Science, v. 42, no. 2, June 2007, p. 269. 61 Ray, “Are Factions Killing the Labor Party?” 62 Kelly, “Re-thinking Australian Governance”, p. 9.

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and Victoria it lacked single party majorities and it had a majority of only one in the Northern Territory. But its opponents quickly collapsed and Labor won re-election in landslides in Queensland, South Australia, Victoria, and the Northern Territory. The Coalition only began to edge back into power in the states in Western Australia, in 2008. Another sign of disarray in opposition parties is the turnover of leaders as the parties search frantically for someone who can lead the party to victory in an election. The federal Liberal Party had six changes of leader between its election defeat in 1983 and John Howard’s selection in 1995, with Howard and Andrew Peacock serving two terms each. After the Coalition was defeated in November 2007, Howard resigned and Brendon Nelson became leader, but he was ousted by Malcolm Turnbull in a caucus vote in September 2008. Then Turnbull was defeated in caucus in 2009 by Tony Abbot. Neither Nelson nor Turnbull was given time to lead his party into a single general election. On the Labor side, between its defeat in the 1996 election and its return to power in 2007, the federal Labor Party had five changes of leader, with Kim Beazley elected twice. In 2010, Kevin Rudd became the first federal Prime Minister since Billy Hughes, in 1916, to have won one general election and then been denied the opportunity to lead his party at the subsequent election.63 After it lost the 2007 state general election, the New South Wales Liberal Party selected its fifth leader since it lost office in 1995. Parties are still essential to parliamentary government but they are clearly operating in a volatile environment which is very hard on leaders.

63 Paul Williams, “House Divided: The Australian General Election of 21 August 2010”, Australian Journal of Political Science, Research Note, v. 46, no. 2, 2011, p. 313.

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The Prime Minister

The fourth characteristic of the internal variant of the parliamentary model of government outlined in this book is the predominance of the Prime Minister in the executive. This is the outcome of three characteristics of the model that we have already considered: fusion, which requires ministers to sit in Parliament, majority government, which requires the Government to have the support of a majority in Parliament, and disciplined political parties, which exist to win elections and support governments. These three characteristics determine that the party leader in Parliament who can command the support of a majority will be named Prime Minister. By convention, not law, the majority that counts in Australia’s six bi-cameral systems is in the lower house. Chapter 7 will make the argument that Australia has Cabinet government, with a strong collective component to the executive, but the Prime Minister is unquestionably predominant in the Cabinet and that is the subject of this chapter. As we noted in Chapter 1, the heads of government in parliamentary systems have a number of titles, including three in Australia: federal Prime Minister, state Premier and territory Chief Executive. The term Prime Minister will be used as generic unless there is a convenient reason for doing otherwise.

The Office of Prime Minister Modern parliamentary constitutions establish the Prime Minister as head of the Government, but in Australia the office is formally established only in New South Wales and Queensland, in both cases by constitutional amendment, and in the ACT. Section 35E of the New South Wales Constitution and Section 42 of the Queensland Constitution require the Governor to appoint a Premier, and Section 40.1 of the ACT Constitution requires the Assembly to elect a Chief

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Minister from its members. The South Australian and Victorian constitutions both recognize the office of Premier without creating it. Section 67A.1a in South Australia provides that a Parliamentary Secretary to the Premier may be appointed. In Victoria, Sections 8A and 65E.2 deal with the dissolution of the Assembly should the Premier lose a vote of confidence, and Section 87E recognizes that the Premier advises the Governor in all matters that do not require a decision “in Council”. But in neither South Australia nor Victoria is the office of Premier actually created or defined by the Constitution, and in much of Australia the head of the Government is not even mentioned in a constitution. It exists by convention. By contrast, many modern parliamentary constitutions not only require that there be a Prime Minister, they also require that the office be filled by the lower house in some kind of vote. Article 67 of Japan’s Constitution, for example, states, “The Prime Minister shall be designated from among the members of the Diet by a resolution of the Diet.” In Australia only the ACT requires the head of Government, the Chief Minister, to be elected by a vote of the Assembly. In a number of countries, the formerly British colonies in the Caribbean, for example, the Prime Minister is not elected but constitutions require the head of state to appoint a person who, in his judgment, has the support of a majority in the lower house. There is no provision of this kind anywhere in Australia, but it actually describes the convention everywhere but in the ACT. The predominance of the Prime Minister in the executive is explicit in many foreign constitutions, too, but again, not in Australia. In Japan, for example, Article 66 states “The Cabinet shall consist of the Prime Minister, who shall be its head, and other Ministers of State.” Article 95 in Italy states that the Prime Minister “directs and coordinates the activity of the ministers”. In the ACT, the Chief Minister is constitutionally responsible for appointing other members of the Government, and in Victoria the Premier advises the Governor. But no Australian parliamentary constitution spells out what the Prime Minister does in substantial detail. There is nothing like Article 98 of the Spanish Constitution, which authorizes the President of the Government (the Prime Minister) to direct the actions of the Government and coordinate the functions of other members, or Article 99, which requires the King’s nominee for Prime Minster to present his political program to the House of Representatives before asking for its confidence and nominating ministers. In Australia, the Prime Minister

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predominates in the Government de facto, not by law, because he or she uniquely has access to a number of sources of power.

The Prime Minister as Party Leader The first of source of prime ministerial power is the role of party leader. In Britain, if the party leadership is contested, the outcome is decided by a national ballot of party members but Australian Prime Ministers are selected by a caucus of party members in Parliament. As leader, the party leader can ordinarily expect loyalty and deference from party members, has a major influence on party policy, and is responsible for the party’s election program and campaign strategy. Leading a party may require sophisticated management. The ALP, for example, is a factionalized party which requires the leader to tread warily. Furthermore, as Glyn Davis points out, “Australian parties are not nationally based, but rather are aggregations of powerful state and territory branches” which may have different interests and agendas than their Commonwealth partners.1 Bob Hawke’s federal Labor Government clashed with the Western Australian Labor Government over native land rights in the 1980s, for example.2 In 2010 Prime Minister Kevin Rudd’s Labor Government clashed with the Victorian Labor Premier, John Brumby, over a proposal to federalize a large portion of state hospital costs, and in 2010 Julia Gillard’s Labor Government clashed with the New South Wales Labor Premier, Kristina Keneally, over federal labour regulations. There is, of course, a downside to the Prime Minister’s role as party leader in Australia. The President of the United States is elected in a countrywide poll for a fixed term, but an Australian Prime Minister is elected to represent one parliamentary seat and is Prime Minister by virtue of having won the leadership in a party caucus vote, which can be reversed. If it is, the Prime Minister must resign without reference to the electorate or Parliament because he cannot be said to have the confidence of the lower house if his own party will not support him. In 1971 the federal Prime Minister, John Gorton, found that his reelection as Liberal leader depended on his own vote in caucus, and he resigned. In 1991, the Labor Prime Minister, Bob Hawke, lost a leadership vote in the Labor caucus, and in 2010 Kevin Rudd resigned rather than face a caucus vote 1 2

Glyn Davis, “Prime ministers and Parties”, in Patrick Weller, ed., Menzies to Keating: The Development of the Australian Prime Ministership, London: Hurst, 1993, p. 67. Ronald T. Libby, Hawke’s Law: The Politics of Mining and Aboriginal Land Rights in Australia, Nedlands, University of Western Australia Press, 1990, passim.

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that he knew he would lose. One finds similar incidents in the states. The South Australian Premier, Dean Brown, lost a leadership vote in the state Liberal caucus in 1996. In 2008 Premier Morris Iemma of New South Wales resigned when the Labor caucus rejected his choice of ministers in a Government reshuffle, and fifteen months later his successor, Nathan Rees, was defeated in a caucus vote by Kristina Keneally. An exception to the rule that a Prime Minister rejected by his own party must resign was Billy Hughes, who left the Labor Party during the conscription crisis of 1916. He formed the National Labor Party with a number of Labor MPs, and remained federal Prime Minister with support from the Liberal Party. This arrangement was converted into the new Nationalist Party in 1917 which Hughes led as Prime Minister until 1923, but very few prime ministers deposed by their own parties can expect to collect sufficient support from the opposition to stay in office. Removing a prime minister from office in a party caucus focuses attention on the Government’s disarray, but it happens with some frequency in Australia, and there is parallel activity on the opposition side because, as Glyn Davis writes, “All in the party fear the barrenness of opposition.”3 In an often desperate quest for a leader who can bring an election victory, Australian opposition parties have become even more ruthless than governing parties in dismissing leaders regarded as electoral liabilities. As we saw in Chapter 5, the New South Wales Liberals changed their leader five times between 1996 and 2010, during a long period of Labor Government. In recent years the trend has been for federal opposition party leaders to resign after leading the party in a single election defeat, including the Liberals Andrew Peacock, John Howard, and John Hewson during the years of Labor government between 1983 and 1996, and the Labor leader, Mark Latham, in 2005. The very narrow margin of Labor’s victory in 2010 has enabled Tony Abbott to remain as Liberal leader, for a time, at least, but some opposition leaders have been dropped even before leading their parties in single election, including the Liberals, Alexander Downer in 1995, Brendan Nelson in 2008, and Malcolm Turnbull in 2009, and Labor’s Simon Crean in 2003. Having led the Labor party into two election defeats, Kim Beazley resigned in 2001, but having returned to the leadership in January 2005, he was forced out by Kevin Rudd in a caucus election in December 2006 before facing another 3

Davis, “Prime ministers and Parties”, p. 68.

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election. Whether in government or opposition, parties are clearly anxious to have articulate and popular leaders who can perform well in Parliament and the media, and they abandon those who appear ineffective. The Prime Minister’s reputation is extremely important to the party and its prospects, and is not left to chance. The Prime Minister has a media team whose job is to burnish his image.4 Some other ministers may have high profiles, because of the significance of their portfolios, the Minister for Foreign Affairs, for example, or the Treasurer, but the Prime Minister and his counterpart in the Opposition are always the centre of media attention, particularly during election campaigns. Before the 2007 federal election, John Howard insisted, “This is not a presidential race – they vote for a team”,5 but Australian party machines and media both deny this by their behaviour. They present elections as contests between party leaders for the top job, with other ministers and candidates as the supporting cast. It was no accident, for example, that every Labor party advertisement in the South Australian state election of 2006 featured the party leader, Premier Mike Rann, whose poll ratings were high.

The Prime Minister and Government Formation The second source of a Prime Minister’s power is his role in government formation. The Prime Minister forms the Government and defines each minister’s responsibilities. In many countries this responsibility is laid out in the Constitution, as it is in Section 41.1 of the ACT Constitution, but it is constitutional convention elsewhere in Australia, with a significant qualification. In the ALP ministers are generally selected by the parliamentary Labor caucus, and are then allocated portfolios by the Prime Minister, who shapes the Government in that way. Kevin Rudd challenged this when he became federal Prime Minister in 2007 by announcing the names of his prospective Deputy Prime Minister, Treasurer and Finance Minister months before the election, and he was the first federal Labor Prime Minister to select the Government himself, although ministers were not announced until after the first caucus meeting of the new Parliament.6 Julia Gillard also formed her Labor Government without first going to the caucus in 2010. Nonetheless, even a Labor Prime Minister who accepts caucus nominees always decides who serves in what capacity. 4 See Clem Lloyd, “Prime Ministers and the Media,” in Weller, Menzies to Keating, pp. 109–37. 5 Sydney Morning Herald, 14 September 2007. 6 Sydney Morning Herald, 27 and 29 November 2007.

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The Prime Minister’s appointment power actually goes farther than ministerial appointees. The Commonwealth Cabinet handbook says, “In the case of significant government appointments, ministers must write to the Prime Minister seeking his, or at his discretion, Cabinet’s approval of the appointment.”7 In fact, all important public appointments are approved through the Prime Minister’s office at the federal, state and territory levels in Australia. Responsibility for forming, or at least shaping, the Government gives the Prime Minister an enormous patronage power because a successful political career in a parliamentary system lies in the Government, not in Parliament. In the USA, the Speaker of the House of Representatives is third in line to the President, and the leaders of each house and the chairs of congressional committees can all have very influential political careers without serving in the executive, but this is rarely the case in a parliamentary system where the Government controls the legislative initiative and the parliamentary schedule, and where committees are much weaker than in the USA. Members of Parliament who wish to influence policy must serve in the Government and they know that the party leader, ultimately the Prime Minister, is the gatekeeper to appointments. The Prime Minister’s power to pick the Government is circumscribed in several ways, however. As we have seen, the caucus usually plays a role in the ALP, and in all the major parties some senior party members may be sufficiently influential to command places in the Government, and even particular departments. Alexander Downer, the Coalition Foreign Minister, and Peter Costello, the Coalition Treasurer, for example, were both in this position for the whole of the Howard Coalition, from 1996 to 2007. The Prime Minister’s power to pick the government is also circumscribed by the pool of potential ministers. Unlike parliamentary countries with external executives, such as the Netherlands, where non-parliamentarians serve as ministers and the pool of potential appointees is large, all countries with internal executives limit at least a majority of ministerial positions to members of Parliament. By convention in Australia, ministers are also mostly drawn from the lower house, which is always relatively small, and then to members on the Government side, which further limits the pool dramatically. The Commonwealth House of Representatives has 150 members, and assemblies in the states and territories range from a high of 93 in New South Wales to 7

Australia, Department of Prime Minister and Cabinet, Cabinet Handbook, 6th. ed., 2009, p. 19.

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just 17 in the ACT. In addition, the Prime Minister is often obliged to balance geographic and faction interests, which further restricts choice. The Prime Minister is particularly constrained if he leads a coalition or loose coalition government with partners who are able to command a number of ministerial positions. In federal Coalition governments, for example, National Party ministers typically head departments dealing with matters of particular importance to country and regional Australia. The Prime Minister not only forms, or at least shapes, the Government, he determines each minister’s longevity, too. If the Prime Minister resigns or dies, the whole government goes with him, to be replaced or reappointed. Even if the Government wins re-election, the practice, by law in the ACT and by convention elsewhere, is for the Prime Minister to form a new government, which provides an opportunity for government reconstruction. When Paul Keating succeeded Bob Hawke as Labor Prime Minister in 1991, half of his ministers changed departments, although no minister lost his place in the Government.8 Prime Ministers also may shuffle their governments between elections, moving ministers to new departments, promoting some from the back benches, and dropping others whose careers are coming to an end or whose performance has been lacklustre. Section 41.3 of the ACT Constitution allows the Chief Minister to dismiss a minister at any time but the custom elsewhere in Australia is for the Prime Minister to request ministers to resign, which they invariably do. They know, of course, that by law they serve at the pleasure of the head of state and can be dismissed on the advice of the Prime Minister if they refuse to resign.

The Prime Minister and Government Management The third source of the Prime Minister’s power, by convention everywhere in Australia, is responsibility for managing the Government. The Commonwealth Cabinet Handbook states, “It is for the government of the day, particularly the Prime Minister, to determine the shape and structure of the Cabinet system and how it operates.”9 The Prime Minister chairs the committee that is the Cabinet and some Cabinet committees, appoints Cabinet committees, sets the times and agendas for Cabinet and Cabinet committees, and approves the attendance of non-Cabinet ministers and department officials for particular items of business. 8 9

Neal Blewett, A Cabinet Diary, Adelaide: Wakefield Press, 1999, p. 14. Australia, Department of the Prime Minister and Cabinet, Cabinet Handbook, 6th ed., Canberra, 2009, p. 9.

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Weller writes, “As long as ministers collectively do not object, prime ministers can determine how long a debate will last, who will speak, when enough views have been expressed; they can establish the terms of the discussion …”10 Australian prime ministers generally do not take votes in Cabinet. They sum up the sense of the meeting and Weller points out that prime ministers have tended to weigh votes as much as count them. It is the Prime Minister’s understanding of what has been decided that prevails, but Weller adds that prime ministers generally get their way “because of their sheer weight and quality”.11 Even a Prime Minister like Bob Hawke, who preferred to make decisions by consensus, could get his own way. Susan Ryan, one of his ministers, describes Cabinet meetings in which ministers were given “all the time in the world to argue their case”, but “the meeting would not conclude until the leader’s desired outcome was desired by all present.”12 Every Prime Minister has preferences about how he or she wants to organize the Government. James Walter writes that during Gough Whitlam’s years as Prime Minister, from 1972 to 1975, there was “an attempt to make the prime minister’s office into a driving force in government, not only supporting and advising the prime minister but also overseeing and coordinating the implementation of Labor’s platform across the board.” Subsequent prime ministers have all used this model. Whitlam also introduced over 100 political advisers into ministers’ offices to make policy development and implementation less dependent on the public service and more responsive to the Labor Party, a practice followed by prime ministers ever since. Whitlam’s political advisers brought with them networks of contacts that, Walter writes, allowed them “to reach out into the party, academia, the media and politically active parts of the community in a way never open to the public service ... .”13 Between 1983 and 1996 the number of political advisers to Labor federal ministers grew from 207 to 356, and between 1996 and 2006 John Howard raised the number to 446. Stewart and Maley conclude that ministerial advisers were important in Howard’s reconfiguration of policy-making which, by integrating the parliamentary party, the Cabinet, ministerial advisers, the public service, and right-leaning lobbyists and think 10 Patrick Weller, “Prime Ministers and Cabinet,” in Weller, ed., Menzies to Keating, p. 17. 11 Weller, “Prime Ministers and Cabinet,” p. 19. 12 Susan Ryan, Catching the Waves: Life In and Out of Politics, Sydney: Harper Collins, 1999, p. 216. 13 James Walter, “Prime Ministers and their Staff,” in Patrick Weller, ed., Menzies to Keating: The Development of the Australian Prime Ministership, London: Hurst, 1993, p. 49.

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tanks into a distinctive policy network, enabled Howard to move public policy in new directions, in federal tax policy and industrial relations, for example.14 All Prime Ministers are advised by a group of senior and trusted ministers and officials, but Malcolm Fraser formalized this as the Cabinet Coordination Committee, which was a sounding board for ideas and proposals.15 Bob Hawke chose to cluster his ministers into teams operating under the direction of five “mega-ministers”. John Howard appointed a Parliamentary Secretary to the Cabinet for the first time, and created a Cabinet Policy Unit (CPU) and a Cabinet Implementation Unit, both of which reported to him. The Secretary to the federal Cabinet was simultaneously head of the CPU, which decided the “strategic or political importance” of issues raised for Cabinet. The CPU reviewed ministers’ submissions to Cabinet to determine which required detailed consideration by the full Cabinet. Stewart and Maley believe that “new resources at the apex of government and the [Howard] reforms to the cabinet process enabled careful political management of policy change to be under firm central control ... .”16 Anne Tiernan notes that Australian Prime Ministers since Whitlam have all followed the example of heads of government in other developed countries in constructing management systems that allow them to oversee the strategic direction of the government, develop policy initiatives of their own, monitor or shadow what is going on in any government department, participate in all major appointments, and deal with the press.17 Not least, the Prime Minister has the resources to be the best briefed member of the Cabinet. Ministers are well briefed on their departments’ affairs but the Prime Minister can be well briefed on any matter coming to Cabinet. Howard’s Department of the Prime Minister and Cabinet, for example, had units dealing with economic and industry policy, social policy, international and national security policy, and support services for government operations, which included the Cabinet Secretariat and the Cabinet Implementation Unit. In 2005–6 Howard’s department led 40

14 Jenny Stewart and Maria Maley, “The Howard Government and Political Management: The Challenge of Policy Activism,” Australian Journal of Political Science, v. 42, No. 2, June 2007, pp. 277–93. 15 Weller, “Prime Ministers and Cabinet,” pp. 13–14. 16 Stewart and Maley, “The Howard Government and Political Management,” p. 290. 17 Anne Tiernan, “Advising Howard: Interpreting Changes in Advisory and Support Structures for the Prime Minister of Australia,” Australian Journal of Public Administration, v. 65, no. 3, 2006, pp. 309–24.

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inter-department working groups and participated in 125 more. It organized a number of task forces to work on the APEC conference of 2007, and on issues such as avian influenza, national competition policy, therapeutic cloning, uranium mining and nuclear energy, human capital and skills, and bio-fuels. In addition, seven government agencies reported to the Prime Minister. These were the Inspector-General of Intelligence and Security, the Inspector General of National Assessments, the Commonwealth Ombudsman, the Secretary to the Governor-General, the Australian National Audit Office, the National Water Commission and the Australian Public Service Commission. Howard was therefore at the heart of Australian domestic and foreign policy as no Prime Minister had been before. No wonder that in June 2006 the Department of the Prime Minister and Cabinet had a staff of 528.18 Annual reports indicate that Howard’s successors have organized the department in similar ways. States and territories have adopted similar, if more modest, management structures. For example, in 2007 New South Wales combined the former Premier’s Department and the Cabinet Office into the Department of Premier and Cabinet, to focus, it said in 2010, on the big Government issues. Whether it’s dealing with major community initiatives or setting the agenda for public sector management, we have a leadership role. The Department provides strategic advice and services to the Premier and Government, drives the State Plan, manages state-wide issues and projects, drafts and publishes legislation, manages public sector staff and resources and ensures a whole-of-government approach ... . We undertake sector wide activities that must be located centrally like disaster management. We coordinate improvements in infrastructure delivery, particularly major projects and industry and business development. We manage workforce reforms and employee relations. We provide services essential to support the machinery of government like ministerial services, parliamentary counsel, cabinet secretariat and policy support.19

Even a small state like Tasmania has a Department of Premier and Cabinet with multiple responsibilities which, in 2010, included climate change, social inclusion, community development, public sector management, government 18 Australia, Department of Prime Minister and Cabinet, Annual Report 2005–6, pp. 4, 8, 10. 19 New South Wales, Department of Premier and Cabinet, 2010.

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information, and more. Its policy division provides advice to the Premier and Cabinet on the social, economic and environmental opportunities and risks facing Tasmania, on proposals submitted to Cabinet, on issues of high importance to the Premier, on the coordination of state and national issues, and on matters involving multiple Tasmanian departments.20 In the ACT, the Chief Minister’s Department has a responsibility, it said in 2010, to “provide strategic policy advice and support to the Chief Minister and the Government; provide leadership and direction in policy development, facilitate implementation of government priorities and deliver key whole of government projects.”21 Prime Ministers, premiers and chief ministers therefore preside over complex departments and clearly have the means to be formidable, even intimidating, operators, but they can make enemies in caucus if they lead badly or insensitively. One biographer writes that Robert Menzies “was not a loved leader: he was feared. He was a one man band, wanting to control everything that went on around him.”22 In 1941 he was forced to resign. Malcolm Fraser, a minister in John Gorton’s Cabinet from 1967 to 1971, said that Gorton had “a dangerous reluctance to consult Cabinet, and an obstinate determination to get his own way.”23 Gorton, too, was forced to resign, as was Labor’s Bob Hawke in 1991. He had a style that colleagues found irritatingly time-consuming.24 And Kevin Rudd was forced to resign in 2010. In the Sydney Morning Herald of 24 June 2010, Peter Hartcher noted that Rudd was brought down by more than a decline in opinion polls and opposition to some of his policies. “It was anger at Rudd’s high-handed leadership style, anger at his dismissive treatment of some of his colleagues, anger at his secretive and centralised decision-making, that drove a handful of key agitators to start the revolt.” Finally, Mike Rann, the leader of the South Australian Labor Party for 17 years and state premier for nine, was forced by both the right and left factions in Parliament to resign prematurely in October 2011. His personal popularity was at a low and Labor was running behind the Liberal opposition in polls at the time.25

20 Tasmania, Department of Premier and Cabinet, 2010. 21 Australian Capital Territory, Chief Minister’s Department, 2010. 22 John Craig, Australian Politics: A Source Book for Students, Sydney: Harcourt, Brace, Jovanovich, 1991, p. 133. 23 Craig, Australian Politics, p. 148. 24 Walter, “Prime Ministers and their Staff,” pp. 28–63. 25 See, for example, Adelaide Advertiser, 1 and 15 August, 2011; Sunday Mail, 23 October 2011.

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Prime Ministers are clearly not omnipotent. They can be brought down by their erstwhile supporters, and at the best of times they need Cabinet colleagues to share the load and carry out Cabinet decisions. Furthermore, the more determined and experienced a Cabinet minister is the more he will be able to imprint his own policies on the Government. This is particularly true of the Treasurer, who is always a very senior politician. Paul Keating’s biographer writes: [I]n a Cabinet government of the kind that Australia has, a Prime Minister cannot lead a strong, intelligent Treasurer for very long. Key decisions need to be made or at least endorsed by the Cabinet as a whole, which means the Prime Minister cannot simply tell the Treasurer what to do. The Prime Minister has many other demands on his attention, so after a while the Treasurer has a much better grasp of the state of the economy, the agenda of policy and the attitudes of the various players in the policy game. The longer the Treasurer is in office, the stronger will be his command over economic policy.26

The Prime Minister’s “Advice” to the Head of State All Australian prime ministers except the ACT Chief Minister have a source of power which one finds in formerly British parliamentary systems where executive powers are vested in a head of state and the Prime Minister and Government operate in the realm of constitutional conventions. The ACT does not have a local head of state but everywhere else in Australia the formal executive is the Queen’s representative, the Governor or Governor-General, or the Commonwealth Administrator in the Northern Territory. Heads of state all have substantial constitutional powers which can include the appointment of judges and public officials, summoning, proroguing and dissolving parliament, assenting to bills, and, at the federal level, conducting foreign relations and war. But since the introduction of colonial self-government in the 1850s Australian heads of state have ordinarily used their powers on the advice of ministers, tendered formally in the Executive Council or by the Prime Minister alone. One piece of advice, in particular, that the Prime Minister alone gives the head of state is when to dissolve the lower house of Parliament and call an election. Most Australian governments serve for full parliamentary terms, or close to 26 Edwards, Keating, p. 250.

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them, because Australian parliamentary terms are relatively short, but Robert Menzies called elections early by a year or more in 1951, 1955 and 1963, Malcolm Fraser called an election early by a year in 1977 and by six months in 1983, and Bob Hawke called a federal election a year and seven months early in 1984. In the states, too, there have been early elections. Jaensch points to four in South Australia in the 1970s.27 The Commonwealth Prime Minister can also threaten recalcitrant senators that if they reject the Government’s bills he will advise the Governor-General to call a double dissolution under Section 57, when the whole of the Senate is elected. John Uhr notes that Menzies perfected the use of the “threatened election” by orchestrating legislative conflicts with the Senate that he could use as the basis for threatening double dissolutions, and Bob Hawke built a backlog of government bills defeated in the Senate. But a double dissolution is usually an empty threat. There have been only six since federation, and their record of securing passage of the Government’s bills is very poor.28 There is no evidence that prime ministers have consistently abused early dissolutions in Australia. It could still happen but the power to dissolve the lower house and hold elections does not exist in the ACT and has been curtailed in Victoria, South Australia, and New South Wales by constitutional amendments. In these states an early dissolution is only available now to a Premier who has lost a vote of confidence in the lower house, or has been denied important legislation by the upper house, including money bills. The expectation in these states is that Parliament will serve a full term. In the ACT a Chief Minister has no power to dissolve the Legislative Assembly for any reason. If a Chief Minister resigns or dies during an Assembly term the ACT Constitution requires that he or she be replaced by a vote of the Assembly, and only if the Assembly is unable to elect a successor within 30 days may an early election be called by the Governor-General, which has never happened.29 One final, and rather sobering, observation about the relationship between the head of government and the head of state is that, with the exception of the ACT Chief Minister, every Prime Minister in Australia may be dismissed by a head of state and every head of state may be removed by the Queen on the 27 Jaensch, Power Politics, p. 107. 28 Jack Richardson, Resolving Deadlocks in the Australian Parliament, Australia, Parliamentary Library, Research Paper 9, 2000–1, passim. 29 ACT (Self–Government) Act, Sec. 48.2.B.

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advice of a Prime Minister. Section 34 of the Queensland Constitution states, for example, “Ministers hold office at the pleasure of the Governor who, in the exercise of the Governor’s power to appoint and dismiss the Ministers, is not subject to direction by any person and is not limited as to the Governor’s sources of advice.” The power of a head of state to dismiss a Prime Minister is a so-called “reserve power”, a legal power which, by convention, may only be exercised in extraordinary circumstances, but it has been used in Australia. In 1932 the New South Wales Governor, Sir Philip Game, dismissed Premier Jack Lang, and in 1975 Governor-General Kerr dismissed Prime Minister Gough Whitlam. In the first case, the Governor judged that Lang had acted illegally, and in the second, the Governor-General judged that Whitlam could not secure a supply of money from Parliament. In practice, however, heads of state rarely dismiss prime ministers and prime ministers do not advise the sovereign to dismiss her representatives in Australia.

The Prime Minister and Parliament Finally, the Prime Minister has power by virtue of being a parliamentary leader. The Prime Minister is not personally responsible for managing either house of Parliament because the Government assigns ministers to manage its parliamentary business. Nonetheless, all major Government business, particularly its bills, must be approved by the Prime Minister and Cabinet. Furthermore, the Prime Minister is the most prominent member of Parliament. She comes to Parliament to make statements on behalf of the Government and to answer questions from members in Question Time. In Britain, the Prime Minister is questioned once a week and other ministers appear by rotation on other days, but Question Time in Australian parliaments is a more open affair in that any minister may be questioned on any sitting day, and in practice the Prime Minister receives a high proportion of questions. The Prime Minister’s parliamentary performance has a powerful theatrical element, and whilst this may have little if anything to do with competence in government, it is very important to the Prime Minister’s image and standing in the party and the country. In an age of intense press scrutiny, the Prime Minister must be seen to be in charge of the Government, on top of all issues, and strong and articulate in the face of attacks by the Opposition. If she fails on

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these counts, her poll ratings will suffer and dispirited colleagues will begin to question her capacity to lead.

Conclusion: “Prime Ministerial” or “Presidential” Government? Some people see parliamentary government as essentially “prime ministerial government”, because of the dominance of the Prime Minister. In 1963, a British Cabinet minister and scholar, Richard Crossman, wrote that the period since 1945 had seen “the final transformation of Cabinet Government into Prime Ministerial Government.”30 Paul Kelly, the Australian journalist, also uses the phrase and finds symbolic significance in the fact that the centre of prime ministerial power in Canberra is a particular place, the Parliament building, which houses the Prime Minister and other ministers and their staffs in a restricted zone. Kelly wrote in 2005, The epicentre of Prime Ministerial Government is the house on Capitol Hill, opened in 1988, to house the federal parliament. The building is the triumph of executive power, grander than the White House. [Prime Minister John] Howard arrives and leaves by car from his executive courtyard and has the instruments of his power in proximity – the Parliament, his ministers, his staff, the cabinet unit, 300 journalists and, at the foot of the Hill, the main policy departments whose public service chiefs trek up the Hill to advise and to listen.31

In 2005, Harry Evans, then Clerk of the Commonwealth Senate and a staunch defender of that house against encroachments by the executive, described the Australian Prime Minister as a sort of “elective monarch”.32 One can see where these terms are coming from, but they are exaggerations. The Prime Minister has more power than anyone else in the Cabinet, but as I pointed out earlier in this chapter, and as will become clear in Chapter 7, parliamentary government in Australia is still collective government and the Prime Minister is vulnerable to losing the support of the lower house of Parliament or the support of colleagues in the Cabinet or party caucus. 30 Walter Bagehot, The English Constitution, ed. by Richard Crossman, Ithaca, New York: Cornell University Press, 1963, pp. 51–53. 31 Paul Kelly, “Re–thinking Australian Governance – The Howard Legacy,” Australian Journal of Public Administration, v. 65, no. 1, 2006, pp. 8–9. 32 Sydney Morning Herald, 21 June 2005.

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One also hears that prime ministers are “presidents”, with the US presidency in mind, but this, too, is an exaggeration. It misrepresents both prime ministers and presidents. In the U.S.A., the constitution identifies the President as chief executive and commander-in-chief, and everyone who works for the government ultimately works for him. In fact, every member of the American Cabinet accepts a responsibility to implement the President’s policies. Some prime ministers may aspire to this kind of power, but Australian Cabinet ministers do not claim, or claim in public, to be carrying out the policies of the Prime Minister. They profess to be carrying out the decisions of Cabinet, a perspective that has no parallel in the United States where the Cabinet has no decision-making role. It took President Obama three months to call his first Cabinet meeting after he took office in 2009, and it was a media event. No decisions were taken. By contrast, Australian cabinets meet almost every week to take decisions, and were the Prime Minister to ignore the Cabinet or lead it badly he would pay a price in caucus. John Hart correctly observes, “The necessity to maintain the support of party colleagues does constrain what prime ministers can do, and prevents them being presidential or imperial.”33 Most importantly, prime ministers can be removed from office, as presidents cannot. The President has a fixed term of office but the Prime Minister must resign if he or she loses the support of a majority in the lower house. This is rare but it happened in 1941, when the federal Prime Minister, Arthur Fadden, lost his majority in the House of Representatives, and it happened in 2000 when the ACT Chief Minister, Kate Carnell, lost her majority in the ACT Legislative Assembly. And as we saw earlier in this chapter, more commonly the Prime Minister has been forced to resign by a party caucus. In some ways U.S. presidents are more powerful than prime ministers, but there are ways in which presidents might envy prime ministers. The American President may only serve two terms but there is no term limit on Australian prime ministers. Tom Playford, the Premier of South Australia, led his party to nine election victories in a row between 1938 and 1965. Robert Menzies won six elections between 1949 and 1963, and John Howard won four between 1996 and 2007. Furthermore, every president would dearly love to be a prime minister if this meant he controlled the royal prerogative and had the influence .

33 John Hart, “An Australian President? A Comparative Perspective,” in Patrick Weller, ed., Menzies to Keating: The Development of the Australian Prime Ministership, London: Hurst, 1993, p. 195.

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over legislation that prime ministers typically have because of their majorities in the lower house and their control of the legislative initiative. US Presidents have to work very hard with Congress to pass important bills, even when their own parties have majorities in both houses. In addition, American legislatures initiate many of their own bills and have no hesitation in thoroughly amending proposals submitted by the President. In fact, presidents now suggest the outlines of many pieces of legislation and leave it to congressional committees to write the bills. Prime ministers also have much greater freedom to rearrange the public service and create, consolidate or abolish government departments than do American presidents, who face fierce opposition from Congress, the bureaucracy and client interest groups at any hint of reorganization. Every US government department or agency is authorized by an act of Congress that is not easily undone. Every Republican candidate for President since Reagan in 1980 has vowed to abolish the U.S. Department of Education, but it still lives. In Australia government reorganization is an executive act. Indeed, almost every change of government is followed by some substantial rearrangement of the bureaucracy, as when Fraser abolished Whitlam’s departments of Media Affairs and Urban and Regional Development and created a Department of Finance out of Treasury, or when Hawke combined the Departments of Foreign Affairs and Trade into a single department. There were four federal government departments in 1904, 25 in 1956, 16 in 1999, and 17 in 2001, and none of these changes required an act of Parliament.34 Even in foreign and national security policy, which is where American presidents have most asserted themselves over Congress since President Lincoln, Australian prime ministers have a technical advantage because foreign relations, war and treaties are Crown prerogatives in Australia. In the United States foreign relations is an executive function but treaties must be ratified by the Senate and war must be declared by Congress. Presidents have ways of evading both of these rules. For example, the President may use his power as Commander in Chief to commit US forces to war. Nonetheless, presidents send the most important international agreements to the Senate for ratification as treaties and generally seek some kind of endorsement, if not a declaration of war, from Congress for the use of armed force. There are also periodic tussles between the President and

34 Gwynneth Singleton, Don Aitkin, Brian Jinks and John Warhurst, Australian Political Institutions, 7th ed., Melbourne: Pearson, 2003, pp. 205–7.

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Congress over the treaty and war powers that one does not find in Australia. President Obama’s decision to send U.S. warplanes to bomb Libya in 2011, for example, was contested by both Republicans and Democrats in Congress as an abuse of power. There is no constitutional template for the job of Prime Minister in Australia and incumbents have always been able to shape it to a degree to suit themselves. What we see is that they have acquired staff and created management structures that permit them to act much more energetically than in the past, and with a variety of roles. They oversee the strategic direction of the government, develop policy initiatives of their own, monitor or shadow what is happening in any department, participate in all major appointments, advise the head of state, represent the Government in Parliament and with foreign governments, and deal with the press. Whether all of this is peculiarly presidential behaviour is largely irrelevant. What we know is that prime ministers predominate in the executive in all parliamentary systems, and they have substantially reinforced this predominance in the past half century, though not to the degree that Cabinet government has been extinguished.

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The effective executive in Australia is not the head of state but the Prime Minister and Cabinet, although only the ACT Constitution makes this clear. We have already discussed the dominance of the Prime Minister in the Australian executive, but this chapter will concentrate on the degree to which that dominance is constrained by the Cabinet. It will argue that parliamentary government in Australia is both prime ministerial and cabinet government. The fifth characteristic of the parliamentary model laid out in Chapter 1 is, therefore, that parliamentary government is Cabinet government, or government by a committee of Parliament chaired by the Prime Minister. Like all executives, they operate within a network of advisors and bodies that contribute to policy making and implementation, but the focus here is on the distinctive Cabinet of parliamentary systems.

The Origins of Cabinet Government The Cabinet was the name given to the room in which the British monarch met with ministers early in the eighteenth century but it came to be associated with ministers as an executive committee when they began to meet independently under the chairmanship of the politician generally acknowledged to have been the first Prime Minister, Sir Robert Walpole, from 1721 to 1742. The Cabinet grew in identity and importance in the eighteenth century largely because the English Bill of Rights of 1689 had affirmed Parliament’s right to vote on legislation, including the supply of money to the Crown. This meant that to secure legislation the monarch had to appoint ministers who were acceptable to Parliament, and particularly to the House of Commons whose members effectively controlled the

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supply of money. Until Victoria became Queen in 1837, the monarch could decide whom to appoint as Prime Minister, provided that person was acceptable to the House of Commons, but in 1841 the Prime Minister, Lord Melbourne, persuaded Victoria that the choice was no longer hers to make. Henceforward, the Prime Minister would be the leader of the party with a majority in the House of Commons even if, until Lord Salisbury resigned as Prime Minister in 1902, that leader might sit in the House of Lords. Supporters of the Prime Minister in Parliament became ministers, sitting in Cabinet, and took control of the departments of state. The Australian colonies attained self-government in the 1850s just as the roles of the Prime Minister and Cabinet were maturing in Britain, but neither was written into a colonial constitution. It was the New South Wales official Gazette, not the Constitution, that first used the title “Cabinet” in that colony, in 1856, and recognized the “Principle Secretary of Government and Premier” as the first minister in order of precedence.1 Most modern constitutions identify the Prime Minister and Cabinet explicitly. Articles 65 to 67 of Japan’s Constitution, for example, state that executive power is vested in a Cabinet consisting of the Prime Minister, elected by the lower house, and other ministers provided for by law, and the Cabinet is collectively responsible to the Diet for the exercise of executive powers. In Australia only two constitutions authorize the Cabinet explicitly, both quite recent ones. The Australian Capital Territory (Self Government) Act of 1988 created the ACT Executive, a Cabinet by another name, composed of a Chief Minister and other ministers,2 and the new Queensland Constitution of 2001 authorized a Cabinet by that name specifically for the first time in Australia, with a maximum of 19 full ministers.3 The Tasmanian Constitution authorizes an MP to serve as “Secretary to the Cabinet”, but the Cabinet exists there, as in the rest of Australia, by constitutional convention. In the words of the Commonwealth Cabinet Handbook, the federal Cabinet is a product of convention and practice: it is not mentioned in the Australian Constitution, and its establishment and procedures are not the subject of any legislation. It is for the government of the day, and in particular 1 2 3

Clune and Turner, The Premiers of New South Wales, v. 1, p.v. ACT (Self-Government) Act 1988, Secs. 36, 39, 41. Queensland Constitution 2001, Secs. 42.1, 43.4.

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the Prime Minister, to determine the shape and structure of the Cabinet system and how it is to operate.4

Cabinet and Government In this book a distinction is made between the Government and the Cabinet. The Government, or as the Commonwealth Government website describes it, the Government Ministry, is composed of all ministers who hold office under a Prime Minister. In small parliamentary systems, including the territories and most states in Australia, the Government may have the same membership as the Cabinet but in larger systems the Cabinet is a sub-set of the Government, composed of senior ministers. In Australia, the federal Government includes Cabinet ministers, non-Cabinet ministers, and parliamentary secretaries, who are assistant ministers. In September 2010 Julia Gillard appointed 19 ministers to her Cabinet, 10 non-Cabinet ministers, who were considered members of the “outer ministry,” and 11 parliamentary secretaries.5 Non-Cabinet ministers and parliamentary secretaries attend Cabinet meetings at the Prime Minister’s invitation but the full Government meets rarely, only between three and six times a year in the period 2004 to 2009, whereas the Cabinet met between 26 and 33 times a year under John Howard and 44 times in the 2008–9 parliamentary year under Kevin Rudd.6 In the states and territories every full minister sits in Cabinet and there are very few parliamentary secretaries. We should note that all the state and territory governments in Australia have fewer ministers than there are government departments so most ministers have more than one portfolio. Premiers and Chief Ministers, for example, often take additional responsibility for particularly important departments, such as finance and economic development, and/or “good news” departments, such as the arts or tourism which can give them favourable exposure at little risk. In 2009, the Chief Minister of the ACT, John Stanhope, headed five additional departments and in 2011 his successor, Katy Gallagher, headed three, but one of her ministers, Joy Burch, headed six. In 2011, the Chief Minister of the Northern Territory, Paul Henderson, headed four additional departments. However, few federal ministers have multiple portfolios. Only one of Julia Gillard’s Cabinet members 4

Australia, Department of the Prime Minister and Cabinet, Cabinet Handbook, 6th ed., Canberra, 2009, p. 1. 5 Sydney Morning Herald, 3 December 2007. 6 Australia, Department of Prime Minister and Cabinet, Annual Report, 2008–9, p. 83.

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directed more than one department, Simon Crean, the Minister for Regional Australia, Regional Development and Local Government, and the Arts.

Cabinet and the Executive Council A distinction between the Cabinet and the Executive Council also has to be made in Australia. Before colonial self-government arrived in the 1850s every Australian colony had an Executive Council modeled on the British Privy Council and composed of senior colonial officials, such as the Colonial Secretary and Treasurer. Its job was to advise the Governor in the administration of the colony. These councils were re-authorized in the colonial constitutions or were continued under the royal prerogative without constitutional re-authorization. When the Commonwealth and the Northern Territory were created, each was assigned an Executive Council by its constitution. The ACT does not have one because it has no local head of state for a council to advise. The role of the Executive Council changed dramatically with self-government in the 1850s because each governor was instructed from London to replace the senior colonial servants in his Council with ministers drawn from Parliament, although this was a constitutional requirement only in New South Wales at first, and much later in the Northern Territory and the Commonwealth. In practice, all ministers are sworn in as executive councilors. The first Governor of New South Wales under self-government, William Denison, thought his Executive Council would continue to be the hub of the executive, but he was mistaken.7 New South Wales ministers immediately began to meet as a Cabinet, separately from the Council, with the Premier presiding, and this body became the effective executive. Since then the Executive Council has met to endorse Cabinet decisions that require the head of state’s approval, and in practice very few ministers attend. The quorum in New South Wales, Queensland and South Australia, for example, is only the Governor and two ministers, and it is not even essential for the Governor to attend. If he is absent, a minister chairs the Council. Despite their apparent redundancy, the eight executive councils in Australia, in the Commonwealth, the states and the Northern Territory, meet thirty or more times a year and play an important constitutional role. This is because, except in the ACT, the Cabinet is not the constitutional executive. Its decisions have to be 7

Clune and Turner, The Premiers of New South Wales, v. 1, p. 24.

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authorized by others; by Parliament, by individual ministers using the powers of their departments under law, or by the head of state acting on ministerial advice. The Executive Council is the formal venue for ministerial advice on matters such as the head of state’s assent to bills, proclamations, regulations, ordinances and public appointments. Section 64 of the Commonwealth Constitution, requires, for example, that new government departments must be created by the Governor-General “in council,” and Section 72 requires federal judges to be appointed in the same way. In law, the Council is an advisory body to the head of state who is not obliged to accept its advice, but he or she invariably does. We will return to the Executive Council in Chapter 11.

Cabinet Committees Much of Cabinet’s work is done by Cabinet committees, which the federal Cabinet Handbook described this way in 2009: Committees serve a useful purpose in dealing with the highly sensitive, for example, revenue or security matters; the relatively routine, for example the government’s weekly parliamentary programme; and business that is labour intensive or requiring detailed consideration by a smaller group of ministers, for example, the expenditure review that takes place before the annual budget or oversight of the Australian Government’s … initiatives in relation to climate change or social inclusion.8

In Britain most Cabinet decisions are made by Cabinet committees, without reference to the whole Cabinet, but in Australia, with a few exceptions in national security matters, committees make recommendations to the Cabinet for decision even if there is no Cabinet discussion of an issue.9 Either the Prime Minister or Cabinet as a whole may appoint a Cabinet committee at any time, but certain subject fields continue from government to government. At the federal level these include national security, expenditure review, parliamentary business, and policy priorities. In 2009, Kevin Rudd’s Cabinet had eight committees, of which he chaired three. Two committees were 8 9

Australia, Department of the Prime Minister and Cabinet, Cabinet Handbook, 6th ed., 2009, p. 1. In the Howard Government the Parliamentary Business and National Security committees were exempt from this rule. See Australia, Department of the Prime Minister and Cabinet, Annual Report, 2000–1, “Supporting the Cabinet – Special Report.”

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chaired by the Treasurer, Wayne Swan, one of which, the Expenditure Review Committee, is the most feared by other ministers because it recommends department appropriations. The National Security Committee has the most formidable membership, including the Prime Minister, Deputy Prime Minister, Treasurer, Cabinet Secretary, Minister for Immigration and Citizenship, Attorney General, Minister for Defence and Minister for Foreign Affairs.10 In 2011 Julia Gillard’s Cabinet also had eight committees. She sat on seven and chaired two, on Climate Change and National Security. State cabinets also have committees, sometimes known as Cabinet subcommittees, although they are usually less transparent than their federal counterparts. Section 3.1 of the Queensland Cabinet Handbook states, Cabinet Committees underpin the operation of normal Cabinet by providing a suitable forum, with Cabinet stature, to deliberate on more complex issues requiring dedicated and longer term attention by stakeholder Ministers. The Premier or Cabinet may establish Cabinet Committees as well as determine Committee membership and terms of reference.

The key committee in Queensland is the Cabinet Budget Review Committee, but there, as in other states, most committee titles are not publicised. In April 2005, the Premier of South Australia, Mike Rann, muddied the waters by creating a body called the Cabinet Executive Committee. It was not a Cabinet committee in the accepted sense because Rann appointed three ministers and two lay members, Robert Champion de Crespigny, a businessman, and Monsignor David Cappo, Vicar General of the Catholic Archdiocese of South Australia. The committee oversaw the implementation of the state’s strategic plan.11

Cabinet and Collective Government Unless a parliamentary political system is corrupt, as Queensland arguably was during the premiership of Joh Bjelke-Petersen from 1968 to 1987, the focus of executive decision-making in Australia is the Cabinet as a collective decision-

10 Australia, Government Directory, Cabinet Committees, 2011. 11 Australian Associated Press, 19 April 2005.

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making body.12 This is recognized in two constitutions, Section 37 of the ACT Act 1978, and sections 37 and 42.2 of the Queensland Constitution 2001. The latter states that the “Cabinet is collectively responsible to Parliament.” There is no recognition of collective government in the Commonwealth Constitution but the Cabinet Handbook notes, “The Cabinet itself is the apex of executive government. Meeting regularly, it sets the broad directions of government, takes the most important decisions facing a government and resolves potential conflicts within government.”13 Cabinets operate in secret and their records are closed for many years, so how do we know that they act collectively, and not simply as tools of the Prime Minister? One answer is that all Australian cabinets are highly structured, with regular meetings and elaborate procedures that would be unnecessary in a body that was simply a cipher. This is evident in Cabinet handbooks prepared for the states and Commonwealth. The federal handbook, for example, states, “Attendance at Cabinet meetings takes priority over all other commitments, apart from unavoidable parliamentary or Executive Council commitments.”14 Handbooks describe who should attend Cabinet meetings, how ministers should make submissions, how they should consult and coordinate with each other, how information should be circulated before meetings, the role of Cabinet committees, which ministers should be involved in public appointments, the confidentiality of Cabinet documents and discussions, and conflict of interest procedures for ministers. They also identify matters that should come before Cabinet, or its committees. For example, amongst other matters, the federal Cabinet considers new policies or significant variations to existing programs, proposals likely to affect employment, proposed expenditures, proposed legislation, international treaties, proposals likely to impact relations with other governments, responses to parliamentary reports, and terms of reference for parliamentary committees. Ministers and senior officials also speak and write of the Cabinet as a collective decision-making body. Bill Blick, formerly a senior public servant in the federal Department of Prime Minister and Cabinet, writes,

12 See Rae Wear, Johannes Bjelke-Petersen: The Lord’s Premier, Brisbane: University of Queensland Press, 2002, passim. 13 Australia, Department of Prime Minister and Cabinet, Cabinet Handbook, 6th ed., 2009, p. 1. 14 Australia, Department of Prime Minister and Cabinet, Cabinet Handbook, 6th ed., 2009, p. 8.

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Week after week, year after year, [ministers] participate in discussions across the whole spectrum of government activity. It is genuine debate in which the contribution of an individual can sway the meeting, and change the course of events, and where substance is much more important than style.15

Neal Blewett, who was appointed to the Cabinet Expenditure Review Committee (ERC) in his final year as a Labor minister, in 1994, found power elusive and often informal, but still collective: [A]n explanation of power in terms of institutions is not sufficient. It’s really about the grouping of personalities, the linkage of people. That’s where, in a sense, power lies ... [P]ower often lay outside [the ERC] in the personal interrelationships between key ministers. My conclusion was that it was pretty elusive. Because lots of decisions were made outside that institution which were quite critical. They’d be made in sort of kitchen cabinets, or in private meetings between key ministers, or bargains that would be done outside the committee and then brought to the committee for presentation.16

This describes the Cabinet as more than a committee of ministers. It is really a network of ministers, committees and informal meetings, supported by teams of public servants, all tied together by the leadership of the Prime Minister. The New South Wales Ministerial Handbook confirms this. “[The Cabinet] is a pattern of deliberations – of which the ‘full’ Cabinet meeting is often the culmination – which form the process by which the Government makes decisions on major issues”.17 Describing John Howard’s Cabinet in 2006, Paul Kelly wrote, Howard’s cabinet is tight, secret and collective. ... It is an instrument of collective responsibility and this idea dominates Howard’s executive. In Australia good prime ministers must be good team leaders and simply stamping the prime ministerial foot is conducive neither to good government nor to personal survival.18 15 Bill Blick, “Ministerial Responsibility in Practice: A Commentary”, Australian Journal of Public Administration, v. 58. No. 1, March 1999, p. 59. 16 ABC, The 7.30 Report, 27 July 1999. 17 New South Wales, Department of Premier and Cabinet, Ministerial Handbook, June 2011, p. 9. 18 Paul Kelly, “The Sweetest Anniversary”, Weekend Australian, 25–6 February 2006, p. 24.

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Collective Responsibility Two concepts of “responsibility” are associated with the Cabinet, collective responsibility, mentioned above by Paul Kelly, and ministerial responsibility. These are significant concepts, often described as constitutional conventions, but neither rises to the level of a binding constitutional rule, which is what a convention should be. Section 42.2 of the Queensland Constitution states, “The Cabinet is collectivity responsible to Parliament,” but what does this mean? Collective responsibility is generally understood to mean that members of the Cabinet, and in some countries, including India and Britain, all the members of the Government, are collectively responsible for policies adopted by the Cabinet and must resign if they wish to dissent in public. The Commonwealth Cabinet Handbook describes this as a convention: The convention of collective responsibility of ministers for government decisions is central to the Cabinet system of government. Cabinet minutes reflect collective conclusions and are binding on Cabinet ministers as government policy. ... This applies also to non-Cabinet ministers and parliamentary secretaries co-opted to attend Cabinet meetings in respect of matters dealt with while they are present.19

By this account, in the Commonwealth non-Cabinet ministers and parliamentary secretaries are bound by collective responsibility only if they are present for discussion. The New South Wales guide to Cabinet conventions similarly states that parliamentary secretaries are not bound by collective responsibility, although “they may be influenced by it.”20 In practice, the Prime Minister has the instruments of dismissal and promotion to persuade non-Cabinet members of the Government to accept Cabinet decisions. The notion of collective responsibility rests upon the proposition that ministers must be free to engage in vigorous debate within the Government without being publicly depicted as divided against each other. The federal Cabinet Handbook states:

19 Australia, Department of Prime Minister and Cabinet, Cabinet Handbook, 2009, p. 3. 20 New South Wales, Ministerial Handbook, 2011, Annex D, “Cabinet Conventions: NSW Practice”, p. 6.

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Ministers should not make public statements or comments on policy proposals that they are bringing, or which are to be brought by others, to Cabinet. Identification of individual ministers with particular views tends to call into question the collective basis of agreed outcomes.21

The handbook also states that “collective responsibility is supported by the strict confidentiality attaching to Cabinet documents and to discussions in the Cabinet Room.”22 Confidentiality requires that ministers not speak against an agreed Government policy outside Cabinet and that Cabinet proceedings be kept confidential. In 1992 the Irish Supreme Court recognized that confidentiality was necessary to the operation of the Cabinet and it was written into the Irish Constitution in a 1997 amendment.23 Irish Cabinet proceedings may now only be made public at the discretion of a judge in a criminal proceeding. Cabinet confidentiality has also been recognized by British and Australian courts.24 To protect it, Australian Cabinet handbooks spend a great deal of time discussing the handling and secrecy of Cabinet documents. These documents, and accounts of policy deliberations within the Government, are among the many exemptions to disclosure in Australia’s federal, state and territory freedom of information acts.25 Even parliamentary requests for information are not grounds for opening Cabinet proceedings to the public. The New South Wales guide to Cabinet conventions says: The inherent powers of the Houses cannot be used to undermine the principle of collective ministerial responsibility by disclosing the deliberations of Ministers in the Cabinet.26

The 2011 New South Wales Cabinet Handbook adds, Cabinet confidentiality is recognised by the provisions of the Government Information (Public Access) Act 2009 (GIPA Act), which provides that it

21 22 23 24

Australia, Department of Prime Minister and Cabinet, Cabinet Handbook, 2009, p. 4. Australia, Department of Prime Minister and Cabinet, Cabinet Handbook, 2009, p. 4. Ward, Irish Constitutional Tradition, p. 275; Irish Constitution, Article 28.4.3 New South Wales, Ministerial Handbook, 2011, Annex D, “Cabinet Conventions: NSW Practice”, p. 2. See also Killey, Constitutional Conventions in Australia, p. 69. 25 Australia, Department of the Prime Minister and Cabinet, Freedom of Information: Exemption Sections in the Freedom of Information Act, 2009. 26 New South Wales, Ministerial Handbook, 2011, Annex D, “Cabinet Conventions: NSW Practice”, p. 7.

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is to be conclusively presumed that there is an overriding public interest against the disclosure of Cabinet documents for ten years.

Ordinarily Government documents may be open to the public after 30 years, but after ten years the Premier or Cabinet may to decide to publish. However, the New South Wales Handbook says, “There is a presumption in favour of release unless there are overriding public interest considerations against disclosure.”27 Confidentiality requires that Cabinet members may not see the Cabinet papers of their predecessors in Australia, except under very limited conditions and with the consent of the leader of the party that, in office, generated the documents. For example, in 2006 Prime Minister Howard asked the federal Labor leader, Kim Beazley, to review papers that the former Labor Foreign Minister, Gareth Evans (1988–96), had generated before they could be released to a royal commission.28 Cabinet files kept by the Department of Prime Minister and Cabinet are closed to the public for at least thirty years and other departments must destroy their copies when the Government leaves office. Collective responsibility protects vigorous debate in Cabinet, but it also rests on political prudence. Ministers are often ambitious politicians and collective responsibility inhibits competition by bringing rivals for party leadership into the Cabinet and cloaking them with collective responsibility. The British Prime Minister, Margaret Thatcher, was speaking from experience when she wrote, “[T]here are some people that it is better to bring in because they would cause more trouble outside.”29 In Australia the price that Labor Party factions pay to be in the Government is their acceptance of collective responsibility. Furthermore, by bringing a large number of MPs under its wing, collective responsibility helps the Government to maintain party discipline in Parliament. A quarter to a half of the members of a governing party or coalition in an Australian parliament are commonly members of the Government, which greatly simplifies the job of party discipline on the Government side. We should add, too, that some of what the Cabinet discusses has a party political component, with considerations of public opinion and electoral strategy in mind. This is inevitable, but ministers might appear to be engaged in a partisan use of the Cabinet were it to be exposed. 27 New South Wales, Department of Premier and Cabinet, Ministerial Handbook, June 2011, p. 13. 28 Sunday Mail, 3 September 2006 29 Margaret Thatcher, The Downing Street Years, London: Harper Collins, 1993, p. 722.

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Given the egos and ambitions of politicians, the size of ministerial entourages and the persistence of journalists, it is not surprising that there is leakage in collective responsibility. Ministers often speak to the press off the record or leak through political allies. But a Cabinet seen to be divided against itself will always find its authority undermined, and what Elizabeth McLeay writes about New Zealand applies equally to Australia: “Much of Cabinet’s power depends on its collective solidarity. This one of the conventions of our system of cabinet government is founded on sheer political survival.”30 However, there is a more tolerant attitude towards leakage by former ministers in their memoirs than of leakage during their time in office.31 Given this account of the importance of collective responsibility, why does it not rise to the level of a constitutional convention in contemporary Australia? The answer is that the exigencies of government formation have led to significant departures from the rule, in Australia and elsewhere. For example, when independents or minor party members joined the governments of the ACT in 1998, South Australia in 2002, Western Australia in 2008, Tasmania in 2010, and the Commonwealth in 2010 they signed “agreements to disagree” which committed them not to disclose details of Cabinet discussions and to support the Government on confidence and money votes but allowed them to oppose it publicly on other issues. Collective responsibility therefore applied unconditionally to members of the majority party in each of these governments but not to independents or minor party ministers. This represents a modest return to the period before party government when ministers frequently took opposing sides on issues before Parliament.32 However, it is odd to find that the ACT code of conduct for ministers requires them to acknowledge that Cabinet decisions are binding on all of them as if “agreements to disagree” had never been invented.33 In addition to general agreements to disagree, collective responsibility can be waived with respect to issues of conscience and/or issues that seriously divide a party. In Britain, since the nineteenth century, ministers have been permitted to disagree on a number of issues, including Catholic emancipation, 30 Elizabeth McLeay, The Cabinet and Political Power in New Zealand, Auckland: Oxford University Press, 1995, p. 21. 31 Bill Hayden, Bob Hawke, Paul Keating, Neal Blewett and Susan Ryan all wrote memoirs that included their time in Labor governments, 1983–96. 32 Clune and Griffith, Decision and Deliberation, p. 29. 33 Australian Capital Territory, Code of Conduct for Ministers, 2004.

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womens’ suffrage, tariff reform, capital punishment and the European Union. In Australia it was waived for votes in Parliament on abortion in 1988 and the republic in 1999.34 Deviations from collective responsibility in Australia in recent years confirm R.S. Parker’s suspicion, expressed in 1980, “To my mind [collective responsibility] is just a rule of political prudence for ministries that want to stay in office.”35 Prime Ministers usually apply the rule to everyone in their Cabinets, but if the survival of the Government is at stake, they abandon it.

Ministerial Responsibility The second concept of responsibility associated with Cabinet government is ministerial responsibility, which is an even less satisfactory convention than collective responsibility.36 It originally meant that ministers were individually responsible for the management of their departments and could be censured or dismissed by Parliament for corruption or serious errors of policy or administration. This is what the term “responsible minister” meant in late 18th century Britain, but the only Australian constitution still using the term is in Victoria.37 In practice ministerial responsibility is very weak today for several reasons. In the lower house, where the Government ordinarily has a majority, ministers can ordinarily be shielded by party discipline from censure or votes of no confidence. The Prime Minister may also shield a minister from censure by arguing that collective responsibility overrides ministerial responsibility in a particular case. The New South Wales Cabinet guide states, “An individual minister cannot be expected to resign for a policy failure that has been adopted by the Cabinet as a whole,”38 although that rule is unclear in Tasmania. When Green members of the Tasmanian Assembly moved a vote of no confidence in the Labor Deputy Premier and Minister of Education, Peter Patmore, in April 1991, Premier 34 Killey, Constitutional Conventions in Australia, pp. 78–9. 35 R.S. Parker, “Responsible Government in Australia”, in Patrick Weller and Dean Jaensch, eds, Responsible Government in Australia, Richmond, Victoria: Drummond, 1980, p. 18. 36 For meanings of ministerial responsibility see John Uhr, “Ministerial Responsibility in Australia: 2005”. Paper prepared for the 2005 Constitutional Law Conference, University of New South Wales, 2005. 37 Victoria Constitution, Secs. 50.2, 51, 52, 53. 38 New South Wales, Ministerial Handbook, 2011, Annex D, “Cabinet Conventions: NSW Practice,” p. 6.

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Michael Field insisted that the Government was collectively responsible to Parliament and a vote of no confidence in one minister would be a vote of no confidence in the Government as a whole, causing it to resign, something the Greens did not want. However, the question of whether ministerial or collective responsibility should prevail in the censure of a minister went unresolved because Patmore resigned, against the Premier’s wishes, and the Greens dropped the vote of no confidence. 39 Another way that the Government can evade ministerial responsibility is by arguing that the size and complexity of modern government makes it unreasonable for a minister to be responsible for everything that happens in a department, an interpretation that has entered into public service law in Australia and other parliamentary countries. Section 57 of the Commonwealth Public Service Act 1999 recognizes that the minister has overall responsibility for a department but the detailed management of the department is the responsibility of the department secretary. This affirmed the Howard government’s 1998 guide for ministers, which stated: [Ministers] have an overall responsibility for their administration of their portfolios and for carriage in the Parliament of their accountability obligations arising from that responsibility [and] would properly be held to account for matters for which they were personally responsible, or where they were aware of problems but had not acted to rectify them. … Where they neither knew, nor should have known about matters of departmental administration which come under scrutiny it is not unreasonable to expect that the secretary or some other senior officer will take responsibility.40

This is policy in the states, too. The degree to which ministers should be held responsible for the behaviour of their departments became an issue in 2005 and 2006 during a Commonwealth royal commission inquiry into bribes paid by the Australian Wheat Board and others to Iraq to buy Australian wheat under the United Nations’ Oil-for Food Program. The commissioner, Justice T.R.H. Cole, heard evidence that some officials of the Australian Department of Foreign Affairs and Trade knew about, 39 Michael Howes, “Power, Democracy and the Australian Greens”, unpublished B.A. thesis, University of Adelaide, 1993, passim. 40 Australia, Department of Prime Minister and Cabinet, A Guide on Key Elements of Ministerial Responsibility, 1998, p. 13. See also Uhr, “Ministerial Responsibility in Australia: 2005”, p. 8.

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or suspected, that the bribery was taking place but Prime Minister Howard, Foreign Minister Downer and Trade Minister Vaile all insisted that they had not been briefed on the payments by department officials and they would accept no responsibility.41 In the upper house the Government may simply ignore a censure vote against a minister, or against itself as a whole, because in a parliamentary system it is only responsible to the lower house. Senator Jocelyn Newman was censured by the Senate in October 1999 for refusing to supply documents requested by the house,42 and the federal defence minister, Senator Robert Hill, was censured by the Senate in 2004 because of an Iraqi prisoner scandal. Neither resigned.43 The New South Wales Treasurer, Michael Egan, a Labor member of the Legislative Council, was held in contempt four times and was three times suspended by the Council between 1996 and 1998 for failing to supply information, and did not resign.44 New South Wales courts subsequently found that he had to supply documents but this had absolutely no effect on his membership of the Government.45 Two Labor ministers from the New South Wales Assembly were similarly censured by the Legislative Council in 2001, with no effect on the Government.46 Given that ministerial and collective responsibility can be conflated, that party discipline and the Government’s majority can ordinarily be used to vote down a censure or no confidence motion against a minister in the lower house, that the Government is not responsible to the upper house, and that much of what happens in a department cannot reasonably be laid at the door of a minister, it is not surprising that few ministerial resignations can be attributed to ministerial responsibility. Ministers are much less likely to resign because of individual ministerial responsibility than for other reasons, including policy differences with the Government, financial conflicts of interest, personal improprieties, misleading the house, and violations of collective responsibility.47 Six members of John Howard’s government resigned between 1996 and 1998, three because 41 ABC Transcripts, 13 April, 2006; The Australian, 30 November 2006. 42 Australia, Senate, Hansard, 13 Oct. 1999, p. 9525 43 Sydney Morning Herald, 21 June 2004. 44 Clune and Griffith, Decision and Deliberation, p. 652. 45 Gerard Carney, “Egan v Willis and Egan v Chadwick: The Triumph of Responsible Government”, in George Winterton, ed., State Constitution Landmarks, Adelaide: Federation Press, 2006, pp. 298–330. 46 Clune and Griffith, Decision and Deliberation, pp. 669–70. 47 Killey, Constitutional Conventions in Australia, pp. 90–105.

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of alleged conflicts of interest and three because of issues concerning the misuse of travel funds.48 An interesting study of 133 ministerial resignations in Germany between 1949 and 2009 found that when a potential resignation issue was directly related to a minister’s responsibilities the probability of resignation actually declined.49 What is clear in Australia is that a minister serving in either house may be asked to resign by the Prime Minister if an action threatens to embarrass the government, and it is the Prime Minister who decides. Paul Kelly finds that John Howard’s working rule was that ministers, in effect, were responsible not to Parliament but to the Prime Minister,50 and Owen Hughes concludes that “the real meaning of ministerial responsibility in Australia is that ministers resign by a simple cost-benefit equation: if the cost to the party by staying is greater than the cost of going, then they go.”51 Ros Kelly MP, Labor’s federal Minister for Sport, resigned in February 1994 because irregularities in the way grants were made to sports bodies by her department before the 1993 federal elections were made public. Senator Graham Richardson, federal Minister for Transport and Communications, resigned in 1992 after being censured for misleading the Senate, and two junior ministers, both senators, resigned in 2002 after a Senate resolution asked them to explain apparent financial conflicts of interest.52 For these cases, John Uhr writes, the press is a better watchdog than Parliament. “In general,” he writes, “the press displays greater power to investigate suspect ministerial conduct than parliamentary scrutineers.” He notes that this is because parliamentary “debates over ministerial conduct have no real umpire who sits impartially keeping the score.”53 Ministerial responsibility is a disputed concept, but among its undisputed meanings in Australia are that ministers have statutory responsibilities for 48 John Summers, “Parliament and Responsible Government,” in J. Summers, D. Woodward and A. Parkin, eds, Government, Politics, Power and Policy in Australia, 7th ed., Melbourne: Pearson Education Australia, 2002, pp. 31–2. 49 Jorn Fischer, “... ‘I take political responsibility!’ The Rhetorical and Empirical Relationship Between Ministerial Responsibility and Ministerial Resignations in Germany”, Public Administration (on line), do: 10/111/j. 1467–9299, 2011. 02007.x 50 Paul Kelly, “Re–thinking Australian Governance – The Howard Legacy”, Australian Journal of Public Administration, v.65, no.1, 2006, p. 17. 51 Owen E. Hughes, Australian Politics, 3rd. edn., Melbourne: Macmillan, 1998, p. 317. 52 Elaine Thompson, “The Constitution and the Australian System of Responsible Government”, p. 2001. 53 John Uhr, “Ministerial Responsibility in Australia: 2005”. Paper prepared for the 2005 Constitutional Law Conference, University of New South Wales, 2005, p. 4.

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implementing legislation and each minister represents his or her department to Parliament in debates, questions, and ministerial statements. The rule that a minister speaks officially for the department has the effect of shielding the public service from parliamentary and public scrutiny because the appropriate route into a department is through its responsible minister, not a department official. A common response by public servants to questions in an Australian Senate committee, therefore, is that only the minister can properly answer. A surrogate minister most often represents a minister in a house where he or she does not sit but Section 52.1 of the Victorian Constitution provides that a minister may attend either house to present department business. In New South Wales Section 38A provides that the traffic is one way. A minister sitting in the Legislative Assembly may represent the department in the Legislative Council, but not the reverse. One symbolically important element of ministerial responsibility to Parliament is that ministers must respond to questions from members of Parliament. These may be with written notice, in which case they are answered in writing and the answers are published in Hansard, the official record of a house. Or questions may be asked orally, without notice, in which case they are answered in Parliament during a scheduled question time each day. All Australian parliamentary standing orders provide for ministers’ question time, lasting from 30 minutes to one and half hours. Any minister who sits in the house may be questioned, and all ministers are expected to be present unless they have important business elsewhere. Question time is generally less controversial in the upper house than in the lower house because confrontations between the Prime Minister and the Opposition occur in the latter and are given maximum media exposure. Furthermore, a majority of ministers sit in the lower house and ministerial colleagues often have to answer for them in the upper house, which takes the edge off questioning. But question time, though featured prominently in the media, is not a very useful exercise in either house. It is always “staged”, in the sense that members from the Government side are briefed by party whips to ask ostentatiously friendly questions and members from the opposition side are briefed to ask ostentatiously hostile questions to embarrass the Government. Questions alternate from the Government and opposition sides of the house, so that only half the period is likely to see serious interrogations, and party leaders have priority on the opposition side, which limits the utility of question time

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for back benchers. Indeed, opposition party leaders may spend the entire time questioning a single minister about a single issue. A comparison of Australian and British question times is enlightening. In Britain the Prime Minister appears once a week and other ministers appear by rotation so that question time is quite focused and ministers can anticipate when they will be questioned. In Australia, any minister may be questioned in any question time. This might have meant that there would be greater spontaneity in Australia than in Britain but in practice most questions are planted by party managers and in the Commonwealth Parliament ministers have been able to restrict the number of questions asked by replying at great length. A welcome result of the agreement between Julia Gillard and independents that allowed her to form the Government in 2010 was that answers would be limited by the Speaker to four minutes. In the Senate, the states and territories answers have always tended to be briefer than in the federal House of Representatives and in the Senate and Victoria there already was a four minute limit. Most parliamentary houses have standing orders that require ministers replies to be relevant to the question asked, but this rule has been very loosely enforced by Australian Speakers who are almost always elected from the Government side. This was another issue that the independents and the Gillard Government addressed in 2010. They agreed that the Speaker would no longer be a member of a party caucus. In Britain, the leaders of opposition parties control about one quarter of question time and the brevity of ministers’ replies leaves time for questions from back benchers’ on both sides of the house which are not always controlled by party managers. Even MPs on the Government side may be critical of ministers, particularly on issues affecting their constituencies, which is rare in Australia.

Conclusion In 2005, Harry Evans, the former Clerk of the Senate, said, “There is in Australia an enormous concentration of power in the Prime Minister. People don’t realise this, that we really have a sort of elective monarchy where, you know, you elect the monarch and ... [he] rules all he surveys.”54 Evans was exaggerating to make the point that the Prime Minister, in his view, is much too powerful, but the reality is more prosaic. There are many kinds of monarch, from the absolutist 54 Sydney Morning Herald, 21 June 2005.

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Tsar Nicholas II, “Emperor and autocrat of all the Russias”, to Queen Elizabeth II, a constitutional monarch who always accepts her ministers’ advice. Evans was referring to John Howard, but Paul Kelly tells us that Howard cleared every contentious issue through the Cabinet. He writes that Howard did not “want ministers imprisoned in the Cabinet room,”55 because they had important jobs to do, but he nonetheless called between 26 and 32 Cabinet meetings a year between 2001 and 2006.56 It is clear, then, that the Cabinet has a very real existence. It is also clear that whilst the office of Prime Minister has become increasingly institutionalized, so too has the Cabinet, everywhere in Australia, with regular meetings, handbooks, formal rules, agendas, minutes and other signs of formal structure. It would be wrong to insist, however, that there has to be either prime ministerial or Cabinet government. There is a close relationship between them which is dynamic. Even a highly institutionalized Cabinet, with formal, collective decision-making procedures may be dominated by a determined and experienced Prime Minister who is able to shape its membership, its committees and its agendas, and has the resources to intervene in any policy in any department. Nonetheless, there is always a strong measure of the collective in Australian executives which is very unlike the American system. Several American departments may cooperate in a single issue area but they are not part of a complex system that has a collective decision-making body, the Cabinet, at its heart. John Hart correctly writes that the Australian Cabinet “gives prime ministers a political tool that would be the envy of any American president and one for which there is no functional equivalent in the United States.”57

55 Kelly, “The Sweetest Anniversary”, p. 24. 56 Australia, Department of the Prime Minister and Cabinet, Annual Report 2005–6, p. 54. 57 John Hart, “An Australian President? A Comparative Perspective,” in Weller, Menzies to Keating, p. 196.

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This chapter is the first of two dealing with parliaments in Australia, each focusing on one part of the model of parliamentary government used in the book. It begins by examining Australian parliaments in general and then moves on to consider the lower house and the sixth part of the model, the Government’s dominance of that chamber. Chapter 10 considers the upper house and the seventh part of the model, the primacy of the lower house in a bicameral parliament. For convenience, the term lower house will be used for the unicameral parliaments of Queensland, the ACT and the Northern Territory as well as the lower houses in the bicameral parliaments of the Commonwealth, New South Wales, South Australia, Tasmania, Victoria and Western Australia.

Australian Parliaments Parliaments are at the very centre of political life in Australia. They do not govern, which is the job of the executive, and their legislative function, in practice, is to consider bills that originate in the executive, but they have other roles. Most importantly, parliaments are the source of governments and they subject them to oversight and scrutiny. Parliaments also conduct inquires into a wide range of matters of public concern and, during parliamentary sittings, ministers are preoccupied with parliamentary work, including ministerial statements, answering written and oral questions from members, appearing before committees, and working their budgets and bills through Parliament. The Government knows that Parliament is pre-eminently the place where its failings can be exposed by its opponents, in committee inquiries, questions to ministers and debates. In addition, individual members of Parliament act as 166

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intermediaries, or intercessors, between the public service and their constituents. Parliament is, therefore, a complex institution. All of Australia’s colonial parliaments were modelled on the nineteenth century British Parliament. They had two houses, known in Australia as the Legislative, or House of, Assembly and the Legislative Council which were assigned almost co-equal powers, like the British House of Commons and House of Lords at the time. Legislative councils had the constitutional right to reject, or refuse to consider, any bill, including a bill to appropriate money for the Government, which meant they had the power to disable the Government by rejecting its bills, or to destroy it by denying its operating funds. When the Commonwealth was created it was given a bi-cameral parliament, too, with the same powers. Simultaneously, the colonies became states and colonial parliaments became state parliaments. The basic framework of the British Parliament can still be seen in Australia. Six of its nine parliaments are bicameral and Australian parliamentary officials have much the same roles and titles as their British counterparts. The legislative process is essentially the same and Australian parliaments publish transcripts of their proceedings in a volume called Hansard, named after Thomas Hansard who began to publish transcripts of British parliamentary debates early in the nineteenth century. Some Australian chambers are laid out in the British style, with parallel rows of seats for the Government and opposition parties, separated by the Clerks’ table, with the presiding officer sitting on an elevated chair at the head of the table. Tasmanian Legislative Council members sit in sybaritic comfort on parallel rows of sofas. But a majority of Australian chambers use a modified British plan with parallel rows of seats divided by the Clerk’s table, and, at their end, an arc of seats facing the Speaker. In every Australian chamber members of the Government and opposition leaders face each other directly across the clerk’s table, as in Britain. No Australian Parliament uses the American or continental European model with a semi-circle of seats facing the Speaker. British and Australian parliaments have many shared characteristics, but their powers substantially diverged in the twentieth century. The British House of Lords lost its power to reject money bills in the Parliament Act of 1911, and other bills could be passed over its objections after a period of delay. The primacy of the lower house was thus firmly established in British law, and this became the model for all bicameral parliaments created after 1911. Australia saw some changes, too, but not the fundamental redefinition of Parliament represented by 167

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the Parliament Act. The Queensland Legislative Council was abolished in 1922 and the Northern Territory and the ACT both received unicameral parliaments on attaining self-government, but bicameralism persists in six Australian parliaments and their upper houses have all remained very powerful. The New South Wales and Victorian legislative councils have both lost the power to force a government out of office by denying it a supply of money for government operations under existing law, but they retain the power to reject all non-money bills and appropriations for new programs. The councils in the other states and the Commonwealth Senate retain their original power to reject any bill, money or otherwise and they are amongst the most powerful upper houses in the world.

Parliament and Legislation Parliament has the responsibility to make law and this is clearly stated in most Australian constitutions. Section 1 of the Commonwealth Constitution, for example, says, “The legislative power of the Commonwealth shall be vested in a Federal Parliament …”, and Section 16 of the Victorian Constitution states, “The Parliament shall have power to make laws in and for Victoria in all cases whatsoever”. In practice, most laws are introduced by the Government and Parliament’s role is to debate and approve them, with or without amendments. Australia’s parliaments have always used British procedures to make law. Bills proceed through each house in a series of “readings”, plus, in many cases, a “committee stage”. The first reading is the introduction of a bill by its sponsor, most often a minister and usually in the lower house. The second reading ordinarily begins immediately following the first and is a debate on the general principles of the bill. At the end of this debate the bill is usually referred to a committee for clause by clause review, although the committee stage may be waived or abbreviated by a vote of the house, which often happens in the states. The committee stage may be conducted in a small standing, or legislation, committee of the house but this is rare in lower houses where it is much more common to use a “committee of the whole”. This is a committee of all house members chaired by the deputy presiding officer under more flexible rules than those used in other parts of the legislative process. In the Commonwealth House of Representatives, non-controversial bills may have their second readings and committee stages in the Main Committee, which is a parallel meeting of the whole house created in 1994 to relieve pressure

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of business. It meets simultaneously with the House of Representatives, in a committee room, and is chaired by the Deputy Speaker. All house members may attend and speak. Its proceedings are recorded in Hansard and it reports to the full house. In 2009–10, 62 of the 236 bills considered by the House of Representatives were referred to the Main Committee for the second reading and committee stages.1 In the committee stage, bills are considered in detail. They may be amended in committees of the whole, but other committees recommend amendments to the full house for adoption. The Government frequently makes, or accepts, improvements to its own bills in committee, but it uses its majority to reject amendments that fundamentally change its bills. The committee stage concludes with a report to the house and a vote on the bill, with amendments. The third reading of a bill is taken without debate on a motion to approve the final version, which completes the process in unicameral parliaments. In bicameral parliaments a bill has to be approved in identical terms by both houses. Once approved, a bill goes to the head of state for the royal assent, except in the ACT, which has no local head of state. There a bill goes into effect on its publication in the ACT Legislation Register.

The Lower House and the Government At this point we turn our attention from Parliament as a whole to the lower house in particular. It is often said in Britain and Australia that the Government is responsible to Parliament, but since the eighteenth century the Government has been drawn from the majority in the lower house, no matter that some ministers are members of the upper house. All modern parliamentary constitutions make this clear by providing that the Prime Minister and Cabinet are selected from, and sometimes selected by, the majority in the lower house. This is also the case in the ACT where the self-government act of 1988 requires the ACT Assembly to elect one of its members as Chief Minister by secret ballot at the beginning of each Parliament, or if the position becomes vacant during a session. The Chief Minister then appoints the remaining five ministers from other members of the Assembly. None of the other constitutions in Australia has a provision of this kind although an amendment to the New South Wales Constitution, Section 24B.6, allows the Assembly to nominate a new Premier as part of a motion of 1

Australia, Parliament, House of Representatives, Annual Report, 2009–10, Appendix 3.

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no confidence in the Government, but this is a very remote contingency. It requires the Government to lose a vote of confidence in the lower house, which it ordinarily controls. Other than in the ACT, the selection of the Government everywhere in Australia is regulated by constitutional convention. By law the selection is at the discretion of the head of state, the Governor-General, Governor or Northern Territory Administrator, but by convention he or she selects the leader of the majority in the lower house to be Prime Minister and appoints the Prime Minister’s nominees to be ministers. Before disciplined parliamentary parties emerged the leader of the majority, indeed, the existence of a majority itself, could be difficult to identify but the Australian convention now, outside the ACT, is for the head of state to appoint the leader of the largest party or identifiable coalition as Prime Minister, usually on the recommendation of the outgoing Prime Minister. The head of state might consult other parliamentary leaders if no-one appears to have a clear majority, as Governor Sir Philip Bennett of Tasmania did in 1989 when he sought assurances from the Greens that they would support a minority Labor Government on confidence and appropriations bills.2 If there is some doubt that the head of state’s choice actually has a majority, the Prime Minister in office at the time of an election can delay his resignation and go to the lower house for a vote of confidence, which is taken on a vote to adjourn, when the new Parliament assembles. Premier Robin Gray did this in Tasmania in 1989 and Premier Rob Kerin in South Australia in 2002. Both lost the vote and the Government passed into other hands. Since disciplined political parties arrived an Australian head of state has only twice ignored constitutional convention by appointing a Prime Minister who clearly had no majority; in New South Wales in 1932 and the Commonwealth in 1975. Both appointments were made in extraordinary circumstances following the dismissal of the Government by the head of state, and they were interim. The appointees immediately advised dissolutions and elections, which they won.3 The convention that the Government must be selected from the majority in the House of Commons created a strange irony in its early days. As Walter Bagehot pointed out in 1867, the House of Commons selected, if indirectly, the Prime Minister and the Cabinet, but through his advice to the monarch,

2 3

Howes, “Power, Democracy and the Tasmanian Greens”, passim See below, Chapter 10.

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the Prime Minister could dissolve the house and call a general election. He wrote of the Cabinet, “It is a committee which can dissolve the assembly which appointed it. ... ”4 They were hostage to each other, but for two reasons this is no longer the case in Australia. First, not every head of state in Australia can now dissolve the lower house at any time. Constitutional amendments in New South Wales, South Australia and Victoria have restricted this power. Second, and much more important, party discipline on the Government side, coupled in some cases with agreements by minor parties and independents to support the Government, means that very few governments are ever dismissed by a lower house. The Government is dominant in the lower house because of its majority and party discipline, but its dominance is far from complete because it depends on the character of the Government’s majority and the concessions it may have had to make to minor parties or independents to secure it. That is to say, using the five categories of “majority government” introduced in Chapter 4, we should expect the Government’s dominance to vary, from high to low, depending on whether it is a single party majority government, majority coalition, loose coalition, minority government with guarantees, or minority government with tacit support. The most common types of government in Australia are single party majority and majority coalition. Every Australian lower house, with the exception of the Tasmanian and ACT Assemblies, is elected by preferential voting in single member districts and the most common election outcome is majoritarian. That is to say, the Government wins a majority of seats in the lower house. Majoritarian systems most often use simple plurality voting, as in Britain, where the winner of each seat is the candidate who secures the largest number of votes, or preferential voting, as in most parts of Australia, where the winning candidate for each seat in the lower house is the first candidate to secure an absolute majority of votes. Voters list their preferences on the ballot and if no candidate reaches a majority on the first count, the least favoured candidate is eliminated and his second preferences are distributed to the rest. The process of distributing preferences from the bottom candidate continues, count by count, until one candidate reaches an absolute majority. In practice, both the simple plurality

4

Bagehot, The English Constitution, p. 16.

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and preferential systems favour major parties and usually produce majority governments in Australia, whether Labor, Liberal or Liberal/National Coalition. Declining electoral support for major parties and the election of a small number of National, Green and independent MPs, however, has led to some non-majoritarian election outcomes, or hung parliaments, in recent times. In each case, no party or coalition won a majority of seats in an election and the balance of power often fell to a handful of minor party and independent MPs who signed post-election agreements to form governments with major parties. These agreements assured the Government a majority on confidence and appropriations votes but the partners reserved the right to oppose it on other matters. The Government accepted some of its partners’ policies, and in loose coalitions offered some of them ministerial positions or parliamentary offices, but in these cases, as well as the few cases of minority government with tacit support, the Government was forced, to varying degrees, to govern by accommodation and consensus. One would expect to find non-majoritarian governments most often in the two parts of Australia using proportional representation (PR) to elect lower houses, the ACT and Tasmania. This is usually the case in the ACT but not in Tasmania. The ACT uses PR, with two districts electing five members each to its unicameral assembly, and one electing seven. ACT elections have only once produced a majority government, when Labor won in 2004, but most often they produce minority governments with tacit support. However, three times they have led to loose coalitions. In 1998 the Liberals brought an independent into the Government. In 2010 Labor signed an agreement with Greens which saw it accept a number of Green priorities and support Green members for Assembly Speaker and several committee chairs; and in 2012 the sole Green member of the Assembly became a minister in a Labor Minority government.5 Tasmania also uses proportional representation to elect its Assembly, with five districts electing five members each. Notwithstanding the use of PR, the state has operated most often with Labor or Liberal majority governments. However, in 1989 and 1991 Labor formed minority governments with guarantees of support from the Greens, and in 2010 it formed a loose coalition government which included two Green ministers.6 From 1996 to 1998, Tasmania had a

5 6

See above, Chapter 5. See above, Chapter 5.

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Liberal minority Government with the tacit support of Labor because neither would sign a post-election agreement with the Greens.

The Government’s Mandate Most Australian elections still produce majority governments and this encourages them to assert that they have “election mandates” and should be allowed to implement the programs they presented to voters. They accept that both houses of Parliament have a right to debate public issues and scrutinize the executive but they want very loose supervision and expect Parliament to approve their bills even though, with Harry Evans, the former Clerk of the Senate, one is tempted to ask, “[I]f the government has a mandate, what is a parliament for?”7 There is very modest, in fact eccentric, constitutional support for the concept of the Government’s mandate. An amendment to the Victorian Constitution in 2003, Section 16A.1, provides that the Legislative Council, which the Government rarely controls, should recognize the Government’s right to implement its “specific mandate – the policies, promises and initiatives which were publicly released by or on behalf of the Government during the last election campaign”, as well as its “general mandate – to govern for and on behalf of the people of Victoria”. This clause presupposes that the Government has a majority in the Assembly, but what if it does not? What if it has to sign a post-election agreement with minor parties or independents to take office with a compromise program that voters could not have known about on election day? Does it still have a mandate? Actually, we need not spend much time pondering this question because Victoria adopted a second amendment in 2003, Section 16A.2, which says, “The [mandate] principle in subsection (1) is not to be construed as limiting the powers of the Council, the Assembly or the Parliament”. So, having said that the Council should respect the Government’s mandate in 16A.1 the Constitution immediately goes on to say, in 16A.2, that the Council is not restricted at all. In effect, Section 16A asks the Council not to do things that the same amendment affirms it has a constitutional right to do. It is an example of constitution-making by yearning. Even if the Government wins a majority of lower house seats in an election, mandate claims are almost always dubious. Few voters are aware of the Government’s 7

Harry Evans, “Monarchical and Parliamentary Government in Australia”. The Insurance Council of Australia Conference, Canberra, 10 August 2006.

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election program in detail, they may have voted for some parts whilst being opposed to others, and they may have voted against an incumbent government for its poor record rather than for a new one for its promises. Furthermore, the arithmetic of election results rarely supports a mandate. Australian elections are almost never two-party contests and governments typically win a majority of seats in the lower house with a minority of first preference votes. They win with the transfer preferences of voters whose first choice was someone else. This means that even a majority government is rarely the first choice of a majority of voters. The most recent House of Representatives election in which the Government won a majority both of seats and first preferences was more than sixty years ago, in 1951, when it received 50.34% of the first preferences. In the states, the most recent cases were Tasmania in 2002, Victoria in 1996, South Australia in 1993, Queensland in 1989, Western Australia in 1986 , and New South Wales in 1981. The mandate is further clouded by the fact that Australian elections usually have different outcomes in the two houses of bicameral parliaments, with the Government having a majority of some kind in the lower house and opposition parties and independents forming the majority in the upper house. In 1996 Prime Minister John Howard accused the Australian Democrats, who held the balance in the Senate and were opposing some Government bills, of “partisan obstruction for its own sake” but the Democrats’ leader, Cheryl Kernot, countered that voters had deliberately provided competing mandates; one for the Government in the House of Representatives and one to check it in the Senate.8 It is in the nature of parliamentary government that whoever can secure the support of a majority of members in the lower house of Parliament gets to form the Government. In this sense, the election gives it a mandate to govern, and one can anticipate that it will do so according to principles and policies presented to voters at the election. But it cannot reasonably argue that it has a mandate in the sense of specific authorizations from voters for all its policies. Talk of a mandate is usually a public relations ploy.

The Government, the Lower House and the Constitution The Government is the dominant player in the lower house, and indeed, in any house in which it has a majority because of the combination its majority 8 Sydney Morning Herald, 1996b. See John Uhr, Deliberative Democracy in Australia: The Changing Place of Parliament, Melbourne: Cambridge Univesrity Press, 1998, pp. 105–8.

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and party discipline, although it does not get everything it wants if it has to make compromises to win the support of minor parties and independents. But even then it is the dominant partner in any agreement and it gets significant assistance from constitutional law and parliamentary procedures. The Government’s most powerful constitutional advantage is its legal monopoly of the financial initiative, which has been identified in Australian constitutions since colonial self-government in the 1850s. Since medieval times, the Crown has come to Parliament to request the money it needs to run the country and Section 56 of the Commonwealth Constitution is a modern version of this: A vote, resolution, or proposed law for the appropriation of revenue or moneys shall not be passed unless the purpose of the appropriation has in the same session been recommended by message of the Governor-General to the House in which the proposal originated.

By convention the Governor-General acts on the advice of ministers so Section 56 hands the financial initiative to the Government and permits it to control budget debates, which was precisely the intent of the founders. There are similar provisions in all Australian constitutions except in Western Australia and the Northern Territory, although state and territory provisions require the head of state to recommend both appropriations and taxes. A New South Wales constitutional amendment to Section 46 clarifies the convention of ministerial advice by adding that a minister may also propose taxes and appropriations to Parliament, and in the ACT, which has no head of state, Section 65 requires a minister to bring an appropriation to the Assembly. All the bi-cameral constitutions of Australia except in Western Australia also require tax and appropriations bills to be introduced in the lower house, and in the Commonwealth and Tasmania, the upper house is prohibited from amending a money bill for the ordinary annual services of government. In South Australia it may not amend any money bill. In New South Wales and Victoria the Government has an additional advantage in that constitutions have been amended to prohibit legislative councils from rejecting appropriations for “the ordinary annual services of government”, the money the Government needs for day to day operations under existing law. In these states, therefore, a government cannot be destroyed by the upper house

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withholding a supply of money for essential operations.9 Since 1857 South Australia has operated under a compact incorporated in resolutions of the two houses designed to achieve the same end. It has failed only once, in 1913, when there was a dispute over whether an appropriation was for a previously approved or new purpose.10 In the Commonwealth, Tasmania and Western Australia the upper house still has the power to reject any money bill, and therefore has the means to destroy the Government by denying it money, but even in these cases the Government controls the financial initiative. The Government also has a constitutional advantage in its control of the parliamentary schedule, which affects both houses. With the exception of the ACT, every constitution in Australia provides that the dates of parliamentary sessions shall be determined by the head of state who acts, again, on the advice of ministers. Section 5 of the Commonwealth Constitution says, “The GovernorGeneral may appoint such times for holding the sessions of the Parliament as he thinks fit ...” If this were not sufficiently clear, Standing Order 34 of the New South Wales Assembly identifies who is really in charge: “The House may appoint, on the motion of a Minister at any time, without notice, the day(s) and the time(s) of meeting and adjournment”. The Government’s control of the schedule helps to explain why Australian parliaments all sit for comparatively few days a year, even though their members are full-time politicians. The fewer days a legislature sits, the fewer its opportunities to scrutinize the Government and the less time ministers have to spend on parliamentary duties. Lower house sittings vary slightly from year to year but in 2008 the House of Representatives sat for 69 days and state assembly sittings ranged from 38 in Western Australia to 59 days in New South Wales. The ACT and Northern Territory assemblies both sat for only 35 days.11

The Government, the Lower House and Standing Orders The Government also benefits from parliamentary procedures which are written into standing and sessional orders. This is unsurprising because governments 9 New South Wales, Constitution, Section 5A.1; Victoria Constitution, Section 65. 10 Chris J. Sumner, “Constitutional and Parliamentary Reform for South Australia”, in Clement Macintyre and John Williams, eds, Peace, Order and Good Government: State Government and Parliamentary Reform, Adelaide: Wakefield Press, 2003, pp. 29–30. 11 South Australia, Parliamentary Library, Background Note: Parliamentary sitting days and hours, 2008.

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have used their lower house majorities to write these rules since colonial times. By 1941, Clune and Griffith write, “Strong party discipline meant that procedural change was at the behest of the Executive which slowly but surely eliminated virtually all means of checking it.”12 Standing orders are the permanent rules of procedure in a parliamentary house and sessional orders are rules adopted for a single parliamentary session, though they are often re-enacted. A number of confidence and supply agreements with minor parties and independents in recent years have required governments to accept certain changes in standing orders to benefit nonGovernment members, but nothing of significance has been done to erode the understanding in all Australian parliaments that the Government should dominate parliamentary business. To be specific, New South Wales Assembly Standing Orders provide that 60% or more of each lower house session is assigned for the Government’s exclusive use. Most of the time available for private members to use at their discretion is taken up with questions to ministers, statements by MPs, and grievance and adjournment debates, not for introducing bills. To a degree, the Government’s domination of parliamentary business is natural because it needs parliamentary time to deal with administrative matters, but its overwhelming domination of the legislative initiative is less natural. Constitutions give the Government the financial initiative but there is no constitutional law allowing it to control non-financial bills too. Nonetheless, the legislative process in Australia is heavily skewed in its favour. Some bills are introduced in the upper house and some are introduced by private, nonGovernment, members, but in every Australian parliament the Government introduces the most bills by far, and in bicameral parliaments it introduces most of them in the lower house, including all the important ones. In the 2009–10 parliamentary year, for example, 216 Government bills were introduced in the House of Representatives and only five in the Senate.13 Once a bill is introduced, how is it dealt with? The Standing orders that regulate how bills are considered in Australia appear to be fair to both sides in any house but that is a superficial impression. The rules allow ministers proposing bills and their counterparts on the opposition front bench adequate time to

12 Clune and Griffith, Decision and Deliberation, p. 357. 13 Australia, Department of the House of Representatives, Annual Report 2009–10, Appendix 3.

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make their cases, and provide Government and opposition back benchers with opportunities to speak, but the debate is almost always on a Government bill that is close to its final form when brought to the house. It will have been prepared by a department that has carried out consultations with stakeholders in advance and the Government will be unlikely to consider major changes in the lower house unless it is in a minority and some of its partners threaten to defect unless changes are made. If the debate threatens to consume too much time, a minister, and usually only a minister, may move to restrict discussion either by moving to “guillotine” a bill, which sets a time limit for debate, or moving “closure”, which cuts off debate.14 The Government also dominates amendments, even to its own bills. In the four year period from 2006–7 to 2009–10, the federal Government sponsored 1271 successful amendments to its bills in the House of Representatives and only two were sponsored by non-government parties or independents.15 We cannot know how many Government amendments were uncontroversial, technical improvements to bills, or how many were introduced after consultation with opposition parties or independent members, perhaps to pre-empt them, but the Government is clearly determined to be seen to be in command of the amendment process. Private members never receive more than a few hours a week to introduce their own bills, about two and a quarter hours a week in the House of Representatives, for example, and unlike Britain, where MPs ballot for the right to introduce a small number of bills each year, this time is usually controlled by political parties in Australia. In 2010 the Tasmanian House of Assembly Standing Order 57 assigned five and a half hours to the opposition Liberals in each two week period, two hours and fifty minutes to the Greens, and one hour and twenty minutes to the governing Labor Party. It is not surprising that very few private members’ bills become law, because the only way to find enough time to pass a bill through all its stages is for the Government to agree to suspend standing orders and sacrifice some of its own time. A private member’s bill is always, therefore, a gift from the Government, and one rarely offered. John Uhr reports that the total number of private members’ bills becoming law in the Commonwealth Parliament between 1901 and 2005 was only 16, 14 See, for example, the South Australian House of Assembly Standing Orders 144a and 144b, and the ACT Legislative Assembly Standing Order 192. 15 Australia, Parliament, Department of the House of Representatives, Annual Report, 2009–10, Appendix 3.

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with nine initiated in the Senate and seven in the House of Representatives.16 Of the 207 federal bills that became law in the 2006–7 Parliament, only one was a private member’ bill. Eleven had been introduced. In New South Wales, only six private members’ bills became law in the eight years between 1995 and 2003,17 and in the Northern Territory only one became law in 2005–6.18 In South Australia, Government bills consumed 42.5% of the Assembly’s sittings in 2008–9 and private members’ bills consumed only 5.1%.19 This is the pattern everywhere in Australia. The legislative drafting services in Australian parliaments bear witness to the Government’s domination of legislation. These services are provided by offices of Parliamentary Counsel which are located not in the parliamentary clerks’ offices, as one might expect, but in the departments of the Prime Minister, Premier or Chief Minister. They provide some drafting support to non-Government members but their top priority is the Government’s bills. The New South Wales Parliamentary Counsel limits the more than one hundred private members of Parliament, in both houses, to 275 hours of drafting support per six month period,20 and the Victorian Chief Parliamentary Counsel’s office only drafts bills for non-Government members, it says, “in some circumstances.”21 Of course, debates on bills are not the only opportunities for non-Government members to speak in the lower house. There are many others, but the drawback is that none of them culminates in a decision to act in some way. Every lower house has essentially the same opportunities, except for the Main Committee, which is unique to the House of Representatives. Every house has an adjournment debate at the end of a day’s business on a matter of interest to members. The debate lasts for 30 minutes or so and a minister may participate, but the motion is simply to adjourn the house. In the 2009 calendar year there were 53 such debates in the House of Representatives and 18 in the Main Committee in 68 days of house sittings. A debate of one to two hours may also be held earlier in the day on a “matter of public importance” at the discretion of the Speaker, but a motion to

16 John Uhr, “How Democratic is Parliament: A Case Study in Auditing the performance of Parliament”, Democratic Audit of Australia, 2005, p. 29. 17 Clune and Griffith, Decision and Deliberation, p. 646. 18 Northern Territory, Legislative Assembly, Chamber Services Statistics 2005–6. 19 South Australia, Parliament, House of Assembly, Digest, 2008–9, p. 15. 20 New South Wales, Parliamentary Counsel, Manual for the Drafting of Non-Government Legislation, April 2007. 21 Victoria, Office of the Chief Parliamentary Counsel , The Legislative Process, January 2008.

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move to next business ends the discussion. Forty-five such debates were held in 2009. The House of Representatives also provides about 80 minutes each Monday for a “grievance debate” on a matter of concern to members, but the Government rarely participates and the vote is on the motion that the house take note of the grievance. Thirteen were held in 2009. During a fifteen minute period each Monday any member may make a 90-second statement to the house on any matter, or make a three minute statement to the Main Committee, but, again, no action is required by the house.22 In addition to these opportunities, there are usually two long debates in the lower house covering a wide range of subjects to which any member may contribute. One is on the second reading of the main appropriation bill. The other is the annual debate at the beginning of each parliamentary session in reply to the speech delivered by the head of state, which is actually written by the Government. In Tasmania, Assembly Standing Order 57.1 requires the Premier to make an address to the house “reviewing the Government’s past actions and its proposed policies and activities for the future,” and this is followed by a general debate. Western Australia has essentially the same provision in Assembly Standing Order 8A. Many members participate in these debates but the motion is to proceed with the appropriation, thank the head of state for his speech, or take note of the Premier’s address, not initiate a policy. Of course, members have their speeches recorded in Hansard, they may mail press releases to their local press, they might get a mention in the national press, and, in time, the Government might make some kind of response, but none of this leads to a decision to act by the house in the short term. To those outside Parliament, the best known opportunity provided in standing orders for private members to participate is ministers’ question time, which is the focus of much media attention, particularly when the Prime Minister is questioned in the lower house. We considered this procedure in Chapter 8, and I repeat that question time in Australia is too often a missed opportunity for members on both sides to raise issues that concern their constituents. One of the reasons for the poor state of question time has been that Australian presiding officers, the Speaker of the lower house and President of the upper house, have been slow to discipline ministers for time-wasting or irrelevancy, most likely because they are members of the majority and their 22 Australia, Parliament, House of Representatives, Work of the Session, 2009, p. 15.

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positions are in the gift of the Government, but also because some lack this power in standing orders. British practice is very different. The Speaker of the British House of Commons is invariably non-partisan once elected by secret ballot and there is a convention that a sitting Speaker is never opposed in a general election. A Speaker may even be elected from the opposition. In 1992, Betty Boothroyd, a Labor MP, was elected Speaker by a House of Commons that had a Conservative majority, and in 2009, John Bercow, a Conservative, was elected by a house with a Labour majority. Such elections are unthinkable in Australia unless the Government can persuade a member of the opposition to serve in order to increase its majority on the floor of the house. This was the case when the minority Liberal National Party member, Peter Slipper was elected Speaker in November 2011. Slipper left the Coalition, Harry Jenkins, the Speaker, returned to Labor’s back benches and the Government gained two seats on the floor of the house. Several agreements to form minority governments have included provisions to insulate the Speaker from Government influence, including the 1991 New South Wales Reform Charter’s call for a secret election, but Government supporters were always elected there until, in 2007, Premier Morris Iema supported an independent MP, George Torbay, for the office in an effort to improve its standing.23 The most recent reform of the Speaker may have resulted from the agreement that Julia Gillard signed with independents before forming her Government in 2010. If new standing orders are respected, answers to questions in the House of Representatives will be shorter, more questions will be asked than hitherto, and the Speaker will not caucus with a party. However, there was no agreement that a sitting Speaker will be unopposed in federal elections.

The Government, the Lower House and Committees The most constructive activity for members of Parliament who are not ministers is in committees authorized by standing orders in each parliamentary house.24 There are two kinds in Australia, select and standing committees, either of which may be committees of a single house or joint committees of both houses. They are established by law or resolution of their parent chambers and are 23 Sydney Morning Herald, 29 March 2007. 24 See Singleton, et al, Australian Political Institutions, pp. 144–8.

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regulated by standing orders, but they vary somewhat by title or role from place to place.25 In general, select committees, known in Victoria as investigatory committees, are appointed to investigate particular areas of public concern, such as uranium mining, a new tax system, or problems in the health services. They usually cease to operate once their reports are filed. Standing committees are permanent or ongoing. The oldest are “domestic” in that they deal with the administration of Parliament; its publications, staffing, libraries, privileges, immunities and the like. More recently established standing committees oversee the activities of particular government departments, or clusters of departments and agencies, and they occasionally consider legislation and the estimates of government expenditures that accompany appropriations bills.26 Domestic standing committees and select committees were both used in colonial parliaments but standing committees for public business were slow to develop. An early one was the Joint Standing Committee on Public Works appointed in New South Wales in 1888 to review major public works projects. Before 1973, the Commonwealth Parliament had only three non-domestic standing committees, joint committees on public accounts and public works and a Senate committee on Regulations and Ordinances. Four nondomestic House of Representatives committees were created between 1973 and 1976, and in 1987 a new system, with eight non-domestic house standing committees, began.27 John Halligan identifies three basic functions of committees in the House of Representatives, but his description applies to all parliaments in Australia. They investigate public issues, whether strategic inquiries into issues of national concern or narrower inquiries into government activities. They scrutinize the Government and its activities. And they review legislation. The greatest number of committee reports have been in the area of investigation. Scrutiny and legislation reports are both rare, each contributing only 3% of the total in the period 1970 to 1999.28 They are rare because, with few exceptions, it 25 For the House of Representatives, see John Halligan, John Power and Robin Miller, “The Three Committee Systems of the Australian Parliament”, Australasian Parliamentary Review, v. 16, no. 2, Spring 2001, pp. 160–6. 26 Western Australia has the state parliament most likely to use standing committees to review bills. See Bruce Stone, “Changing Roles, Changing Rules”, pp. 37–9. 27 John Halligan, “Overall Contribution to the House of Representatives Committee System”. Paper presented on the 20th anniversary of the establishment of the House of Representatives Committee system, 15 February 2008, Parliament House, Canberra, p. 2. 28 Halligan, “Overall Contribution”, p. 15, table 2.

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is the Government, through its lower house majority, that decides whether to establish a lower house committee, its terms of reference, and matters to be referred to it. It does not object to inquiries into matters of public interest, but it decides what those are and is very loathe to permit the lower house to interfere in its bills or its spending plans, as laid out in estimates. An exception to the Government determining which committees to create came in 2010 when Julia Gillard accepted a House of Representatives Committee on Regional Australia in her agreement with two independents, and a Committee on Climate Change, Environment and the Arts in her agreement with the Greens. Membership of committees is always roughly proportional to the party composition of a house, which leads to Government majorities. House of Representatives Standing Order 215d, for example, says there must be ten members on each general purpose standing committee, six from the Government side and four from the opposition. Few committees may initiate inquiries on their own. In the House of Representatives annual reports by government departments or the Auditor-General, an official of Parliament, go to standing committees automatically but other matters must be referred by the House of Representatives, which the Government ordinarily controls, or by a minister. Finally, of course, the Cabinet always decides whether to respond to a committee report and its recommendations. A perennial complaint in Australia is that little official notice is taken of many committee reports. On 21 June 2005, for example, the Sydney Morning Herald published a list of 27 parliamentary committee reports requested by the federal government and completed between July 2001 and June 2004 to which the Government had not responded. The growth of committees has certainly changed the work of MPs throughout Australia. By 2000, 53% of members of the House of Representatives were members of more than one, a relatively high number, given that members of the Government do not sit on them. Their workloads also included service on party caucus committees. John Halligan says there is some evidence that House of Representatives committee reports influence the Government, and they certainly produce a large number of recommendations, but in 2008 he accepted the conclusion reached by Alex Somlyay in 1997: “House committees have generally not been able to carve out a clear niche for themselves – a niche that allows them to make an effective contribution to the business of parliament.”29 29 Halligan, “Overall Contribution”, p. 14.

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The problem, of course, is that governments typically have majorities in lower houses and committees become their auxiliaries. Halligan writes, “The House committees have frequently shown a willingness to complement the work of government”30 This is unsurprising, given that, as Halligan notes, “The House system has depended on ministerial references for its work, and has had to develop relations of trust with the executive to produce steady streams of relatively ‘safe’ broadly focused policy references.”31 Given the dominance of the Government in the lower house and the fact that it usually is in the minority in the upper house, it is no surprise that House of Representatives committees are less active than Senate committees. The House of Representatives produced only 10% of the Commonwealth parliamentary reports issued between 1970 and 1999.32 Two particular indices of the Government’s control of the committee process is that bills and estimates of expenditures are not commonly sent to lower house standing committees to review. As this is being written in 2010, every Australian lower house had a Public Accounts Committee or a joint committee with the upper house to review the Auditor General’s reports on the Government’s spending,33 but governments are extremely reluctant to have committees interfere in Government policy by considering legislation or the estimates of proposed Government expenditures which are filed with appropriations bills. Much better, it is thought, to review legislation and estimates in committees of the whole house than in small committees which might acquire a degree of expertise which could trouble the Government, or even not have them reviewed in committee at all. In 1979 Malcolm Fraser agreed to two House of Representatives estimates committees. He raised the number to six in 1981 but did not submit his own estimates to them in 1982 and the committees were not reinstated when Bob Hawke took office in 1983.34 A major change in the House of Representatives since 1995 has been to move estimates proceedings on the main appropriations bill from the Committee of the Whole to the Main Committee where the committee stage has become what Glenn Worthington calls “an interrogative exercise involving question

30 31 32 33 34

Halligan, “Overall Contribution”, p. 4. Halligan, “Overall Contribution”, p. 14. Halligan, “Overall Contribution”, p. 9. In 1992 the South Australian Assembly’s Economic and Finance Committee assumed this role. Singleton, et al., Australian Political Institutions, pp. 136–37.

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and answer …”, much like a standing committee hearing. But even with the Main Committee in use, the amount of time given to estimates in the House of Representatives is very low. The average time spent on estimates for each of 20 government department in 2010 was only 40 minutes. This was a marked improvement over the average of 7 minutes per department in 1995, but it hardly represents a thorough parliamentary review. Furthermore, Glen Worthington notes that some department estimates were not considered at all, ministers were often absent from discussions of their own departments, and they often avoided detailed responses to questions raised by members.35 In 2010 lower houses with estimates committees, whether called standing or select committees, could be found in South Australia and Tasmania, with two each, the ACT and the Northern Territory, with one each, and Queensland with seven. However, experience in Queensland showed the weakness of a committee system when the Government controls the house, even a system that appears on sight to be quite ambitious. Until 2011, each Queensland estimates committee had seven Assembly members and a staff of three, but the Government had a majority on every committee. Assembly Standing Order 185.2 provided only nine hours of hearings per committee, each of which had large budget requests from several departments to review, and committee reports routinely contained reservations by opposition members about inadequate time for hearings and the uncooperative attitudes of ministers. Reforms in 2011 abolished these estimates committees and assigned their work to seven new “portfolio committees” which are each responsible for overseeing a group of Government department and statutory bodies. Committee members are elected by the Assembly. They will be able to question senior department and agency officers directly, without having questions mediated by ministers, but hearings are still only scheduled for one day per committee.36 There are no estimates committees now in the Commonwealth House of Representatives but in 1987 Bob Hawke agreed to create eight new general purpose standing committees. As this was written in 2011 there were 10 nondomestic House of Representatives standing committees, overseeing government

35 Glenn Worthington, “Scrutinising Budget Estimates in the House of Representatives”, Australian National University, Parliamentary Studies Centre, Parliamentary Studies Centre Paper 3, 2010, pp. 25–6. 36 John Mickel, Speaker of the Queensland Legislative Assembly, Media Statement, 17 June 2011. See Queensland Legislative Assembly, standing order 197.

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departments and agencies and matters referred to them by the house or a minister. Bills are not referred to these committees with the exception of bills referred to the Standing Committee on Social Policy and Legal Affairs for a review of legality. There were also 13 joint committees of Parliament administered by the House of Representatives, but no select committees.37 It is interesting that the two most active committees in the Commonwealth Parliament in recent times have been joint; the Committee on Foreign Affairs, Defence and Trade held 61 meeting in 2007–8, and published four reports. The Committee on Public Works met 23 times and published 9 reports.38 Reformers have often seen committees as keys to effective scrutiny of the Government, particularly estimates committees, but a committee can have a limited impact in any house where the Government has a majority. Furthermore, as Harry Evans, the former Clerk of the Senate, pointed out in 2005, federal governments have undermined the estimates process, such as it is, so that estimates reviews are very difficult. He described normal department appropriations for ordinary annual services under Section 54 of the Constitution as covering only about 20% of a department’s expenditures. The rest is made up of special appropriations under Section 53. These are often of indefinite duration, may be carried over from year to year, and are often “nebulous and vaguely expressed.” He concludes, “This situation virtually allows government to expend any money on any project which comes to mind at any time.”39

The Government, the Lower House and Party Discipline Finally, government domination of Australian lower houses is not simply a function of the numerical strength of the majority,, constitutional provisions or rules of procedure. It ultimately depends on party discipline. Australia has extremely high degrees of party discipline and cohesion, as evidenced by the fact that very few MPs ever vote against their party’s instructions, and those who do, do so very rarely.40 Christopher Kam reports that in the 1990s only 1% 37 Australia, Parliament, House of Representatives, House Committees of the 42nd Parliament, 2008. 38 Australia, Parliament, Department of the House of Representatives, Annual Report, 2008–9, Appendix 3. 39 Harry Evans, “Government advertising and the financial system”, Democratic Audit of Australia, March 2005. 40 Christopher Kam, “Parliaments, Parties and MPs: A Comparative Perspective on Backbench Dissent, Party Discipline and Intra-Party Politics”, Ph.D dissertation, University of Rochester, 2002, passim.

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of Coalition members in the House of Representatives ever voted against their leaders and 0.3% of Coalition senators. The percentage for Labor members was zero in the lower house and 0.4% in the Senate. This is a much lower rate of dissent than in other parliamentary democracies. In Britain, for example, 12.5% of Conservative and 10.6% of Labor MPs voted against their parties at least once in the 1990s.41 The vast majority of votes in Australian parliaments are party-line votes, with leaders issuing voting instructions, but MPs are occasionally permitted to vote according to conscience on issues that have no inherent party dimension or would led to defections were the party to issue instructions, issues such as abortion, stem cell or embryo research, euthanasia, homosexuality, divorce, capital punishment, an Australian republic, and the like. The Commonwealth and four states had free votes on abortion law, for example, and the Commonwealth and three states had free votes on homosexual law reform. Between 1955 and 2002 both the Liberal and the ALP allowed free votes in both federal houses on only 18 motions. Labor permitted its members free votes on an additional two motions, and the Liberals on four.42 Why is party cohesion so high in Australia? In a quantitative study of four parliamentary countries, Australia, Britain, Canada, and New Zealand, Christopher Kam offers three hypotheses. First, individual MPs are motivated by ideological and policy preferences. They vote the party line because they agree with its policies. Second, MPs are motivated by their desire for ministerial office and vote their party’s line because they want to win favour from their party leaders. Third, MPs are socialized to accept parliamentary norms of party loyalty and solidarity. In the Labor Party these norms are reinforced by party rules that require MPs to accept caucus decisions. Kam concludes that the most satisfactory of these three hypotheses is the second, what he calls “the career advancement model.” He finds that the first explanation, an MPs policy preferences, can be subsumed in the second, an MPs career aspirations, because the surest way to see one’s preferences succeed in a parliamentary system is to serve in the Government. He also finds that socialization into parliamentary norms is a reinforcing, not a primary, factor. He concludes, 41 Kam, “Parliaments, Parties and MPs”, pp. 23, 66. 42 Deirdre McKeown and Rob Lundie, Free Votes in Australian and some Overseas Parliaments, Australia, Parliamentary Library, Current Issues Brief No. 1, 2002–3.

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[An] MP who wishes to exercise policy influence or enjoy the fruits of higher office must attain a Cabinet post; party leaders control advancement to the Cabinet (or in opposition, to the Shadow Cabinet); the MPs advancement depends, therefore, on maintaining good relations with party leaders. Inevitably, this involves supporting the party leadership in voice and vote.43

He adds, [M]y career advancement-dissent model sees party leaders and MPs engaged in a fairly explicit contractual relationship: loyalty brings with it a good chance for a job (not necessarily immediately) in the Ministry; and disloyalty ruins that chance.44

Kam finds that MPs are inclined to dissent if their constituents’ preferences clash in significant ways from those of their parties, thereby jeopardizing their re-election prospects, and if they have been denied promotion to, or dismissed from, the Government, so that their career prospects are weak. Coalition dissidents in the period 1996–8, he determined, were MPs with no ministerial futures. Dissent also increases when the number of ministerial posts available is small relative to the number of MPs, hence limiting the prospects for promotion. Of the four lower houses Kam considers, the two with the largest amount of MP dissent, Britain and Canada, had the largest lower houses, with 646 and 308 members, respectively, and the fewest opportunities to serve in the Government. The two with the smallest lower houses, Australia and New Zealand, with 150 and 122 members respectively, had greater opportunities for MPs to serve in the Government, and less dissent. Dissent, or disloyalty, can take two forms. The most serious is when an MP defies the party’s whips, the party officials responsible for enforcing discipline in Parliament, and abstains or votes against the leadership. The more common form is when MPs make public comments critical of the Government, in newspaper or television interviews, for example. Either kind of dissent can lead to sanctions by party leaders, which can include warnings to, or punishment of, MPs, including denying them reselection by the party.

43 Kam, “Parliaments, Parties and MPs”, p. 4. 44 Kam, “Parliaments, Parties and MPs”, p. 40.

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Conclusion The Government’s dominance of the lower house is very firmly entrenched in Australian political life but a number of factors have led to some constraints being applied in recent years. For example, the introduction of qualified fouryear minimum Assembly terms in New South Wales, South Australia and Victoria has had the incidental effect of limiting the Premier’s ability to call for an early dissolution of the lower house and an election at a time favouring the Government’s re-election prospects. The expectation now in these states is that the lower house will serve its full term and will not be cut short at the convenience of the Premier. For the most part, we can expect that most governments in Australia will continue to be majoritarian, whether single party or Coalition, and that the lower house will be dominated by the Prime Minister and Cabinet. The only way to guarantee a change would be to reform Australian electoral systems so that elections would routinely produce non-majoritarian outcomes, as happened in New Zealand when it adopted proportional representation by referendum in 1993. But the conditions that led to this decision were unique to New Zealand, and are unlikely to be replicated in Australia.45 Nonetheless, parliamentary systems have seen some interesting reforms in recent years because of hung parliaments. A house becomes more assertive, more autonomous, and poses more problems of management when the Government depends on the support of independents or minor for its majority, which has happened quite often in recent years. In Chapter 13, we will consider reforms to the lower house which were the result of agreements that governments have made to take office in hung parliaments.

45 Richard Mulgan with Peter Aimer, Politics in New Zealand, Auckland: Auckland University Press, 2011, pp. 63–5.

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This chapter considers upper houses in Australian parliaments and the sixth characteristic of parliamentary government; if a parliamentary system is bicameral, with two houses of Parliament, one will have primacy. About half of all parliamentary systems in the world are unicameral, with no upper house at all, including Queensland, the Australian Capital Territory and the Northern Territory in Australia, but where a system has two houses, one will have primacy and it is always the lower, or more representative, house. This is the case even in Australia which has very powerful upper houses in the Commonwealth, New South Wales, South Australia, Tasmania, Victoria and Western Australia. The primacy of the lower house follows from the rule of majority government, discussed in Chapter 5, which requires the Government to have the support of a majority in the lower house. Majority government is difficult to combine with bicameralism if both houses have substantial constitutional powers, legitimacy and different majorities so that the Government cannot have a majority in both. If these conditions apply, the Government, which has a majority in the lower house, could be disabled or destroyed by having its legislation and appropriations rejected by a different majority in the upper house. Since 1922 new parliamentary constitutions have resolved this dilemma either by having no upper house, as in the ACT and the Northern Territory, or by assigning constitutional primacy to the house from which the Government is drawn, which is the lower house. Typically, the upper house has no constitutional authority to dismiss a government by a no confidence motion or rejecting an appropriations bill, and its opposition to any other bill may be overridden by a second vote of the lower house after a period of delay. Australia is not a typical parliamentary country in this sense because all of its bi-cameral parliaments

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usually meet the conditions identified above. They have substantial powers, legitimacy and different majorities. The argument we considered in Chapter 1, that Australia, meaning the Commonwealth of Australia, has a unique political system, hangs on the proposition that the Commonwealth Senate has powers that make it uniquely capable of destroying a government drawn from the majority in the House of Representatives by refusing it a supply of money. This argument grossly overstates the case because the Australian Senate has never had unique powers. In 1901 it was given the same powers as colonial legislative councils, which in turn were the powers of the nineteenth century British House of Lords. The Lords lost most of their powers in 1911 but some upper houses have retained theirs. For example, either house of the Italian Parliament today may dismiss a government by a vote of no confidence or force it out by refusing a supply of money, and the Canadian Senate and three Australian legislative councils have essentially the same constitutional powers as the Australian Senate. That said, the question we should ask is not how unique is Australia but how do the few parliamentary systems with constitutionally powerful upper houses function so that governments have sufficient longevity to implement their programs and do not collapse with destabilizing frequency because of opposition in the upper house. The answers to this question vary. In Italy, for example, both houses are elected in part by proportional representation and have fragmented, multiparty memberships that are sufficiently alike for government coalitions to be formed that can win votes of confidence and budgets in both. The only government to have been dismissed by a vote of no confidence in the Italian Senate was that of Romano Prodi, in 2008. In Canada the Senate is powerful in law but is an appointed body which lacks democratic legitimacy. It can be an irritant but it chooses not to challenge the Government in fundamental ways. In Australia the answer lies in understanding that the way an upper house behaves does not depend on its powers alone. Powers represent just one variable to consider but four others are important, too. These are the legitimacy of the upper house, the character of its majority, its practical capacities, and its operational norms. In combination the last three of these variables ensure the primacy of the lower house in Australia, but we will consider all five here.

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The Constitutional Powers of the Upper House The first variable is constitutional powers. We saw in Chapter 2 that the Australian self-governing colonies and the Commonwealth began their lives with bi-cameral parliaments which had extremely powerful upper houses. Since then, the Queensland Legislative Council was abolished in 1922, and in 1933 and 2003, respectively, the New South Wales and Victorian legislative councils lost their power to reject appropriations bills for the ordinary annual services of the Government. However, they retain the right to reject, or refuse to pass, all non-money bills and appropriations bills for new programs so they still rank among the most powerful parliamentary upper houses in the world. This is even more true of the Commonwealth Senate and the legislative councils in South Australia, Tasmania and Western Australia, all of which retain their original powers to reject, or refuse to pass, any bill, including a money bill. All Australia’s upper houses, therefore, have very substantial constitutional powers and were they to use them aggressively against the Government they could destroy parliamentary government in the country.

The Legitimacy of the Upper House The second variable affecting the efficacy of an upper house is its legitimacy. An upper house may have extensive powers but choose not to use them if it lacks legitimacy. This is the case with the Canadian Senate, which is an appointed chamber. Were it to challenge the Government on a major issue it would probably go the way of the Queensland Legislative Council which the Government, through its advice to the Governor, packed with new members who voted for its demise in 1922.1 However, the remaining Australian upper houses are all legitimate, and became more so in the second half of the twentieth century when restrictions on voting were removed. Democratizing the upper house is not the only way of conferring legitimacy on an upper house. For example, since the British House of Lords became an almost wholly nominated chamber in 1997, the high quality of its membership, which represents the professions, academia, the arts, industry, business, the voluntary sector and politics, together with the fact that a great many members do not caucus with parties, has given it much greater legitimacy than the 1

C.E.S. Franks, “Not Dead Yet But Should it be Resurrected? The Canadian Senate”, in Patterson and Mughan, Senates: Bicameralism in the Contemporary World, pp. 120–161.

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hereditary chamber it succeeded. It has used its newfound status to approve many amendments to Government bills, an average 37 annually between 2005/6 and 2009/10, and many times governments have yielded rather than fight because they would rather not wait until the following parliamentary session to reintroduce contested bills in the House of Commons, as the law requires.2 However, notwithstanding its enhanced legitimacy, it is not democratically legitimate and Britain’s major political parties all advocate additional reforms to produce that end. Democratic legitimacy requires that all adults have the vote and election outcomes not be significantly distorted by election rules favouring some parts of an electorate or some interests above others. For many years restrictive franchises and rigged district boundaries favoured conservative interests and rural areas in Australian legislative council elections so that colonial and state upper houses could not be said to be legitimate. But this has changed. Property or educational restrictions were abandoned in every bicameral state between 1950 and 1978, and whilst there were substantial pro-rural biases in electoral systems until later, most were removed in the transition to elections by proportional representation. Since 1975 the 22 member South Australian Council has been elected by proportional representation, with the whole state as one district. Since 1978 the New South Wales Legislative Council has been popularly elected by proportional representation, with the state as a single district. Until reforms in 2005, the 36 member Western Australia Legislative Council favored non-urban districts by huge margins, and whilst there continue to be distortions, they are fewer than before. Members are elected by proportional representation for fixed four-year terms in multi-member districts. In 2006 Victoria began to use proportional representation to elect its 40 member Council in eight, five-member districts with approximately equal populations. Tasmania is the only state that does not elect its Legislative Council by proportional representation. It uses the preferential vote in single member districts but the process is democratically legitimate because the state has had the full adult franchise since 1968 and the 15 Council districts are of approximately equal size. The Commonwealth Senate has a constitutionally sanctioned distortion because each state has the same number of senators, regardless of population.

2

University College London, Constitution Unit, “Government Defeats in the House of Lords”. E HOUSE

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Tasmania, with about half a million people, consequently has the same 12 senators as New South Wales, with 6.9 millions. Assigning each of the original states the same number of Senate seats was necessary to persuade the colonies with small populations to agree to federation, and there is no widespread agitation to change the allocations now. Within each Australian state, however, and with the exception until 1966 of votes for aboriginals, Senate elections have been fully legitimate since the first federal election law of 1902, including votes for men and women. Since 1949 proportional representation has been used with each state treated as a single district. Australian upper houses therefore have sufficient democratic legitimacy to support using their powers to the full. In support of their legitimacy we can also note that four of the five state legislative councils and the Senate are elected by proportional representation systems with outcomes that better reflect the preferences of voters than lower houses elected by preferential voting.

Control of the Upper House3 Australian upper houses clearly have constitutional powers and the democratic legitimacy to use them, but whether they use their powers to the full depends on who controls them, which is variable three. When the Government has a majority in both houses, Australian upper houses behave like parliamentary upper houses elsewhere; they become rubber stamps for the Government. This is encouraged by the Australian practice of having party members from both houses participate in a single parliamentary caucus, with a single source of party discipline. When the Government does not have a majority in the upper house, which is the norm in Australia, the chamber ceases to be a rubber stamp but is not thereby empowered in its own right. The majority is almost always made up of some combination of a major party, one or more minor parties and independents, and these have varied interests that ordinarily prevent them from acting with one mind. So, in effect, no-one controls the house and whilst many routine matters can be settled by consensus, substantial and controversial decisions are made by fluctuating majorities assembled from issue to issue. It is unusual for the Government to have a majority in any Australian upper house because Australian upper and lower houses use different election systems 3

Election data in this section are drawn from the on–line Australian Politics and Elections database at the University of Western Australia.

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that ordinarily produce different majorities. In an extreme case, until late 2008 the Labor Party had an overall majority in every Australian lower house but controlled none of the five state upper houses or the Senate. Every Australian lower house but one, in Tasmania, is elected by the preferential voting system in single member districts. The winning candidate must secure an absolute majority of votes, if necessary by counting the second preferences of the least popular candidates. This works to the advantage of major parties and most often produces majority government, whether by the ALP, the Liberals or the Coalition. By contrast, every Australian upper house, again with the exception of Tasmania, is elected by some form of proportional representation (PR) which allows minor parties and independents to win sufficient seats to deny the Government a majority. The upper house is elected either in a single, state-wide, multi-member district, as in New South Wales and South Australia, or in several multi-member districts, as in the Commonwealth, Victoria and Western Australia, but whatever form of district is used, the quota for election is sufficiently small for minor parties and independents to win enough seats for them to control the balance of power. The quota is only 4.55% in New South Wales, where half the Legislative Council, 21 members, is elected in a single district at each general election, and no New South Wales Government has had a majority in the Council since 1988.4 In 2011 the governing Liberal/National Coalition held 19 of the 42 seats, the Labor party held 14, and there were 9 minor party or independent members. In 2011 the South Australian Labor Government held eight of 22 Council seats and the Liberals seven. The balance was held by seven minor party or independent members. In the 36 member Western Australia Council the governing Liberal Party had 16 seats, the Labor Party 11, the National Party 5, and there were four Greens. In Victoria, the Labor Government was in the minority in the Legislative Council when it went into the November 2010 election. Unusually, the Liberal/National Coalition managed to win a majority of seats in both houses that year, including a majority of one in the Council. Tasmania uses PR in multi-member seats to elect its lower house and preferential voting in single member seats to elect 15 members of the Legislative Council. Preferential voting would ordinarily give the Labor or Liberal parties 4

Where n = the number of votes cast and c = the number of vacancies, a quota = ( n / c+1 ) + 1. This assures that the number of candidates elected is at least as many, and no more than “c”, the number of vacancies.

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an overall Council majority but there is a custom in the state that members of the Council should be independent, although this has been challenged by the ALP. In 2011 Labor held only two seats, the Liberals held one, and there were 12 independents. No government has ever controlled the Council. For the first Commonwealth Senate election, in 1901, each state used its own election law but since the 1902 uniform federal election law there have been three election systems. Both the first, the simple plurality, or first past the post, system and the second, the preferential system, routinely produced large government majorities. Once party government was established, the Senate became a rubber stamp for the Government and was widely regarded as redundant. In 1934, for example, the Coalition won all the seats in a half Senate election, as did Labor in 1943. In 1948, the Labor party feared losing its majorities in both houses in the next election and changed the Senate electoral system from preferential to proportional, starting with the 1949 half-Senate election. The ploy worked, for a while. The Coalition won the House of Representatives decisively, and would probably have won the Senate under the old rules, but with the help of PR and continuing members elected in the previous half Senate election, Labor managed to hold on to a Senate majority of 34 seats to 26. This did not last for very long and the consequence of the reform is that it opened the Senate to small parties and independents so that the Government now rarely controls the house. Since 1949 the Senate has used the single transferable vote system of PR with each state treated as a single, multi-member district. Section 24 of the Constitution requires the House of Representatives to have “as nearly as practicable, twice the number of senators” so that every increase in the size of the House leads to a corresponding increase in the Senate and reduces the quota for elections, thereby improving prospects for independents and minor parties. The House of Representatives has expanded three times since federation and the Senate has grown from six to 12 members per state, plus two each for the Northern Territory and the ACT who do not count in the House/Senate formula. With six of each state’s twelve Senate seats to be filled in each half-Senate election, the quota per state seat is 14.285% of the vote. In a double dissolution election called under Section 57 of the Constitution, when the whole of both houses is elected, the quota for a Senate seat is much lower, at 7.69%. Minor parties and independents have been able to benefit so that between 1955 and the election of 2010, the Government only controlled both federal houses for 11 years. Over time, the balance between Labor and the Coalition has been held 196

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by some combination of independents, the Democratic Labor Party, Australian Democrats, Family First, One Nation and Greens. The Coalition won control of the Senate in the 2004 election by one seat, but Labor did not when it won the 2007 election in the House of Representatives. After the 2010 election, Labor held 31 of the 76 seats, the Coalition held 34, the Greens held nine, and there were two others. Most Australian lower and upper houses also have different terms of office, with only half the upper house being elected at a time. This no doubt affects their different compositions because upper houses respond more slowly to changes in party electoral support than do lower houses and the two can be out of step. Commonwealth senators serve for 6 years with one half retiring every three years but the maximum term for House of Representatives is three years. In New South Wales, South Australia, and Tasmania legislative councillors serve for two terms of the Assembly, with half elected at each Assembly election. Only in Victoria and Western Australia are the terms of office the same for both houses. It is clear, then, that the Government rarely has a majority in Australian upper houses but does this mean that its position is untenable and parliamentary government at risk? The answer is no, or not necessarily, because when the Government does not have a majority in the upper house, no other party or group usually does either. The majority is most often a combination of a major party and a number of small parties and independents whose interests are not sufficiently aligned to permit them to form a coherent majority that can take charge of the house. This gives the Government an opening to bargain for the passage of its bills. In practice, even when the Government is a minority in the upper house, most of its bills are accepted because they are uncontroversial and/or technical. Sometimes the major opposition party will support the Government on a major bill, as federal Labor did when it voted to implement the U.S.-Australia free trade agreement in 2004. But very often the major opposition party will vote against a major bill either because of policy differences with the Government or because its goal is to replace the Government, not help it to succeed. In this circumstance the burden of negotiating over bills falls to minor parties and independents. They rarely have an interest in challenging the Government to call a double dissolution election under Section 57 of the Constitution by rejecting bills because they have no chance of forming the Government themselves and are unlikely to want to risk their seats. Liz Young writes, “In such a case, it may 197

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be more sensible for minor parties to bargain for changes rather than to directly challenge the government by defeating its legislation.”5 Governments in the minority in the upper house therefore spend a great deal of time bargaining with independents and opposition parties, major and minor, to put their controversial bills through Parliament, and they usually have to accept some amendments. In 1996, for example, John Howard’s government was two votes short of an absolute majority in the Senate and had to compromise or sacrifice important legislation. So it compromised. In 1999, the Government made concessions to five of the nine Democrats, the party having split on the issue, to secure the Goods and Services Tax, and in 2004 it agreed to Democrat amendments to a bill that allows Australians to select the funds in which their superannuation contributions are invested.6 Only in July 2005, in his tenth year as Prime Minister, did Howard’s Coalition gain a majority in the Senate, the result of the election the previous October, but even then the majority proved fragile because coalition partners do not always see the world completely alike. The Queensland National Party senator, Barnaby Joyce, voted against the Coalition on trade practices and students’ unions legislation. He also led opposition within the National Party that caused the Government to sweeten its TELSTRA privatization proposals to accommodate its coalition partner by increasing support for telecommunications services in rural Australia.7 When Kevin Rudd took over as Prime Minister in 2007 he found his party in the minority in the Senate and had to resort to reluctant compromise. On 13 August 2009 Labor’s climate change proposals were defeated in the Senate when the Liberals, Greens and an Independent voted against, but the Government won a week later by removing its cap and trade proposals from the bill and limiting it to the subject of renewable energy.8 A serious by-product of the fact that the Government negotiates to secure passage for its bills in the upper house is that the workload for minor parties and independents can be truly daunting. In 1999 alone the Coalition had 32 bills of significance which depended on the Democrats’ cooperation, including

5

Liz Young, “Minor Parties and the Legislative Process in the Australian Senate: A Study of the 1993 Budget”, Australian Journal of Political Science, v. 34, no. 1, 1999, p. 17. 6 Sydney Morning Herald, 21 June 2004. 7 The Advertiser, 26 August 2005, Sydney Morning Herald, 11 October 2005, and Australian Associated Press, 12 December 2005. 8 Australia, Senate, Hansard, 13 and 20 August 2009; Global Power Report, 27 August 2009.

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the Goods and Services Tax, the most important tax legislation in generations.9 Democrat senators were grossly overworked and the Government, backed by its majority in the lower house, by ministerial staff and department officials, always had an enormous advantage. As this is being written in 2011, the Greens are in the same position in the Senate. The composition of the upper house clearly has an effect on its behaviour and its relationship with the Government is not a fixed one. It varies from issue to issue and according to the character of the majority.

The Capacities of the Upper House If we accept that Australian parliamentary systems are distinctive because they have constitutionally powerful upper houses, are democratically legitimate and are rarely controlled by the Government, one should ask if they have sufficient capacities to benefit from these advantages. The answer, for the most part, is that they do not have sufficient capacities, and this is the fourth variable. What do upper houses do, and what resources do they have to do it? Australian upper houses have most of the formal responsibilities of lower houses. They vote on bills, oversee the Government and conduct inquiries into matters of public concern. They also provide essentially the same opportunities for members to participate as in lower houses. They use the same legislative procedures as their lower house counterparts, with three readings and a committee stage for each bill, although only the Commonwealth House of Representatives has a Main Committee to spread the workload. As in lower houses, members have opportunities for non-legislative activity, too. In the Senate, for example, these include 40 minute adjournment debates, 10 minute speeches on matters of public importance, 15 minute speeches on matters of public interest, and questions to ministers. Similar opportunities exist in all the state legislative councils, but whilst these opportunities allow members to vent, criticize the Government, or publicize an issue, they do not lead to a decision by the upper house to act. There is one activity, however, in which upper houses clearly have greater capacities than lower houses, their use of committees. All Australia’s upper houses have used periods of independence from the Government to expand committees. Minor parties and independents have been strong advocates of committees but they have had to receive support from the major opposition 9

Young, “Minor Parties and the Legislative Process in the Australian Senate”, pp. 7–27.

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party of the day, even though it could find itself inconvenienced by committees when it returns office.10 The most comprehensive Australian committee system is in the largest upper house, the 76-member Commonwealth Senate. Domestic committees dealing with the management of the Senate have been appointed since the first Commonwealth Parliament, and they continue, as do select committees inquiring into particular issues of public policy. But where the Senate stands out is in the number of its standing committees providing oversight of government departments, considering legislation, and reviewing estimates of government spending. Since 1932, for example, the Senate Regulations and Ordinances Committee has been the only committee of the Commonwealth Parliament reviewing delegated legislation, the regulations that are issued by the Government to implement acts of Parliament. In 1970, the Senate created seven Legislation and General Purposes standing committees to oversee government departments and agencies, and five estimates committees to review the estimates of department and agency spending. The new committees had no counterparts in the House of Representatives and, in the words of a former Clerk of the Senate, Cumming Thom, they were “not just a blood transfusion but a heart transplant”.11 In 1989, the Senate expanded the hitherto occasional practice of sending bills to standing committees for their committee stages and the Selection of Bills Standing Committee was created to make the referrals. In 1994, when the Senate was again independent of Government, it created a new system with eight pairs of “Legislation, General Purpose and Estimates committees.” Each pair was composed of a reference committee and a legislation committee, and each pair monitored a set of government departments and agencies. Reference committees inquired into matters referred to them by the Senate. Legislation Committees reviewed proposed bills, estimates of government spending, and the annual reports of government departments and agencies. Committees could appoint sub-committees, conduct hearings in Parliament and elsewhere, and call for papers and witnesses, and ministers and public servants met with those examining their departments’ bills and estimates. Senators also participated in 12 joint committees of both houses. 10 See, for example, Victoria, Parliament, Legislative Council, “The role of the Council in the parliamentary structure”, Information Sheet Number 1, 2007. 11 Australia, Parliament, Senate, Senate Committees and Responsible Government, Papers on Parliament, No. 12, 1991.

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In 2005, as a result of the half Senate election the previous October, control of the Senate passed to the Coalition by a narrow majority and the Senate’s independence eroded somewhat. Single standing committees replaced each pair of reference and legislation committees. The Government continued to allow estimates and bills to go to standing committees, but its supporters now controlled them.12 In the November 2007 federal election Labor won control of the House of Representatives but not the Senate and in May 2009 the house reinstated the 1994 standing committee system with pairs of legislation and reference committees. The reforms of the Senate committee system in 1970, 1989, and 1994 went far beyond the scope of the House of Representatives committee system and the Senate became the primary arena for detailed parliamentary examination of estimates and bills and scrutiny of the Government. Ian Holland, himself a Senate committee staffer, writes that “the bulk of committee consideration of legislation occurs in Senate committees”.13 In 2010 they sat for 1681 hours as against 359 for Senate as a whole,14 and their output has been substantial. Between 1970, when the modern Senate committee system began, and 1999, for example, 2785 committee reports were published by Parliament, of which 1410 came from the Senate, 1079 came from joint committees, and only 296 came from the government controlled House of Representative.15 Notwithstanding this level of committee activity, the light they throw on public issues for legislators and the public, and their scrutiny of the Government, committees have had, it appears, a modest impact on legislation. After reviewing the record from 2003 to 2007, Holland concludes, “Overall, Senate committees appear to have little direct impact on bills through their recommendations.”16 He found that 44% of all bills introduced into the Senate were referred to committees. Most of these, 289 out of 309, were Government bills. Referrals led to 215 committee reports of which the Senate as a whole considered 198, 12 See Katherine Gelber, “High Court Review 2005: The Manifestation of Separation of Powers in Australia”, Australian Journal of Political Science, v. 41, no. 3, September, p. 438. See also http://www.aph.gov.au/Senate/estimates/supp0607/fadt.pdf. 13 Ian Holland, “Senate Committees and the Legislative Process”, Parliamentary Studies, Paper 7, Crawford School of Economics and Government, Australian National University, Canberra, 2009, p. 1. 14 Australia, Parliament, Senate, Senate Committees, Senate Brief No. 4, 2011. 15 Halligan, Power and Miller, “The Three Committee Systems of the Australian Parliament”, p. 164. 16 Holland, “Senate Committees and the Legislative Process”, p. 14.

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but half were produced by just two committees, the Legal and Constitutional Affairs and Economics committees. Reports generated an average of only 1.3 recommended amendments per bill, and recommendations were made on only about 20% of government bills. One cannot tell from aggregate data whether committee recommendations addressed technical adjustments to bills, minor improvements or substantial changes, but the fact remains that the number of amendments originating in committees was small. Most amendments to bills originated in the Senate itself, not in committees, and this was particularly true when the Government was in a minority in the house. It preferred to negotiate amendments outside committees.17 State upper houses that were free of Government control also expanded the use of committees in the 1980s and 1990s, and Bruce Stone concludes, “The development of standing committees is undoubtedly the procedural change of greatest significance in the State upper houses in recent times.”18 The largest state committee system is in the largest state upper house, the New South Wales Legislative Council, but even the smallest upper house, the 15 member Tasmanian Legislative Council, has more committees than its Legislative Assembly. Upper houses have more ambitious committee systems than their lower houses but they are handicapped in a number of ways. The first of these is size. All Australian upper houses are smaller than their lower houses and they simply do not have enough members to service ambitious committee systems comprehensively. The largest house by membership is the Commonwealth Senate, with 76 members, but the Legislative Council in New South Wales has only 42, in Victoria it has 40, in Western Australia 36, in South Australia 22, and in Tasmania 15. These numbers include presiding officers and upper house ministers, who usually only sit on domestic committees. The brevity of parliamentary sittings also raises difficulties for committees. They may sit when a house is not in session, but most committee sittings coincide with parliamentary sittings and no Australian legislative body, whether upper or lower, comes close to approximating the 110 sitting days of the US Senate or the approximately 150 sitting days of the British House of Lords. In 2009, scheduled sitting days for legislative councils ranged from a low of 36 days

17 Holland, “Senate Committees and the Legislative Process”, pp. 5–6. 18 Stone, “Changing Roles”, p. 42.

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in Tasmania to 54 in New South Wales. The Senate was scheduled to sit for just 54 days. Senate Standing Order 111, adopted in 1986, requires the House of Representatives to send a bill to Senate in the first two thirds of a sitting for it to be considered in that sitting, unless the house votes a waiver,19 and the New South Wales Legislative Council introduced the same rule in 2002,20 but even with more congenial scheduling of bills, parliamentary sessions are very short for thorough reviews. In 2008–9 the average time for a Senate committee to consider a bill was 35 days, and many had shorter reporting times, as few as 3 days in some cases.21 Australian upper houses are also under-resourced. Governments control the financial initiative and have little incentive to provide additional resources to troublesome upper houses. Liberal and Labor governments, for example, reduced funding for the Western Australia Legislative Council by 23% in real terms between 1999 and 2004, one critic says, “in response to what the government-of-the-day sees as a troublesome Council that is questioning the actions of the government.”22 The paucity of resources is most evident in staff. The benchmark for a well resourced upper house is the United States Senate. In 2005, its one hundred members had over 1000 committee staff, ranging from fourteen assigned to the least active committee to over a hundred each for the four most active, Appropriations, Commerce, Government Affairs, and Judiciary. The minority party was assigned between 40% and 50% of the committee staff. In addition, each senator had a number of personal staff in Washington that he or she could assign to committee work.23 By contrast, in 2008–9 the Commonwealth Senate Committee Office in Canberra had 62 committee staff to service 76 members, seven select committees, eight pairs of legislative and general purpose committees and three joint committees. This was an increase of nine staff over the previous year because of an increased workload. Each legislative and general purpose standing committee typically had six committee staff but many of these had multiple committee assignments

19 Harry Evans, ed., Odger’s Australian Senate Practice, 11th ed., Australia, Parliament, Senate, 2004, Ch. 12, “Legislation”, http://www.aph.gov.au/senate/pubs/odgers/chap1205.htm 20 Clune and Griffith, Decision and Deliberation, p. 680. 21 Australia, Parliament, Department of the Senate, Annual Report, 2008–9. 22 Norm Kelly, “Determining Parliamentary Parties – A Real Status Symbol”, Democratic Audit, Australian National University, December 2004, pp. 2–3. 23 Congressional Staff Directory 2006, Washington, D.C.: Congressional Quarterly Press, 2006, passim.

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and committees often sought help from other Senate departments. In 2008–9 they serviced 1780 hours of committee hearings and presented 160 reports.24 Bruce Stone estimates that committees in state councils are even less well serviced. The norm is about two staff members per committee, and Tasmanian Council committees operate with essentially none.25 Council members themselves have limited personal staff, usually no more than one or two people, to assist with their committee work. I am not suggesting that Australia should, or could, emulate the United States Senate. US senators often become excessively dependent on their staff whose abundance leads to legislative overload. To cite an extreme case, five US congressional committees, three in the House of Representatives and two in the Senate, approved health care reform bills in 2009, all very different. Each house then had to reconcile its own bills and the two houses had to reconcile theirs before a final bill could pass both houses and be sent to the President for signature. This process is tortuous, and would be impossible without large committee staffs. There is no gainsaying the fact that the Australian system, in which the Government drafts almost all bills and MPs and senators only have to focus on amendments, has an attractive simplicity, but it is not clear that senators can perform even this role satisfactorily. American congressmen and senators are extremely powerful players in the U.S. legislative process because they are well resourced, which cannot be said of either house anywhere in Australia. If Australian upper houses want to play a more important role in legislation they must have additional resources.

Operational Norms of the Upper House Finally, what are the operational norms of upper houses in Australia? So far I have argued that, by comparative parliamentary standards, Australian upper houses have considerable constitutional powers and democratic legitimacy, and for most of the time are free of controlling Government majorities, but they lack cohesive non-Government majorities capable of directing them, and the size of each house, the short periods of parliamentary sittings and the resources available to members and committees all limit their efficacy. This leaves one

24 Australia, Parliament, Department of the Senate, Annual Report, 2009. 25 Stone, “Changing Roles”, p. 44.

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other variable to be considered, operational norms. By this I mean the roles that upper house members accept for themselves. The first thing to note about parliamentary norms is that, whatever their constitutional powers, Australian upper houses do not aspire to coequality with lower houses because they operate with norms of the kind found in the United Kingdom and other parliamentary countries, not with congressional norms of the kind found in the United States. Each upper house sees itself primarily as a house of review, a typical parliamentary function, not as a co-equal branch of the legislature, which is the American Senate’s view of itself. It is this self-restraint, ultimately, that permits the parliamentary system to work in Australia. In 1988 the former Liberal Senator, F.M. Chaney, wrote that the Commonwealth Senate operates with “a degree of enforced reasonableness” because, if it did not, parliamentary government would be impossible.26 Barbara Page added in 1991, “For upper houses to perform an effective review function without undermining [lower house] primacy, they need to operate with a mixture of independence and restraint.”27 Nothing has changed. One sees upper house restraint operating in a number of areas: government formation, termination and membership, the legislative process, parliamentary procedures, and the parliamentary organization of political parties. With respect to government formation, and with the exception of Italy, parliamentary norms determine that the Government is selected from the party or coalition which has the support of a majority in the lower house only. This is a requirement of constitutional law in most parliamentary countries, in Germany for example, but in Australia it is non-legal rule, a convention, which is a form of self-restraint. This means that the composition of the upper house has no bearing on the formation of the Government in any Australian bi-cameral system. Some upper house members serve in the Government but it is not the custom for parties from the opposition side to be brought into governing coalitions specifically to give the Government a majority in the upper house, although there is nothing in constitutional law to preclude it. Had the Australian Democrats been brought into coalitions after Senate elections between 1984 and 2003, they could have given an upper house majority to any 26 F.M. Chaney, “Bicameralism Australian style: governing without control of the upper house”, The Parliamentarian, v. 69, 3 July 1988, 170. 27 Barbara Page, “Developments in the Legislative Council of New South Wales since 1978”, Legislative Studies, v. 5, no. 2, 1991, pp. 28–9.

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of eight governments. It is unlikely that the party that campaigned “to keep the bastards honest” would have joined a coalition but such a deal was not offered by the Government. In 2010 Julia Gillard signed an agreement with the Greens to secure the support of the one Green member of the House of Representatives, Adam Bandt, but it was also signed by two Green senators, Bob Brown and Christine Milne. It committed the Greens to support the Government on supply and confidence motions in the lower house, and the Government agreed to regular consultations by senior ministers with the Greens in both houses and to work with them on environmental policies and parliamentary reform. With 34 Labor members of the Senate and nine Greens, the two parties had a majority in the Senate, but the Greens were not tied into a coalition or a specific program of legislation.28 With respect to government termination, only a parliamentary lower house can force the Government to resign by a vote of no confidence in a parliamentary system, except in Italy where the Government may be dismissed by a vote in either house.29 In Germany and other parliamentary countries, the rule that only the lower house may vote to dismiss the Government is constitutional law, but in Australia it is, again, a convention. The Australian Senate’s vote of no confidence in the Coalition because of its Iraq war policy on 5 February 2003 had no effect on the Government’s survival.30 Similarly, a vote of censure by the upper house against an individual minister has no effect on his tenure in office. The Commonwealth Attorney General, Senator Lionel Murphy, was censured by the Senate in 1973 but remained in office, as did the Minister for Defence, Senator Robert Hill, in 2004.31 The New South Wales Treasurer, Michael Egan, a member of the Legislative Council, was four times held in contempt and three times suspended by the Council between 1996 and 1998, and did not resign.32 The only way for an Australian upper house to force the Government or a minister out of office is to deny the Government a supply of money, which four of them can do constitutionally, but no legislative council

28 The Australian Greens, The Australian Greens and the Australian Labor Party (‘The Parties’) – Agreement, 1 September 2010. 29 Italian Constitution, Article 94. Most recently, in 2008 Prime Minister Prodi was forced to resign by the Senate. 30 Commonwealth of Australia, Hansard, Senate, 5 February 2003, pp. 8492 ff. 31 The Age, 22 June 2004. 32 Clune and Griffith, Decision and Deliberation, p. 652.

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has done this in a state since 1952, in Victoria, and it has happened only once in the Commonwealth, in 1975. With respect to where the Government sits, the parliamentary rule is that the Prime Minister and most of the Government sit in the lower house, based on the proposition that a majority of the Government should sit in what is often called the “responsible house,” the one from which the Government is selected and to which it is said to be responsible. This rule is written into constitutional law in many countries, in Japan and Ireland, for example, but, again, it is a convention in Australia.33 Constitutional law requires ministers to be members of Parliament in the Commonwealth and most states, but where they sit is not prescribed, except in Western Australia where at least one minister must sit in the Legislative Council.34 Treasurers usually sit in the lower house because that is where money bills are introduced, but in New South Wales, Tasmania and Victoria they have sat in the Legislative Council in recent years. In every case, however, the Prime Minister and a majority of the Government sit in the lower house by convention. In 2007, nine of John Howard’s 41 ministers sat in the Senate, including three Cabinet members, and when Kevin Rudd replaced him in November 2007, nine of his 42 ministers sat in the Senate, including 6 Cabinet ministers. That year, seven of twenty New South Wales ministers sat in the Legislative Council. In South Australia it was three of fifteen ministers, in Tasmania one of nine, in Victoria four of twenty, and in Western Australia three of 16. Modern parliamentary constitutions almost invariably say that the Prime Minister must be selected from the lower house, but Australian bi-cameral constitutions say nothing on the subject. Yet again, it is a convention. On the rare occasions when an upper house member has been appointed Prime Minister, he has resigned his seat and won an election for a vacancy in the lower house, as when Senator John Gorton was appointed Commonwealth Prime Minister in 1968 and Barrie Unsworth was appointed New South Wales Premier in 1986, but this is not a constitutional requirement. Members of the upper house who aspire to be party leaders usually move to the lower house to make their bids, as the federal Labor minister, Gareth Evans, did in 1996.

33 Japanese Constitution, Arts. 67, 68; Irish Constitution, Art. 28.7. 34 Western Australian Constitution, Sec. 28.7.

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With respect to legislation, Australian parliamentary norms assign primacy to the government. Legislation is customarily divided into two categories, money bills, dealing with taxes and appropriations, and bills dealing with other matters. Modern parliamentary constitutions, excepting, as always, the Italian Constitution, assign primacy to the lower house in both categories. The upper house is usually given a short period of time to consider money bills and suggest alterations, but not to make amendments or reject them and its opposition to other bills may be overridden after a period of delay. Australian constitutions give upper houses much more legislative power than this, but they typically exercise their powers with considerable restraint, and in practice concede legislative primacy to the lower house. Australian lower houses all have priority over the upper house in the initiation of money bills because most constitutions require that they be introduced in the lower house. Furthermore, appropriations bills in the Commonwealth and appropriations and tax bills in the states must be accompanied by a recommendation from the head of state, or in New South Wales from a minister, which has permitted the Government to control the financial initiative since the 1850s. To reinforce this, the constitutions of the Commonwealth, South Australia and Tasmania prohibit upper houses from amending a money bill.35 However, these three upper houses may reject a whole money bill and are permitted to request changes. This leads Harry Evans, the former Clerk of the Senate, to argue that the difference between an “amendment” and a “request for a change,” backed as it is by the power to reject the whole bill, is procedural rather than substantive.36 The upper house can have its way with a request if it really wants to by threatening to reject a whole appropriations bill. In Western Australia, the Legislative Council is more powerful in that it may both amend and reject a money bill. In New South Wales and Victoria the Council may not reject or refuse to consider a money bill for the ongoing, or ordinary, annual services of government, but it may deny the Government funds for new programs. The financial initiative clearly lies with the Government in the lower house but every Australian upper house has considerable discretion as to how to dispose of 35 Commonwealth Constitution, Sec. 53; South Australia, Sec. 62.1; Tasmania, Sec. 42. 36 Commonwealth, Sec. 53; South Australia, Sec. 62.2; Tasmania, Sec. 43. See Harry Evans, ed., Odger’s Australian Senate Practice, 11th edition, Australia, Department of the Senate, 2005, Ch. 13.

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some or all money bills, whether by amendment, request, or rejection. How do they use this discretion? The founders of the Commonwealth believed that by prohibiting amendments to appropriations bills for ordinary annual services in Section 53 of the Constitution they would avert crippling clashes between the two houses over finance because the Senate would not reject a whole money bill if it objected to only some of its provisions. For the most part, this has been the case. Three Commonwealth appropriations bills were rejected by the Senate between 1901 and 1909, but this was before modern parties and the Government of the day was prepared to make changes.37 The first really serious clash between the Government and the Senate over appropriations was not until 1975, and on that occasion the issue was not appropriations per se but the Opposition’s decision to use appropriations as an instrument to force Gough Whitlam’s Labor Government out of office. The Coalition would not approve a budget unless Whitlam agreed to a general election, which it expected him to lose. Since Whitlam’s dismissal there have been a number of tussles between the Government and the Senate over money, but nothing approaching the 1975 crisis and governments have made deals to secure the funds they absolutely must have. Between 1996 and 2004 the Senate requested 255 appropriations changes, varying from a low of two in 2002 to a high of 61 in 1997, and the House agreed to 80.7%, including 100% in 1998.38 In 1992 senators held up the Labor Government’s budget until it supplied them with certain information. After the 1993 election, Labor needed the support of Democrat senators and agreed to substantial tax cuts and to formal consultations for the subsequent budget,39 and in 1999, the Coalition accepted Democrat amendments to the Goods and Services Tax (GST). A similar pattern is seen in the states. Colonial and state upper houses have refused to vote for appropriations many times, with the Victoria Council leading with ten rejections, but not since 1952.40 However, in 1989 the Victorian government had to resubmit three money bills and in Tasmania the Government was forced to accept amendments. In addition, 37 Anne Twomey, “Cutting the Gordian Knot: Limiting Rather than Codifying the Powers of a Republican Head of State, Australia”, Senate, Occasional Lecture Series, 3 April 2009. 38 Stanley Bach, “Senate Amendments and Legislative Outcomes in Australia, 1996–2007”, Australian Journal of Political Science, v. 43, no. 3, September 2008, p. 419. 39 John Summers, “Parliament and Responsible Government”, in J. Summers, D.Woodward and A.Parkin, eds, Government, Politics, Power and Policy in Australia, 7th ed., Melbourne: Pearson Education Australia, 2002, pp. 36–9. 40 Twomey, “Cutting the Gordian Knot”; John Waugh, ‘Deadlocks in State Parliaments”, p. 199; Carney, The Constitutional Systems of the Australian States and Territories, p. 289.

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opposition controlled state upper houses in Western Australia, Victoria, and Tasmania, have threatened to refuse appropriations many times since 1970 without actually following through.41 What we see, then, is Australian upper houses using their money powers up to a point but not, since 1975, to force a government out of office.42 Furthermore, governments are usually prepared to compromise to secure an acceptable level of funding, no matter how much they may fulminate about irresponsible upper house behaviour. With respect to non-money bills, all modern parliamentary constitutions except the Italian give the lower house the power to over-ride the opposition of the upper house after some period of delay. The British House of Commons, for example, may pass a bill alone if the House of Lords rejects it twice in successive parliamentary sessions. The German lower house, the Bundestag, may override votes of the Bundesrat, the upper house, in the same parliamentary session by a simple majority provided a bill does not seek to amend the Constitution or change certain laws respecting länder, the states. Australia is an exception in that no Australian constitution permits the lower house to override the upper house on a non-money bill. However, the Government controls the initiative on non-money bills, too, and gets most of what it wants through Parliament in some form. In practice, the overwhelming majority of bills in Australian parliaments are introduced by the Government in the lower house, which is the typical parliamentary practice, even in Italy, where Senate rules assign the Government priority in agenda setting and it chooses to introduce its bills in the Chamber of Deputies.43 In Australia, in 2007–8, 149 Government bills were introduced in the House of Representatives and only 14 in the Senate, and this is the pattern in all Australia’s bicameral parliaments.44 Introducing its bills in the lower house, which it usually controls, gives the Government a huge advantage because it sets the terms for legislative debates. In the USA, many bills are drafted by

41 Scott Bennett, Affairs of State: Politics in the Australian States and Territories, Sydney: Allen and Unwin, 1992, p. 100. 42 See John Waugh, “Deadlocks in State Parliaments”, pp. 185–210. 43 Italian Constitution, Art. 70; Claudio Lodici, “Parliamentary Autonomy: The Italian Senato”, in Samuel C. Patterson and Anthony Mughan, eds, Senates: Bicameralism in the Contemporary World, Columbus: Ohio State University Press, 1999, p. 242. 44 Australia, Parliament, Department of the House of Representatives, Annual Report, 2008–9, Appendix 2.

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committees or by individual members in both houses, but in Australia none are written in committees and only a handful are introduced by private members. The great majority are written in government departments, where consultations with the public service and stakeholders take place. Bills arrive in the lower house substantially complete and rarely receive committee consideration there, although they may be amended by the Government, or with its approval, in the Committee of the Whole or the Main Committee. By the time a bill gets to the upper house the Government has made a substantial investment and is not inclined to compromise unless it absolutely must. Stanley Bach studied Senate amendments to bills in the period 1996–2007 and concluded that the Government tended to get its way with the Senate. The latter’s legislative influence was greatest on the most contentious bills, but overall its impact on legislation was comparatively modest, even when the Government was in a minority. The Senate approved the majority of bills sent from the lower house, and the number approved without amendments ranged from 62% to 75% in the years 1996 to 2004, when the Senate was not under Government control, and from 82.4% to 93.5% in 2005 and 2006, when it was in the Senate majority.45 When a non-money bill was amended in the Senate, it was the Government itself that did the amending in many cases, ranging from 24.4% to 58.2% of all amendments in the period 1996 to 2007. Bach finds that the House of Representatives accepted most Senate amendments as they stood, primarily because they were Government amendments or were noncontroversial. The lowest percentage of Senate amendments accepted by the lower house was 64% in 2002 but the number accepted exceeded 90% in 1996, 1997, and 1999.46 The aggregate data used by Bach suggested to him that the Senate was a relatively compliant house, but the data do not tell us how many Government bills were not introduced because of anticipated Senate objections, how many Government bills were carefully drafted to satisfy anticipated objections, how many amendments were technical or administrative and how many substantive, and how many Government amendments were the result of negotiations with members on the opposition benches.

45 Bach, “Senate Amendments”, p. 407. 46 Bach, “Senate Amendments”, p. 412.

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In a later study of Senate amendments, Meg Russell and Meghan Benton suggested a more nuanced finding than Bach.47 They analyzed a subset of 52 amendments which passed the Senate in recorded votes with Government members voting against. They reasoned that these bills were likely to be rejected by a Government controlled lower house. They tracked them to see if the outcome in the House of Representatives could be identified as a win for the Senate, a House win, or draw with both sides secured something. What they found was that 78% of the Senate’s amendments to bills opposed by the Government in the Senate resulted in a win for the Senate or a draw, a conclusion which is more favourable to the Senate than Bach’s. Russell and Benton also conducted two case studies, of the Television Broadcasting Bill 1998 and the Fair Work Bill 2009, and found that many amendments introduced by the Government were triggered by members of the opposition in the Senate operating “below the radar.” They write, Much [Senate] influence comes not through confrontation with the House of Representatives, but through negotiation with ministers on the floor of the Senate. It is often implemented through Government, rather than non-government amendments.”48

Additional research is needed to assess the legislative influence of the Senate definitively, but several things can be said now. First, despite very public clashes between the Government and the Senate on important bills through the years, on the GST and Telstra privatization, for example, the two bodies are not in a perpetual state of war. For much of the time they work cooperatively and the Government gets much of what it wants, if with amendments. In most cases a bill that is plainly unacceptable to the Senate is unlikely to be introduced by the Government, but if a bill is introduced that triggers opposition from non-Government senators, the Government itself is likely to introduce the amendments that will see it into law. It is interesting that the research cited above focuses on amendments to Government bills, not on committee or member initiated bills, and this is because there are none of the former and very few of the latter. The contrast with the United States is stark. In U.S. state and federal legislatures, money bills must 47 Meg Russell and Meghan Benton, “(Re)assessing Parliamentary Policy Impact: The Case of the Australian Senate”, Australian Journal of Political Science, v. 45, no. 2, 2010, pp. 159–74. 48 Russell and Benton, “(Re)assessing Parliamentary Policy Impact”, p. 170.

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be introduced by the Government in the lower house but they are generally considered in upper house committees before the lower house has completed consideration and the two houses operate independently, with freedom to amend or reject. Non-money bills are introduced in either house by individual members or groups of members, on their own behalf or on behalf of the executive, and many are introduced in both houses with sponsors from both. In each house, committee members and staff consult with the bureaucracy, interest groups and others independently of the executive, and usually independently of the other house. The two houses very often adopt different versions of a bill which must then be reconciled in conference committees comprising members of both houses before a final vote can be taken in both. President Obama has made it a practice not to send drafts of important bills to Congress. He sends proposals and the bills are written in committees, and sometimes in several committees. The important distinction between the American and Australian legislative processes that this illustrates is that American legislatures see themselves as coequal branches of government with the executive, and upper and lower houses see themselves as co-equal branches of the legislature. And they are resourced appropriately. Australian parliaments are very different. The Executive controls the legislative process very tightly in the lower house and the upper house limits itself to the role of a house of review, for which there is no constitutional requirement. The legislative role it accepts for is itself is to review, not initiate, legislation. The web site of the Victorian Legislative Council says that its job is to reject or amend legislation passed by the Legislative Assembly, delay the passage of “hasty” legislation, conduct detailed investigations into specific issues, and serve as a forum for debate and scrutinizing the Government.49 There is no mention of initiating legislation, which both houses of the US Congress do routinely. The Victorian Legislative Council’s view of itself as a house of review is reflected in the parliamentary web sites of New South Wales, Tasmania, Western Australia and the Commonwealth. The latter states that the Senate is “the most powerful legislative upper house in the world,” excepting only the US Senate, but adds that it is a “house of review,” which is certainly not the US Senate’s view of itself.50 Don Wing, a former President of the Tasmanian Council, wrote 49 Victoria, Parliament, Legislative Council, “The role of the Council in the parliamentary structure”, Information Sheet Number 1, 2007. 50 Australia, Parliament, Senate, The Role of the Senate, Senate Brief No. 10, 2003, p. 1.

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approvingly that his chamber “has always had a majority of independent members making it a truly genuine House of Review.”51 In their book on the New South Wales Parliament, Clune and Griffith note that, “Almost by definition, the workload of a second chamber is largely dependent on the amount of legislation sent to it for review from the lower house.”52 But this workload is “by definition” only in parliamentary second chambers, and in Australia it is by convention. No American upper house would accept the definition for itself. Before completing this discussion of legislation, I should add that there is one particular circumstance in which, de facto, constitutions recognize the primacy of the lower house in the processing of bills. This is when an irreconcilable deadlock over legislation arises between the two houses and conflict resolution procedures are invoked. In the Commonwealth, Victoria and New South Wales, a deadlock may be resolved by convening a joint sitting of both houses. The lower houses have more members than their upper houses and in joint sittings they therefore have a numerical advantage. But these procedures are moribund.53 With respect to parliamentary procedures, it is clear that the rules adopted for Australian upper houses favour the Government. Australian upper houses are houses of review. That is not what Australian constitutions say but it is how the houses see themselves, and this is why their procedures in Standing Orders favour the Government, even when it is in the minority. In the Senate, for example, only Government business is scheduled on Monday and Tuesday, from 12.30 p.m. to 2.00 p.m., and on Wednesday from 9.30 a.m. to 12.45 p.m.. On Thursday, except for two and a half hours, Government business may always take precedence over general business. At any time, a Government statement on a committee report takes precedence over general business. During Senate debate on a bill, only a minister may move closure at any time, which ends discussion immediately, or invoke the guillotine, which sets a time limit for a debate. Other senators must wait until all senators have had an opportunity to speak before they can move to curtail debate. The Government even sets the number of sitting days per session, no matter who holds a majority in the upper house. In 2008, for example, the Government determined that the House of Representatives would sit for 82 days and the Senate for 52, notwithstanding that the upper house could argue that it needed additional time for its committees to sit. Given 51 http://www.parliament.tas.gov.au/lc/lc1.htm 52 Clune and Griffith, Decision and Deliberation, p. 90. 53 Australian Constitution Sec. 57, New South Wales Sec. 5A–5C, Victoria Sec. 65.

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the responsibilities of the Senate, there is absolutely no reason to suppose that it needs to sit for fewer days than the House of Representatives. The Standing Orders on committees also recognize a privileged role for the Government. In the United States Senate the majority party chairs all committees and sub-committees, whether it controls the executive or not, but in Australia members from the Government side chair many upper house committees even when they are in the minority in the house.54 Senate Standing Order 31 requires each committee to select its own chair, but all the Senate non-domestic standing committees introduced in 1970 had chairs from the Government side. In 2011, Labor senators chaired all eight legislation committees, which deal with legislation and estimates, and six Liberals and two Greens chaired the weaker reference committees which conduct inquiries. The Scrutiny of Bills Committee, which reviews bills for compliance with civil liberties, had a Liberal chair, but the Regulations and Ordinances Committee, which reviews delegated legislation, had an ALP chair, as did the Selection of Bills Committee, which refers bills to committees for consideration. Much the same consideration for the Government can be found in state Legislative Councils where governments rarely have majorities. In South Australia in 2011, for example, the ALP, with just eight members, chaired four of the five non-domestic standing committees in the Council, although it chaired none of the select committees. We should also note that, by custom, not law or standing orders, the President of the upper house is usually selected from the Government side by a vote of the house, even when the Government is in the minority. At the end of 2010, five upper house presidents were Government supporters and three of these, in the Commonwealth, New South Wales and South Australia, were members of the Labor Party, which was in the minority in the house.

Parliamentary Parties Finally, the primacy of the lower house is reflected in the organization of parliamentary parties in Australian parliaments. In the United States Congress, each party caucuses separately in the two houses. In Australia, upper and lower house members caucus together if a party is represented in both, which gives an advantage to the larger house in important caucus votes on 54 In 2001 and 2002 Democrats and Republicans held half of committee chairs each in the U.S. Senate, but only because the parties were tied in the house.

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party policy and party leaders. In Britain, contested leadership elections in all the major parties are conducted by postal ballots of party members but in Australia the leader is elected by the caucus. In the Australian Labor Party, the caucus also selects, or in the case of Kevin Rudd and Julia Gillard, endorses, the Cabinet, and from the beginning of the ALP as a parliamentary party, Labor MPs have been bound by the majority vote of caucus.55 It is inevitable that the party competition between Government and Opposition in the lower house and the desire to form a government there is the overwhelming concern of parliamentary caucuses dominated by lower house members, and this is carried over into the upper house.

Conclusion The fact that governments now rarely control the six Australian upper houses, all of which have democratic legitimacy, has energized these chambers. When the Government is in a minority it has to work much harder to secure its bills, and has to compromise much more often, than when it is in a majority. When Barbara Page examined periods between 1976 and 1989 when governments were in the minority in the New South Wales Legislative Council she concluded that ministers had to work harder than before to brief and negotiate with councillors, and the latter came to see themselves as full-time legislators. There was a doubling of the Council’s sitting hours, a rise in average attendance, and an interest in a broader range of activities. The committee system was also expanded and the resources available to the Legislative Council were markedly improved.56 More recently Clune and Griffith found that the New South Wales Council’s committee system has become “a formidable instrument for scrutinizing the Executive and conducting inquiries into matters of public concern.”57 This experience is being duplicated, to varying degrees, in other Legislative Councils, and Scott Bennett describes a new “upper house ethos” in which Councils are no longer ridiculed as retirement homes for aging politicians or havens for ultra-conservatism.58 Furthermore, as Bruce Stone notes, “[U]pper houses can 55 Frank Bongiorno, “The Origins of Caucus: 1856–1901”, in Stuart Macintyre and John Faulkner, eds, True Believers: The Story of the Federal Parliamentary Labor Party, St Leonards, New South Wales, Allen and Unwin, , 2001, p. 6. 56 Page, “Developments in the Legislative Council of New South Wales since 1978”, pp. 24–27. 57 Clune and Griffith, Decision and Deliberation, p. 687. 58 Scott, Bennet, Affairs of State: Politics in the Australian States and Territories, Sydney: Allen and Unwin, 1992, p. 97.

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typically no longer be taken for granted by Australian executives, nor can they be hijacked by the opposition and used purely as an instrument of war with the Government of the day.”59 Australian upper houses nonetheless continue to be attacked by governments for being obstructionist and irresponsible. This suggests that governments typically have a narrow view of how parliamentary government should work. They believe that the Government should be free to govern without restraints pending the voters’ judgment on its record at the next election. Those who support upper houses in Australia argue a pluralist case; that the upper house is an essential element in a political system that benefits by fragmenting and balancing power. Campbell Sharman writes, for example, that “even though it is true that governments are elected to govern, it is not true that they are elected to have passed any law they fancy ...”60 What Australian governments, state and federal, see as a flawed system because they are constrained by upper houses is seen by others as a parliamentary system that constrains the authoritarian tendencies of executives in modern parliamentary systems. Moon and Sharman, for example, write, “It can be argued that directly elected, powerful upper houses in a parliamentary system are Australia’s contribution to the repertoire of representative democracy ... ”61 Supporters therefore see the upper house as a legitimate instrument for restraining the Government and holding it to account, but Stanley Bach, for one, thinks it could do this better. In 2003 he argued that the federal Government is responsible to the House of Representatives lower house in the sense that it is selected from the majority there, but nowadays it is only truly held to account by the Senate, which he would strengthen so that it might perform its accountability function more effectively. He writes, “[T]he Senate has yet to develop fully the capacities and, more important, the sense of itself that it will need if it is to provide the accountability that once was expected to accompany the relationship of formal responsibility between the lower house

59 Bruce Stone, “State upper houses and parliamentary democracy,” Democratic Audit of Australia, 2005, p. 1. 60 Campbell Sharman, “The Senate and Good Government”, Parliament, the Department of the Senate, Papers on Parliament, no. 33, May 1999, p. 155. 61 Jeremy Moon and Campbell Sharman, eds., Australian Politics and Government: the Commonwealth, the States, and the Territories, New York: Cambridge University Press, 2003, p. 3.

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and the Government.”62 We will consider proposals for reform of the Senate in the final chapter. In 2003 Bach argued that the Australian Parliament worked because the Government and the Senate, both extremely powerful constitutional actors, had reached a delicate balance which was the product of “accidental genius.” By 2008, however, he had concluded that the federal parliamentary system works because the Senate accepts parliamentary norms. He wrote, From Federation to the present, the prevalent understanding seems to have been that, at its heart, the Australian political system is parliamentary in nature – that it owes its essential character to Westminster, notwithstanding the existence of an elected Senate with almost the same legislative powers as the House of Representatives.63

To act in a parliamentary way means to accept the primacy of the lower house, and the Government that controls it. As I have indicated here, the primacy of the lower house is evident in Australia in a number of ways; in Government formation, membership and termination, in legislation, and in the management of Parliament. Only a small part of this primacy, the financial initiative, is determined by constitutional law. For the rest, parliamentary government works in Australia because upper houses exercise self-restraint. Were they to exercise their legal powers fully they could destroy parliamentary government. It is true that Australian federal and state governments have to tailor their budgets and bills to accommodate the upper house when they have no majority there. That is no bad thing if it is a legitimate representative body, but even when they are in a minority in the upper house, Australian governments get much of what they want, and everything they absolutely must have, from the upper house, and procedural rules and norms operate in their favour. If governments do not get what they absolutely must have from upper houses they would resign, and they do not.64 However, a major problem for all Australian bicameral systems is that the adversarial, winner-take-all behaviours of the lower house, where the issue of the Government’s survival is paramount, are projected by both the major parties into the upper house, where behaviours of negotiation, accommodation and compromise would be more appropriate. This is not how things have to 62 Bach, “A Delicate Balance”, p. 14. 63 Bach, Senate Amendments, p. 418. 64 See Australia, Parliament, Department of the Senate, Business of the Senate, published annually.

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be, and it is not how things always have been in Australia. No government has controlled the New South Wales Legislative Council, for example, since 1988 but Clune and Griffith find that the “full blooded confrontation between the houses” that happened during the Coalition Government of Nick Greiner from 1988 to 1992 was much less evident during the Coalition Government of his successor, John Fahey, from 1992 to 1995, when “the Government usually got what it wanted in some form but had to accept negotiation and compromise as part of the price.”65 This pattern continued during Bob Carr’s term as Labor Prime Minister from 1994 to 2005 when, Clune and Griffith say, “There was no question that ‘strong’ bicameralism could coexist with the efficient flow and management of government business ... the passage of government legislation has become a consultative business.”66 For a while, in 1999, there was a hint that John Howard was prepared to abandon confrontation and endorse consultation with the Senate. Having threatened to call a double dissolution election on the issue of the Goods and Services Tax, he and five Australian Democrat senators managed to agree on a bill that gave the Government most of what it wanted. When Barrie Cassidy, an ABC interviewer, pointed out that the Democrats in the Senate were not, after all, “a threat to democracy”, the Prime Minister agreed, noting that “it is a great outcome for Australia and the political system has been seen to work.” He added, “[I]n a sense a bit of the political paradigm has been altered today.”67 He was premature. By 2003 Howard was attacking the Senate for obstructionism and recommending reform. It was back to business as usual.

65 Clune and Griffith, Decision and Deliberation, p. 566. 66 Clune and Griffith, Decision and Deliberation, pp. 686–7. 67 ABC News, The 7.30 Report, 28 May 1999.

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The Head of State

With very few exceptions, parliamentary countries have heads of government and heads of state, but the seventh characteristic of parliamentary government is that heads of state have very limited roles. This has been the case in Australia since the colonies acquired self-government in the 1850s at a time when the British monarchy was becoming largely ceremonial and executive powers were in the final stages of being transferred de facto to ministers drawn from Parliament. Colonial politicians understood very well what was happening in Britain and they anticipated that colonial governors would ordinarily act on the advice of colonial ministers, but they did not write this into their new constitutional law. It had to depend on conventions. Australia’s six states all have governors, the Commonwealth has a GovernorGeneral, and the Northern Territory has an Administrator, all of whom act for the most part on the advice of ministers. They will all be referred to in this chapter as heads of state although governors and the Governor-General are formally representatives of the Queen and the Administrator is a representative of the Governor-General. The Australian Capital Territory has no head of state for ordinary purposes, but the Governor-General may intervene in limited circumstances. Most parliamentary states have a head of state. The very few exceptions include Nauru and Kiribati, small parliamentary states in the Pacific which combine the two roles in the office of President, and the Australian Capital Territory which, for most purposes, has no head of state. These examples show that a separate head of state is not absolutely necessary in a parliamentary system. That is how matters are arranged in the ACT and how they would have been arranged had attempts to abolish the office of Governor succeeded in South Australia in 1919,

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Tasmania in 1921, and Victoria in 1903 and 1917.1 Nonetheless, the great majority of parliamentary systems have a head of state, including all but one in Australia, and we should consider who they are and what they do.

The Crown The Commonwealth of Australia and the Australian states are all constitutional monarchies, with a Crown that they share with the United Kingdom. No Australian constitution establishes the monarchy per se because it was unnecessary when they were written. The colonies were colonies under the Crown both before and after self-government, and the colonial constitutions still apply, with amendments. The British act which created the Commonwealth of Australia in 1900 declared that the colonies had agreed to create a federal Commonwealth “under the Crown of the United Kingdom of Great Britain and Ireland”. That being said, Section 61 of the Commonwealth Constitution assigns executive powers to the Queen, to be exercised by the Governor-General as her representative, and whilst no colonial constitution recognized the Queen as the Executive, the New South Wales, Queensland, South Australian and Western Australian constitutions all require her to appoint a Governor as her representative. In Tasmania and South Australia the office of Governor simply continued from the period before self-government, but Section 7.1 of the Australia Act 1986 affirmed for all the states that “Her Majesty’s representative in each State shall be the Governor”. Australian constitutions assign all the local responsibilities of the Crown to the Governor or Governor-General. The Royal Powers Act 1953 authorizes the Queen to perform the responsibilities of the Governor-General if she is present in Australia, and the Australia Acts 1986 extend this rule to the states, but since 1954 she has only visited four Australian state parliaments and the Commonwealth Parliament. When she is not in the country her only substantial responsibility is to appoint, and if necessary dismiss, the Governor or GovernorGeneral, and she does this on the advice of Australian ministers. The colonies surrendered certain powers to the Commonwealth in 1901 when they became states, but, in a constitutional anomaly, their relationship with the Crown went unchanged. In fact, Anne Twomey writes, “[T]he British Government continued to treat the States as colonial dependencies until 1

Anne Twomey, The Chameleon Crown, pp. 31, 32, 37.

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the enactment of the Australia Acts in 1986.” The British Foreign Secretary countersigned orders issued by the Queen for the states, not state ministers, and for many years Britain exercised a veto over nominees for Governor. It agreed that the appointment should be acceptable to each state but wanted to appoint non-Australians who could stand apart from local politics.2 The first Australian was appointed state Governor only in 1946, and for 17 years prior to 1948 Western Australia had no Governor because Britain would not accept the state’s nominee.3 South Australia requested an Australian Governor in 1908 but did not get one until 1968, and Victoria received its first only in 1974.4 In 1976 the British Government refused to advise the Queen to reappoint Sir Colin Hannah as Governor of Queensland, as the Premier advised, because Hannah had criticized Gough Whitlam’s federal government,5 but Britain supported the states’ opposition to Whitlam when he proposed that they should communicate with the Queen only through the Governor-General.6 The possibility of British intervention in the states ended finally in 1986 with the passage in Britain and Australia of the Australia Acts, which regularized the constitutional independence of the states from Britain.7 But long before this Britain had accepted that it would not use the Crown to intervene in the affairs of the Commonwealth, or any other dominion, something that was confirmed in the Statute of Westminster 1931. Nonetheless, whilst Sir Isaac Isaacs was the first Australian to be appointed Governor-General in 1930, over the objections of King George V, a consistent pattern of appointing Australians did not begin until 1965.8

The Constitutional Roles of the Head of State The Australian federal and state constitutions all identify a number of powers and responsibilities of the Governor-General and state governors which are based on British common law royal prerogatives, but because the constitution 2 3 4 5 6 7 8

Twomey, The Chameleon Crown, pp. 19, 47–48, 114. Gerard Carney, The Constitutional Systems of the Australian States, p. 269. Twomey, The Chameleon Crown, pp. 31, 32. Carney, The Constitutional Systems of the Australian States, p. 270. Twomey, The Chameleon Crown, pp. 96 ff. Anne Twomey, “The Making of the Australia Acts 1986”, in George Winterton, ed., State Constitutional Landmarks, Annandale, New South Wales: Federation Press, 2006, pp. 266–97. Bogdanor, The Monarchy and the Constitution, p. 247.

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acts were drafted by Australian politicians without a template imposed from London, they vary considerably. Despite these differences, the constitutional powers of the Crown are more clearly articulated in Australia’s constitutions than in Britain, where they remain in the common law. The Commonwealth has the most comprehensive Australian statement of the head of state’s powers, but no constitution act is comprehensive. For example, the federal and state acts do not recognize royal prerogatives that have never been incorporated into Australian law. Nor do Australian constitutions identify constitutional conventions that regulate the head of state and sustain parliamentary government. For the most part, with the exception of the ACT, Australian constitutions describe a pre-modern, eighteenth century, British political model in which the head of state is the chief executive, and they can only be understood today by recognizing that constitutional law is limited by constitutional conventions. Section 61 of the Commonwealth Constitution, for example, states, “The executive power of the Commonwealth is vested in the Queen and is exercisable by the Governor-General as the Queen’s representative.” There is no recognition in law that the effective executive is the Prime Minister and Cabinet or that the Governor-General ordinarily acts on their advice. The most important constitutional role of a modern Australian head of state is to appoint the Government, or his “advisers”. Only the ACT Constitution provides that the head of the Government, the Chief Minister, shall be elected by Parliament. Everywhere else in Australia the head of state appoints ministers, and this is provided in various ways in the Commonwealth, New South Wales, Queensland, South Australian, and Northern Territory constitutions. Elsewhere, the appointment of ministers is a prerogative power. Whether specifically recognized in a constitution or not, in every case outside the ACT the appointment of ministers is a discretionary power of the head of state, save that in New South Wales parliamentary secretaries, or assistant ministers, are appointed by the Premier (S.37.1), and in Queensland they are appointed “in Council,” on the advice of the Government. (S.24.1) There appear to be some conventions to be followed by the head of state in making appointments but these are not absolutely clear. For example, the Commonwealth Constitutional Convention that met between 1973 and 1985 concluded that the head of state must consult the outgoing Prime Minister

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on the appointment of a successor,9 but this would be inappropriate were a Prime Minister to be dismissed. However, the convention that the head of state ordinarily appoints a Prime Minister who can secure the support of a majority in the lower, or only, house of Parliament, is unambiguous. The only exceptions were in 1901, when the first Commonwealth Prime Minister was appointed to serve until the first elected House of Representatives could sit, and in 1932 in New South Wales and 1975 in the Commonwealth when a Prime Minister with a majority was dismissed and his successor was appointed with one task, to advise a dissolution and general election. It is also unambiguous that the Prime Minister nominates the rest of the Government. These conventions are so well established that it is strange that the ostensibly modernized Queensland Constitution adopted as recently as 2001 did not recognize them in law. Instead, Section 34 restates the colonial fiction that “Ministers hold office at the pleasure of the Governor, who, in the exercise of the Governor’s power to appoint and dismiss the Ministers, is not subject to direction by any person and is not limited as to the Governor’s sources of advice.” Section 35.E.2 of the New South Wales Constitution, dating from 1987, uses much the same language. With respect to Parliament, every Australian constitution gives the GovernorGeneral or Governor the legal authority, with various qualifications, to do some combination of the following: summon, prorogue and dissolve Parliament or the lower house, issue writs for elections and fix dates for parliamentary sessions.10 Section 10 of the New South Wales Constitution goes so far as to say that the Governor may summon and prorogue Parliament, “whenever he deems it expedient.” These provisions appear to give the head of state enormous powers in the management of Parliament but by convention they are exercised on the advice of ministers. Furthermore, constitutional amendments have limited the power of some state governors to dissolve the lower house before the end of a parliamentary session. In New South Wales the Governor may only dissolve the lower house early if the Government is defeated on a vote of confidence or a money bill in the lower house (S.24B), in South Australia if the Government loses a vote of confidence in the lower house or a “bill of special importance”

9

Australia, Australian Constitutional Convention, Proceedings, v. 1, Adelaide, 1983, pp. 319– 22; Proceedings, Brisbane, 1985, pp. 7–45, 389–91. 10 To prorogue means to suspend or discontinue a session. To dissolve means to terminate a session and hold elections for a new Parliament.

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in the upper house (S.28A), and in Victoria as part of the deadlocked bills procedure, if the Premier advises so in writing (S. 65E.3). The head of state also has important formal responsibilities with respect to legislation. No bill may become law without receiving the royal assent, although only Section 58 of the Commonwealth Constitution specifically states this. Elsewhere the assent is implied by the fact that Parliament is defined to include the Queen, and in Tasmania the Governor, and/or there is a constitutional provision that the head of state makes law “with the advice and consent of ” Parliament. But one has to be a detective to discover this in South Australia. In the 1856 South Australian Constitution, Parliament inherited the functions of the Legislative Council established by the 1842 Constitution Act, and that act authorized the Governor to make law “with the advice and consent” of the Council.11 The Commonwealth, South Australian and Victorian constitutions permit the head of state to return bills to Parliament with recommended amendments, and this can sometimes be used by the Government to suggest amendments to its own bills late in the day through its advice to the head of state.12 Some governors also have a role to play in resolving legislative deadlocks between the parliamentary chambers. Under Section 57 of the Commonwealth Constitution the Governor-General may dissolve both houses of Parliament and then convene a joint sitting of the new Parliament to resolve deadlocks. In Victoria he may dissolve the Assembly if requested to do so by the Premier (S.65E.3), in New South Wales he may convene a joint sitting of Parliament (S.5B.1), and in South Australia he may dissolve both houses (S.41). The Commonwealth Constitution contains provisions that the GovernorGeneral may reserve a bill to the Queen for the royal assent, and the Queen may disallow a bill to which the Governor-General has given her assent. Both provisions formally give the British Government the ability in law to intervene in Australia through its advice to the Queen, but they are obsolete. Britain agreed not to use them in 1926, and they would have been removed in planned constitutional amendments had an Australian republic been approved by referendum in 1999. They have already been removed in the states.

11 Geoffrey Lindell, “Royal Assent to South Australian Legislation: Comment”, Public Law Review, v. 14, 2003, pp. 137–9. 12 Taylor, The Constitution of Victoria, pp. 303–4.

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The Commonwealth, the Northern Territory, and every state but Western Australia require bills to tax or appropriate money to be recommended to Parliament by the head of state. This allows the Government to control the financial initiative through its advice. New South Wales has recognized this reality by amending its constitution, in Section 46, so that a minister may also make the recommendation. In 1984 the South Australian Labor Government tried to delete the Governor’s role in money bills from Section 59 of the state Constitution, which Attorney General Sumner described as “an anachronistic procedure that carries with it no substantive meaning,” but Liberals and Australian Democrats defeated the amendment in the Legislative Council. They argued that Section 59 was the only provision in the Constitution that required the Government to come to Parliament for a supply of money.13 In the Commonwealth and three states, New South Wales, South Australia and Western Australia, the head of state makes appointments to public offices under the Crown, and in the Commonwealth, Queensland and Victoria he appoints judges. In other cases, appointments may be made under the royal prerogative. In the Commonwealth, New South Wales, Queensland, South Australia and Western Australia the head of state may remove a judge for cause, on an address or petition from Parliament. The Governor-General of Australia has a number of powers that are unique to the Commonwealth.14 She is specifically identified as Commander-in-Chief of the armed forces in Section 69 and has prerogatives not mentioned in the Constitution that were transferred to Australia at federation. One of these is to award honours and another is to conduct foreign relations, which Britain insisted should be retained by the Crown at federation. Australia would be responsible for Australian domestic affairs but the Crown would make policy for the Empire.15 Section 51(xxix) of the Constitution allows Parliament to make laws regarding external relations, which allows it to implement a treaty obligation in domestic law, but if a treaty is self-executing it falls within the prerogative of the Governor-General. For example, after the incoming Prime Minister, Kevin Rudd, and his deputy, Julia Gillard, were sworn in by Governor-

13 South Australia, Parliament, House of Assembly, Debates, 45th Parliament, 3rd Session, p. 2137. 14 Renfree, The Executive Power of the Commonwealth of Australia, pp. 486–504. 15 Anne Twomey, The Constitution: Nineteenth Century Colonial Office Document or a People’s Constitution, Parliament Research Service, Background Paper No. 15, 1994, pp. 20–21.

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General Jeffery on the morning of 3 December 2007, they went into Executive Council so that Rudd could advise Jeffrey to sign the Kyoto Protocol on climate change, which he did. There was no vote in Parliament, or even a decision by the Cabinet, most of whose members were not sworn in until later that day. Rudd and Gillard were using the Governor-General’s foreign policy power to carry out an election commitment.16 The Governor-General also has the prerogative power to appoint and receive ambassadors and high commissioners, which gives her the power to recognize states and governments. The then incoming Prime Minister, Gough Whitlam, and his deputy, Lance Barnard, used this power in 1972 to advise Governor-General Hasluck to recognize the Communist Government of China. They also ended military conscription, withdrew Australian troops from the Vietnam War, changed Australia’s vote at the UN to one condemning South African apartheid, and replaced the Australian honours system, all before the full Cabinet was sworn in and without Parliament’s participation. They used prerogative powers.17 Of course, to repeat what I have said many times, conventions determine that all the head of state’s powers identified here are ordinarily exercised on ministerial advice, the royal assent, for example. It has been argued in some states that the appropriate body to advise the Crown on the assent is not the Government because, in law, the Queen makes law “with the advice and consent” of the house or houses of Parliament and they make their advice known by passing a bill. But in practice the Government tenders advice on the assent and it would be very strange to find it advising the head of state to refuse. There are a very few cases, however, when a bill’s legality was questioned after its adoption and the Government advised against or deferred the royal assent.18 Given the power of the convention that the head of state acts on advice, one might be tempted to think that Australian heads of state are simply rubber stamps for the Government, and therefore redundant. The fact that the heads of state in the Commonwealth, New South Wales, South Australia and Victoria receive their funds and administrative support from the Department of Prime Minister or Premier might add to scepticism, but this would be wrong. A head

16 Sydney Morning Herald, 3 December 2007. 17 John Craig, Australian Politics: A Source Book for Students, Sydney: Harcourt, Brace, Jovanovich, 1991, p. 157. 18 Killey, Constitutional Conventions in Australia, pp. 189–95.

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of state who has standing, independent of the Government, has a number of useful roles in Australia.

The Ceremonial Role The most widely understood of these roles is ceremonial, or representational. Governors and Governors-General serve as patrons for organizations and events, host official state guests, and preside over or attend a variety of functions. The Crown also has the exclusive right to award honours on behalf of Australia for distinguished service, most notably the Order of Australia. Until 1975 Australia used the British imperial honours system but a new one was created using the royal prerogative and Letters Patent issued by Queen Elizabeth and countersigned by Prime Minister Whitlam as one of his first acts in office in 1972.19 The awards are made by the Governor-General but the system is administered through the Awards and Culture Branch of the Department of Prime Minister and Cabinet.20

The Head of State as Guarantor of Government Legitimacy An extremely important role for a head of state is to guarantee the legitimacy of government actions. Bills, public appointments and many other acts of government are not official until the head of state signs them and this forces the Government to act legally in what it does and advises. The Tasmanian Department of Premier and Cabinet says that the role of the Governor “is to monitor the legality and procedural regularity of government.”21 This role is what gives the Executive Council, which is the formal venue for advice to a head of state, its contemporary value. Before self-government each colonial Governor chaired an Executive Council composed of senior colonial officials who advised him on the administration of the colony. At self-government these were retained by royal instructions to the Governor or by provisions in the new colonial constitutions. Each governor was instructed from London to replace colonial officials in the Executive Council with ministers from Parliament, although only the South Australian Constitution required this by law. Section 62 of the Commonwealth Constitution subsequently created the Commonwealth Executive Council and 19 Renfree, The Executive Power of the Commonwealth of Australia, p. 509. 20 See Australia, Government, “It’s an Honour”. . 21 Tasmania, Department of Premier and Cabinet, Executive Division.

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gives the Governor-General the authority to appoint councillors to “hold office at his pleasure.” Appointees have always been ministers. Executive councillors are appointed for life, or at the pleasure of a head of state, but by convention or law only serving ministers attend Council meetings and it is rare for more than a few to be present. The quorum in the Commonwealth and the states is only two ministers. Councils customarily meet between 35 and 50 times a year to formalize Cabinet decisions which a constitution or legislation require to be made “in Council”.22 The Federal Executive Council Handbook requires that every official action requested of the Governor-General must be accompanied by a formal recommendation by the minister responsible, a memorandum explaining the reason for the action and its legal basis, and a formal instrument to be signed by the Governor-General and countersigned by the minister.23 This is the pattern in states, too.24 In Section 16A of the Acts Interpretation Act 1901 the Commonwealth Parliament decided that a reference to the Governor-General in an act should be interpreted to mean the Governor-General acting with the advice of the Executive Council. By convention the head of state accepts the advice of ministers in Council so that “acting with the advice of the Executive Council” really means” acting as instructed by the Cabinet,” but the procedure forces the Government to act legally.

“The right to be consulted, the right to encourage, the right to warn.” In 1867, the British political commentator Walter Bagehot wrote that Queen Victoria might no longer reject her ministers’ advice but she had “the right to be consulted, the right to encourage, the right to warn”, and this no doubt happens in Australia today.25 Paul Hasluck, who held the office from 1969 to 1974, said the Governor-General “does not reject advice outright but seeks to ensure that advice is well-founded, carefully considered, and consistent with stable government and the established standards of the nation.”26 We do not know what heads of state and ministers say to each other because their 22 Australia, Department of the Prime Minister and Cabinet, Federal Executive Council Handbook, 2004, Sections 2.2.1 and 2.2.4.

23 Australia, Federal Executive Council Handbook, Section 3.1.

24 See, for example, Selway, The Constitution of South Australia, p. 76, and Section 43 of the Western Australia Constitution. 25 Bagehot, The English Constitution, p. 75. 26 Quoted by Carney, The Constitutional Systems of the Australian States and Territories, p. 297.

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meetings are confidential, but common sense suggests that heads of state may use their experience and expertise, and the personal relationships they form with ministers, to consult, encourage and warn, when appropriate.

“Reserve Powers”27 Quite how far may Australian heads of state go to ensure that governments act legally? In particular, may they use their constitutional powers against, or without, the Government’s advice? For example, might the head of state use a constitutional power to dismiss the Prime Minister or dissolve Parliament without advice. The usual answer is that by convention heads of state must accept ministerial advice unless there are extraordinary circumstances, in which case they may use what are customarily called “reserve powers.” The Victorian Parliament Education Office was wrong to describe these as “powers accorded the Governor-General by convention which are not written into the Constitution.”28 In fact they are powers quite definitely written into the Constitution which are ordinarily exercised on ministerial advice but which may be exercised without, or even contrary to, ministerial advice in exceptional circumstances. This raises the question of what is an exceptional circumstance. There is widespread agreement that the head of state may use a reserve power to appoint a Prime Minister if there is a “hung Parliament” and noone can secure majority support in the lower house. He may dismiss a Prime Minister who acts illegally, or loses the support of the lower house and refuses to resign or advise a dissolution. He may refuse to dissolve one or more houses of Parliament if the Government loses its majority early in the life of the Parliament and another Government can be formed without an election. Bradley Selway denies that there is a reserve power to dissolve Parliament, however. This may only be done, he says, on the advice of the Prime Minister or Premier.29 Some lawyers have reservations about whether the head of state has a reserve power to refuse assent to a bill thought to be illegal, because legality might better be tested in a court, but Greg Taylor believes refusal is appropriate if a bill would remove a basic constitutional safeguard. He does not believe, however, that the Governor has a “roving commission to act as

27 Killey, Constitutional Conventions in Australia, pp. 129–88. 28 Victoria , Parliamentary Education Office, Parliamentary Glossary, 2010. 29 Selway, The Constitution of South Australia, p. 45.

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grand inquisitor and general router-out of corruption or maladministration, let alone as a one-person constitutional court.”30 Whatever the reserve powers are, they are not used very often. George Winterton writes, “Most Governors-General and Governors serve their entire term without needing to contemplate the exercise of a reserve power,”31 but there are enough examples of their being used to know that they exist. For example, Governors-General three times refused advice to dissolve the federal House of Representatives between 1901 and 1908 when they thought a government could be formed without an election.32 State governors refused dissolutions in Tasmania in 1904 and 1909, New South Wales in 1921, and Victoria in 1950.33 In 1926, Governor de Chair refused to appoint ten women to the New South Wales Legislative Council, then an appointed body,34 and on a number of occasions governors refused to appoint Government nominees if the intent was to swamp the Council with proGovernment members.35 State governors are known to have taken an active role in government formation, as in 1989, when the Governor of Tasmania, Sir Phillip Bennett, appointed a government only after independent Green members assured him personally that they would support a minority Labor government in the Assembly. And heads of state have sometimes demurred before accepting ministerial advice. Sir Ninian Stephen, for example, asked Prime Minister Fraser to explain why certain deadlocked bills were essential to the Government before agreeing to Fraser’s request for the double dissolution in 1983. Most significantly, two heads of government have been dismissed by heads of state since federation, something not done in Britain since 1784. In 1932, Governor Sir Philip Game dismissed the Labor Premier of New South Wales, J.T. Lang, who, Game believed, had broken federal law concerning the repayment

30 Selway, The Constitution of South Australia, pp. 37–42; Carney, The Constitutional Systems of the Australian States, p. 282; Greg Taylor, The Constitution of Victoria, p. 133. 31 George Winterton, “The Role of the Governor,” in Clement Macintyre and John Williams, eds, Peace, Order and Good Government: State Government and Parliamentary Reform, Adelaide: Wakefield Press, 2003, p. 210. 32 J.R. Archer, “The Theory of Responsible Government in Britain and Australia,” in Patrick Weller and Dean Jaensch, Responsible Government in Australia, Richmond, Victoria: Drummond, 1980, pp. 29. 33 Clune and Griffith, Decision and Deliberation, pp. 205–7. 34 Clune and Griffith, Decision and Deliberation, pp. 111, 113, 114, 285. 35 Clune and Griffith, Decision and Deliberation, 296.

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of state loans,36 and in 1975 Sir John Kerr dismissed the Labor Prime Minister, Gough Whitlam (1972–75), who could not get his government’s appropriations through the Senate. In both of these cases the head of state chose not to dissolve Parliament immediately but appointed a new Prime Minister who would advise a dissolution. The 1975 case was the most dramatic use of a reserve power in Australian history when Kerr dismissed Whitlam, who had a majority in the House of Representatives.37 Whitlam himself had nominated Kerr, a New South Wales Supreme Court Judge, for the office in 1974. In 1975 the Coalition and its allies had a small majority in the Senate and Whitlam’s dismissal was precipitated by their decision to defer votes on appropriations and loan bills until the Government agreed to an election.38 In other words, the intent of the Coalition was to deny the government a supply of money to force it out of office, not because it opposed the bills per se. Whitlam refused to request a dissolution. The Senate had legal authority under Section 53 of the Constitution to refuse to pass appropriations bills, and Whitlam was not required by law to resign, so there was deadlock. Kerr claimed that he could not use the conflict resolution procedure in Section 57 because it stipulates a three-month delay before activation, and in his view the Government’s appropriations would not wait that long.39 Tension built for some weeks until Kerr dismissed Whitlam, using Section 64, that ministers hold office “during the pleasure of the GovernorGeneral.” He appointed the Liberal leader, Malcolm Fraser, as Prime Minister with the understanding that Fraser would request a dissolution of both houses of Parliament under Section 57, the deadlock procedure. The bills used to justify a double dissolution were Labor Government bills that had been opposed by the Coalition in the Senate. The subsequent general election produced a Coalition majority in both houses, and hence no need for a joint session. It ended the crisis, but not the controversy. Three major arguments emerged in the process. The first was the

36 Anne Twomey, The Dismissal of the Lang Government,” in George Winterton, ed., State Constitutional Landmarks, Annandale, New South Wales: Federation Press, 2006, pp. 129–160. 37 Paul Kelly, November 1975: The Inside Story of Australia’s Greatest Political Crisis, St Leonards, New South Wales: Allen and Unwin, 1995, passim. 38 Lane, An Introduction to the Australian Constitutions, p. 74. 39 R.D. Lumb and G.A. Moens, The Constitution of the Commonwealth of Australia, Annotated., Sydney: Butterworths, 1995, p. 312.

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Labor Party’s argument that a convention exists that a government with a majority in the House of Representatives may not be forced out of office by the upper house. In this view, the Senate majority acted unconstitutionally by blocking the supply of money and Kerr acted unconstitutionally by dismissing a Prime Minister who had the support of the lower house.40 Kerr rejected this view. He countered that because the Senate has the constitutional right to refuse a supply of money, a Prime Minister who cannot secure a supply of money from Parliament has a duty to resign or request a dissolution. Indeed this should be the convention, but Ian Killey has suggested that Kerr should have warned Whitlam of what he intended to do and quotes from the former Governor of Victoria, Richard McGarvie, “It is a cardinal principle that a Governor should never ‘ambush’ a Premier – should never exercise the reserve power without having given the Premier adequate warning that it may be exercised.”41 Clearly Kerr did not agree. The third argument to emerge in the controversy was the pragmatic view expressed by Gordon Reid, Martyn Forrest and others that Kerr took too legalistic a view of what was essentially a political problem. He should have let the parties work out an accommodation over the budget in the two weeks or so remaining before the Government’s money ran out.42 These arguments have not been reconciled since 1975. Most Australian politicians believe that the Governor-General should be able to use reserve powers in a political crisis, but they disagree about what, precisely, these powers are and whether they should be clarified in constitutional law. Governors-General and Governors have rarely used reserve powers. For example, no Australian head of state has ever dissolved Parliament without being advised to by the Government. Even in 1975 Kerr took advice from Fraser. In 1995, however, Sir John Kerr’s secretary, Sir David Smith, wrote that Chief Justices had advised seven Governors-General on their reserve powers, presumably because they were thinking of using them.43 However, seeking advice 40 It did not help Whitlam’s case that in 1970 he said a Labor majority in the Senate would be entitled to deny the Coalition a supply of money. Australian Parliament, House of Representative, Debates, v. 68, 1970, pp. 3495–96. 41 Killey, Constitutional Conventions in Australia, pp. 198–209. 42 G.S. Reid and Martyn Forrest, Australia’s Commonwealth Parliament, 1910–1988: Ten Perspectives, Melbourne: Melbourne University Press, 1989, pp. 305–12, 328. 43 Sir David Smith, “The 1975 dismissal: setting the record straight”, Proceedings of the 5th Conference of the Samuel Griffith Society, Melbourne: The Samuel Griffith Society, 1995, pp. 155–8.

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in this way is problematic because the Chief Justice has to give advice in an unjudicial way, without hearing the arguments of opposing counsel in court. And one might ask why the Chief Justice of a court that never gives advisory opinions should feel that he can advise the Governor-General alone. A particular danger is that the advice may be controversial if it becomes public, to the detriment of the High Court. In 1975, for example, the Labor Party criticized the Chief Justice, Sir Garfield Barwick, for having advised Kerr. Barwick later jumped into the controversy by publishing a defence of Kerr, and by implication of his own advice, whilst he was still serving as Chief Justice.44 The problem for an Australian head of state in these circumstances is that he has no statutory advisers to turn to for advice on the use of reserve powers, a Council of State, for example, such as Ireland and Portugal have. He is forced into using secret, ad hoc, consultations that are likely to be objectionable to someone if discovered.

The Head of State as Source of Ministerial Powers The least acknowledged, but arguably most important, role of the head of state is to provide Australian governments with huge powers through the advice they provide. Executive powers that are legally vested in the head of state are controlled de facto by ministers. Harry Evans described the following powers of the Governor-General in 1993: to make treaties, declare war and engage in military operations, prorogue Parliament, dissolve the House of Representatives, assent to legislation, recommend financial legislation, appoint people to public office, including department heads, armed forces chiefs, ambassadors, federal judges and the Auditor-General, together with members of statutory and quasi-judicial bodies, including royal commissions.45 One could add to this list that the Government can use advice to create or restructure government departments, pardon convicted criminals, make requests for extradition, and incorporate bodies by royal charter, amongst other things. Taken together, these are enormous powers. Prime Ministers are often described as becoming presidential, but no democratic president, including the president of the United States, controls the range of powers that prime ministers do in Australia through 44 Sir Garfield Barwick, Sir John Did the Right Thing, Wahroonga, New South Wales: Serendip, 1983. 45 Harry Evans, “Essentials of Republican Legislatures: Distributed Majorities and Legislative Control”, Australia, Department of the Senate, Papers on Parliament No. 24, 1993.

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their advice to the Crown. Furthermore no modern parliamentary system disguises this concentration of power in its constitution so effectively. Campbell Sharman writes, The imprecision of the rules that govern the exercise of key executive power in our system itself works to the benefit of the executive by giving a convenient vagueness and mystery to its activities, and simultaneously limiting the ability for legal challenge to its constitutional powers.46

It follows for Sharman that the “debate over a republican form of government will only be of value if it turns its attention to that part of our constitutional structure most in need of change: the limited role of representative institutions in checking the exercise of executive power.”47

The Head of State in the Territories Australia’s two self-governing Commonwealth territories handle the head of state very differently. The Northern Territory has a local head of state, known as the Administrator, but the ACT does not. The Constitution of the Northern Territory, the Northern Territory (Self Government) Act 1978, was introduced by a traditionalist Coalition government and was modelled on the constitutions of the states. That is to say, executive powers are vested in an Administrator appointed by the Commonwealth, and majority government is not recognized in the act. By law, the Administrator appoints ministers and assents to bills, but by convention he appoints the leader of the majority in the Northern Territory Assembly to be Chief Minister and to form the Government, and he acts on their advice.48 Because the Northern Territory is a Commonwealth territory, the Administrator has much the same constitutional relationship with the Commonwealth government that colonial governors had with the British government. This means that the Administrator may reserve a bill to the Commonwealth for consideration and approval, and the Commonwealth may disallow a territory act within six 46 Campbell Sharman, “Executive Privileges”, Legislative Studies, v. 6, no. 2, summer 1992, pp. 27–8. 47 Campbell Sharman, “Reforming executive power”, in George Winterton, ed., We the People: Australian Republican Government, St Leonards, New South Wales: Allen and Unwin, 1994, p. 113. 48 Northern Territory (Self-Government) Act 1978, Part IV and Section 7.

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months of its adoption.49 However, the Commonwealth does not ordinarily interfere and when it did, in 1997, it did not use reservation or disallowance. Instead, the Howard Government introduced the Euthanasia Laws Act 1997 which added Section 50A to the territory constitution. This prohibits euthanasia and physician assisted suicide in the territory, thereby annulling the territory law that had permitted physician assisted suicide since 1995. In 1988 the Constitution of the ACT, the Australian Capital Territory (Self-Government) Act 1988, created a very different kind of executive. The act was introduced by a Labor government but passed with Coalition support and provides a textbook example of parliamentary government stripped to its essentials. Uniquely in Australia the ACT has no local head of state with formal executive powers. Under Sections 39 and 40, executive powers are assigned to the Chief Minister elected by the Legislative Assembly and ministers appointed by the Chief Minister. The ACT actually elects a Chief Minister, appoints a Cabinet, summons the Assembly, appoints public officials and creates laws without the participation of a head of state. An act becomes law, for example, on its publication in the territory’s official legislation register. There are some elements of the Crown in the ACT Constitution, however. Under Section 35 the Governor-General may disallow territory legislation, as he did on 13 June 2006 by disallowing an act that permitted civil unions between same sex couples. There is also a crisis provision in Section 16 which has never been used. If the Assembly is deemed to be incapable of performing its functions or is behaving in a “grossly improper manner,” the Governor-General may appoint a Commissioner to run the territory and may dissolve the Assembly and call an election which must be held within 36 to 90 days of the dissolution. However, this not a reserve power, to be used without, or against, ministerial advice, because it is clear that ministers will be involved. Section 16 requires a Commonwealth minister, not the Governor-General, to set the date for a territory election following the Assembly’s dissolution, and the minister must present the reasons for dissolving the Assembly to the Commonwealth Parliament within 15 days.

49 Northern Territory (Self-Government) Act 1978, Sections 7, 8, 9.

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Reform of the Head of State: the Governor Some state constitutions have been amended in recent years to fractionally redefine and modernize the head of state. In 1987, for example, New South Wales qualified the Governor’s responsibility to recommend money bills to the legislature. Section 46.2 now says that either the Governor or a minister may recommend a money bill. Another New South Wales amendment introduced in 1987, Section 35.E, requires the Governor to appoint a Premier, and Section 42 of the new Queensland Constitution of 2001 requires that there be a Cabinet comprising a Premier and ministers. But no state constitution yet requires, or even guides, the Governor to appoint a Premier who has the support of a majority in the lower house. Another New South Wales amendment limits the Governor’s power and, albeit in a backhanded way, identifies majority government in constitutional law. This is Section 24B (6), adopted in 1992. It introduces a constructive vote of no confidence, which is a vote of no confidence in a Premier which includes support for an alternative Premier. In other words, without going through an election, the Assembly may nominate a new Premier in the process of dismissing the old one. Royal protocol is preserved because the Governor retains discretion in law to make the appointment but there is little doubt that he would comply. This is an unlikely contingency because premiers do not lose votes of confidence in the Assembly, but one can ask why, having recognized majority government in this way, the New South Wales Constitution could not have recognized that the Assembly elects or nominates the Premier in all cases, and not just in this one. The Tasmanian Assembly used a constructive vote of no confidence de facto, without a constitutional provision, after the 1989 election produced a hung Parliament. The Liberal Premier, Robin Gray, held onto office until the first meeting of the new Assembly when he lost a vote of no confidence. The Assembly nominated the Labor leader, Michael Field, to lead a minority government, supported by independent Greens. Governor Bennett would not make the appointment until he received assurances from the Greens that they would support the Government on supply and confidence votes. In 1992 the state adopted the constructive vote of no confidence in its constitution, but only on a trial basis for one session of Parliament and it was never used.50 50 See Tasmania, Constitution (Fixed Term Parliament) Special Provisions Act, No. 60 of 1992, Section 5(2)b.

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One interesting development regarding the Governor in New South Wales was an attempt to downgrade his status rather than his legal powers. The Labor Government of Premier Bob Carr decided that the new Governor, Gordon Samuels (1996–2001), would not live in Government House, the traditional home of the Governor in central Sydney, would work from the former Chief Secretary’s office nearby, and would play a diminished role in the ceremonial life of the state. By the time Samuels was sworn in the Government had partially retreated. Samuels lived in his own home in Bronte, a Sydney suburb, but played an active ceremonial role and was sworn in with a 19 gun salute. The Liberal party vowed that Samuel’s successors would live in Government House but a 2006 Labor bill permits Government House to be used for “certain charitable, educational and other public purposes,” and it is now used for public events.51 New South Wales, South Australia, Victoria and the Northern Territory have all qualified the Governor’s or Administrator’s power to dissolve Parliament as a result of the reforms of parliamentary terms discussed in Chapter 10. The amendments were designed to ensure that, absent special circumstances, Parliament would serve a full four-year term, but they had the effect of limiting the Governor’s power to dissolve Parliament at any time. In 2003, Victoria adopted a constitutional amendment to clarify, it was thought, who shall provide ministerial advice to the Governor. The new Section 87E reads: Where the Governor is bound by law or established constitutional convention to act in accordance with advice – (a) the Executive Council shall advise the Governor on the occasions when the Governor is permitted or required by any statute or other instrument to act in Council; and (b) the Premier (or, in the absence of the Premier, the Acting Premier) shall tender advice to the Governor in relation to the exercise of the other powers and functions of Governor.

In one way this amendment is useful because it strengthens the status of the Premier in law, even though the Victorian Constitution does not provide for his appointment, but the section, taken as a whole, is very confusing. It presumes that there are “established” constitutional conventions that indicate when the Governor should seek advice, but conventions are undefined and are, in any 51 New South Wales, Governor-General’s Residence (Grant) Amendment Bill, 2005.

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case, non-legal rules. And we can ask why, if conventions are really “established”, they cannot be recognized in constitutional law.

Reform of the Head of State: the Governor-General The experiments with clarifying or limiting the head of state in Australian states are far from revolutionary but they show slight movement in the direction of codifying the office as it actually operates. They have not been matched by any changes at the Commonwealth level, despite an attempt to convert the office of Governor-General to President in the republic referendum of 1999. The republic referendum came about after the Labor Party, in 1991, adopted the goal of establishing Australia as a republic by the centennial year of federation, 2001. Apart from a long-standing antipathy to monarchy, Labor’s major reason for advocating change was that the monarchy had become an inappropriate symbol of contemporary Australia. Britain and Australia are now co-equal members of a loosely organized Commonwealth of Nations, most of whose members are republics, and immigration has worked a significant change in Australia’s ethnic composition. As Prime Minister Paul Keating said in 1995, “It is no reflection on the loyalty of a great many [Australians] to say that the British monarchy is a remote and inadequate symbol of their affections for Australia.”52 One might add that the Crown is a particularly inadequate symbol in an age of equal opportunity law because the Act of Settlement 1701 required the monarch of Australia to be a member of the Church of England who may not marry a Roman Catholic, and it assigned male heirs precedence over females. It was only in October 2011 that the 16 members of the Commonwealth of Nations who share the Crown agreed unanimously that females would have equal rights to the succession as males and that the monarch might marry a Catholic, the only religion specifically excluded in current law.53 There are some who want no change in the Australian monarchy, either because they are traditional monarchists or because the Australian political system appears to them to work quite well and they see no reason for change, but there has already been some creeping republicanism. New citizens make a “Pledge of Commitment” to Australia, not to the Queen, and references to the Queen have been removed from new Queensland legislation. Since 1993, the 52 Sydney Morning Herald, 8 June 1995. 53 New York Times, 29 October 2011.

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Commonwealth, states and ACT have replaced the office of Queen’s Counsel with Senior Counsel to represent the state in legal proceedings, and since 1994 “Advance Australia Fair” has replaced “God Save the Queen” as the national anthem for all but regal and vice regal occasions. This followed a national plebiscite in which “God Save the Queen” secured only 18.78% of the votes and “Advance Australia Fair”, with 43.29%, easily beat “Waltzing Matilda and Song of Australia”.54 But these are modest changes compared with what was envisaged by the 1999 referendum, an Australian republic. Some commentators argue that Australia is already, in effect, a republic. The lawyer, P.H. Lane, for example, writes, “The monarch is only a shadow over a de facto republic. There is a de facto President, the Governor-General, appointed by an elected Prime Minister, and answerable to this Prime Minister, almost invariably acting on his advice ...”55 But if Australia is a republic de facto, as Lane suggests, its head of state de juri, the Queen, is confusingly British. Few countries seem interested in hosting a visit from the Governor-General, but when the Queen travels abroad to countries where she does not reign it is as Queen of the United Kingdom. “This is right and proper for the head of state of the United Kingdom,” Paul Keating said, “but it is not right for Australia.”56 The debate on a republic in the 1990s revisited a host of constitutional issues that have been debated since the 1890s, but since then the British Empire has been transformed into a Commonwealth of Nations and the GovernorGeneral and state governors have ceased to represent an imperial Crown. They are Australians now, not British generals or aristocrats, even if this has created a potential for bias. Since 1931, federal governments have nominated five Australians with records in party politics, both Liberal and Labor.57 In 1992 Prime Minister John Howard, a monarchist, said, “The president of a republic in at least 50% of cases would end up being a party hack, without the constraining influence of the conventions, customs and traditions of the Crown,”58 but the mechanism by which a Governor-General is appointed on the advice of the

54 Australia, “Plebiscite Results 1977”, Parliamentary Handbook of the Commonwealth of Australia, 2003. 55 P.H. Lane, An Introduction to the Australian Constitutions, 5th ed., Sydney: The Law Book Company, 1990, p. 263. 56 Sydney Morning Herald, 8 June 1995. 57 Sir Isaac Isaacs, 1931–36, Liberal; Sir William McKell, 1947–53, Labor; Lord Casey, 1965– 69, Liberal; Sir Paul Hasluck, 1969–74, Liberal, and William Hayden, 1989–96, Labor. 58 Melbourne Age, 4 May 1992.

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Prime Minister surely raises the same problem. Furthermore, as the lawyer D.P. O’Connell writes: If the Governor-General can, in effect, be dismissed by a Prime Minister, the Constitution is destabilized at its heart. Any Governor-General is liable to intimidation by a Prime Minister and the two offices of Head of State and Head of Government are apt, in practical terms, to coalesce.59

Australia is actually in a stranger position than this. Its heads of state and heads of government can, in effect, dismiss each other. By law, the Prime Minister serves at the pleasure of the head of state, but the Governor-General may be dismissed by the Queen on the advice of the Prime Minister. In 1993 the Labor Government of Paul Keating appointed the Republic Advisory Committee, chaired by the Liberal Sydney lawyer, Malcolm Turnbull, Chairman of the Australian Republic Movement, to produce options for “the minimum changes necessary to achieve a viable Federal Republic of Australia ... ” and to ask how “the powers of the new Head of State and their exercise can be made subject to the same conventions and principles which apply to the powers of the Governor-General.”60 The committee report in December 1993 noted that even minimum constitutional changes should be quite substantial because they ought to involve the formal redefinition of the powers of the head of state.61 But when the republic initiative was defeated in the referendum of 1999 it was because Australian politicians could not agree to redefine these powers. The Coalition declined to participate in Turnbull’s committee but in February 1998 Prime Minister John Howard convened an all-party Constitutional Convention in Old Parliament House, Canberra, in hopes that a consensus recommendation from the convention might be put to a referendum. There were 152 delegates, half elected in the states and half selected by the federal Government. It was a wholly Australian affair because the Queen made clear that the decision was for Australians to make.62

59 Cited in Bogdanor, The Monarchy and the Constitution, p. 283. 60 Republic Advisory Committee, An Australian Republic : the Options, Canberra: Canberra: Australian Govt. Publishing Service, 1993, v.1, p. iv. See also Malcolm Turnbull, Fighting for the Republic, Melbourne: Hardie Grant, 1999, passim. 61 Republic Advisory Committee, An Australian Republic, v. 1, passim. 62 Lane, An Introduction to the Australian Constitutions, p. 263.

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The republic debate focused on two questions presented to voters in a 1999 referendum. The first asked them to vote on a Preamble to the Constitution. This failed to capture the popular imagination and was rejected by a vote of 61% to 39%. Of much greater consequence was the defeat of a republic in the second question, by a vote of 55% to 45%. Here voters were asked to vote on “An act to alter the Constitution to establish the Commonwealth of Australia as a republic, with the Queen and Governor-General being replaced by a president appointed by a two-thirds majority of the members of the Commonwealth Parliament.” The constitutional changes necessary to give effect to this proposal were contained in the Constitution Alteration (Establishment of Republic) Bill 1999, which was approved by Parliament in August 1999 and would have been implemented had Question 2 been approved. The changes to the Constitution proposed in this bill were substantial, but not widely understood. The Turnbull Committee wanted to codify, which is to say, write into law, the constitutional powers and conventions of the Governor-General for the new President and to this end it divided executive powers into three categories. The first was the reservation of bills to the Queen by the Governor-General for the royal assent, in Sections 58 and 60 of the Constitution, and the disallowance by the Queen of a bill to which the Governor-General had assented, in Section 59. These provisions are obsolete, and Britain renounced them for Commonwealth dominions in 1926. The Turnbull Report recommended that they be repealed, and the Constitution Alteration Act 1999 would have done that had the republic been approved.63 They remain in the Commonwealth Constitution today. The second and third categories are still active concerns in Australia. The Turnbull Committee described the second as “ordinary” powers which are uncontroversial in the sense that no Governor-General would dream of refusing to perform them on the advice of ministers: issuing writs for elections, appointing ministers and federal judges, summoning Parliament on a particular date, and assenting to legislation, for example. The committee believed that certain royal prerogatives which are not mentioned in the Constitution could be added to this list, including signing treaties and making war and peace. The Committee concluded, “It would be desirable ... to eliminate any uncertainty surrounding the exercise of these powers. In order to eliminate this uncertainty, the Constitution should provide that they are exercisable only on ministerial 63 Republic Advisory Committee, An Australian Republic, v. 1, p. 86.

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advice.”64 The third category is the reserve powers of the Governor-General, discussed above, the Governor-General’s right to use a constitutional power without, or against, ministerial advice. The Convention decided by a clear majority, 89 votes to 52, with 11 abstentions, that Australia should become a republic, but the mode of selection of the President and other matters were more controversial. The Constitution Alteration Act 1999 itself was modelled, with some changes, on the most popular of the models debated by the Constitutional Convention in 1998, Model D, a republican variant. It drew 73 votes to 57 in the Convention, with 22 abstentions, which was not a majority, but by a vote of 133 to 13, with 2 abstentions, delegates agreed to put it to a referendum.65 There was no disagreement that Turnbull’s first category of the head of state’s powers, the reservation and disallowance of bills, should end, and the Constitutional Alteration Act would have done that, but what did it propose to do about the other two categories, ordinary and reserve powers? Quite simply, it proposed to transfer these to the President almost unchanged. The proposed Section 59 of the Constitution stated, “The executive power of the Commonwealth is vested in the President,” and the proposed Section 70A transferred the royal prerogative from the Governor-General to the President. In an Australian republic, therefore, the President, not the House of Representatives, would have appointed the Prime Minister and ministers to serve, in the words of proposed Section 64, “during the pleasure of the President.” If the republic had been approved two critical rules of parliamentary government would have remained conventions, not constitutional law: that the Prime Minister is selected from the majority in the lower house, and that he or she must leave office if that support is lost. A third rule of parliamentary government, that the head of state acts on the advice of the Government, was addressed in a very clumsy way in the proposal to change Section 59. This had two parts. By a process of elimination we can tell that the first, with reference to the Executive Council, dealt with what the Turnbull Committee called ordinary powers and the second part dealt with reserve powers: 64 Republic Advisory Committee, An Australian Republic, v. 1, pp. 83–4. 65 Australia, Parliamentary Library, From Constitutional Convention to Republic Referendum: A Guide to the Processes, the Issues and the Participants, “Outcomes of the Constitutional Convention”, Research Paper 25, 1998–9.

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The President shall act on the advice of the Federal Executive Council, but the President may exercise a power that was a reserve power of the Governor-General in accordance with the constitutional conventions that related to the exercise of that power by the Governor-General.

This proposal has two points of interest. First, it states for the first time that the President shall, not may, act on the advice of the Government, disguised here as the Executive Council, when exercising powers that are not “reserve powers,” which is to say, “ordinary powers”, but it does not specify what these powers are. Second, it states that the President may, not shall, exercise a reserve power in accordance with constitutional conventions. The President was not to be told by the Constitution, as no Governor-General has ever been told, precisely what the reserve powers are, nor when they might be used. Furthermore, number seven of the transitional provisions provided in Schedule 3 of the Constitution Alteration Act said the act would “not prevent the evolution of the constitutional conventions, including those relating to the exercise of the reserve powers referred to in section 59 of this Constitution.” So, Section 59 of the amended constitution would have read, in translation, “The President shall accept ministerial advice on all matters except when he chooses to exercise an undefined reserve power, subject to unspecified conventions which may evolve!” This was an extraordinary obtuse definition of executive powers, certainly in the constitution of a twenty-first century republic. Why could the Constitutional Convention not agree to identify both ordinary and reserve powers in the Constitution and specify how the latter should be used? The answer that the Convention could not agree on what they are. There are three primary arguments, advanced time and again in Australia since the 1890s, for not codifying reserve powers in law, and these are predicated on four contingencies that might call for the use of a reserve power. Prime Minister Paul Keating identified the three arguments when he outlined his Government’s position on a republic in 1995. He said that because the reserve powers are only exercised in unusual and unpredictable circumstances, they cannot be codified with precision; the flexibility of conventions permits the constitution to change in response to changing circumstances without formal amendment; and codifying reserve powers would open them to judicial review which would draw the High Court “into arbitrating purely political disputes whose resolution 244

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should be left to the electorate.”66 These deal, no doubt, with complicated issues but all three arguments can be challenged, as follows. First, what Australia knows as reserve powers can be codified because they have been, in many parliamentary constitutions since the Irish Free State Constitution was adopted in 1922.67 The Turnbull Committee Report suggested how it could be done in Australia,68 and as Harry Evans, then Clerk of the Senate, said, “In reality it is not a lengthy or difficult task.”69 Dr. Geoff Gallop, a political scientist and future Premier of Western Australia, told the 1998 Convention, “We are not talking here of an untried, untested leap of faith but of a constitutional practice that is proven.”70 The Irish Constitution has survived the test of time, and most of the parliamentary democracies that emerged from the British Empire after World War II followed Ireland’s example. William Dale writes that “Whitehall lawyers” drafted at least 33 independence constitutions for Britain’s colonies, most of which wrote what Australians call conventions into constitutional law. Many of these survive, more or less intact, in the Caribbean countries, for example.71 One also finds provisions dealing with the appointment of governments and the powers of the head of state in European parliamentary constitutions of the twentieth century, although most of them have executives external to Parliament. The practice in Australia of identifying the monarch’s representative as the executive and regulating executive powers by non-legal conventions is an oddity that survives only in Australia, Canada and New Zealand. Second, regarding constitutional flexibility, the Turnbull Report pointed out that reserve powers are used so rarely, and so controversially, that they cannot reasonably support a theory of constitutional evolution, and certainly not on the basis of a single precedent.72 Third, Keating’s view that judges should not rule on presidential acts is odd, coming from a republican. Sovereigns are beyond the law, one might think, not 66 Sydney Morning Herald, 8 June 1995. 67 See Ward, Irish Parliamentary Tradition, pp. 239–95, and William Dale, “The Making and Remaking of Commonwealth Constitutions”, International and Comparative Law Quarterly, v. 42, Jan. 1993, pt. 1, pp. 67–83. 68 Republic Advisory Committee, An Australian Republic, v. 1, pp. 101–6. 69 Harry Evans, An Elected President for an Australian Republic: Problems and Solutions, Australia, Senate, Papers on Parliament No. 52, December 2009. 70 Australia, Constitutional Convention, Report of the Constitutional Convention, 1998, v. 3, p. 109. 71 William Dale, “The Making and Remaking of Commonwealth Constitutions,” passim. 72 Republic Advisory Committee, An Australian Republic, v. 1, 99.

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presidents, and parliamentary republics have procedures to impeach presidents who act illegally or capriciously. Keating’s argument was predicated on the belief that unusual and unpredictable contingencies might require the head of state to exercise a reserve power. In fact, only four have been identified in constitutional debates. They are that Parliament has approved an unconstitutional bill, that the Government has acted illegally, that there is a hung Parliament, with no candidate for Prime Minister having a majority, and that the upper house has blocked a supply of money to the Government. Foreign experience suggests that a President could be given specific constitutional powers to deal with at least the first three of these contingencies. For example, the President could refer a bill he deemed unconstitutional to the High Court or a new constitutional court, for a test of constitutionality, perhaps after consulting a statutory body of advisers, and would only be required to give the assent if the bill were ruled constitutional. Article 26.1 of the Irish Constitution provides exactly this procedure, and Irish Presidents have used it a number of times.73 If the Government has acted illegally, the President could dismiss it for stated cause, again after taking advice from statutory advisers. Article 198.2 of the Portuguese Constitution says, for example, “The President of the Republic may dismiss the Government only when this becomes necessary to secure the regular functioning of the democratic institutions and after the Council of State has been consulted.” If a “hung Parliament” occurs and the lower house is unable to select a Prime Minister the President could be empowered to meet with parliamentary leaders to try to resolve the deadlock, or could commission someone to mediate, or could dissolve Parliament and call an election. Article 99 of the Spanish Constitution, for example, says that the King may dissolve Parliament and call new elections if the lower house cannot agree on a Prime Minister within 2 months of being presented with a candidate. Article 92.2 of the Italian Constitution permits the President to appoint a Prime Minister to form a government if the parliament fails to nominate one, and he has done this several times. And in Germany, if the Bundestag, the lower house, is unable to elect a Chancellor by a majority of votes, Article 63 permits the President to appoint the person receiving the largest number of votes. Alternatively he may dissolve the Bundestag for a fresh election. 73 Ward, Irish Parliamentary Tradition, pp. 287–9.

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Precedents clearly exist in foreign constitutional law for the first three contingencies, but the best case for a reserve power in Australia is the fourth contingency, that the upper house refuses to vote a supply of money to the Government and the Prime Minister refuses to resign or call a general election, which is the 1975 scenario. In such a case, it is said, the President must be permitted to dismiss the Prime Minister and/or dissolve Parliament because the Government cannot continue without an appropriation. However, this can no longer happen in New South Wales and Victoria, both of which have precluded the upper house from denying the Government a supply of money for ordinary annual services, thereby forcing it out of office, although it may reject appropriations for new programs. If this is too controversial for federal politicians, the Constitution might be amended to provide an expedited conflict resolution procedure for money bills which would bypass the lengthy delays involved in Section 57 of the present Constitution. Or, at the other extreme, the Constitution might be amended to codify a reserve power by stating explicitly that the Governor-General may dismiss a Prime Minister who cannot secure supply, which was Sir John Kerr’s position in 1975. This is a risk the Commonwealth could comfortably take because the contingency has happened only once in over 100 years. There is no shortage of suggestions about what to do, therefore, any of which would eliminate the need for a reserve power. It is important to note that in all of these recommendations to codify reserve powers the President’s intervention would not be truly final. Were he to refer a bill to the High Court, the court would determine constitutionality. And were the President to dismiss the Government for cause, or appoint a Prime Minister in a hung Parliament, or replace a Prime Minister who could not secure a supply of money, his choice of Prime Minister would have to survive a vote of confidence in the lower house. If that were lost, the decision would pass to voters in an election, as it would if he decided to dissolve the house without replacing the Prime Minister. In every case the President would be a facilitator, not a decider, and this role could be carefully prescribed in the Constitution. Reserve powers can be codified and clearly identified in the Constitution, but one reason, perhaps, why many knowledgeable Australians, including politicians, lawyers and academics, think that this is impossible is that they believe there are too many conventions regulating the power of the head of state for them all to be defined by law. This can be addressed because a number 247

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of conventions are redundant. The Australian Constitutional Convention of 1973 to 1985, for example, recognized 18 such conventions.74 One was that the Governor-General must appoint a Prime Minister who has the confidence of the House of Representatives, and three others required him to take advice from particular people, including the outgoing Prime Minister. But if the Constitution were to incorporate Article 13.1.1 of the Irish Constitution, which requires the President to appoint the nominee of the lower house to be Prime Minister, all the supposed Australian conventions dealing with the appointment would be unnecessary.75 Another reason, perhaps, why many Australians do not want to codify reserve powers is that they prefer to trust a single person with undefined reserve powers to deal with a political crisis than to trust Parliament or the Constitution. In 1998 Geoffrey Gallop noted that many Australians practice “an ideology which sees political life ... as a mystery, the guidance and occasional intervention into which of non-elected heads of state is necessary if it is to work.”76 And George Winterton writes, “[Other] constitutions essentially adopt a more democratic, less deferential, perspective, entrusting critical political decisions to Parliament, and demonstrate greater confidence than ours in Parliament’s capacity to resolve political crises.”77 After much discussion on these matters, a majority could not be marshalled at the 1998 Constitutional Convention to codify the President’s reserve powers in the Constitution. Instead, the Constitutional Alteration Act of 1999 proposed to roll executive powers from the Governor-General to the President with a general statement that he must accept ministerial advice on everything except his reserve powers. This had consequences that were to prove fatal to the republic. A majority of Australians wanted a head of state who was directly elected by the people. Indeed one opinion poll in August 1999 reported a margin of 67% to 24% in favour of direct election.78 But when the Constitutional Convention decided that the President would

74 Killey, Constitutional Conventions in Australia, pp. 286–7. 75 Alan J. Ward, “Exporting the British Constitution: Responsible Government in New Zealand, Canada, Australia, and Ireland”, The Journal of Commonwealth and Comparative Politics, v. 25, no. 1, 1987, pp. 18–20. 76 Australia, Report of the Constitution Convention, v. 3, p. 109. 77 George Winterton, “Reserve Powers in an Australian Republic”, University of Tasmania Law Review, v. 12, no. 21, 1993, 255–6. 78 Herald ACNielsen poll, Sydney Morning Herald, 10 August 1999.

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have unspecified reserve powers, it recognized that these could not be assigned to a directly elected President because no person elected by the people, and hence capable of claiming a mandate, could be trusted with them. A mandate might trump a convention, and as Paul Keating argued, a popularly elected President “would inherit a basis of power that would prove to be fundamentally at odds with our Westminster-style of government.”79 A presidential selection process had to be devised, therefore, to produce a reliable head of state who could be trusted with reserve powers. The process identified in the Constitution Alteration bill was laid out in Model D at the Constitutional Convention. It proposed that Section 60 of the Constitution should provide for the President to be elected to a five year term by a two thirds vote of both houses of Parliament after a nomination process that would include extensive consultation with the community, preparation of a short list by a parliamentary committee, and the nomination of a single candidate by the Prime Minister, seconded by the leader of the Opposition. The nominee could not be a member of a Commonwealth, state or territory parliament, nor a member of a political party. In fact, the nominee would have to be a political eunuch. The proposed Section 62 provided that the President could be removed by the Prime Minister alone, but this decision would have to be ratified within 30 days by a vote in the House of Representatives which would be treated as a vote of confidence in the Prime Minister. But were the Prime Minister to lose this vote, the dismissed President would not be returned to office. Given that the nomination process was designed to suppress partisan politics, it is odd that Section 62 would have given the Prime Minister a major role in the selection process and the sole power to dismiss the President, subject to a vote of the House of Representatives where he ordinarily has a majority. This selection process was intended to produce a non-partisan head of state, but a large number of republicans saw it as a way by which politicians, not the people, would select the President. They therefore joined monarchists to defeat the republic by a vote of 55% to 45%. On 6 November 1999 The Australian published a Newspoll that showed 53% of prospective referendum “no” voters favored a republic, but clearly not this one.

79 Sydney Morning Herald, 8 June 1995.

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Conclusion It is reasonable to conclude from the republic referendum that the Australian political elite, with its refusal to identify core rules of parliamentary government in constitutional law and its addiction to undefined conventions and reserve powers is trapped in the nineteenth century. Meanwhile, foreign precedents make clear that if a head of state should have discretionary powers these may be written into constitutional law with some precision in the expectation that they will be used. Assigning very broad powers to a head of state with the expectation that they will ordinarily not be used, except as reserve powers, is the reverse of what modern constitutions do. Furthermore, the fact that Australian heads of state are expected to use reserve powers without constitutional guidance as to what they are, or a body of statutory advisers, places them in very difficult positions, now or in a future republic. In 1994, Sir Francis Burt, a former Chief Justice of Western Australia, pointed out how controversial the use of a reserve power always is in Australia. “It is not fair,” he writes, “to leave the Governor in that position and the matter should be placed beyond doubt by statute.”80 H.V. Evatt, a member of the High Court from 1930 to 1940, made a similar point. One reason for codifying reserve powers, he wrote, is to clarify them so that they will be used when necessary.81 To be fair, three points should be made about the republic debate in Australia. The first is that any process in which 152 people with strong opinions come together to revise a constitution is likely to be messy. The tendency will be to support the lowest common denominator, which is what happened in 1998. Second, there is no ideal solution to the presidential selection problem. If the President is popularly elected in a parliamentary system, elections can turn into partisan contests for what should be a non-partisan office. And if a President must have reserve powers, handing them to someone elected in a highly partisan process would, as John Howard told the Constitutional Convention in 1998, “create a rival power centre – I mean a rival potential power centre – to that of the Prime Minister, and thus serve to weaken the parliamentary system itself.”82 But if the President is selected by Parliament, voters are denied a say in the 80 Francis Burt, “Monarchy or republic – It’s All in the Mind”, University of Western Australia Law Review, v. 24, no. 1, July 1994, pp. 5–6. 81 Cited in George Winterton, “Presidential reserve powers in an Australian republic”, Legislative Studies, v. 8, no. 2, autumn 1994, pp. 48–49. 82 Turnbull, Fighting for the Republic, p. 45.

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process. Third, of the 29 republics in the British Commonwealth, about half select presidents by popular vote, and half by members of Parliament or an electoral college of some kind, but it makes little difference in practice how the President is selected if presidential powers are carefully defined and regulated, as they almost invariably are in modern constitutions.83 The problem in the proposed Australian republic is that these powers were not going to be carefully defined and regulated, and this drove the republic to its defeat. There was really only one sure winner in the republic referendum of 1999, the Prime Minister, John Howard. He already exercised huge executive powers through his advice to the Governor-General, but in the proposed republic he would have exercised the same powers through his advice to the President. Howard voted against the republic, but the referendum was a win–win proposition for him.

83 Republic Advisory Committee, An Australian Republic, Appendix 2, pp. 2–18.

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So far this book has considered the first eight characteristics of parliamentary government in Australia but has spent almost no time considering one of the most important features of the Australian political system, federation. There is a reason. The book is about parliamentary government and whether a country is or is not a federation is not important to the model per se, which can operate in unitary states like Japan or federal states like Germany. In Australia, federation adds a federal parliamentary level to the parliamentary levels of states and territories, and in this book the three have been integrated into a single narrative. Nevertheless, federalism deserves special consideration because of the way it operates in Australia. Specifically, Australian federalism enhances, or exacerbates, depending on one’s point of view, the concentration of power in Australian executives that is a theme of this book and the subject of the final chapter. Concentration can be seen in two ways. First, the growth of Commonwealth power has greatly enhanced the powers of the Commonwealth at the expense of the states. Second, a system of Commonwealth/state/territory relations has evolved that has strengthened every Australian executive at the expense of every legislature. Both will be discussed here, but the one that impacts most heavily on parliamentary government is the second.

The Australian Federation The Australian federation was designed to provide a political system in which the several Australian colonies, as states, would retain most of their powers whilst allowing the Commonwealth to makes laws for a range of activities that could be identified as national. Federal powers are identified in a long list in Section 252



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51 of the Constitution, and to a lesser extent in some other sections. They include defence, foreign trade, external affairs, immigration, naturalization, and posts and telegraphs. However, the Constitution identifies only a few powers as being exclusive to the Commonwealth, namely, the seat of the Commonwealth government in Section 52 (i), customs and excise duties and export bounties in Section 90, naval and military forces in Section 114, and coining money in Section 115. For the rest, Section 107 preserves pre-federation colonial powers and if these are identified in Section 51 too they may be exercised by both the Commonwealth and the states, but Section 109 provides that where Commonwealth and state laws conflict, Commonwealth law prevails. However, as Brian Galligan points out, Australian federalism is a system of concurrent or shared powers, not coordinate powers.1

The Growth of Commonwealth Power At federation it was assumed that most government functions would be carried on by the states but since 1901 the powers of the Commonwealth Parliament have grown, and with them the powers of the Commonwealth Government. One indicator is the number of Commonwealth departments and agencies for which the Constitution gives it no specific responsibility, including ageing, agriculture, education, health, sport, science, and tourism. With the exception of Section 51 (xxiiia), on social services, this growth been the result of factors other than constitutional amendment. Rather, as Galligan points out, “The politics of judicial review and of intergovernmental relations ... are the stuff of adjustment, adaptation and change in the Australian federal system.”2 The process of federal growth has been encouraged by High Court decisions favoring an expansive interpretation of the Commonwealth’s powers. For example, in the Engineers’ Case of 1920 the court found that the Commonwealth could use its power to make laws under Section 51 (xxxv), concerning conciliation and arbitration in industrial disputes, to require employers in three states to implement a Commonwealth pay award.3 In the Uniform Tax Code case of 1942 the court approved four acts permitting the Commonwealth to monopolize the 1

Brian Galligan, A Federal Republic: Australia’s Constitutional System of Government, Melbourne: Cambridge University Press, 1995, p. 191. 2 Galligan, A Federal; Republic, p. 37. 3 The Amalgamated Society of Engineers Claimant; and The Adelaide Steamship Company Limited and Others [1920] HCA 54; (1920) 28 CLR 129 (31 August 1920).

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income tax, using its taxing power in Section 51(ii).4 And in 2006, the court approved the Commonwealth’s use of Section 51 (xx), the corporations power, to make law regulating labor relations in all Australian corporations.5 The Commonwealth has also discovered that by citing a treaty it can use Section 51 (xxix), the power to make law regarding external relations, to intervene in a state matter, although the High Court has ruled that the treaty must not be signed specifically for this purpose.6 In the Koowarta case of 1982, for example, the court found that the Commonwealth Racial Discrimination Act 1975 was intended to give effect within Australia to the UN Convention on the Elimination of All Forms of Racial Discrimination and could be used to prevent the government of Queensland from banning the sale of the Archer River cattle station to a group of aboriginals.7 In the Tasmanian Dam case of 1983 the court held that the Commonwealth could cite its membership in UNESCO’s World Heritage program to prevent the Tasmanian government from building a hydro-electric dam on the Franklin River in a World Heritage site.8 And in 1994 the Commonwealth cited Article 17 of the International Covenant on Civil and Political Rights when adopting sexual privacy legislation which overrode a Tasmanian law prohibiting homosexual acts.9 On occasion the High Court has limited the ambitions of the Commonwealth. In the Bank Nationalization Case of 1948, for example, it prevented a Labor government from nationalizing private banks, but the major thrust of court decisions has been to expand the legislative powers of the Commonwealth, and this has been advocated by both the left and the right in Australia. It was a Labor government in the 1980s that used the external affairs power to impose environmental and civil liberties policies on the states, but it was the Howard Coalition that used the corporations power to impose industrial relations reforms.

4 The State of South Australia and Another v. The Commonwealth and Another [1942] HCA 14; (1942) 65 CLR 373 (23 July 1942). 5 New South Wales v Commonwealth of Australia; Western Australia v Commonwealth of Australia [2006] HCA 52 (14 November 2006); Sydney Morning Herald, 15 November 2006. 6 The Commonwealth of Australia v. Tasmania [1983] HCA 21; (1983) 158 CLR 1 (1 July 1983). 7 Koowarta v Bjelke-Petersen & Ors; Queensland v Commonwealth, (1982) 153 CLR 168; [1982] HCA 27. 8 The Commonwealth of Australia v State of Tasmania, (1983) 158 CLR 1, [1983] HCA 21. 9 Sydney Morning Herald, 25 and 6 September 1994.

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Changing circumstances have further contributed to the growth of Commonwealth powers, including the recognition of social needs that produced the welfare state in the last century. Considerations of equity and administrative efficiency may require Commonwealth management in policy areas which are state responsibilities, health and education, for example. Another circumstance has been war. The expansion of federal powers during both world wars was driven by the need to mobilize Australia’s assets for war, the assumption by the Commonwealth of all income taxes in 1942, for example. Finally, the Commonwealth has been able to use its superior financial powers to impose Commonwealth standards on the state and territories. In 1902 Alfred Deakin wrote that “the rights of self-government of the States have been fondly supposed to be safeguarded by the Constitution. It left them legally free, but financially bound to the chariot wheels of the central government. Their need will be its opportunity.”10 Deakin knew that in 18991900 customs and excise duties formed 38% of the colonies’ revenues but the federal Constitution assigned these exclusively to the Commonwealth.11 By 1909–10, the Commonwealth was spending $9.5 million but the states were spending $65.7 million and they had to turn to the Commonwealth for 31% of their revenues. In 1910, Commonwealth grants to the states began, based on Section 96 of the Constitution which allows the Commonwealth to grant financial assistance to any state “on such terms and conditions as the Parliament thinks fit.”12 In 1933 the Commonwealth Grants Commission was created as an autonomous agency to assess the financial conditions of states and territories and make recommendations to the Commonwealth Government about transfers. The Commonwealth now raises about 85% of all tax revenues in Australia, and even if one excludes the Goods and Services Tax (GST), all of which was being passed through to the states as this was written in 2011, the percentage is more than 70%. In 2009-10 the Commonwealth transferred approximately $91,900 millions in GST revenues to the states.13 The Commonwealth also practices “horizontal fiscal equalization”, whereby adjustments are made so that 10 Quoted in Denis James, Federal-State Financial Relations: The Deakin Prophecy, Australia, Parliamentary Library, Research Paper No. 17, 2001, pp. i, 3. 11 Ross A. Williams, “Federal-State Financial Relations in Australia: The Role of the Commonwealth Grants Commission”, The Australian Economic Review, v. 38, no. 1, 2005, p. 108. 12 James, Federal–State Financial Relations, pp. 2–5. 13 Australia, Budget Paper No. 3, Australia’s Federal Relations 2009–10.

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poorer states and territories receive additional per capita federal support to bring their services up to an average Australian level of services, and the richer states receive less. South Australia, Tasmania, the ACT and the Northern Territory were all net beneficiaries of GST redistribution payments in 2009-10, with the Northern Territory by far the largest recipient per capita.14 As the Commonwealth expanded its revenue raising powers, the states faced attacks on theirs. Notably, the Commonwealth used its tax power in Section 51 (ii) to dominate revenue raising in Australia. In World War I it imposed incomes, estate, and entertainment taxes to pay for the war. In 1942, it passed bills to monopolize the income tax, an arrangement that became permanent in 1946.15 In 2000, it imposed a 10% tax on goods and services throughout Australia, the GST. It returned all the revenue from this tax to the states to spend according to their priorities, but subject to an intergovernmental agreement by which the states agreed to surrender a range of state taxes.16 As Commonwealth revenue raising powers were growing, the High Court was restricting the states’ ability to raise money. In 1926 and 1927 it ruled that states could not levy taxes on petrol and newspaper sales because these were excise taxes that are exclusive to the Commonwealth under Section 90.17 And in 1997, it ruled that states could not levy business license fees on alcohol, tobacco, and petrol because these, too, were excise taxes. The states and territories now raise revenue from a hodgepodge of taxes, duties and levies on a range of items, including employer payrolls, financial transactions, property, gambling, mining royalties, insurance, gasoline, and motor vehicles. They also charge for state services, including water, health, homes, education, transport and drivers’ licenses. The Commonwealth clearly raises a very large proportion of public revenues in Australia, but as Andrew Parkin writes, the states oversee or regulate “most of the social and infrastructure services that most Australians use most of the time – in schools, hospitals, law enforcement, justice and correctional services, national parks, environmental management, personal welfare assistance, the regulation of workplaces and retail trade, electricity, ports, the support of mineral 14 James, Federal–State Financial Relations, pp. 27–30; Australia, Budget Paper No. 3, Australia’s Federal Relations, 2009–10, p. 114. 15 James, Federal–State Financial Relations, pp. 8-9. 16 Australia, Budget Paper No. 5, Federal Financial Relations 2005–6. See Sydney Morning Herald, 25 March and 22 April 2005. 17 James, Federal–State Financial Relations, pp. 7–8.

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exploration, roads, water supply, etc.”18 One measure of the role of the states in supplying public services is that the Commonwealth employs about 248,600 workers but the states employ about 1.2 million.19 However, as the states and territories have become more and more dependent on Commonwealth funds to pay for state services, Denis James writes, Australia has become “characterized by the highest degree of vertical fiscal imbalance of any other federal system.”20 Vertical imbalance is defined as the “mismatch of revenue-raising ability and expenditure responsibilities of tiers of government....”21 James adds, “With the states effectively excluded from every major direct or indirect tax base, its power of the purse strings has enabled the Commonwealth to strictly regulate State borrowings, increase its control over State functions through conditional grants and given it virtually unilateral control over the level of financial assistance it is prepared to give to the States on an annual basis.”22 The result of vertical imbalance is an accountability deficit because states and territories are responsible for the provision of most public services but the Commonwealth is responsible for much of their funding. The formulae used for Commonwealth revenue sharing with the states and territories have varied, with frequent controversy, but Commonwealth support can be divided broadly into two. There are general purpose grants, including GST revenues and funds to support local government, which are paid into the general funds of states and territories to use as they see fit. There are also specific purpose grants, made under Section 96 of the Constitution, to fund particular activities approved by the Commonwealth. The latter gained momentum during the Labor Government of 1972 to 1975, and have included grants for urban development, roads, railways, harbours, health, housing, water, electricity, and many other purposes.23 In 1974, for example, the Commonwealth assumed full funding of universities and now makes grants directly to them, although they remain state institutions.24 As the result of an agreement in April 2010 between the Commonwealth and every state and self-governing territory, excepting 18 Andrew Parkin, ‘The States, Federalism and Political Science: A Fifty Year Appraisal,” Australian Journal of Public Administration, v. 62, no. 2, June 2003, p. 104. 19 Michaella Kroneman, The Impact of the GST on State Revenue: 2006–7 Budget Update, Southbank, Victoria: Australian Education Union, 2006, p. 11. 20 James, Federal–State Financial Relations, p. iii. 21 Williams, “Federal-State Financial Relations in Australia”, p. 108. 22 James, Federal–State Financial Relations, p. 2. 23 Parkin, “The State, Federalism and Political Science”, pp. 105–6. 24 James, Federal–State Financial Relations, p. 24.

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Western Australia, federal general fund support will decline and specific purpose grants will increase because 30% of the states’ GST allocations will be paid to state hospital boards, thereby taking control of about 60% of state hospital costs. The agreement establishes the Commonwealth as the majority funder of public hospitals and the full funder of primary health care and national aged care, although the states are responsible for public hospital planning and performance, and capital planning.25 It is true that the adoption of the GST and the channelling of its revenues to the states has given the latter a source of income tied to the growth of the national economy for the first time, but the GST is a federal tax and its level is set by the Commonwealth. Furthermore, the specific allocation of GST revenues is open to dispute, including the 2010 agreement on health costs. There was also a fierce argument between New South Wales and the Commonwealth over that state’s proportion of GST reimbursements in 2005.26 Commonwealth-State financial relations become very public when disputes break out and ministers turn to the media to mobilize support. John Summers writes: There are a number of dimensions to this intergovernmental conflict: the total amount of money made available by the Commonwealth in grants, the distribution of grants among the states, and the extent to which the Commonwealth has directed state spending through the use of conditions authorized under Section 96. In addition the states have often been aggrieved over the Commonwealth’s use of its power, through the Loan Council, to control the level of State borrowings.27

Executive Federalism The federal financial relationship is the most important factor in a network of activity which one could describe as an Australian model of federalism. Parkin and Anderson identify four dimensions of this model. They write of fiscal federalism, to describe the dependence of the states and territories on tax funds distributed to them by the Commonwealth; regulatory federalism, in which states

25 Council of Australian Governments, National Health and Hospitals Network Agreement, April 2010. 26 Sydney Morning Herald, 25 March and 22 April 2005. 27 In J. Summers, D. Woodward and A. Parkin, eds, Government, Politics, Power and Policy in Australia, 7th ed., Melbourne: Pearson Education Australia, 2002, p. 97.

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and territories operate, “with varying degrees of collaboration or friction, within Commonwealth dominated clusters of regulatory regimes;” program federalism, in which the Commonwealth ties grants to the states and territories to its own priorities; and parallel federalism, which is a growing incidence of unilateral action by the Commonwealth that bypasses, marginalizes, or directly overlaps with the states in areas long considered state matters.28 This model of federalism is managed by an extra-constitutional network in which policies that cross jurisdictions are decided in more than 40 councils of Commonwealth, state and territory ministers. Participants engage in interexecutive diplomacy, out of public sight and with little parliamentary oversight. The Council of Australian Governments defines a ministerial council as a formal meeting of Ministers of the Crown from more than four jurisdictions, usually including the Commonwealth, the States and Territories of the Australian Federation, which meets on a regular basis. The role of Ministerial Councils is to facilitate consultation and cooperation between governments, to develop policy jointly, and to take action in the resolution of issues which arise between governments in the Australian Federation. Ministers carry the authority of their governments and those Ministers convened as a Ministerial Council may, where appropriate, determine to finality all matters in their field of concern.29 Councils are arranged in three categories. There are four councils composed of heads of government. These are the Australian Council of Governments (COAG), which has a general mandate to develop policies of national significance that require cooperative action by Australian governments, the Treaties Council, which considers treaties that impact the states and territories, the Premiers’ Conference, which has colonial antecedents and meets annually to discuss funding allocations, and the Loan Council, which since 1927 has set levels of government borrowing for the Commonwealth and the states annually and is used by the Commonwealth as a tool of macro-economic management. There is also a large number of councils of portfolio ministers, including the critically important Ministerial Council for Commonwealth-State Relations,

28 Andrew Parkin and Geoff Anderson, “The Howard Government, Regulatory Federalism and the Transformation of Commonwealth-State Relations,” Australian Journal of Political Science”, v. 42, no. 2, June 2007, pp. 1–2. 29 Council of Australian Governments (COAG), Commonwealth-State Ministerial Councils Compendium, 2010.

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composed of treasurers, which negotiates GST revenues and other federal transfers to the states. Finally there is a small number of councils composed of a few jurisdictions which primarily deal with areas of environmental sensitivity. The number of portfolio councils has grown rapidly since the 1990s and the range of subject matters covered is huge: from aboriginals and Torres Islanders to law standardization, status of women, drug strategy, education, the environment, gambling, gene technology, immigration, housing, regional development, tourism, transport, workplace relations, and more. New Zealand is a full member of seventeen councils, and of COAG for Trans-Tasman matters. Local government representatives and ministers from Papua New Guinea may also attend by invitation. Gerard Carney describes the ministerial council level of Australian federalism as “cooperative federalism to achieve an objective which each alone is incapable of achieving.”30 Ministers, not parliaments, cooperate in developing national policies that would otherwise be impossible because of the federal allocation of powers, and the process has contributed to rationalizing public policy across Australia for the benefit of consumers, business, students, travellers, the environment and other interests, and all without amending the Constitution. Since 1992, for example, COAG alone has worked on the National Competition Policy, which promotes competitive markets for goods and services, water reform, environmental regulation, the use of human embryos in medical research, counterterrorism, handgun control, transport, energy, ports regulation, child care, mental health, diabetes, literacy and numeracy, standardizing daylight savings, and other matters. In March 2008, COAG, at the time a meeting exclusively of Labor heads of government, moved on Prime Minister Kevin Rudd’s “new federalism agenda” by agreeing to federalize the management of the Murray-Darling river system and better coordinate water use projects. The meeting also agreed on a national register for health professionals, new targets for measuring reforms in indigenous education, vocational education, a partnership agreement on the educational needs of schools in poor districts, twenty-seven areas of business regulatory reforms, five new housing initiatives, binge drinking initiatives, and Australia’s bid to host the 2018 soccer world cup. COAG agreed that the then 92 specific purpose 30 Carney, The Constitutional Systems of the Australian States and Territories, p. 11.

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federal grant programs would be reduced to five or six to deal with core state services in health, housing, education, training and disability services. Finally, COAG agreed to create a new ministerial council to coordinate AUSTRADE, the Commonwealth’s foreign trade promotion body and its 18 overseas missions with 46 trade missions run by Queensland, South Australia, Victoria and Western Australia. 31 The federal ALP had been waiting since 1996 for this opportunity to direct a national reform agenda and it no doubt had a backlog of items to introduce, but this was an astonishing record. Each ministerial council has a staff located within a member government and has a committee of senior department officials representing each minister. Some councils supervise yet more councils and conferences which deal with portions of their responsibilities. Councils have relationships with government departments, non-governmental organizations, professional associations and consultants in their areas of concern so that the whole cooperative federalism process involves a great many people. Much of what councils decide can be implemented by rules and regulations promulgated by government departments, but if legislation is necessary, as it was in 1996 when the Commonwealth Government called for handgun control throughout the country, each parliament has to give effect to council decisions. This system of federalism has institutionalized a level of executive government that is insulated from parliamentary control and was not intended by the founders. State parliaments sometimes want to amend ministerial council proposals, particularly bi-cameral parliaments in which the Government does not have a majority in the upper house, but there are strong disincentives against blocking or amending agreements, given the dire financial consequences of opposing the Commonwealth. When Premier Kristina Keneally told Prime Minister Gillard in October 2010 that New South Wales did not intend to implement one part of a ministerial agreement to harmonize workplace laws she was told it would cost the state $144 million in federal grants.32 From 1918 to 1971, the ALP supported the abolition of states, primarily to curb the power of conservative, anti-reform political elites in the states that were inhibiting Labor’s national reform agenda. More recently a Labor rationale

31 The Australian, 27 March 2008. 32 Sydney Morning Herald, 18 October 2010.

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has been that federalism creates wasteful duplications and delays. A former minister, Chris Hurford, for example, has recommended restructuring Australia to eliminate states and create 51 regional governments.33 Nevertheless, both Labor and Coalition federal governments have found ways to embrace the new federalism as a way of achieving their policy goals, but neither has seriously confronted the issues of democratic accountability that it raises. There is clearly a huge vertical fiscal imbalance in the relationship between the level of government raising the majority of revenues in Australia and the state and territory governments responsible for spending them, which amounts in effect to a democratic accountability deficit. The nexus between government revenue raising and government spending has eroded, making it difficult for voters to hold governments and parliaments to account for their successes or failures. In 1983 Russell Matthews saw this as a source of political advantage for state politicians, and his judgment still rings true: State leaders not only avoid the responsibility of having to make unpopular taxing and other revenue decisions but gain positive political advantages as champions of State interests against what they claim is a remote and parsimonious Federal government in Canberra. ... The Australian fiscal system which has evolved since World War II may ... be seen as one which maximizes the amount of political noise and minimizes the degree of electoral accountability …34

In this environment state and territory elections have to be fought over the efficiency of service delivery or scandals in state government, not about a great many spending and policy issues which are settled by the Commonwealth or in ministerial councils. Peter Costello, the Coalition Treasurer who oversaw the introduction of the GST, sees the Commonwealth takeover of health spending by the Rudd Government as lessening accountability to parliaments even further. When the coalition agreed to hand all GST revenues to the states and territories to spend as they saw fit Costello hoped “that competent states which delivered good services – such as good hospitals – would be voted back and incompetent 33 Christopher Hurford, “A Republican Federation of Regions: Reforming a Wastefully Governed Australia”, in Wayne Hudson and A.J. Brown, Restructuring Australia: Regionalism, Republicanism and Reform of the Nation-State, Federation Press, 2004, pp. 47–62. 34 R. Mathews, “The Commonwealth–State Financial Contract”, in J. Aldred and J. Wilkes, eds, A Fractured Federation?, Sydney: Allen and Unwin, 1983, p. 48. See also Summers, pp. 106–8.

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ones would be voted out.”35 In his view, the Rudd Government’s decision to assign GST revenues directly to state hospitals undermined accountability in the states and territories by making the federal government responsible for about 30% of GST spending, and about 60% of state hospital spending. The Rudd Government made a persuasive case for its policy, which it saw as rooted in otherwise insurmountable problems in state administered health services, but an adverse impact on accountability was inevitable.

Conclusion Any political system has to be able to respond to changing circumstances, but neither the interpretation of the Constitution by the High Court nor the new architecture of Australian intergovernmental relations leaves much room for parliaments or democratic participation. The founders constructed a high hurdle for amendments to the Constitution in Section 128, but they could not have imagined the degree to which the Courts and the Commonwealth’s financial powers would change the balance of the Constitution in favour of the Commonwealth Government. Nor could they have imagined that hugely important decisions affecting a substantial portion of Australian life would be made in ministerial councils with little if any parliamentary oversight. Parliaments might disagree with the deals worked out by ministers but, as Parkin and Anderson write of the National Competition Policy, overseen by the National Competition Council, “The fact that elected members of democratically constituted bicameral State Parliaments might have views about the appropriateness of some of these changes and refuse to pass enabling legislation has not impressed the National Competition Council.”36 Campbell Sharman sees what he calls “executive federalism” as an inherently collusive system of decision-making by federal, state and territory executives.37 Parliaments, which are already weak at holding their own levels of government accountable, find themselves even weaker at conducting oversight in areas covered by ministerial councils. Denis James writes that specific purpose grants have received quite a lot of scrutiny in the Commonwealth Parliament, where Senate committees have some resources for oversight, but there is little oversight in the 35 Peter Costello, “Leaders jostle in the race to rock bottom”, Sydney Morning Herald, 17 March 2010. 36 Parkin and Anderson, p. 7. The National Competition Policy is now subsumed in the National Reform Agenda, adopted by COAG in 2006. 37 Cited by Parkin, “The States, Federalism and Political Science,” p. 109.

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House of Representatives or state and territory parliaments.38 Federalism of the kind now practiced in Australia therefore exacerbates the historic tendency to concentrate power in the executive in parliamentary systems. The implications of that tendency are the subject of the final chapter.

38 James, Federal–State Financial Relations, p. 26.

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Point nine of the nine part model of parliamentary government presented in this book is the culmination of all we have considered so far. It is that the parliamentary model encourages the concentration of power in the executive. A tendency to concentrate power is found in non-parliamentary systems, too, in the United States, for example, where presidents have used wars and economic distress to accumulate power in what the American historian, Arthur Schlesinger, called the “imperial presidency.”1 Modern macro-economic management has also favoured the executive, with centralized control of each country’s economy, and the welfare state has created executive bureaucracies spending large sums of money that are extremely difficult for legislatures to control. However, parliamentary systems are distinctive because the concentration of power is caused not only by exogenous factors such as war or the economy but is inherent in the parliamentary model itself. Campbell Sharman makes this point very clear: By definition, a parliamentary system is one in which the executive is chosen from the membership of the legislature and remains in office only so long as it retains the support of a majority of members in the popular house. ... As a consequence of the dependence of a parliamentary executive for its very existence on maintaining a supporting majority in the legislature, there is a powerful incentive for the executive to contrive stable majorities in parliament. Once established, these stable majorities can be used to regulate the conduct of parliamentary business to suit the government of the day. In other words, the present dominance of the executive over the parliamentary process in the lower house is not just 1

See Arthur Schlesinger, jr., The Imperial Presidency, Boston: Houghton Mifflin, 1973.

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an artefact of a disciplined party system, but the logical consequence of a parliamentary derived executive. The bias of a parliamentary system is inherently towards executive control of parliament.2

In Chapter 1 I borrowed the term “executive democracy” to describe a parliamentary system in which power is concentrated in the executive, and the first eight parts of the model of parliamentary government presented in this book help to explain how it operates in Australia. I added in Chapter 12 that executive democracy is strengthened in Australia by the type of federalism the country practices.

Executive Democracy and Parliamentary Oversight Parliamentary government in Australia has its roots in eighteenth century Britain when the House of Commons insisted that the King should appoint “responsible ministers” who would be accountable to Parliament. The major implication of executive democracy today is that Parliament cannot adequately hold ministers to account for what they do. Commentators in Britain warned of this development in the nineteenth century. In 1867, for example, Walter Bagehot wrote, “The most dangerous of all sinister interests is that of the executive government because it is the most powerful.”3 But Parliament was much more powerful then than now, and parties much weaker. As we have seen, contemporary Australian parliaments have too few members, are too poorly resourced and are too subject to party discipline to hold governments fully accountable, particularly given the complexity of the state for which the Government is responsible. In an impassioned criticism of what he calls the “executive state” in Western Australia, Patrick O’Brien describes its extent: [The state controls] a vast empire of financial, trading, agricultural, mining, manufacturing, gambling, educational, services, tourism, arts, entertainment, banking, sporting, transport, energy, housing, land and construction, public relations, advertising, printing and publishing, health care and welfare [services] ... many of which are monopolies or have the power to grant monopolies to others.

2

Campbell Sharman, “Reforming Executive Power”, in G. Winterton, ed., We the People: Australian Republican Government, Sydney: Allen and Unwin, 1994, p. 116. 3 Walter Bagehot, The English Constitution, London: Fontana Library, 1963, p. 135.

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What the state does not own or directly control, O’Brien argues, “it regulates and licenses,” and at its helm is the Government, which is not subject to effective parliamentary control.4 The weakness of parliamentary control in Australia became very clear in the reports of a number of public inquiries into irregular government activities in the 1980s and 1990s. In Western Australia, a pattern of Government business activities in the 1980s led to huge losses in what was came to be known as “W.A. Inc.”5 The scandal led to a royal commission in 1990 which reported fundamental weaknesses in the capacity of Parliament and other institutions to produce openness, accountability and integrity in the executive. There had been, Campbell Sharman wrote, “a structural failure of government.”6 The problem was worse, perhaps, in Queensland where, in 1989, a royal commission chaired by Tony Fitzgerald QC found corruption endemic in the state Cabinet, the public service and the police. Fitzgerald’s work led to convictions of four ministers and the state Police Commissioner. The National Party, which had been in power for 32 years, lost the 1989 election. It led a coalition from 1996 to 1998, but then only returned to power, as the Liberal National Party, in 2012.7 At the centre of the problem was the personality of the National Party Premier for nineteen years until 1987, Joh Bjelke-Petersen. Rae Wear writes, “His management of cabinet and parliament demonstrated his quest for autonomy, intolerance of opposition, and disregard for the checks and balances that a parliamentary system is supposed to provide.”8 Because Queensland has no upper house, Bjelke-Petersen had no Legislative Council to constrain him. The Assembly only had standing committees for the domestic business of the house and the Premier refused to allow the appointment of Public Works and Public Accounts committees to review Government spending. They were appointed by a National Party government in 1988, after Bjelke-Peterson had left office and the Fitzgerald Inquiry was under way.

4 5 6 7 8

Patrick O’Brien, “Prologue: The Real Politics of the West Australian Constitution and the Executive State,” in O’Brien and Webb, The Executive State: WA Inc. and the Constitution, pp. 3–4. O’Brien and Webb, The Executive State, pp. 387–9. Campbell Sharman, “Defining Executive Power: Constitutional Reform for Grown–Ups”, Australian Journal of Public Administration, v. 56, no. 2, 1997, pp. 108–9. Paul Williams, “The Fitzgerald Legacy: 15 Years On,” Brisbane, The Brisbane Institute, 2003. Rae Wear, Johannes Bjelke–Petersen: The Lord’s Premier, Brisbane: University of Queensland Press, 2002, pp. 131, 142.

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Fitzgerald’s report led to new Queensland electoral laws that produced independently drawn boundaries and ended the electoral manipulations that had kept the National Party and Bjelke-Petersen in power for many years. It also recommended the establishment of extra-parliamentary watchdog agencies to oversee ethics in government and “a comprehensive system of parliamentary committees to enhance the ability of Parliament to monitor the work of the Government.” Watchdog agencies were appointed very quickly but it took some years to create the present Assembly committee system. The accumulation of royal commission reports in the 1980s and 1990s, including reports on state bank failures in Victoria and South Australia in 1991 and 1992, provided, in the words of High Court Judge, Paul Finn, “a pathology of public governance ...”9 In addition to their findings about wrongdoing or maladministration in Queensland and Western Australia, reports found that cabinets do not adequately monitor government agencies and state corporations, that parliaments, whose procedures, agendas, finances and resources are dominated by governments, do not adequately monitor those governments, and that systems of public service accountability in which officials are responsible to ministers who are notionally responsible to parliaments, are flawed. It took extra-parliamentary royal commissions to arrive at these findings, and such inquiries always imply that Parliament has failed. The inquiry recommendations included extra-parliamentary watchdog agencies to perform oversight functions which, one might think, Parliament should perform itself, but in the circumstances governments had no choice but to implement them. The most important reforms in Western Australia included a Commissioner for Public Sector Standards and a Commission for the Investigation of Corrupt and Improper Standards, which became the Corruption and Crime Commission in 2003. There were also codes of conduct for ministers and public officials, backed by an Ethics Commission, and a Commission on Government which made recommendations for further reforms.10 In Queensland the watchdogs included the Criminal Justice Commission to monitor corruption in the police and the political system, and the Electoral and Administrative Review Commission, both of which had parallel parliamentary committees, to reform 9

Paul Finn, Integrity in government. Second report, Abuse of official trust: conflict of interest and related matters, Canberra: Australian National University, 1993, p. 51. 10 Bruce Stone, `Accountability reform in Australia: the WA Inc Royal Commission in context’, Australian Quarterly, vol. 65, no. 2, winter 1993, pp. 25–7.

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the public service and the political system.11 In New South Wales, the Coalition Government of Nick Greiner created the independent Commission Against Corruption in 1989 following a series of scandals involving Labor ministers.12 In 2001 Wayne Goss, the Premier of Queensland from 1989 to 1996, conceded that “Commissions of Inquiry are valuable as a bolt of lightning when the traditional institutions have failed to operate effectively,” but he adds, “Once having cleaned out the pipes ... the responsibility passes to Government and the community to ensure that the traditional institutions again work”. This is not how things have turned out. The extra-parliamentary watchdogs created in the 1990s are still mostly with us, including the Queensland Electoral and Administrative Review Commission which was established, Goss writes, with the intention “of doing itself out of business”.13 Queensland has continued to review accountability and integrity in government, and in a 2009 discussion document, the Government announced further reforms dealing with lobbyists, and codes of ethics for the public sector and government procurement, together with changes to the whistleblower protections and financial disclosure rules for MPs and statutory officials that were introduced after the Fitzgerald Report.14 Queensland has also implemented procedural reforms in Parliament. As this is being written in 2011, a committee system has been established with, in addition to domestic parliamentary committees, seven “portfolio committees”, each responsible for overseeing the work of a set of Government department and statutory bodies and for reviewing estimates and legislation in their fields of responsibilities.15 The jury is out on these reforms, but by combining the functions of government oversight, estimates and legislative review in portfolio committees, the Queensland Assembly appears to have integrated the important functions of parliamentary oversight. However, the Government may still use party discipline in Queensland’s only house of Parliament to ensure that it is not substantially hindered by procedural changes. 11 The Courier Mail, 3 July 1999. The Criminal Justice Commission merged with the Queensland Crime Commission in 2002 as the Crime and Misconduct Commission. 12 http://www.icac.nsw.gov.au/go/the–icac/what–is–the–icac. 13 Wayne Goss, “Parliamentary Committees in Queensland,” Australasian Parliamentary Review, Spring 2001, v. 16, no. 2, pp. 77–8. 14 Queensland Government, Response to Integrity and Accountability in Queensland, 2009. [http://www.premiers.qld.gov.au/community–issues/open–transparent–gov/assets/integrity– and–accountability–paper.pdf ] 15 John Mickel, Speaker of the Queensland Legislative Assembly, Media Statement, 17 June 2011.

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Committees will always be dominated by the Government, which nominates more than half of their members and determines both the subjects referred and the standing orders that govern their operation. Aroney and Prosser have suggested that additional attention should be paid to reforming the Queensland Parliament, including extending sitting days, reforming question time, and perhaps restoring the upper house, but in 2010 the Government rejected any consideration of the latter.16 Since the 1980s the responsibilities of governments have shrunk in some ways in Australia. Many Australian Commonwealth and state commercial corporations have been privatized, including the Commonwealth Bank, Qantas, Telstra, a number of state gas and electrical utilities and hospitals, and several state banks. This partially relieves parliaments of the almost impossible task of overseeing state corporations and relieves governments of a dilemma revealed by the state bank failures; how to supervise commercial state corporations without undermining their independence as commercial enterprises. But despite a substantial amount of privatization, many hundreds of statutory public bodies remain. Western Australia, for example, with a population of just over two million people in 2007, had, in addition to government departments and bodies formally responsible to Parliament, 524 state bodies or agencies operating under acts of Parliament and reporting to ministers. State bodies everywhere in Australia are subject to audits by Commonwealth and state Auditors General, who report to their respective parliaments, but the huge number of bodies means that oversight is necessarily weak. In 2008–9, for example, the Commonwealth Parliament Joint Committee of Public Accounts reviewed only 14 of 45 reports filed by the Australian National Audit Office.17 One area of executive dominance that is particularly difficult for Parliament to oversee is foreign and national security policy. The Commonwealth Government controls war, foreign relations and Australian military forces through its advice to the head of state who has constitutional or prerogative powers in these areas. Paul Kelly suggests that John Howard used these powers in the war on terrorism to introduce a new dimension to the Prime Minister’s office, the national security chief. He writes, “Howard had an unmatched grip on the machinery 16 Nicholas Aroney and Scott Prasser, “Integrity and Accountability in Queensland”. A submission to the Premier’s Department, Queensland, 2009; Queensland, Department of Premier and Cabinet, Response to Integrity and Accountability in Queensland, 2009. 17 Australia, Parliament, Joint Committee on Public Accounts, Reports 416 and 417.

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dealing with war, counter-terrorism, the military and intelligence agencies.”18 The Commonwealth Parliament’s Joint Parliamentary Committee on Foreign Affairs, Defence and Trade is very active, but major foreign and military policies can evade parliamentary scrutiny almost entirely. The Howard Government sent Australians to fight in Afghanistan in 2001 without parliamentary approval and the first House of Representatives debate on the war only took place nine years later, in October 2010. Furthermore, a Senate resolution in February 2003 condemning the Government’s decision to deploy Australian troops to the Middle East before the Iraq war began was ignored by the Government because it is not responsible to the upper house. A royal commission conducted by Justice Terence Cole in 2005 and 2006 might have opened up a discussion of accountability in external affairs but failed because of the terms of reference which were drafted by the Government. Cole was asked to investigate bribes paid to Iraqi officials by the Australian Wheat Board, a state company, during the United Nations’ Oil for Food Program which began in 1995. During the inquiry the Prime Minister, Foreign Minister, Trade Minister and Minister for Agriculture and Fisheries all denied knowledge of the bribes and stated that matters known somewhere in their departments did not reach them. More than A$200 million was paid in illegal kickbacks to the Iraq Government by an Australian state-owned corporation, but Cole was directed to investigate only breaches of law by Australian companies, not failures of intelligence or oversight by the Government or Parliament.19

Executive or Liberal Government, and Parliamentary Reform Executive democracy clearly exists in Australia but whether it is a reality to be accepted or a problem to be solved by reform depends on one’s point of view. There are polar positions on the question. In their book on the history of the New South Wales Parliament, David Clune and Gareth Griffith note a tension in parliamentary systems between executive and liberal theories of government.20 Proponents of executive government, who almost always include the Government, are relatively unconcerned about the concentration of power. 18 Paul Kelly, “Re–thinking Australian Governance – The Howard Legacy,” Australian Journal of Public Administration, v. 65, no. 1, 2006, pp. 18–21. 19 Australia, Report of the Inquiry into certain Australian companies in relation to the U.N. Oil– for–Food Program, November 2006, passim. 20 Clune and Griffith, Decision and Deliberation: the Parliament of New South Wales, passim.

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The primary role of Parliament, they argue, is to select the Government which must then be permitted to govern, free of unnecessary constraints. They have no love of parliamentary committees reviewing bills and appropriations, or powerful upper houses, both of which they see as rival centres of power to a government elected by the people, albeit indirectly. Proponents of liberal government, on the other hand, focus on representative democracy, not the Government. They believe that MPs are democratically elected representatives of the people who have a right to participate in governing in meaningful ways. They view the upper house as a useful check on the Government and support parliamentary committees and other devices to enable non-ministers to contribute to legislation and hold the Government accountable. John Uhr, an Australian scholar of Parliament, is in the liberal tradition when he writes, “Parliament works best when it ‘adds value’ to government by acting independently of the government of the day, which is accountable to parliament.”21 The “democratic audit” organizations that construct indices of democracy in a number of countries are in the liberal camp, too, with their promotion of fair election systems, transparency in the Government and a greater role for Parliament.22 In the debate between executive and liberal government, this book inclines towards the liberal position, but with an important qualification. Because the tendency to concentrate power in the executive is inherent in parliamentary government, executive democracy can, at best, be constrained, not abolished, and reform has to set quite modest goals. There are three ways by which parliamentary government in Australia might be reformed; by ordinary law, standing orders, or constitutional amendment. Ordinary law is used, for example, to make electoral law, which can have a significant effect on parliamentary government. It was changes in Commonwealth and state electoral laws, from preferential to proportional voting for the upper house, that ended Government majorities in most Australian upper houses. Standing orders can be used to reform parliamentary procedures. The Senate and state legislative councils were able to adopt committee systems, for example,

21 John Ur, “Reforming the Parliament”, in Clement Macintyre and John Williams, eds, Peace, Order and Good Government: State Government and Parliamentary Reform, Adelaide: Wakefield Press, 2003, p. 228. 22 See the Democratic Audit of Australia, Australian National University, Canberra, ACT.

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against the wishes of governments, by amending their own procedures. And, finally, constitutions may also be amended to bring about reform. There are several procedures for reforming Parliament, therefore, but reformers should be warned that the reform process may be difficult, and reform means different things to different people. It is unlikely to please everyone. Most reform proposals are in the liberal tradition, and are opposed by supporters of executive government who oppose any strengthening of Parliament to the disadvantage of the Government. By contrast, the Government often favours reform to strengthen the executive by limiting the power of the upper house. These two positions are likely to come into conflict over any significant reform of parliamentary government. System changing constitutional reform is unlikely in Australia, as in all mature democracies. Australia is governed at least as well as most countries and no one seriously anticipates that it will experience the kinds of dramatic precipitating events that have led to system changing constitutions elsewhere since 1945, defeat in war, for example, or a revolution. Absent a precipitating event, a system change, such as replacing parliamentary government with the American presidential/congressional system or replacing federation with a system of regional governments, a proposal with deep roots in ALP history, is almost inconceivable because of the vested interests that would have to be confronted. In the first annual Dean Jaensch lecture at Flinders University in 2010, Dean Jaensch advocated an end to federation because a “federal structure ... has become an anachronism, a hindrance, to efficient and effective government.”23 However, anachronisms and inefficiencies abound in all mature democracies because creating new political systems or radically reforming old ones requires challenging interests that have firmly established stakes in the status quo. In particular, the less populated states in Australia have always seen federalism as a way of offsetting the demographic strength of New South Wales and Victoria and they would not accept the weakening of the states that abolishing federation would represent. Furthermore, abolishing federation would simplify parliamentary government in Australia by reducing the number of parliaments but it would compound the problem of executive democracy by concentrating power in a single executive.

23 Dean Jaensch, First Dean Jaensch Inaugural Lecture, Flinders University, South Australia, September 2010.

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Any reform, major or minor, that requires a referendum will be particularly difficult to secure. Section 128 of the Commonwealth Constitution requires amendments to any part of the document to be approved by a majority of voters in a majority of states, which sets the bar high. All but eight of the 44 Commonwealth referendum questions put to voters since federation have been rejected by voters, and five of these were rejected by a majority of states despite receiving a majority of the national vote.24 Only two of the successful questions affected Parliament, neither of them fundamental. Amendment one, in 1906, moved the start of a Senate term from January 1 to July 1, and amendment six, in 1977, required states to fill Senate vacancies with someone from the same party or group as the retiring or deceased member.25 But Australian voters have rejected any other parliamentary reforms, particularly those that opponents could represent as threatening the Senate’s ability to check the Government. Two Labor Prime Ministers, Whitlam and Hawke, and one Liberal, Fraser, tried to have Senate terms set at two terms of the House of Representatives, rather than six years, and failed. The two parties argued both the pro and con cases, depending on whether they had introduced the proposal or not.26 Similarly, Harold Holt’s proposals in 1967 that the House of Representatives should no longer be twice the size of the Senate, and that the two houses should serve identical terms, failed.27 It is clear that any proposal will likely fail unless it has the support of both major parties. The 1977 amendment concerning Senate vacancies was supported by both the Coalition, which proposed it, and the ALP, and drew 73.3% of the vote, but the parties generally find ways to disagree and referendum campaigns are highly contested. The whole of the Tasmanian Constitution and parts of the other state constitutions may be amended by ordinary law, and they frequently are because they deal with routine matters such as pensions paid to the head of state or electoral provisions which require updating from time to time. But in most states, some important provisions, particularly dealing with the Crown and 24 Singleton, et al, Australian Political Institutions, pp. 56–7. 25 Scott Bennett, The Politics of Constitutional Amendment, Australia, Parliament, Information and Research Services, Research Paper No. 11, 2002–3, pp. 1, 9–14. 26 Scott Bennett, The Politics of Constitutional Amendment, p. 24. 27 Scott Bennett and Sean Brennan, Constitutional Referenda in Australia, Canberra: Australia Parliamentary Library, Research Paper No.2, 1999–2000, and Bennett, The Politics of Constitutional Amendment, pp. 1, 9–14.

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Parliament, are entrenched and may only be amended by a referendum. The Western Australian Constitution requires a referendum to abolish or alter the office of Governor, abolish the Legislative Council or the Legislative Assembly, change their memberships or abolish direct elections. Both the Assembly and Council are entrenched in the New South Wales and Victoria Constitutions, and the Assembly in Queensland. Any parliamentary reform which ignores the incentives inherent in parliamentary government is also likely to fail. A system of government provides incentives for some kinds of behaviour and disincentives for others, which means it will accommodate certain kinds of reforms and not others. For example, an American system of powerful, independent committees will not be established in any parliamentary house that the Government controls because it will not tolerate alternative, and intrusive, centres of power. Similarly, a truly fixed term parliament is incompatible with parliamentary government because it provides no way to replace a government that loses its majority and cannot be replaced without an election. And so on. Pining for governments to introduce reforms that run counter to the incentives in parliamentary government is a waste of time, unless those who want change have leverage. Sometimes they do, as we will see. Constitutional reform is not, therefore, a simple matter in Australia and there are always substantial hurdles to any but the most mundane changes. So when Dean Jaensch suggests that the Speaker of the Commonwealth Parliament might be appointed from outside Parliament, it would be wise to recall that the appointment of the Speaker of the lower house or President of the upper house in 13 of Australia’s 15 parliamentary chambers is spelled out in a constitution, which has to be amended. Jaensch also suggests that one way to deal with the small pool of potential ministers in most Australian parliaments is to provide that some of them might be drawn from outside, but the constitutions of the Commonwealth, South Australia, Victoria, the ACT and the Northern Territory all require ministers to be members of Parliament and MPs would be very hostile to any proposal that would limit their prospects of promotion to the Government. The weak record of constitutional reform in Australia does not mean that it is never attempted. In the Commonwealth there have been two major constitutional reviews in recent years, in addition to the Republic Convention of 1998, each

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of which identified serious problems with parliamentary government.28 The first was the Australian Constitutional Convention initiated by the Whitlam Government which moved between capital cities between 1973 and 1985. No changes to Australian parliamentary government emerged from these meetings. The hundred or so delegates could not agree, for example, on whether the Senate should lose the right to block a supply of money to the Government, or whether the conventions that regulate the powers of the Governor-General should be codified. Delegates agreed to a list of supposedly “binding” conventions, but could not agree to write them into law. In 1985, the Hawke Government abandoned the large convention approach and appointed a six-person Constitutional Commission of distinguished Australians to recommend changes. The Coalition boycotted the proceedings, which certainly helped the Commission to agree on a number of proposals in its 1988 report but did nothing to have them accepted. The proposals included identifying parliamentary government in the Commonwealth Constitution for the first time. The commission proposed that the Prime Minister should be recognized, ministers should be appointed on the nomination of the Prime Minister, the Prime Minister should be dismissed only after losing the confidence of the House of Representatives, and the powers of reservation and disallowance should be eliminated. On Parliament it proposed that the House of Representatives should serve for a maximum of four and a minimum of three years, but could be dissolved earlier should the Government lose a vote of confidence. In the first three years the Senate should not be able to force the Government out of office by rejecting appropriations. Senators should serve for two terms of the house of Representatives, not fixed eight year terms, save in the case of a double dissolution under Section 57, which could never be invoked in the fourth year of a parliament. These were important recommendations which, had they been implemented, would certainly have clarified parliamentary government in the Commonwealth, with likely knock-on effects in the states, but they did not directly confront the problem of executive democracy. Indeed by proposing that the Senate should lose power to force the Government out of office by denying it a supply of money, the Commission would have strengthened the executive.

28 Alan J. Ward, “Responsible Government and Recent Political Change in Australia and New Zealand”, Adelaide Law Review, v. 15, no. 2, 1993, pp. 167–72.

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The Hawke Government backed away from reform as soon as it saw this report, which it knew was controversial, to the Coalition particularly, and it decided to proceed very slowly. In 1988 it proposed just four constitutional referendum questions, none of which dealt with codifying the executive and only one of which, question 1, dealt with Parliament. This simply proposed that there should be four year terms for both houses of the federal Parliament. It was opposed by the Coalition as an attack upon the Senate because simultaneous elections would improve the Government’s chances of winning majorities in both houses. The question was massively rejected, receiving only 33% of the vote. As we saw in Chapter 10, the attempt to convert Australia to a republic in 1999 failed because Australia’s political elite could not agree to codify the powers of a new head of state in a way that would guarantee the continuation of a parliamentary system. Had the referendum question on a republic been approved in 1999, Australia would have gone into the twenty-first century with a republican form of eighteenth century monarchy. Substantial constitutional reform has also failed in the states in recent years. In Western Australia the Commission on Government reported in 1996 that Western Australia should tackle the problem of government accountability, initially by rewriting the Constitution so that it describes parliamentary government as it actually operates. The Commission pointed to the absurdity of trying to improve techniques for holding the Government to account by Parliament if the Constitution continues to ignore the offices of Prime Minister and Cabinet.29 Queensland had an opportunity for substantial constitutional reform when it adopted a new Constitution Act in 2001, but this mainly consolidated a number of constitutional acts for the first time since self-government in 1867 and modernized some constitutional language. The Constitution recognizes the Cabinet by name for the first time and requires that there be a Premier and Ministers, but change stops there. The new Constitution does not recognize that the Government must have the support of a majority in the Assembly, and the questions of ministerial advice to the Governor and reserve powers were referred to the Assembly’s Legal, Constitution and Administrative Review Committee for study. Reform did not address matters that are entrenched, which include 29 Western Australia, Commission on Government, Report, part 5, ch. 4, 1996, p. 38.

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restoring the Legislative Council, the legislative powers of Parliament, the role of the Sovereign and the office of the Governor. The 2001 Constitution therefore uses modern language to describe a pre-modern constitutional monarchy, a huge failure of constitutional imagination. The Premier and others pointed out that the new document was only the beginning of a process of modernization, but as of 2011 the Queensland Constitution had not been further revised. South Australia also missed an opportunity for major constitutional reform. Following the state election in 2002, the ALP Leader, Mike Rann, signed an agreement with Peter Lewis, an independent. Lewis became Speaker of the Assembly and agreed to support Rann on confidence and supply votes and in return he asked for a Constitutional Convention. Lewis had a reform agenda of his own which included attacks on executive democracy. It included citizen initiated legislative referenda, strengthening the Legislative Council as a house of review by removing parties and ministers, and accepting that effective committees cannot be created in the Assembly by locating all parliamentary committees in the Council. Lewis would also have strengthened the independence from the Government of the Auditor-General, the Ombudsman, the Employee Ombudsman, and the Police Commissioner.30 Three hundred people participated in a two and a half day constitutional convention in 2003 but Lewis’s recommendations were not widely supported and the Convention did not propose modernizing the executive in constitutional law. Ultimately, reform came to naught because Rann secured a majority in the Assembly without Lewis’s vote by bringing an independent and a National Party member into the Cabinet, and constitutional reform was abandoned.

Accountability Agreements and Lower House Reform31 It appears that substantial constitutional reform faces an uphill fight in Australia, but within constraints identified above there may be opportunities for change. It 30 Peter Lewis, Compact for Good Government, Adelaide, 2002. 31 Details that follow in this chapter from the texts of agreements to form governments from 1989 to 2009 are drawn from New South Wales, Parliamentary Library, “Minority Governments in Australia – Texts of Accords, Charters and Agreements”, Issues Backgrounder, January 2010. On line, each agreement is presented as a separate PDF file. See also The Australian Greens and the Australian Labor Party (‘the Parties’) – Agreement, 1 September 2010; The Hon. Julia Gillard and Mr. Andrew Wilkie (‘the Parties’) – Agreement, 2 September 2010; and The Australian Labor Party and the independent Members (Mr Tony Windsor and Rob Oakeshott) (the Parties) – Agreement, 7 September 2010; published online by the ALP at .

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is not inconceivable, for example, that the ALP and the Coalition might become so frustrated with the Senate when in power that they would agree that the upper house should lose its power to deny the Government a supply of money for ordinary annual services, as has already been done in New South Wales and Victoria. Or they might agree to amend the deadlock procedures in Section 57 to provide for the speedier resolution of conflicts between the two houses. These changes would have to go to referenda and they would be victories for the theory of executive government because they would weaken the Senate, but the greatest number of reformers in Australia support the theory of liberal government, and some of them, notably members of Parliament who are independents or members of small political parties, have acquired leverage in recent years to force liberal reforms to lower house standing orders. These MPs are dissatisfied with the way major parties dominate Parliament and want much greater influence for non-Government members. When the Government has a majority these members flail at windmills, but a hung Parliament, in which no party has a majority in the lower house, is their opportunity. As we saw in Chapter 5, a number of governments have needed independent and minor party support to take office and they have signed agreements that include liberal reforms. Brian Costar calls these “accountability charters,” but most have been called “agreements” and they are called “accountability agreements” here.32 Since the Labor/Green Accord in Tasmania in 1989 there has been considerable continuity in accountability agreements. The most comprehensive were those establishing minority governments with guarantees in Tasmania in 1989, New South Wales in 1991, Victoria in 1999, the Northern Territory in 2009 and the Commonwealth in 2010. Loose coalition agreements have not so far had a significant effect on parliamentary or constitutional reform with the exception of the 2008 ACT agreement between Labor and the Greens which led to Labor supporting a Green Speaker and four Green committee chairs and brought about significant changes in the way the ACT Legislative Assembly operates. The Tasmanian Accord of 1989 was signed by Labor and the Tasmanian Greens and set a liberal reform tone for subsequent accountability agreements by supporting an “open, community responsive style of government” which would “enhance the role of Parliament” and “enable individual members of 32 Costar, “Independent Parliamentarians and Accountable Government”, p. 97.

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both Houses of Parliament to play a greater role in the legislative process and development of governmental policy.” Every accountability agreement since 1989 has said something of this kind, and by signing them major party leaders have accepted implied criticism of their own conduct. In New South Wales in 1991, for example, the Liberal Premier, Nick Greiner, agreed that the balance between the Parliament and the Executive Government has shifted too far in favour of the Executive Government ... [and] that the role of the Legislature and the procedures of the Legislative Assembly provide too few opportunities for real participation by Members in the shaping and enactment of legislation.33

In 2010 both Julia Gillard, the Prime Minister, and Tony Abbott, the Liberal leader, accepted the following rousing endorsement of liberal government in a draft accountability agreement with two independents, Rob Oakeshott and Tony Windsor: The principles behind this document are twofold; to confirm the 150 local MPs (and by extension their local communities) as the foundation blocks of our Australian system of democracy, and increasing the authority of Parliament in its relationship with the Executive.34

Specific reform proposals occur in more than one accountability agreement. The most common is to improve Question Time by requiring ministers to provide shorter, more relevant answers to questions. The 2010 Commonwealth agreement, for example, required questions in the House of Representatives to last no longer than 45 seconds, for answers to be “directly relevant” and to last no longer than four minutes, for a target of 20 questions per question period, and for the Speaker to vigorously enforce the rules. A number of other agreements also accompanied reforms of question time with an independent Speaker of the lower house who would not caucus with a party. When a Labor MP, Harry Jenkins, was re-elected Speaker of the House of Representatives in September 2010, both sides accepted that new standing orders would permit 33 Griffith, Minority Agreements in Australia. See Memorandum of Undertsanding between the Honourable Nicholas Frank Greiner, MP, Premier, for and on behalf of the Liberal/National Party Government (the Government) and Mr John Hatton, MP, Ms Clover Moore, MP, and Dr Peter Macdonald, MP (the independent Memebrs), 1991. 34 ALP, The Australian Labor Party and the independent Members2010, Annex A, p. 1.

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him to emulate the independent Speaker of the British House of Commons. “You are no longer a creature of party...or the executive,”‘ said Tony Abbott, “You are now free to be in this Parliament everything that a Westminsterstyle Speaker should be.”35 However, it was less that new rules were created than that there was an understanding that the Speaker would maintain an appearance of impartiality and hold ministers and members more strictly to account than hitherto. Several accountability agreements have dealt with parliamentary terms, specifically to limit the Government’s ability to call for elections at any time and for any reason. Three state agreements called for qualified four year terms, with early dissolutions only in special cases, and these became constitutional amendments. The Commonwealth agreement of 2010 required Parliament to serve its full three year term and for the Prime Minister not to advise the Governor-General to dissolve the House of Representatives before that time, but this was not written into the Constitution. Of course, a vote of no confidence in the Government would be grounds for a dissolution in all these cases. A number of agreements called for some kind of all-party committee or board to manage the business of Parliament, or for enlarging an existing committee. Several called for enhanced opportunities for backbenchers to participate in debates and address the house, and four called for reforms to committees. Others provided that MPs should make financial disclosures and yet others called for additional resources for Parliament and/or additional resources for independent members. Some provided that the Government should consult with independents or Greens on proposed legislation and/or appointments, and two provided for expanded legislative research services for members. The Commonwealth agreement of 2010 called for the Government to respond to committee reports within six months and the ACT agreement of 2008 set a three month limit. The liberal bias in these proposals is clear. In various combinations they call for fixed term parliaments which limit the Prime Minister’s power to dissolve the lower house, for independent speakers prepared to control ministers at Question Time, for greater civility in the lower house, for the Government to share the management of the lower house with others in a formal way, for enhanced resources, opportunities and information for, and consultations with, 35 Sydney Morning Herald, 28 September 2010.

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independent and minor party MPs, for transparency in the financial holdings of MPs, and for the Government to be more responsive than hitherto to committee reports. As Julia Gillard’s agreement with independents of 2010 made clear, these reforms call for a new political culture: For these improvements to work, it will take a commitment by all MP’s to respect the cultural change that these changes bring. While the community demands a “feisty” and “testing” parliamentary floor, there will be a need for recognition by all to allow more MP’s to be involved in various roles and debates, to allow more community issues to be tested through private members voting, and to allow a Speaker ... to rule with a firm hand as debate tests the boundaries of the Standing Orders on the floor. The Executive will also need to show a commitment to the cultural change that this moment brings, and will need to be more flexible, consultative, and more engaged with all MP’s if these arrangements are to work.36

The agreement between Labor and the Greens in the ACT in 2008 similarly called for a new way of doing business and blurred traditional distinctions between the executive and the legislature. It proposed that Assembly committees should be strengthened to provide “opportunities for non-executive Members to be more involved in the development of Executive legislation, policy setting, and service delivery decisions.” Committees would operate in two modes. They would have a traditional scrutiny and oversight mode, operating in a “traditional adversarial/inquisitorial manner” by questioning ministers and officials, inquiring into issues of public interest and reviewing proposed legislation. They would also have a collaborative mode. Committees would meet regularly with ministers and officials to be briefed on department matters and proposed legislation before Cabinet makes its decisions, and to provide feedback and advice to ministers. In addition, committee chairs and Cabinet would meet periodically to discuss “whole-of-Government issues and possible directions.” It is probable that these understandings could only survive in a small chamber where no party has a majority and accommodation and conciliation are usual behaviours. These lower house reforms all emerged from hung parliaments and were the product of hard bargaining. In 2010, for example, Julia Gillard had to negotiate to 36 ALP, The Australian Labor Party and the independent Members, 2010, Annex A, p. 1.

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secure agreements from two independents, Rob Oakeshott and Tony Windsor, a separate independent, Andrew Wilkie, and the parliamentary Greens. When the new Parliament met in September 2010, 21 changes in the Standing Orders of the House of Representatives were adopted to implement most of the provisions. In addition, the Greens were offered a number of environmental protections and a House of Representatives Standing Committee on Climate Change. Oakeshott and Windsor secured protections for regional Australia, including a House of Representatives Standing Committee on Regional Australia, and Wilkie won additional funds for the Royal Hobart Hospital in his home state of Tasmania.37 The question to be asked, however, is can accountability agreements survive a return to majority government in the lower house? To a degree, the answer depends on how they are implemented. Some reforms are protected by being entrenched in constitutional provisions that may only by amended by referendum. The four year parliaments introduced in New South Wales and Victoria and reforms of the Legislative Council in the latter are protected in this way. In some states, however, constitutional reforms may be amended by Parliament alone. Section 31B of the New South Wales Constitution, which provides that the Speaker of the Legislative Assembly be elected by secret ballot, is of this kind. It was part of Premier Greiner’s agreement with independents in 1991. The independents who pushed for this change anticipated that secret elections would produce an independent Speaker, but the office remained in the gift of the Government. By 2007 two ALP Speakers from the Government party had been elected unopposed. It was not until that year that the intent of the 1991 agreement was fulfilled, and in an unusual example of a Government initiated liberal reform. The Labor Premier, Morris Iemma, nominated George Torbay, an independent MP, who was elected Speaker unopposed. Iemma argued that a Speaker independent of party is in everyone’s interest: The [Assembly] will never be ... a polite debating society because politics is a real contest between ideas and competing visions for the public good, but Parliament can be more orderly, more rational and more constructive. Mr. Speaker, all members of this House will look to you to help to ensure that result, armed as you are with an unprecedented qualification - that 37 All three agreements were published online by the ALP at . They were The Australian Greens and the Australian Labor Party (‘the Parties’) – Agreement, 1 September 2010.

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of being an independent member. Today also represents a step toward the [British] House of Commons model, which does so much to bring order and rigour to the Mother of Parliaments. If we can achieve even a partial improvement along those lines, this experiment will prove to have been very successful indeed.38

Reforms written into standing orders are the most exposed to the anti-reform impulses of majority governments which can use their numbers to undo them. The lower house in Australia is the arena for a continuous election campaign by the Government and Opposition, the “‘feisty’ and ‘testing’ parliamentary floor” mentioned in one of the Commonwealth agreements of 2010, and one can easily imagine civility and cooperation breaking down under pressure. But one has to ask what the Government would gain by reversing some of the reforms that have resulted from accountability agreements. What is really to be gained by denying backbenchers a few extra hours of talk a week, or reversing the independence from Government of the auditor general, who is now appointed in some states on the nomination of a parliamentary committee, or the independence of judges, who may now only be removed in some states by a joint address to the Governor from both houses of Parliament, or the independence of the Speaker? Nonetheless, a majority government that wants to reverse or obstruct reforms can do it. It can nominate a partisan Speaker, or eat into private members’ time by suspending standing orders to accommodate Government business. And if a private member secures substantial support for a piece of legislation, the Government can refuse to make available the additional time it usually needs to pass through all stages in the house. The Government may decide not to support the appointment of particular committees, or neutralize them by the committee members it nominates or the matters it refers, or allows the house to refer, to them. Chairpersons from the Government side can favour the Government in committee business, the Government can fail to respond to committee reports indefinitely, and so on. So far, the evidence is mixed on accountability agreements as sources of reform, unless they are entrenched in a constitution. The Tasmanian Accord of 1989, for example, led to a legislative reference service and additional resources for Green MPs, but a four year Assembly term was not written into the Constitution, there

38 New South Wales, Assembly, Hansard, 8 May 2007, p. 12.

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were no significant parliamentary reforms and no estimates committees, and the Greens never had the input into Cabinet decisions for which they had hoped.39 In New South Wales, the Reform Charter of 1991 led to significant reform of the Legislative Council, which is entrenched, and had an astonishing impact on the Assembly during the Greiner and Fahey Coalition Governments in the 50th New South Wales Parliament from 1991 to 1995, neither of which had an overall majority in the lower house. More than 20 joint estimates committees were created to review budgets, twelve major bills went to legislation committees for their second readings rather than to the Committee of the Whole, and 17 select committees of inquiry, seven of them joint, were appointed as against one in the 49th Parliament. In the 49th Parliament almost no non-government amendments to bills were approved in the Assembly but half of all amendments came from the opposition side in the 50th. Governments hitherto won all their motions in committees and the Assembly, but in the 50th Parliament 86 Government motions were defeated in committee and 192 in the Assembly. The independents’ campaign for parliamentary reform in New South Wales came to a screeching halt, however, after the March 1995 general election when Labor formed the Government with a one seat Assembly majority and returned to most of the majority’s old habits. The Government lost only one vote in committee between 1995 and 2003, and it reversed this the following day. Joint select committees were continued after 1995, as were house Standing Committees dealing with government oversight, but legislation and joint estimates committees ended, and from 1996 estimates were not even considered line by line in the Committee of the Whole.40 Clune and Griffith concluded that “the reality is that the executive model is dominant and will probably continue to be so.”41 The 1999 agreement between the Victorian Labor Premier, Steve Bracks, and three independents promised substantial reforms to the machinery of government and may prove to be lasting, but important provisions had to wait until a Labor Government won control of both the Assembly and the Legislative Council in 2002. Henceforward, Parliament will serve for a qualified fixed four year term and the electoral system for the Legislative Council has been changed to proportional representation. Other reforms included that the Auditor General 39 Griffith, Minority Governments in Australia, p. 12. 40 Clune and Griffith, Decision and Deliberation, pp. 612–21. 41 Clune and Griffith, Decision and Deliberation, p. 692.

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will be nominated on the recommendation of a parliamentary committee, not the Government, and the Council has lost the power to force the Government out of office by denying it a supply of money for ordinary annual services. Some changes were entrenched in the Constitution and others were implemented by standing order, including a number of joint committees, one of which reviews public accounts and estimates.42 The 2008 reforms to the ACT Assembly stand a good chance of surviving because there has been only one majority government in the territory since self-government in 1988. The Government is not normally in a position to dominate the Assembly, and because minority government is already the norm, compromise is a way of life. Until 2010, no Commonwealth Government had to concede reforms to small parties or independents to secure a House of Representatives majority. Indeed Labor governments from 1983 to 1996 used their majorities to strengthen executive democracy. Both question time and parliamentary debates were mauled by the Government during this period. The average number of questions answered per day by ministers dropped from 16 during Malcolm Fraser’s Coalition, from 1975 to 1983, to an average of 10.5 per day in 1993, during Paul Keating’s term, and the length of answers more than doubled, from 2.4 minutes in 1976 to 5.8 minutes in 1992. The Speaker exercised almost no discipline on ministers, who ordinarily answered questions from prepared scripts peppered with party political gamesmanship and invective directed at the opposition. As question time was being eviscerated, the use of the guillotine to limit debate on bills expanded dramatically. Fraser’s government guillotined 1.2% of its bills but the Labor government of Robert Hawke, from 1983 to 1991, guillotined 25%, and 1993 Paul Keating’s government guillotined 80%.43 Julia Gillard’s accountability agreement in 2010 presaged an enormous departure from business as usual in the House of Representatives, but whether it can survive a return to majority government is an open question. Some agreements to form governments have had no accountability content. Mike Rann’s agreement with two independents in South Australia in 2002 and 2004 was a novel “agreement to disagree” which challenged orthodox notions of collective responsibility, but it did not call for parliamentary or constitutional 42 See above, Chapter 5. 43 Neal Blewett, “Parliamentary Reform: Challenge for the House of Representatives,” Australian Quarterly, v. 65, no. 3, Spring 1993, pp. 1–14.

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reform. The agreement Rann signed with Speaker Peter Lewis in 2002 called for a constitutional convention, and could have led to substantial reforms, but the process was abandoned when Runn secured his majority without Lewis.44 The agreement that Premier Barnett of Western Australia signed with National MPs in 2008 contained some special treatment for rural areas but was primarily an agreement to disagree, not to reform Parliament.45 Liberal reform of the lower house has been on the agenda in Australia in recent years because of hung parliaments and accountability agreements written to satisfy minority paties and independents, but it was not favoured in the most recent major review of House of Representatives procedures, in 1993, which was conducted by a House of Representative committee chaired by Neal Blewett. The major reform to emerge from this study was the Main Committee, mentioned earlier, which is used for the committee stage of non-controversial legislation and other parliamentary business, but no system of legislation or estimates committees was proposed, and no extension of parliamentary sittings beyond the present 80 or so days a year. Blewett was conscious that the committee was reporting during a period of majority Labor Government and he anticipated that liberal reforms would not be welcomed by the Government, in part because of its problems in dealing with the Senate’s committee system. Blewett noted, “It is little exaggeration to say that the House of Representatives is the victim of the very success of the Senate.”46 His conclusion, therefore, was not the one we hear most often from liberal reformers, that there should be more lower house committees, for example, and expanded private members’ opportunities. Instead, he wrote in 1994, It may be ... that instead of paying attention to reform of the House of Representatives we should accept that chamber as essentially a debating forum between two party teams, and particularly their leaders, designed to clarify choices for a mass electorate, and concentrate on perfecting the Senate as a House of legislative review and as the body for effective scrutiny of the Executive.47

44 45 46 47

See above, Chapter 5. See above, Chapter 5. Blewett, “Parliamentary Reform”, p. 11. Blewett, “Parliamentary Reform”, p. 12.

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In other words, the imperatives of parliamentary government in the lower house should be recognized and reform efforts should be directed at the Senate. In a similar way, the Royal Commission on WA Inc. recommended an enhanced role for the Western Australian Legislative Council in 1992 and it was one of the most important recommendations of Speaker Peter Lewis in South Australia in 2003. Both he and the royal commission recommended constitutional amendments to provide that ministers should not sit in the Council in order to distance it from the Government.48 For the moment, majority governments continue to control most Australian lower houses and to expect them to adopt rules that restrict their own power is to ignore the incentives inherent in parliamentary government. Reform of the lower house will most likely be piecemeal and will come on the margins in hung parliaments from accountability agreements, which means it will depend on the bargaining power and reform agendas of a small number of independents and minor party MPs. Failing that, reformers should look to the upper house for checks on executive democracy.

Upper House Reform In their study of the New South Wales Parliament, Clune and Griffith write that proposals to reform the Legislative Council date back to 1859 because governments have had to struggle so hard to get important bills through the upper house.49 There was widespread dissatisfaction with councils in the other colonies, and with the federal Senate, too, after federation. Scott Bennett writes, To an important degree, the Senate has been seen as a problem, no matter what its current level of activity. For most of the period 1910–49 it was criticised for its failure to properly act as a house of review (let alone a State’s house); since the mid-1950s its failings have been associated with its frustration of various Commonwealth governments by its use of the significant legislative powers given to it by the Founders. Whatever the views of is critics, the need to reform the Senate has been a constant refrain in Australian politics.50 48 Bruce Stone, `Accountability reform in Australia: the WA Inc Royal Commission in context’, Australian Quarterly, vol. 65, no. 2, winter 1993, pp. 25, 27. 49 Clune and Griffith, Decision and Deliberation, p. 145. See also Bennett, Affairs of State, pp. 98–102. 50 Scott Bennett, The Australian Senate, Australia, Parliamentary Library, 2003–4, p. 13.

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In a parliamentary system, the most effective check on executive democracy comes from a house that the Government does not control. Occasionally this is the lower house, if there is a hung Parliament, but for the most part in Australia one looks to the upper house where the Government rarely has a majority. However, the dynamics of liberal reform in the upper house are different from those in the lower house. In the latter reformers depend on leverage that they acquire from a hung Parliament and this is missing in the upper house whose composition has no effect on government formation. The most significant negotiations therefore concern the passage of legislation during a parliamentary session not accountability agreements at its beginning. Furthermore, the upper house is sufficiently free of Government control to adopt parliamentary reforms that are not agreed with the Government. The irony is that reforms have to depend on the support of a major opposition party that, in most cases, would oppose them were it in office. Governments, of course, tend to favour upper house reforms that would strengthen the executive. For example, there is considerable support in the Labor and Liberal parties for eliminating the Senate’s ability to destroy a government by denying it a supply of money or its major bills. In 1988 John Howard praised the Senate as “one of the most democratically elected chambers in the world”,51 but by 2003, after seven years in government, he had had enough. Now he decided it was a “house of obstruction.” He conceded that governments get most of their bills enacted, but the Coalition’s most significant bills had invariably been opposed in the Senate in their original forms, including the GST, the privatization of TELSTRA, and the exemption of small businesses from laws on unfair dismissal, all of which were in its election programs in 1998 and 2001. The Government therefore published a discussion paper that suggested two possible routes for disputed bills.52 The first would send a contested bill to a joint sitting of both houses of Parliament if it were rejected twice in a single parliament. The second, less radical, proposal would allow a joint sitting if a bill were rejected by the Senate twice in one parliamentary session, and once more after a general election, again without a double dissolution. The then Labor leader, Simon Crean, was open to discussions on the second option but only if it were tied to the Senate losing its right to block the supply of money to the 51 Melbourne Age, 11 October 2003. 52 Australia, Department of the Prime Minister and Cabinet, Resolving Deadlocks: a Discussion Paper on Section 57 of the Australian Constitution, Canberra, 2003.

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Government and to simultaneous terms for both houses.53 Howard would not agree and the prospects for reform by consensus melted away. The states have seen more constitutional reform for the upper house than the Commonwealth, but mostly to strengthen the executive. Both New South Wales and Victoria have amended their constitutions to prohibit the Legislative Council from rejecting an appropriation for the ordinary annual expenses of the Government, for example. In 1922, Queensland abolished its Legislative Council, with dire consequences, given the indictment of the Government and the unicameral Assembly published in the Fitzgerald report. In the absence of the Council it took a royal commission, criminal convictions of ministers, and extra-parliamentary watchdog agencies to bring the Queensland Government to heel in the 1990s. The only reform of a state Legislative Council proposed in recent years was in South Australia, in 2005, when the then Labor Premier, Mike Rann, said it had become “dysfunctional ... a petty, partisan circus.”54 He proposed that an advisory referendum be held with the 2010 general election to consider three alternatives: abolishing the Council, reducing the number of Council members and their terms, or no change, but by the time of the 2010 state election, the issue had lost all traction and was abandoned by the Government. On the liberal side of the reform balance sheet, we saw in Chapter 9 that the Australian Senate asserted itself after the adoption of proportional representation in 1949 and the loss of guaranteed government majorities. State upper houses have asserted themselves, too. In bi-cameral parliaments across Australia upper house committees have been created against the wishes of the Government of the day, and when Barbara Page examined periods between 1976 and 1989, when the Government did not control the New South Wales Legislative Council, she found that ministers worked harder than hitherto to brief, consult and negotiate with members of the Council, and that members of the Council came to see themselves as full-time legislators. Their sitting hours doubled, their average attendance rose, they took an interest in a broader range of activities and formed new standing committees.55 Scott Bennett found similar developments elsewhere. There is, he wrote, a new “upper house ethos,” and

53 Melbourne Age, 10 October 2003. 54 Adelaide Advertiser, 24 November 2005. 55 Page, “Developments in the Legislative Council of New South Wales since 1978”, pp. 24–7.

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Legislative Councils are “no longer ridiculed as retirement homes for geriatrics or attacked as the havens of ultra-conservative politicians.”56 Freed of government control, the upper house can certainly be a more effective house of review and scrutiny than when the Government has a majority, but the liberal model has not been institutionalized in any Australian upper house in a way that enables it to flourish with a Government majority. As we saw in Chapter 10, the Coalition weakened the Senate committee system when it won a majority in 2004. It also has to be remembered that every upper house suffers from size and its resources. Clune and Griffith worry that with a “gene pool limited to 42 members …” the New South Wales Legislative Council is too small to institutionalize the kind of powerful committee system that might truly hold the executive to account.57 Some other councils are even smaller. One thing that should give heart to liberal reformers, however, is that, contrary to what is generally believed in foreign parliamentary systems, parliamentary government does not collapse when an upper house asserts itself. Australian federal and state governments often have to tailor their budgets and bills to accommodate the upper house, which is no bad thing if it is a legitimately representative body. Australian governments have had to deal with powerful upper houses since the 1850s, but they always control the legislative and financial initiatives and determine the budgets and sitting days of the upper house, and they have been able to get most of what they want, and most of what they absolutely must have, to remain in office. Turning to the upper house to constrain the excesses of executive democracy is not without risk. There is the possibility of legislative stalemate, for example, because none of the conflict resolution procedures in the federal and state constitutions work adequately. There is also a risk of overloading the small number of upper house members. There is only so much that the Tasmanian Legislative Council can do with 15 members, or even the Commonwealth Senate with 76, given that the latter now have to cover over forty Senate and joint committees. The question of giving upper houses substantially more sitting days and staff than at present, and perhaps substantially more resources per capita than members of the lower house, has to be addressed if they are do their jobs adequately.

56 Bennett, Affairs of State, p. 97. 57 Clune and Griffith Decision and Deliberation, p. 694.

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On balance, however, Australian bicameralism is working quite well, supported by a credible, if opportunistic, theory of democratic pluralism. Pluralists like Brian Galligan, Campbell Sharman, and Harry Evans argue that dispersing power away from the executive reflects the diversity of modern society and the fragmentation of modern party politics better than does party duopoly in the lower house. That may be true, but upper houses need a lot of help if they are to work better.

Conclusion: An Appeal for Rational Constitutions For many kinds of constitutional and parliamentary reform there are pros and cons and genuine disagreement; whether to retain the Senate’s power to reject an appropriation, for example, or precisely what powers the head of state should have for use in emergencies, or whether the lower house should have legislation and estimates committees. But there is no credible reason for rational people to disagree about whether to write the basic rules of parliamentary government into all Australia’s constitutions, as they already are in the ACT. In 1993 the Turnbull committee wrote, “Because the Constitution does not accurately describe the way we are governed, it is not an ideal, or a particularly helpful, document to enlighten Australians about the way they are governed.”58 It really is no surprise that the 1988 Constitutional Commission found that almost 50% of Australians were unaware that they had a Constitution, a number that rose to nearly 70% in the 18 to 24 year age group, or that the Civics Expert Group established by the Keating Government found in 1994 that 82% of Australians knew nothing about the contents of the Commonwealth Constitution.59 However, with the exception of the ACT, were Australians to study the literal provisions on parliamentary government in any Australian constitution, they would be none the wiser because none of them describes the executive as it actually works. It ought to be self-evident that the constitution of a democracy should be intelligible to its citizens, in its essentials if not in all its technical details, but with the sole exception of the ACT, all the constitutions of Australia fail this test. The unsettling thing is not only that these constitutions do not describe how Australia is governed but that those who wrote them never intended that 58 Republic Advisory Committee, An Australian Republic, v.1, p. 98. 59 Cited in Sir David Smith, “But We Already Have an Australian Head of State”, a paper prepared for the Australian Constitutional Convention, Canberra, February 1998.

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they should. Provisions on the executive were meant to be fictions, and only a relatively small number of politicians, lawyers and academics really understand this. Not only does the refusal of Australian politicians to define parliamentary government constitutionally do a disservice to citizens, it also undermines democratic accountability. In 1996 the Western Australian Commission on Government noted, We reject any assumption that knowledge of the constitutional law of the State should remain the preserve of a few practitioners and specialists. The State Constitution is not the property of Members of Parliament and constitutional lawyers. It belongs to all the citizens of Western Australia.... The absence of a clear description of the principle institutions and offices in the constitutional provisions of the State weakens the chain of accountability between the government and the people.60

In 1991 Sir Ninian Stephen, a former Governor-General, had something like this in mind when he said it was time for Australia to write into constitutional law “the overlay of conventions which regulate the powers of the GovernorGeneral.”61 And in 2003 Professor George Williams, a constitutional lawyer, wrote to the Queensland Assembly Parliamentary, Legal, Constitutional and Administrative Review Committee: It is a basic principle of democracy that people have access to information about how the system of government works. This information should be in an accessible form that enables citizens to understand their system of government without needing constitutional lawyers. The most appropriate place to find such information is in the constitution of the nation or state. A constitution ought to clearly and accurately describe how government works. It ought to be used in school and at the community level....62

To date, however, the Commonwealth and the states have failed to codify the rules of parliamentary government, except in the ACT, which proves that it can be done. Gordon Reid, for one, believed that a national constitution 60 Western Australia, Commission on Government, Report, part 5, ch. 4, 1996, p. 52. 61 The Australian, 3 April 1991. 62 George Williams to Research Director, Queensland Assembly Legal, Constitutional and Administrative Review Committee, 20 May 2002.

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could be drafted. In 1977 he wrote “Every alleged convention in Australian government is explicable in terms other than convention; that is, if we take the trouble to reason why.”63 So many opportunities to rewrite Australia’s constitutions have been squandered that one might suspect that it will ever be done. Perhaps the Northern Territory will attempt statehood again, and write a sensible constitution, or independents or minor parties will insist on codifying the executive in future accountability agreements, but the probability, as Ian Killey writes, is “that we will be retaining conventions, with their matching emblematic characteristics – their benefit (flexibility) and burden (vagueness) for some time.”64 For the moment, rewriting Australia’s constitutions to reflect the way in which the country is actually governed is not a priority for most of Australia’s political elite. They are content that parliamentary government in most of Australia should continue to be a mystery to its citizens, which is arrogance of a high order.

63 64

G.S. Reid, “Commentaries”, in Gareth Evans, ed., Labor and the Constitution, 1972– 1975, London: Heinemann, 1977, p. 245. Killey, Constitutional Conventions in Australia, pp. 280–1. 294

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Miscellaneous Abjorensen, Norman, ‘Remaking Westminster: South Australia’s Cabinet Experiment’, Democratic Audit of Australia, Discussion Paper 30/06, October 2006 Bach, Stanley, ‘The Australian and American Senates: A Comparison’, Australian Parliamentary Library, Research Paper No. 5, 2003–4 ——, ‘A Delicate Balance: The Accidental Genius of the Australian Constitution: A View From Washington’, Australia, Parliament, Senate, Occasional Lecture Series, 28 February 2003 Scott Bennett, The Australian Senate, Australia, Parliamentary Library, Research Paper 6, 2003–4 ——, The Politics of Constitutional Amendment, Australia, Parliament, Information and Research Services, Research Paper No. 11, 2002–3 ——, ‘South Australia Election 2002’, Australia, Parliamentary Library, Research Note 32, 2001–2 Bennett, Scott and Brennan, Sean, Constitutional Referenda in Australia, Canberra: Australia Parliamentary Library, Research Paper No2, 1999–2000 Botterill, Linda Courtenay, Managing Intergovernmental relations: COAG and ministerial councils, Democratic Audit of Australia Discussion Paper, 2005 Browne, Peter, ‘The fabulous fiftieth NSW parliament , and other minority governments’, Inside Story, 10 September 2010 Craven, Greg, ‘The Founding Fathers, Constitutional Kings or Colonial Knaves?’ in Parliament and the Constitution: Some Issues of Interest, Australian Parliament, Senate, Papers on Parliament, No. 21, 1993 Curtin, Jennifer, ‘Getting elected as an Independent: electoral laws and party favouratism’, Democratic Audit of Australia, 2005 Evans, Harry, An Elected President for an Australian Republic: Problems and Solutions, Australia, Senate, Papers on Parliament No. 52, December 2009 ——, Essentials of Republican Legislatures: Distributed Majorities and Legislative Control, Australia, Department of the Senate, Papers on Parliament, No. 24, 1993 ——, Federalism: an idea whose time has come? Samuel Griffith Society Conference, Canberra, March 1997 ——, ‘Government advertising and the financial system’, Democratic Audit of Australia, March 2005 304

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306

Index

Abbott, Tony 111, 112, 132, 280 Anti-Socialist Party 104 Archer, J.R. 231n Arnold, Premier Lynn (SA) 47 Aroney, Nicholas 8, 270 Attorney-General 72, 87, 93, 152, 206, 226 Auditor-General 183, 234, 278, 284, 284 Australia Acts 1986 47, 48, 221, 222 Australian Airlines 109 Australian Capital Territory (ACT) 14, 17–18, 25–28, 48, 56–7, 61–3, 79, 90–2, 94, 98. 114, 116, 118–9, 140–1, 148, 150, 166, 168–9, 170, 172, 175, 185, 190, 196, 220, 223, 230, 235–6, 275, 279, 281–2, 292, 293 ACT Chief Minister 91, 93, 96, 130, 135, 139–2, 144, 149, 169, 236 ACT code of conduct for ministers 158 ACT Constitution 26, 28, 57, 61–4, 75, 92, 97, 129, 130, 133, 135, 141, 147, 150, 223, 225, 236, 292 ACT Legislation Register 169 Australian Constitution 5, 6, 33–5, 41, 49, 54–5, 61, 71, 93, 123–4, 141, 148, 150, 151, 153, 160, 176, 186, 196–7, 209–10, 221, 223, 225–6, 228, 232, 235, 242–4, 247, 249, 252–7, 260, 263, 274–7, 279, 281, 292–4 Australian Constitution Act 1850 35 Australian Council of Governments 259 Australian Democrats 117–18, 127, 174, 197, 226 Australian Electoral Commission 104 Australian federation 6, 7, 33, 41, 91–3, 103–4, 252–64, 273 Australian federation conventions 48–56 Australian Government and Politics Database x, 75n, 101n Australian Greens 83–4, 86, 89–90, 92, 98, 114, 117–18, 160, 170, 172, 178,

183, 195, 197–9, 206, 215, 257, 279, 281–3, 285 Australian Labor Party (ALP) 39, 78–9, 87, 91, 104–9, 109–10, 114, 116–17, 119, 123, 126, 131, 133–4, 187, 195–6, 215–16, 261, 273–4, 278–9, 283 Australian National Audit Office 138, 270 Australian parliaments 4, 11, 47, 112, 118, 141–2, 157, 166–72, 176–7, 179, 187, 190, 210, 213, 215, 266, 275 Australian Public Service Commission 138 Australian Republican Movement 241 Australian Wheat Board 160, 271 Australasian federation conventions 40–56 Austria 17, 21 Awards and Culture Branch 228 Bach, Stanley 5, 6n, 211–12, 217 Bagehot, Walter 14, 24n, 31, 170–1, 229, 266 Baker, Senator Sir Richard (SA) 40, 51, 55 Bale, Tim 81 Bandt, Adam, MHR 206 Bank Nationalization Case 1948 254 Bannon, Premier John (SA) x, 82 Barbados 75 Bartlett, Premier David (Tas) 54 Barnard, Lance MHR 237 Barnett, Premier Colin (WA) 51, 84, 99, 287 Barton, Prime Minister Sir Edmund 43–4, 71, 97 Barwick, Chief Justice Sir Garfield 234 Beaconsfield, Lord (Benjamin Disraeli 29 Beattie, Premier Peter (Qd) 87, 90, 107 Beazley, Kim, MHR 128, 132, 157 Belgium 13, 21, 72 Benemy, F.W.G. 24 Bennett, Governor Sir Phillip (Tas) 86, 170, 231, 237

307

Parliamentary Government in Australia Bennett, Scott 216, 288, 290 Benton, Meghan 212 Bercow, Speaker John (UK) 284 Bergman, Torbjörn 81 bicameral parliament 5, 12, 19, 49, 166–7, 169, 174, 177, 193, 210, 218, 263 Bill of Rights 1689 (UK) 28–9, 147 bill of special importance 95, 224 bills 35, 39, 50, 51, 54, 59, 64–65, 95, 103, 140–2, 151, 166, 168–70, 173–9, 182–4, 186, 192–3, 208–12 Bjelke-Petersen, Premier Joh (Qd) 114, 152, 153n, 254n, 267–8 Blewett, Neal, MHR x, 135n, 1154, 158n, 287 Blick, Bill 153 Bogdanor, Vernon 29, 47 Boothroyd, Speaker Betty (UK) 181 Borbridge, Premier Robert (Qd) 86 Botterill, Linda Courtenay 114, 115 Bracks, Premier Stephen (Vic) 87, 91, 285 Brandt, Chancellor Willy (Ger) 96 Britain 4–9, 13, 15, 17–18, 23, 24–8, 30–2, 35–40, 42, 44–8, 58, 111, 126, 131, 142, 148, 151, 155, 158–9, 164, 167, 169, 171, 178, 187–8, 216, 220–3, 225–6, 231, 239, 242, 266 British Commonwealth 7, 13, 46, 47, 48, 61, 240, 242 British Constitution 8, 26, 28, 44–5, 52 British Empire 44–6, 226, 240, 245 Brown, Senator Bob (QD) 206 Brown, Premier Dean (SA) 91, 94, 132 Brumby, Premier John (Vic) 131 Bulgaria 21 Bundesrat (Ger) 51, 210 Bundestag (Ger) 210, 246 Burt, Chief Justice Sir Francis (WA) 250 Butler, Sir David 4, 23 cabinet 4, 8, 12–14, 17–19, 20, 24, 28–32, 34, 36, 41–4, 46, 48, 51, 55–6, 60–1, 63, 77, 82–5, 87, 107, 109, 129–30, 135–40, 142–4, 146–65, 169, 171, 187–9, 207, 216, 223, 227–9, 236–7, 267, 277–8, 282, 285 Cabinet Budget Review Committee (Qd) 152

cabinet committees 135–6 Cabinet Coordinating Committee 137 cabinet government 24, 98, 129, 147–65 cabinet handbook 134–5, 143, 153, 155 Cabinet Implementation Unit 137, 138 Cabinet Policy Unit 137 Cabinet Secretary 125 Canada 7, 24, 32, 37, 40, 45, 76, 103, 187–188, 191, 245 Canadian Constitution 41, 103n Canberra 10, 61, 109, 125, 143, 203, 241, 262 Cappo, Monsignor David 152 caretaker conventions 71, 122n Carnell, Chief Minister Kate (ACT) 83, 85, 90, 93, 144 Carney, Gerard 260 Carr, Premier Robert (NSW) 238 Casey, Governor-General Lord 240n Cassidy, Barrie 219 caucus 107–8, 131, 134, 139, 144, 164, 181, 183, 194, 215, 280 ALP 89, 107–9, 132–4, 187, 216 Liberal 71, 111, 128, 132 Cell, John W. 37 chancellor 17, 246 chief justice 234 chief minister 16, 60, 63, 72, 75, 85, 87, 90–3, 96–7, 130, 135, 139–142, 144, 148, 149, 169, 179, 235–6 Chipp, Don, MHR (Vic) 117 Chirac, Prime Minister Jacques (Fr) 22 Ciampi, Prime Minister Carlo (It) 70 Christian Democratic Party 118 Church of England 239 Clinton, President William (Bill) 22 Clune, David 76, 177, 214, 216, 219, 271, 285, 288, 291 Coalition 17, 19, 78–81, 104, 109–10, 135, 171, 198, 205, 206 Coalition government 18, 71, 86, 110, 135, 171, 219, 235, 269 Cobbett, William 30n Cockburn, Premier Sir John (SA) 43, 50 Cockfield, Geoff 114, 115 Code of Conduct for Ministers (ACT) 158 codify reserve powers 242, 247–8, 277, 293

308

Index Cole, Justice T.R.H. 160, 271 collective responsibility, see also Cabinet 154, 155–9, 160–1, 286 colonial executive 33–8 Colonial Laws Validity Act 1865 (UK) 38, 45, 46 Colonial Office (UK) 37–8, 40, 45 Colonial Secretary 38, 150 Colston, Senator Malcolm (Qd) 123n Commander-in-Chief 43, 144–5, 226 Commission Against Corruption (NSW) 269 Commission on Government (WA) 268, 277, 293 Commissioner for Public Sector Standards (WA) 268 Committee on National Security 151n, 152 committee stage 168–169, 184, 199, 287 Committee of the whole 18, 168, 184, 211, 285 common law 26–7, 42, 222–3 Commonwealth of Australia Constitution Act 1900 26 Commonwealth of Australia 6, 8, 25, 26, 40, 45, 64, 191, 221, 242 Commonwealth Constitutional Commission 1988 276, 292 Commonwealth Constitutional Convention 1973–85 223 Commonwealth Grants Commission 255 Commonwealth Prime Ministers’ Conference 47 Commonwealth Public Service Act 1999 160 Commonwealth Racial Discrimination Act 1975 254 Communist government of China 227 confidence of the majority 75–100 confidence vote 87, 94 conscription 1916 105, 132, 227 Conservative Party (UK) 31, 111 constitution, see by location Constitution Alteration (Establishment of Republic) Bill 1999 242–4, 249 Constitutional amendment 55, 94, 125, 129, 238, 243, 272 Constitutional Commission 1988 276, 292 Constitutional Convention (SA) 2003 278, 287

constitutional crisis 1975 232–34 constitutional law 25–8, 43, 44, 64, 69, 95, 123–4, 177, 205–7, 218, 220, 223, 233, 237, 239, 243, 245, 250, 278, 293 constitutional monarchy 28–9, 278 Costello, Peter, MHR (Vic) 28–9, 112, 134, 262, 278 constructive vote of no confidence 76, 237 “consult, encourage and warn” 31, 229 contract minority government 81 cooperative federalism 260–1 core executive 18 corporations power 254 Corruption and Crime Commission (WA) 268 Costar, Brian 100, 279 Council of Australian Governments (COAG) 259–61 Council of States 50 Country Party 79, 105, 109–10, 13 Country Liberal Party 79, 133 Craven, Greg 40, 40n, 41n Crean, Simon, MHR 106, 132, 150, 289 Crown 10, 42–7, 56–7, 62, 145, 175, 221–3, 226–8, 235, 236, 239–40, 274 Cunningham, Elizabeth, MLA (Qd) 86–7 Curruthers, Premier Sir Joseph (NSW) 44 Curtin, Jennifer 52n, 81n Customs and Excise 253, 255 Czech Republic 21 Dale, William 245, 245n Davis, Glyn 131, 132 deadlocks 39n, 54, 55n, 141n, 209n, 225 Deakin, Prime Minister Alfred 5, 52, 225 De Chair, Governor Sir Dudley (NSW) 231 De Crespigny, Robert Champion 152 delegated legislation 200 Democratic Audit 9, 272 Democratic Labor Party 106, 117–18, 197 democratic legitimacy 191, 193–4, 204, 216 Democrats, see Australian Democrats Denmark 18 Dennison, Governor Sir William (NSW) 36, 70

309

Parliamentary Government in Australia Department of Finance 145 Department of Foreign Affairs and Trade 160 Department of Premier and Cabinet 138–9, 228 Department of Prime Minister and Cabinet 153, 157, 228 Deputy Prime Minister 79, 133, 152 Deputy Speaker 169 Dicey, A.V. 25, 27, 43–4 Diet (Japanese) 75, 130, 148 Dignity for Disability 119 Dini, Prime Minister Lamberto (It) 70 disallowance 37, 45–8, 236, 242–3, 276 disciplined political parties 16–20, 22, 24, 31–2, 72, 92, 102–4, 108, 110–11, 121, 129, 153, 159, 161, 170–1, 174, 180, 186–8, 194, 266, 269, 286 dissolve Parliament/dissolution 28, 34–5, 37, 42–3, 54, 56, 57, 59, 63–4, 71, 76, 92, 93–7, 130, 141, 171, 189, 224–5, 230–2, 236, 238, 246–7, 276, 281 dominion 15, 45, 46, 222 Donaldson, Premier Sir Stuart (NSW) 70 double dissolution 54–5, 161, 196–7, 219, 224, 231, 289 Downer, Alexander, MHR (SA) 132, 134, 161 Duverger, Maurice 20 Edward I, King 11,28 Edwards, John 74n Egan, Michael, MLC (NSW) 161, 206 election law 120, 122–3, 126, 194, 196 “elective monarchy” 9, 24, 164 Electoral and Administrative Review Commission (Qd) 268 Engineers’ Case 1920 253 English Parliament 11, 28 estimates 182, 183, 184, 185, 186, 200, 201, 204, 215, 269, 285–6 Estonia 21 Ethics Commission (WA) 268 Ettridge, David 119 Euthanasia Laws Act 1997 (NT) 59, 236 Evans, Senator Gareth 157, 207 Evans, Harry x, 8, 50, 143, 164–5, 173, 186, 208, 234, 245, 292

Evatt, Justice H.V. 250 Executive 4–8, 13–14, 19, 22, 33–38, 41–8, 53, 56–61, 63–4, 69, 71, 83, 98, 102, 127, 129, 143–4, 165, 220–51 Executive Council 33–4, 36, 42–3, 58, 60, 95,140, 150–1, 153, 227–9, 243–4, 298 executive democracy 8–9, 20, 265–94 executive federalism 258–63 executive theory of government 271–2 Expenditure Review Committee (ERC) 152, 154 external executive 13, 20–1, 72, 75, 134, 245 external relations 226, 254, 270–1 factions 106–7, 111–2, 139, 157 Fadden, Prime Minister Arthur 92–3, 110, 113, 144 Fahey, Premier John (NSW) 219, 285 Fair Work bill 2009 2, 12 “Fairness clause” 76 Family First Party 118, 126, 197 Faulkner, Senator John (NSW) 197, 216n Fazio, President Amanda, MLC (NSW) 108 federal powers 41, 252–62 federalism 51, 69, 252–64 Field, Premier Michael (Tas) 86, 92–3, 96, 160, 237 Financial initiative 35, 63, 175–7, 203, 208, 218, 226 Finn, Justice Paul 268 Finnis, Premier B.T. (SA) 36 Fitzgerald, Tony 267, 269, 290 “fixed term” parliament 86, 96, 235, 281 Fleming, Jenny 106 Foley, Michael 24 Follett, Chief Minister Rosemary (ACT) 90 Foreign Secretary (UK) 222 Forrest, Martyn 233 four-year term 53, 63, 95, 235, 285 France 10, 21, 22 Fraser, Prime Minister Malcolm 92, 94, 97, 110, 137, 139, 141, 145, 184, 231–3, 274 Free Democratic Party (Ger) 113 Free Trade Party 103 “free votes” 187, 187n

310

Index Freeman, A.E. 27 fusion 14, 20, 30, 35, 41–2, 63, 69–74, 104, 129 fusion government 104 Gallagher, Chief Minister Katy (Tas) 72, 149 Gallop, Premier Geoffrey (WA) 91, 245, 248 Game, Governor Sir Phillip (NSW) 97, 142, 231 Garran, Robert 45 Gay, Oonagh 27n Gelber, Katherine 201n General Purpose grants 257–8 General Purpose standing committees 183, 185, 200, 203, 257 George I, King 29 George III, King 43 George V, King 222 George, Prime Minister David Lloyd 46 German Constitution 51, 101, 210 Germany 7, 10, 13, 30, 25, 45, 46, 96, 210, 113, 162, 205, 206, 248, 252 Gillard, Prime Minister Julia 9, 88–89, 107, 107, 133, 149, 164, 181, 183, 206, 216, 226, 227, 261, 280, 282 “Glorious Revolution” 1688 28, 29 Goldring, John 24n Goods and Services Tax (GST) 198, 199, 209, 212, 219, 255, 256, 257, 258, 260, 262, 263, 289 Goot, Murray 127 Gorton, Prime Minister John 71, 91, 110, 131, 139, 207 Goss, Premier Wayne (Qd) 96, 269 Government House, Sydney 238 Governor ix, 11, 32, 33–8, 58, 59, 60, 61, 64, 70, 76, 77, 86, 94, 95, 96, 129, 130, 140, 142, 150, 170, 192, 220–35, 250 Governor-General 6, 11, 14, 40, 41–8, 49, 53, 54, 55, 56, 57, 58, 59, 60, 63, 64, 76, 93, 97, 138, 140, 141, 142, 151, 170, 175, 176, 220–49, 251 Gray, Premier Robin (Tas) 170, 237 Greece 21, 83, 84 Greens, see Australian Greens

Greiner, Premier Nicholas (NSW) 86, 94, 219, 269, 280, 283, 285 Grey, Sir George (NZ) 47 Griffith, Gareth 99, 271 Griffith, Premier Sir Samuel (Qd) 43–4, 54–5 Grylls, Brendan, MLA (WA) 84, 85 Halligan, John 182–4 Hannah, Governor Sir Colin (Qd) 222 Hanson, Pauline, MHR (Qd) 110, 114, 119 Hart, John 144, 165 Hasluck, Governor-General Paul 227, 229, 240n Hartcher, Peter 139 Hawke, Prime Minister Robert 91, 94, 109, 131, 135, 136, 137, 139, 141, 145, 158n, 184, 185, 234, 276, 286 Hayden, Governor-General William 158n, 240 head of state 4, 12, 17, 19–21 28, 31, 41, 45–7, 62–3, 70–1, 75–6, 91, 93, 97, 130, 135, 140–43, 146–7, 150–1, 169–71, 175, 176, 180, 208, 220–51, 270, 274, 277, 292 Henderson, Chief Minister Paul (NT) 88, 132, 149 Hewson, John, MHR 132 high commissioner 46 High Court of Australia 6, 42, 234, 244, 246–7, 250, 253–4, 256, 263 Higinbotham, Chief Justice George (Vic) 36 Hill, Senator Robert 161, 206 Hockey, Joe, (MHR) 111 Holding, A.C. (MHR) 62 Holland, Ian 201 Holt, Prime Minister Harold 71, 91, 110 honours 226–7 Hopetoun, Governor General Earl of 43 Horizontal fiscal equalization 259 House of Commons (UK) 11, 12, 29, 30–2, 64, 121, 147–8, 167, 170, 181, 193, 210, 266, 281, 284, House of Lords 4, 5, 7, 11, 23, 30, 39, 54, 57, 64, 148, 167, 191–2, 202, 210

311

Parliamentary Government in Australia House of Representatives 5, 6, 11, 41–3, 48–56, 58–9, 61, 71, 78, 88–9, 92–3, 97, 104–6, 112, 114, 116–9, 126, 130, 134–5, 144, 164, 166–89, 191, 196–7, 199, 200–1, 203–4, 206, 212, 215, 217–18, 224, 232, 233, 234, 243, 248–9, 264, 271, 281 House of Representatives Committee on Climate Change, Environment and the Arts 183, 283 House of Representatives Committee on Regional Australia 283 Howard, Prime Minister John 6, 110, 111, 112, 119, 125, 127, 128, 132, 133, 134, 136, 137, 138, 143, 144, 149, 141n, 157, 160, 161, 165, 174, 219, 236, 240, 241, 250, 251, 254, 270, 271, 289, 290 Hughes, Owen 38 Hughes, Prime Minister William (Billy) 46, 105, 109, 128, 132 Humphries, Gary 93 “hung parliament” 80–1, 91, 99, 172, 189, 230, 237, 246–7, 279, 282, 287–9 Hungary 21 Hurford, Christopher, MHR (SA) ix, x, 262, 262n Iemma, Premier Morris (NSW) 91, 181 Imperial Conferences 46 “Imperial presidency” 265 Imperial War Cabinet 46 independents 19, 78, 80–2, 84–90, 94–5, 97–9, 100, 105, 116, 122–123, 126, 158, 164, 171, 173–4, 177–8, 181, 183, 189, 194–5, 197–9, 279–83, 285–8, 294 India 21 inter-executive diplomacy 259 inter-governmental relations 253, 263 internal executive 13, 21, 75 Ireland 8n, 13,14, 14n, 20, 25, 28, 207, 221, 234 Irish Constitution 11–12, 26, 156, 156n, 245–6, 248 Irish Free State Constitution 1922 245 Irish Labour Party 113 Irish Republic. See Ireland

Isaacs, Governor-General Sir Isaac 222, 240n Italy 10, 16, 17, 19, 49, 70, 130, 191, 205, 206, 210 Italian Constitution 15, 206, 208, 210, 246 James, Denis 257, 263 Jaensch, Dean 6, 101, 108, 141, 273, 275 James II, King 28 Japan 7, 113, 14, 25, 130, 207, 252 Japanese Constitution 20, 74, 130, 148, 207 Jeffery, Governor-General Michael 227 Jenkins, Harry, MHR (Vic) 89, 280 Johnson, Carol ix, 111n joint committees 102, 181–2, 184, 186, 200–1, 203, 270, 286, 291 Jospin, Prime Minister Lionel (Fr.) 22 Joyce, Senator Barnaby 198 judges 20, 56, 140, 151, 226, 234, 242, 245, 284 judicial review 6, 244, 253 Kam, Christopher 102, 102n, 186–8 Keating, Prime Minister Paul 6, 73, 109, 135, 158n, 239–41, 244, 249, 292 Kelly, Paul 127, 143, 154–5, 162, 165, 270 Keneally, Premier Kristina (NSW) 131–2, 261 Kerin, Premier Robert (SA) 91, 170 Kernot, Cheryl, MHR (Qd) 174 Kerr, Governor-General Sir John 97, 142, 232–4 Killey, Ian 253, 294 Kingston, Premier Charles (SA) 55 Kiribati 19–20, 220 Kohl, Chancellor Helmut (Ger) 96 Koowarta Case 1982 254 Kyoto Protocol 227 Labor Electoral League 104 Labor Party, see Australian Labor Party Lane, P.H. 240 Lang, Premier Jack (NSW) 97, 105, 142, 231 La Nauze, John A. 53 Latham, Mark, MHR (NSW) 132

312

Index Latvia 21, 28 Leader of the Opposition 120, 249 L’Estrange, Michael 125 Legal, Constitution and Administrative Review Committee (Qd) 277 legislation 13, 15, 22, 29, 32, 37, 39, 42, 50, 52–4, 59, 63, 64, 72–3, 85, 88, 91, 96, 117, 138, 141, 147, 153, 163, 168–9, 179, 182–7 committees 200–1, 204, 215, 285, 287, 292 General Purpose and Estimates Committees 200 Legislation Register (ACT) 63, 169, 236 Legislative Assembly 34, 37, 39, 81, 167, 176 Australian Capital Territory 61, 62, 63–4, 7, 75, 79, 83, 91, 92, 93, 97, 98, 103, 116, 118, 120, 129, 130, 141, 144, 169, 172, 175, 236, 279, 282, 286 New South Wales 70–2, 76, 86, 94–5, 104, 113, 118, 161, 163, 169, 176–7, 189, 197, 237, 275, 280, 283, 285 Northern Territory 11, 58–60, 64, 79, 87, 235 Queensland 86, 87, 92, 96, 104, 113, 119, 124, 185, 237, 268, 269, 275 South Australia 33, 36, 73, 76, 82, 94, 104, 113, 124, 189, 197, 278 Tasmania 33, 35, 84–6, 90, 104, 116, 117, 122, 159, 172, 178, 180, 197, 202, 231, 237, 284 Victoria 120–1, 130, 173, 189, 197, 213, 225, 275, 285 Western Australia 11, 70, 84, 104, 180, 197, 275 Legislative Council 33, 52, 167, 193 New South Wales 39, 70, 72, 108, 113, 116, 118–9, 161, 163, 193, 195, 202–3, 206–7, 216, 219, 231, 283, 285, 288, 290–1 Northern Territory 58 Queensland 39, 64, 168, 192, 267, 278, 290 South Australia 33, 94, 95, 118, 119, 202, 225–6, 278, 290

Tasmania 33, 167, 193, 195, 202, 207, 291 Victoria 52, 87, 113, 173, 195, 202, 207, 213, 283, 285, 290 Western Australia 11, 70, 113, 119, 193, 202, 203, 207, 208, 275, 288 legislative initiative 134, 145, 177 Levy, Anne, MLC (SA) x, 82 Lewis, Speaker Peter (SA) 82–3, 278, 287–8 Liberal Federal Council 110 Liberal National Party 89, 109, 112–13, 114n, 115, 181, 267 Liberal Party of Australia 76, 78–82, 86–7, 98, 104–6, 109–15, 119, 126, 132, 195, 238 Liberal theory of government 271–2, 279 Lindell, Geoffrey 225n Loan Council 258–9 loose coalition 78, 81–5, 86–8, 98, 135, 171–2, 279 Lower House 11–12, 15–21, 30–2, 34–6, 39, 41, 48–52, 55, 63, 70, 75–6, 78, 80, 85, 90, 92–7, 103–4, 106, 116, 118, 121, 126, 129–31, 134, 141, 144–5, 148, 159, 161, 163, 166–89, 190–1, 195, 199, 205–8, 210–18, 224, 230, 233, 237, 243, 246–8, 265, 275, 278–89, 291, 292 Lumb, R.D. 35, 35n, 42n Lyons, Prime Minister Joseph 91, 105 McEwen, Prime Minister John 71 McEwen, Rory MHA (SA) 83, 85, 87, 99 McGarvie, Governor Richard (Vic) 233 McGauran, Senator Julian 115 McIntyre, Clement ix McKell, Governor-General Sir William 240n Mackintosh, John 18n McKeown, Deirdre 187n McLeay, Elizabeth 158 McMinn, W.G. 37n, 38 Maddox, Graham 100 Maer, Lucinda 27n Main Committee 168–9, 179, 180, 184–5, 199, 211, 287 majority coalition 78–80, 171

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Parliamentary Government in Australia majority government 14–15, 20, 30, 34, 35, 41, 42, 63, 64, 75–100, 102, 105, 109, 110, 129, 171–2, 174, 190, 195, 235, 237, 283, 284, 286 majoritarian systems 171, 172, 189 Maley, Maria 136, 137 Manthorpe, Leanne 120n Mandate 173–4 Marongiu, Antonio 10n Martin, A.W. 103n Martin, Chief Minister Clare (NT) 90 Martin, Premier Sir James (NSW) 103 Mary II, Queen 28 matter of public importance 179 Matthews, Russell 262 Maywald, Karlene, MHA (SA) 83, 85, 99, 113 Melbourne, Prime Minister Lord (UK) 29, 148 Melbourne Age 107 Menzies, Prime Minister Sir Robert 3, 46, 110, 139, 141, 144 Mickel, Speaker John (Qd) 36n Miller, Robin 25n Milne, Senator Christine 206 Minister for Defence 152, 206 Minister for Foreign Affairs 133, 152 Minister for Immigration and Citizenship 152 ministerial council 259–61 ministerial handbook 154 ministerial responsibility 98, 155–6, 159–64 ministerialist 103–4 ministers 12–15, 17–18, 20–1, 23, 28–30, 32, 34–8, 40–43, 45–48, 51, 58–60, 63, 64, 69–74, 77, 81, 84–5, 91, 94, 99, 103, 109, 120, 121, 124–6, 129–65, 166, 169, 170, 172, 175–7, 180–1, 185, 199, 200, 202, 206–7, 212, 216, 220–224, 228–30, 232, 234–7, 242, 243, 258–260, 263, 266–70, 275–8, 280–2, 286, 288, 290 minor parties 78, 81, 85, 97, 116, 171, 173, 174, 177, 194–9, 294 minority government with guarantees 78, 85–9, 171

minority government with tacit support 78, 89–90, 171, 172 Mitterand, Francois 22 monarch/monarchy 11, 12, 18, 20, 24, 27–31, 37, 38, 41–8, 57, 143, 148, 164, 165, 170, 239, 240 Money bill 39, 50, 51, 53, 56,175, 176, 192, 208–211, 224, 237 Moon, Jeremy 105n, 217 Moore, Clover MLA (NSW) 280n Moore, Michael MLA (ACT) 83, 85, 98 Moore-Witton, Max 125 Mulgan, Richard 125n, 189 Murphy, Senator Lionel 206 National Assembly 22–3 National Country Party 112 National Labor Government 103, 132 National Party 78–85, 88–90, 99, 104, 109–10, 112–15, 116, 119, 135, 195, 198, 267, 268, 278 National Water Commission 138 Nationalist Party 105, 109, 132 Nauru 19, 20, 220 Nelson, Brendan MHR (NSW) 115, 128, 132 Netherlands 13, 21, 72, 134 New South Wales 11, 14, 27, 32–6, 39, 41, 50, 58, 61, 64, 70, 72, 76, 80, 86–87, 91, 94–9, 103–6, 108–9, 112–3, 116, 118–9, 123, 127–9, 131–2, 135, 138, 141–2, 148, 150, 154, 156, 159, 161, 163, 166, 190, 192, 195, 197, 202–3, 206–7, 208, 213, 216, 219, 221, 223–7, 208, 213, 216, 219, 221, 223, 224–7, 231–2, 237–8, 247, 258, 261, 269, 271, 273, 275, 279, 280, 283, 285, 288, 290, 291 New South Wales Constitution 33, 34, 70, 72, 76, 94, 95, 129, 148, 221, 223, 224, 226, 237, 283 New South Wales Electoral Commissioner 123 Newman, Senator Jocelyn 161 non-financial bills, see non-money bills 177 non-majoritarian systems 172–189 non-money bills 50–52, 64–5, 95, 168, 177, 192, 210, 211, 213

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Index North, Lord 20 Northern Territory 11, 14, 17, 25, 27, 48, 56, 57–62, 64, 69, 73, 77, 79, 85, 87, 89–90, 97, 109, 112–5, 127–8, 140, 149, 150, 166, 168, 170, 175–6, 179, 185, 190, 196, 220, 223, 226, 235, 238, 256, 275, 279, 294 Northern Territory (Self-Government) Act 1978 57–60 Nova Scotia 32 Oakeshott, Robert MHR (NSW) 88, 280, 283 Obama, President Barrack 144, 146, 213 O’Brien, Patrick 8, 266, 267 O’Connell, Daniel P. 241 Oldfield, David MLC (NSW) 119 One Nation 114, 119, 126, 197 operational norms 191, 204, 205 opposition 13, 22, 71–3, 84, 87, 91, 94, 109, 120–2, 127–8, 132–3, 139, 143, 163,–4, 167, 174, 177–8, 181, 183, 185, 197–9, 205, 210–12, 216,–7, 249, 284–6, 289 Order of Australia 228 ordinary annual services 76, 94–5, 175, 186, 192, 208–9, 247, 279, 286 ordinary law 272, 274, ordinary powers 242–4 outer ministry 149 Oxley 110 Page, Barbara 205, 216, 290 Parkes, Premier Sir Henry (NSW) 41–2, 51, 103 Parker, R.S 159. Parkin, Andrew ix, x, 256–8, 263 parallel federalism 259 Parliament 4, 6, 8–35, 37–43, 47–62, 71–3, 75, 77–9, 83, 86–7, 89, 91–3, 96, 102, 104, 106, 110–11, 117, 120–1, 124, 129, 131, 133,–4, 139, 148, 150–1, 153, 155, 157, 160, 162–4, 166–221, 223–8, 230, 234, 236–8, 242, 251, 253, 255, 261, 265–91 Parliament Act 1911 (UK) 167–8 Parliamentary model 13–20

Parliamentary oversight 259, 266–71 Parliamentary Secretary 130, 137 Patmore, Peter MHA (Tas) 92, 159–60 Peacock, Andrew MHR (Vic.) 128, 132 Peel, Prime Minister Sir Robert (UK) 29 Playford, Premier Thomas (SA) 144 Pledge of Commitment 239 Poland 21 Policy Development Fund (NSW) 123 political advisers 124–6, 136 political parties, see also parties by name 15, 16, 24, 31, 32, 38, 101–28, 129, 170, 178, 195, 205, 279 Portfolio committees (Qd) 185, 269 Portugal/Portuguese 7, 25, 234, 246 Portuguese Constitution 246 Prasser, Scott 270n Preamble to Constitution 242 preferential voting 116, 123, 171–2, 193–6, 272 premier 17, 34–6, 41, 43, 47, 60, 70–1, 76– 7, 79, 81–2, 84, 86–7, 91–5, 97, 103, 107, 109, 114, 120, 129–33, 138–9, 141–2, 144, 148, 150, 152, 157, 159, 169–70, 179–81, 189, 207, 222–3, 225, 227–8, 230–1, 233, 237–8, 245, 261, 267, 269, 277–8, 280, 283, 285, 287, 290 Premiers’ Conference 40, 259 president 6, 11, 14, 17, 19–23, 44, 57–9, 70, 131, 134, 144–6, 165, 242ff. President, Upper House 108, 180, 213, 215, 275 presidential system of government 21–2, 143–6 Preston, Noel 87 prime minister 4, 8–9, 12, 15, 16–18, 20–4, 29, 32, 36, 41, 44, 46, 48, 53, 54, 57, 63, 70–1, 75–7, 79, 88, 90–1, 93–4, 97, 105, 107, 109–10, 113, 124–5, 128, 169, 171, 174, 179–80, 189, 207, 219, 223–4, 226, 228, 230–3, 239, 241, 243–4, 246–51, 271, 276–7, 281 private members 122, 177, 178 private members’ bills 88, 121–2, 178–80, 211, 282, 284, 287 privatization 109, 111, 115, 198, 212, 270, 289

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Parliamentary Government in Australia Privy Council (UK) 45, 47, 150 program federalism 259 proportional representation 62, 79–80, 106, 116,18, 122–3, 172, 189, 191, 193–45, 285, 290. prorogue 42, 59, 97, 224, 234 Public Accounts Committee (Qd) 184, 267, 270, 286 public funding of elections 122–3, 125 Public Works Committee 182, 186, 267 Qantas 109, 270 Queen 11–12, 28, 29, 31, 33–4, 38, 42, 45, 47–8, 55, 57, 142, 148, 165, 220–42 Queen of Australia 47 Queen’s Counsel 240 Queensland 27, 33, 39, 43, 55, 64, 77, 79,–80, 85–7, 89, 90, 92, 96, 104–5, 107, 109–10, 112–15, 119, 121, 123–4, 127, 129, 142, 148, 150, 152, 166, 168, 174, 185, 190, 192, 198, 221, 222–4, 226–7, 239, 254, 267, 269, 270, 275, 277, 290, 293 Queensland Constitution 70, 77, 129, 142, 148, 153, 155, 221, 225–6, 228, 277–8 question time 72, 88, 120, 142, 163–4, 180, 270, 281, 286 Quick, Sir John MHR (Vic) 45 Rann, Premier Michael (SA) 82–3, 87, 91, 99, 133, 139, 152, 278, 287, 290 Rattenbury, Shane, MLA (ACT) 83 Ray, Senator Robert 126, 127 Redmond, Isabel, MHA (SA) 111 Rees, Premier Nathan (NSW) 91, 109, 132 referendum 41, 44, 61–2, 77, 96, 112, 124, 189, 225, 235, 239–51, 274–5, 277, 283, 290 Reference Committees (Senate) 200–1, 215 reform 39, 82–3, 85–8, 94–5, 159, 181, 187, 189, 196, 206–18, 219, 237–51, 268, 271–94 Reform Act 1832 (UK) 30 Reform Charter 1991 (NSW) 86, 87, 94 regulatory federalism 258, 259

Reid, Governor Gordon (WA) ix, 233, 233n, 293 Reid, Prime Minister Sir George 43 Renfree, H.E. 32 republic 44, 58, 112, 159, 187, 225, 239–51, 177 Republic Advisory Committee 24 Republic Convention 1998 241–9, 275 “reserve powers”, see also codify reserve powers 43, 230–31, 233–4, 243–51, 277 reservation 37, 45–8, 236, 242, 243, 276 responsible government 5, 6, 14, 23, 32, 37 Rhodes, R.A.W. 13 Richardson, Senator Graham 162 Roman Catholic 239 Romania 21 Royal assent 28, 33, 37–8, 43, 59, 62, 151, 169, 225, 227, 230, 234, 242, 246 commission 157, 160, 267–8, 271, 288, 290 prerogatives 27, 42–4, 56, 145, 222–3, 226, 242 succession 27, 239 Royal Powers Act 1953 221 Rudd, Prime Minister Kevin 91, 107–9, 128, 132–3, 139, 149, 198, 207, 216, 226–7, 262–3 Russell, Meg 212 Ryan, Susan, Senator (ACT) 136, 158n Salisbury, Prime Minister Lord (UK) 30, 148 Samuels, Governor Gordon (NSW) 238 Sartori, Giovani 16, 19, 22 Scalfaro, President Oscar (It) 70 Schlesinger, Arthur Jr. 265 Schröder, Chancellor Gerhard (Ger) 96 Scullin, Prime Minister James 92 Secretary to the Cabinet 137, 148 select committees 120, 182, 185–6, 200, 203, 215, 285 Selway, Bradley 229n, 230 Semi-presidential model 21, 22 Senate (Australia) x, 4, 5, 7–8, 11, 23, 41–2, 44, 48, 51–7, 61, 65, 71, 80, 89, 104, 106–7, 111, 116–24, 141,

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Index 143–5, 161–4, 168, 174, 177–8, 182, 184, 186–7, 190–219, 232–4, 245, 263, 271–2, 274, 276–7, 279, 287–8, 289–90, 291 Senate (Canada) 7, 40 Senate (USA) 7, 22, 50, 52, 56–7 Senate, Committee on Regulations and Ordinances 182 senior counsel 240 shadow cabinet 121, 188 Sharman, Campbell 217, 235, 263, 265, 267, 292 Sharp, M.P. 38 Shooters’ and Fishers’ Party (NSW) 118 single party majority government 18, 78–9, 83, 90, 103–5, 109, 171 single transferable vote 196 Singleton, Gwynneth 145n Slipper, Speaker Peter 89, 181 Slovakia 21 Smith, Sir David 233 Smith, Gordon 18 Smith, Jane Lomax, MHA (SA) 73 social conservative values 111, 112, 118 Somlyay, Alex 183 South Africa 45 South Australia ix, x, 4, 14, 32–3, 36, 40, 43, 50, 51, 58, 65, 69, 73, 76, 82, 85, 87, 91–2, 94–6, 99, 105, 110–13, 115, 118–20, 124, 127–8, 141, 144, 150, 152, 158, 166, 170–1, 174–5, 179, 185, 189–90, 192, 195, 197, 202, 207–8, 215, 220–2, 224–7, 238, 256, 261, 268, 275, 278, 286, 288, 290 South Australia Electoral Districts Boundaries Commission 76 South Australian Supreme Court 106 South Australian Constitution 76, 124, 130, 221, 225–6, 228, 278 Spain/Spanish 7, 10, 13, 15 Spanish Constitution 15, 92, 92n, 130, 246 Speaker 20, 81–2, 85–6, 8–9, 102, 121, 134, 164, 167, 172, 179–81, 275, 278–84, 286–8 Speaker, House of Common (UK) 181 specific purpose grants 257–8, 263

Standing Committee 120, 181–5, 200–2, 215, 267, 285, 290 Standing Committee on Social Policy and Legal Affairs 186 Standing Orders 120–22, 163–4, 176–81, 214–5, 270, 272, 27–80, 282–4, Stanhope, Chief Minister John (ACT) 72, 83, 90, 98, 149 Stanley, George F. 103 Statute of Westminster 1931 46–8, 222 Stephen, Governor-General Sir Ninian 231, 293 Stevens, Premier Bertram (NSW) 97 Stevens, Lea MHA (SA) 73 Stone, Bruce 202, 204 Summers, John 48n, 258 Sumner, Christopher, MHA (SA) 196n, 226 Supreme Court (Ire) 156 Swan, Wayne MHR 152 Switzerland/Swiss 40–1, 53 Swiss Constitution 41, 53, 53n Swiss Federal Council 41, 53 Sydney Morning Herald 139 Tasmania 14, 32–34, 61, 65, 69, 70, 80, 84, 85, 88–90, 92, 98–99, 104, 112–14, 116–7, 121, 139, 158–9, 166, 170, 172, 174–6, 180, 190, 192–3, 195, 197, 202–3, 207–10, 2123, 221, 225, 231, 254, 279, 283 Tasmanian Accord 89 Tasmanian Constitution 11, 35, 237, 274, 284 Tasmanian Dam Case 1983 254 Tasmanian Greens 92–3, 98, 122, 160, 172, 285 Taylor, Greg 96, 96n, 230 Television Broadcasting Bill 1998 212 Telstra 115, 198, 212, 270, 289 Thatcher, Prime Minister Margaret (UK) 157 Thom, Cumming 200 Thompson, Elaine 5, 5n, 7 Thynne, Ian 24 Tiernan, Anne 137 Taoiseach (Ire) 16

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Parliamentary Government in Australia Torbay, Speaker George (NSW) 181, 283 Trades Unions 104–7, 125 Treasurer 73, 88–9, 105, 133–4, 140, 152 Treaties Council 259 Turnbull, Malcolm, MHR (NSW) 6n, 112, 128, 132, 241–3, 245, 292 Turner, Ken 76, 76n, 103n Twomey, Anne 37n, 209n, 221 Uhr, John 141, 162, 178, 272 unicameral parliament 58, 62, 75, 166, 168–9, 172, 190, 290 United Nations Oil for Food Program 160, 271 United Nations World Heritage Program 254 United States 7, 21–2, 40–1, 54, 56–7, 111, 131, 144–5, 165, 203–5, 212, 215, 234, 265 United States Constitution 26, 41, 50, 56–7, 144, 148 United States–Australia Free Trade Agreement, 2004 197 United Australia Party 97, 105, 109 Uniform Tax Code Case 1942 253 Unsworth, Premier Barrie (NSW) 70, 207 Upper House 4, 6, 7, 11, 20, 39, 41, 49, 50, 52, 54, 63, 70–1, 95, 116–7, 123, 141, 161, 163, 166, 169, 174–7, 180, 184, 190–219, 225, 233, 246–7, 261, 267, 270–3, 275, 279, 288–91 Vaile, Mark, MHR (NSW) 161 Versailles Peace Conference 1919 46 vertical imbalance 257 Victoria 4, 14, 27, 32–4, 36, 50–3, 61, 64, 69–70, 72, 79, 87, 90, 94–6, 99, 104, 107, 110, 112–3, 118, 120–3, 126–8, 130, 141, 159, 164, 168, 171, 173–5, 182, 189–90, 193, 195, 197, 202, 207–10, 214, 221–2, 225, 227, 230–1, 233, 238, 247, 261, 268, 273, 275, 279, 283, 290 Victoria, Queen 12, 29, 31, 33, 38, 148, 229 Victorian Constitution 34, 35n, 72, 124, 130, 159, 163, 238, 286

Vietnam War 227 Vincent, Kelly 119 Walpole, Prime Minister Sir Robert (UK) 29, 147 Walter, James 125, 136 Ward, Alan J. 14n, 78n, 248n, 276n Warhurst, John 117n Watson, Ian 127 Waugh, John 26, 39, 39n Wear, Rae 267 Weatherill, Premier Jay (SA) 73 Weller, Patrick 5n, 13, 106, 136 Wellington, Peter MLA (Qd) 87 Western Australia ix, 4, 8, 27, 33, 40, 65, 70, 80–1, 84–5, 90, 92, 99, 104–6, 110, 112–13, 115, 119, 121, 127–8, 158, 176, 180, 190, 192–3, 195, 197, 202–3, 207–8, 213, 222, 226, 245, 250, 261, 266–8, 270, 277, 287, 293 Western Australian Constitution 33–5, 69, 221 Westminster model 4–7, 11, 23–4, 98, 218, 249 Whitlam, Prime Minister Gough 54, 73, 92, 97, 124, 136, 142, 209, 222, 227–8, 232, 274, 276 Wilkie, Andrew, MHR 88, 283 William III, King 28 William IV, King 29 Windsor, Tony MHR (NSW) 88, 283 Wing, Don MLC (Tas) 213–14 Winterton, George 231, 248 Wood, Gerry 87–8 World War I 46, 105, 256 Worthington, Glenn 184–5 Wright, Tony 107 Wrixon, Sir Henry 52–3 Xenophon, Senator Nick (SA) 118–19 Young, Liz 197–8

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