Synopsis
[1]
Analysis of the Idea of Responsible Government
[2]
Doctrine of Responsible Government in Australia
[3] Conflict
between Legal Principles in Application of the Doctrine
[4]
Effect of Constitution Act (1900) on Constitutional Conventions
[5]
Effect of Prerogative & Delegated Authority on the Doctrine
[6] Effect
of Disparity of Wealth on the Doctrine
Conclusion:
Non-Responsible Government
References
Bibliographical Citation
NEWMAN, C.A. (1982). On responsible government in Australia since 1975: corrosive effects of legislative positivism, prerogative powers, delegated authority & competing private interests. University of New England, Armidale, N.S.W. [Dept. of Politics, Faculty of Arts: POL-100-2/8].
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It is difficult to sustain the view
that responsible government exists, or that it can exist at all.
In Australia, non-elected officials usurp the roles of Ministers, the real
and effective control of government departments being vested in delegated
officers and permanent public heads. Accountability is to the private
press rather than to parliamentary representatives of the public.
Governments ignore their mandates and act in ways fundamentally opposed
to public interest, scarcely hiding their first allegiance to the sectional
private interests which control capital or labour. Finally, since 1975,
a minority party not having the confidence of the lower, popular House
can be installed in government by a non-elected official contrary to the
express demands of the lower House. Responsible government is beseiged
by an army of forces representing expediency and elitism.
Traditionally the idea of responsible government has grown out of the idea of government by consent. Its history may be traced through the ancient concept of kingship by election, and later through the English-speaking world's development of the idea of parliamentary control of revenue (Windeyer, 1949: 170). Since Edward III, the English Parliament has considered itself to have a consenting and qualifying power in relation to taxation. The idea culminated with the doctrine of 'no taxation without representation', celebrated in the establishment of the American republic. The power of the purse is the practical core of responsible government.
At least three elements stand out in the writings of politicians and jurists as typifying responsible government (cf. Sawer, 1973: 84-91). They are [1] that government is subject to having the confidence of, and being accountable to, the majority of people through their representatives; [2] that a government which is accountable and enjoys confidence must be vested with exclusive, real and effective control of government departments; and, [3] that government should be consistent with and responsive to fundamental public interests. The third element, whilst enjoying widespread support, raises the problem of defining 'public interest' in a way that is generally acceptable. For example, even the obvious idea that the public interest can only be served by divestment of the private economic motive is still controversial (Plato, in Barker, 1946: 139).
In Australia, the doctrine is said to apply by virtue of our reception of the laws and customs of the United Kingdom (Windeyer, op.cit: 325-6). The Westminster constitution, although complicated by the fact of representative democracy within the form of constitutional monarchy, nevertheless embraces the conventions that the Crown hears and acts on the advice of Ministers (Wade & Phillips, 1950: 61), who are members of Parliament with majority support in the lower, popular House, and who have exclusive and effective control of government departments (ibid). According to Geoffrey Sawer, these 'unwritten conventions' apply chiefly because they are 'the rules of the game, familiar to the players and approved by public opinion' (Sawer, 1973: 85). In the event of a shortfall in this supply of chivalrous goodwill, 'Dicey's sanction' provides a more mechanical means of enforcement, namely that Parliament will not authorise government expenditure if government snubs the conventions of responsibility. In other words, the convention is 'observed chiefly because Parliaments authorise government expenditure' (ibid). This mechanism has not, however, operated smoothly in Australian politics.
The traditional writers, especially English legal and constitutional authorities, are cautious and seldom confident. According to Wade and Phillips, for instance, even the right of royal veto over legislation has 'fallen into disuse' rather than being extinct (1950: 97). They also note that 'it is chiefly since the Reform Act of 1832 that there has been any control of the Executive by the people, and the degree of that control as well as the method of its excercise are still matters of dispute and subject to changing conventions' (ibid: 92).
Those conventions of responsible government which do form a part of the laws and customs of the United Kingdom find their legal reception in Australia frustrated by a unique constitution that is in many respects hostile to their operation. The Westminster paradox of representative democracy within constitutional monarchy is further complicated by vice-royalty, federation and a Constitution Act. The doctrine of parliamentary supremacy exists concurrently with the reality of reserve powers of the Crown. A democratically defective Senate, representing the states of Tasmania and New South Wales equally despite a more than ten to one disparity of population, enjoys virtually the same power as the lower, popular House, and may frustrate its deliberations (Lane, 1977: 54-59).
The existence of a positive Constitution Act ensures an overwhelmingly documentary approach to constitutional law, and naturally leads to a gradual deterioration of unwritten conventions. Essential usages of the Westminster parliament relating to responsible government, such as parliamentary supremacy, executive membership of and accountability to the parliament, Crown impotence and ministerial rights over the Crown, and the rules of cabinet government, are omitted from the Act. Their omission from a written constitution which by its very existence invites the deterioration of all unwritten conventions, must lead to their abandonment whenever sectional interests or short-term expediency are permitted to prevail over them.
The crisis of responsible government came to a head with the dismissal of the Whitlam government in 1975, when the unimpeded use of reserve powers of the Crown established that the governor-general is not bound by the conventions of responsible government. Whitlam writes that, to the extent that this use of royal prerogative establishes a precedent, 'it means that the party which wins a majority in the people's House at the election is not necessarily entitled to govern' (1979: 178). Reserve powers imply that the governor-general can act arbitrarily and irresponsibly, even despotically. He need 'no longer act on the advice of his Ministers, and may act contrary to that advice' (ibid). Even Sir John Kerr is forced to qualify his assertion of the existence of responsible cabinet government by admitting that it exists 'within a system of checks and balances' (Kerr, 1978: 439). Whitlam argues that responsibility cannot be checked and balanced and remain responsibility, that prerogative powers mean that 'a governor-general, as representative of the Queen, enjoys powers which the Queen has never herself enjoyed and which her forebears have not enjoyed for two centuries' (op.cit: 179).
Delegated authority is also, like prerogative authority, really a movement away from parliamentary supremacy and responsible government. Modern states have encountered an enormous increase in social regulation and public enterprise, giving rise to the opinion that delegated authority is an inevitable development. Requirements of time, expertise, locality, flexibility and emergency are all expediently served by the devolution of parliamentary authority on statutory bodies such as water boards, police commissioners, security forces and quasi-judicial tribunals. These are, however, all examples of parliament not only delegating authority, but also disposing of its right to an accountable, controlled, parliamentary executive. The result may be efficient, but it is not responsible (Derham, Maher & Waller, 1977: 68-72).
Finally, the greatest threat to responsible government comes not so much from arbitrary public institutions as from the private sector. The doctrine of executive responsibility to a sovereign representative parliament is consistently under assault from plutocrats controlling vast capital resources, associations controlling labour, the press and media controlling information, and numerous pressure groups ranging from the churches to foreign powers. The rigid party system entails first allegiance to vested interests of wealth and trade union power respectively. The press, owned by a very small number of very wealthy men, by virtue of its monopoly of information can control public opinion and bring down governments. It is accurately observed that it is 'more usual for ministers to make statements and explanations to, and to answer questions put to them by, not members of parliament but journalists respresenting newspapers' (Mander, 1971: 107ff).
The ascription of 'responsible government'
to the Australian political system is not justified by the evidence, which
shows a movement of power towards prerogative, delegated and private institutions.
AITKIN, D. & JINKS, B. (1982). Australian political institutions. Carlton, Victoria: Pitman Publishing, pp.77 'crown & cabinet'; 86 'Westminster conventions'; 259 'federalism & responsible government'.
BARKER, E. (1946). The political thought of Plato and Aristotle. New York: Dover Publications, p.139 [Plato on divestment of the economic motive; doctrine of economic communism applying to holders of political office].
BERGER, P.L. & LUCKMANN., T. (1967). The social construction of reality. London: Allen Lane, pp. 77-80, 149 'society to be understood in terms of ongoing dialectical process between subjective and objective reality' [interactive dialectic].
CAIRNS, J. (1976). Oil in troubled waters. Melbourne: Widescope Intl. Publications, pp.113-4 [non-responsible, private power function of media in filtering & editing information images; from 1975 journalists have succeeded in frightening Ministers & formulating government policies].
DERHAM, D.P., MAHER, F.K. & WALLER, P.L. (1977). An introduction to law. Sydney: Law Book Co., pp.68-72.
HALL, R. (1978). The secret state: Australia's spy industry. Stanmore, N.S.W.: Cassell Aust., p.209 'what our national interests are must be decided by our democratically elected government, not by a self-perpetuating intelligence elite which too often looks to the approval of its accepted peer group, the international intelligence club'.
HAWKER, G. (1981). Who's master, who's servant? Reforming bureaucracy. Sydney: George Allen & Unwin, pp.2-3 'political control is only one element in understanding bureaucratic activities, bureaucracy is responsible to other forces as well'; 16 'the experience of the Labor government of 1972-75 [shows that] ideas become no more than commands which go unheard, or which are heard and forgotten'; 71ff. [solution may be 'representative bureaucracy']; 92 'the place of Parliament becomes problematic, and rather secondary: it is within the public service that fundamental disagreements over political & economic power will be tested, & the task [may be] to do that consciously'.
KERR, J. (1979). Matters for judgment. Adelaide: Macmillan Publications, p.439 'responsible cabinet government exists within a system of checks & balances'.
LANE, P.H. (1977). An introduction to the Australian constitution. Sydney: Law Book Co., pp.54-59 [disruption &, frustration of doctrine of responsibility by federalism, esp. control of executive finance by Senate, which may be hostile to government which has the confidence of lower popular chamber].
MANDER, A.E. (1971). Our sham democracy. Sydney: Alpha Books, pp.107ff. 'more usual for ministers to make statements and explanations to, and to answer questions put to them by, not members of parliament but journalists respresenting newspapers'.
PARKIN, A., SUMMERS, J. & WOODWARD, D [eds]. (1981). Government, politics and power in Australia: an introductory reader. Sydney: Longman.
RADCLIFFE, G. & Lord CROSS of Chelsea. (1977). The English legal system. London: Butterworths.
SAWER, G. (1973). Australian government today. Melbourne: Butterworths, pp.84-91 [three elements typifying responsible government: accountability to lower chamber of parliament; exclusive, real & effective control of government departments; responsive to fundamental public interest]; 85 'unwritten conventions apply [1] because they are the rules of the game, familiar to the players & approved by public opinion'; 85b [but] 'chiefly [2] because parliaments authorise government expenditure'.
SEXTON, M. (1979). Illusions of power: the fate of a reform government. Sydney: George Allen & Unwin, pp.123 'the status quo until 1975 had entailed in all Westminster countries, the supremacy of the Lower House in the formation & maintenance of governments'; 124 'Kerr was forced to work with a Prime Minister of unusual authority & flair who insisted that his role as Viceroy was essentially formal: by the end of the first year, Kerr's distaste for this approach was well-defined if well-disguised'; 177-200 'treason of the clerks: Labor & the bureaucracy'.
WADE, E.C.S. & PHILLIPS, G.G. (1950). Constitutional law. London: Longmans, esp. pp.61 'the King acts upon the advice of his Ministers everywhere in the British Commonwealth'; 97 'royal veto has fallen into disuse' [rather than being extinct], however they note 'the right of royal veto has not been exercised [in the U.K.] since the reign of Queen Anne'; 92 'it is since the Reform Act of 1832 that there has been any control of the Executive by the people, and the degree of that control as well as the method of its exercise are still matters of dispute and subject to changing conventions'.
WHITLAM, E.G. (1979). The truth of the matter. Melbourne: Penguin Books, pp.178 'the party which wins a majority in the people's House at the election is not necessarily entitled to govern'; 178b [reserve powers of the Crown imply that the governor-general can act 'arbitrarily', 'irresponsibly', even 'despotically', and] 'need no longer act on the advice of his Ministers, and may act contrary to that advice'; 179 'a governor-general, as representative of the Queen, enjoys powers which the Queen has never herself enjoyed and which her forbears have not enjoyed for two centuries'.
WINDEYER, W.J.V. (1949). Lectures on legal history.
Sydney: Law Book Co., p.170 [history tracing doctrine of responsible government
to the early medieval Anglo-Saxon idea of government by consent, including
the concept of Kingship by election or 'acclamation'; and (2) the idea
of parliamentary control of revenue].
Title: On responsible government
in Australia since 1975.
Sub-title: Effects of legislative
positivisation, prerogative powers, delegation & concentration of wealth.
Author: NEWMAN,
Campbell Alexander
S/N: 8201391
Posting Date: 2 April 1982
The University of New England
Department of Politics /Faculty
of Arts
Tutors: CAMPBELL, Murray;
ASHBOLT, Anthony.
Politics 100: Introduction
to Philosophy
1. Politics; 2. Constitutional Law: Conventions: Responsible Government.