Lecturer: Brian Galligan
Checks And Balances In The Australian System
Parliamentary and monarchic forms are subsidiary parts of the larger constitutional system controlled by the basic law of the Constitution. Hence parliaments in the Australian system cannot be sovereign or supreme in the Westminster sense, nor are parties paramount through controlling the executive and parliament. The monarchic forms of Queen and vice-regal surrogates are formal parts of the executives for both the Australian and State constitutions but are entirely subject to the will of the people, as are the legislatures and executives.1
Australia is a compound republic in the sense that its institutional design relies predominantly on the dispersal of power to achieve individual liberty and governmental responsiveness.2 This essay considers the elements of that system and how they interact to provide checks and balances between the different branches of the federation.
Furthermore, qualifying the claim made by Campbell Sharman that the majoritorianism of a party-driven parliamentary executive is the discordant element of this Australian compound republic3, I argue that the involvement of political parties is an intimate and potentially inseparable component of that system that was always intended to operate within it, and that ultimately retains accountability through popular elections and the safeguarding of constitutionally through judicial review.
The Australian System
Australia is one of a small number of countries classified as a liberal democracy4, a hybrid form of society structured by the principles and institutions of both liberal democracy and market capitalism.5 Australia is also a federation which ensures that’ power is not only distributed according to economic criteria, but is devolved according to a federal division of powers between the Commonwealth and the six States.6
The Constitutional Inheritance Of Our Parliament
Australia has a mixed governmental inheritance, deriving its constitutional structure from elements consciously borrowed from a variety of constitutional traditions.7 As such, it is often considered that Australia has adopted a form of government which is a hybrid of the Westminster and USA federal system.8
Taking the British colonists’ rationalisation of their occupation of Australia as a historical fact, the forms of government developed during the nineteenth century in Australia were essentially variants of British parliamentary models, incorporating values such as representation, parliamentary sovereignty and responsible government.9
Initially, under the autocratic regimes of the Governors in New South Wales and Van Diemen’s Land these values were scantily expressed, though the emancipation of transported convicts, the immigration of free colonists and the natural growth of European descended populations assisted their evolution, producing such governments in New South Wales, South Australia, Tasmania and Victoria in the 1850’s, in Queensland in the 1860’s and in Western Australia in 1890.10
Therefore, the early forms of Australian government were definitely anglocentric, mirroring the institutions and concepts evolved in the English, and then British constitution.11 Nevertheless, as discussed below, the overlaying of a federal division of powers as a means of retaining the integrity of the federating colonies has had a fortifying effect on the Australian system by harmonising national, regional and sectional interests.
Consequently, the ability to frame the Australian Constitution cognisant of the experiences of these two systems brought three significant characteristics to the Australian system, which has served the Australian system well in the way it checks the majoritorian form of liberal democracy. These were the imbuing the Australian system with the notion of the constitution as a higher law; the entrenchment of extensive avenues of judicial review; and, the inclusion of a powerful upper house as a means of checking governments based on popular majorities in lower houses.12 How these elements are woven into the Australian Constitutional system and the impact they have are considered below.
The Federal Inflection of the Compact
The most adventurous step taken during the drafting of the Commonwealth Constitution was the grafting of the federalist system of the United States onto the British system of colonial self government. The influence of the United States model is evident in the adoption of federalism in the structure of the Commonwealth Parliament, in the scheme for the division of power between Commonwealth and States and in the foreshadowing of a system of Federal courts.13
In negotiating the federal compact, the representatives of the federating States sought guarantees that their residual functions and activities were secure against encroachment by the federal government. In particular, the smaller States sought guarantees that the more populous and wealthy states would not dominate the new compact. The answer to these concerns, in giving the central government a defined set of powers was borrowed from the United States Constitution.
To ensure the integrity of this compact and the understandings it embraced, the federation fathers required an entrenched and authoritative written constitution be spelt out the powers of the two levels of government. The most obvious manifestation of this scheme being the listing of the principal Commonwealth legislative powers in s51, and the absence of a parallel list for the States.
This demarcation of power in the federal system necessitated a further modification of the British system. As the parties of the federal compact sought confidence that the newly created legislative body would not trespass outside its area of legislative competence, or that the States would not trespass into the Commonwealth’s area, the Constitution established the federal High Court to adjudicate on the ‘constitutionality’ of State and Commonwealth legislation, providing it with the formal judicial power to declare invalid legislation if holds by judicial review to be outside their respective powers.14
Therefore, in contrast to the British system of governance by an unwritten and flexible constitution, Australia opted for a written Constitution that reflected the colonial heritage of Australia, the federal component of the United Sates system and the notion of responsible government through parliamentary review, regular popular elections, and a judicial arm that ensured that the other arms of government conformed with it. Australian federalism therefore presented an alternative both to confederation and a national government following the English model by allowing for a limited national government to be formed and to exist concurrently with independent and limited state governments.15 Consequently, the expression of federalism in Australia has promoted liberal democracy while frustrating majoritorian democracy.16 An examination of how power is distributed in the Australian system under the Constitution will assist in demonstrating this has been achieved.
The Checks And Balances Provided By The Commonwealth Constitution
As discussed above, the Constitution not only evidences a division of powers between the Commonwealth and the States, but it also entrenches a separation of powers as a means for checking the potential distortions in the use of that power. Chapters I, II and II of the Constitution conferred the legislative, executive and judicial powers of the Commonwealth on three different bodies: the Parliament17, the Commonwealth Executive18 and the Federal Judicature.19
Nevertheless, despite the structure of the Constitution, there is no strict demarcation between the legislative and executive powers of the Commonwealth. The Parliament is the only body that can pass Acts, though these Acts often permit the Executive to make regulations, rules and by-laws as subordinate legislation under them. In contrast, the separation between the Judicature and the Parliament and Executive is strict.
With courts being the only body authorised to determine whether a law conforms with the Constitution, the judicature has sustained an important role in checking abuses of power that infringe upon that understood to be limited by the Australian Constitution, safeguarding a system of government where rulers are themselves subject to a rule of law.20
The Commonwealth Parliament
The legislative power of the Commonwealth is formally vested in the Federal Parliament consisting of the Queen, a Senate and a House of Representatives21, though in accordance with modern conventions, the Monarch does not take part in the process of framing and debating Bills before the Parliament.
While the House of Representatives and the Senate undertake the deliberative process of the Parliament, statutes enacted by the Parliament do not become law until they receive the Royal assent. According to convention, this assent is given by the Governor-General, so that on presentation of a Bill the Governor-General ‘shall declare, according to his discretion, but subject to [the] Constitution, that he assents in the Queen’s name, or that he withholds assent, or that he reserves the law for the Queen’s pleasure.’22
Although specific instances such as the 1975 Constitutional Crisis have challenged the servility of this position, in practice, the Governor-General exercises the power on the advice of his or her Ministers and does not exercise a personal discretion under s 58 to withhold assent or to reserve Bills for the Queen’s pleasure. Commonwealth legislative power therefore is in the overwhelming majority of instances employed at the behest of the popularly elected House of Representatives and the Senate.
House of Representatives
Part III of Chapter I of the Commonwealth Constitution sets out rules about the composition and operation of the House of Representatives.23 Known more popularly as ‘the People’s House’, the House of Representatives is composed of members directly chosen by the people of the Commonwealth.’24
Members are chosen to represent individual electorates under a system of preferential voting, though interestingly, ‘directly chosen’ does not require the electorates to contain equal numbers of either people or electors.25 Under the current allocation of seats there are 147 members of the House of Representatives. After the 1996 election that will increase again to 148 arising from a gain of one member to both Queensland and the Australian Capital Territory and a loss of one Member from Victoria.
To accommodate the federal system, the Westminster model was modified by the establishment of the Senate in which each State, whatever its population, had equal representation. The smaller States, fearing that they could be overwhelmed in the lower house by the representatives of the more populous states, believed that the Senate would provide some protection of their interest. As defined by Part II of Chapter I of the Constitution26, the Senate originally composed of Senators for each State, directly chosen by the people of the State.27 Though the States initially returned 6 Senators each, the minimum number required by section 7 for the original States, this number increased to 10 in 1948, taking effect in 1950, and to 12 in 1983.
Since 1975, 2 Senators from the ACT and 2 Senators from the NT have also been returned. The Territories power enables the Parliament to authorise the representation of Commonwealth Territories ‘in either House of Parliament to the extent and on the terms which it thinks fit.28 The statutory provisions authorising the representation of territories in the Senate were held to be valid in the cases of W.A v Cth29 and Qld v Cth.30
As a general rule, the Senate has equal powers with the House of Representatives in respect of all proposed laws.31 A significant exception lies in section 53 which dictates that laws appropriating revenue or moneys, or imposing taxation shall not originate or be amended in the Senate, nor can the Senate amend any proposed law so as to increase any proposed charge or burden on the people.32 Section 53 also authorises the Senate to request amendments where it lacks the power to amend a proposed law.
Therefore the Senate may ultimately decide to reject or refuse to pass money Bills, providing it with the capacity to create the confrontation crystallised in the 1975 Constitutional crisis. This is because the government of the day must have the confidence of the House of Representatives, but the Senate may cripple the operation of the government by denying it supply. In this way, the Senate potentially attracts a further check on the abuse of executive power, through its discretion to withhold the funds necessary to give effect to executive dictates.
The Representative Nexus Between the House of Representatives and The Senate
The Constitution also provides a check on the balance of representation between the House of Representatives and the Senate by requiring that the number of members of the House of Representatives to be ‘as nearly as practicable’ twice the number of Senators and that the number of members ‘chosen in the several States shall be in proportion to the respective numbers of their people.’33 Known as ‘the nexus’, this rule links the number of Members and the number of Senators and the requirement that the representation of each State be in proportion to its population.34
The Realpolitik of Australian Politics
The Commonwealth Constitution is by no means a comprehensive or exhaustive account of the definition and location of public power in Australia.35 While other formal instruments such as the various State Constitution Acts, the Australia Act 1986 (Cth and UK), and prerogative instruments such as the Letters Patent construct formal limits on the exercise of public power, constitutional conventions also play a large role in organising and regulating public power, often regulating activities which are left uncontrolled by formal rules, or qualifying the operation of formal rules set down in legislation or by the courts.
Nevertheless the practical rules of responsible government are essentially induced from political experience. The sanctions which attach to disobedience of these rules are not only formally administered by the courts as discussed above, but by the various participants in the political process - the Crown, the ministers and the parliament. Because of their non-justiciable nature, these rules are frequently described as conventions.36
The Role Of Conventions
While the operation of political parties is not formally recognised within the Commonwealth Constitution, the adoption of certain conventions have seen it become an important element of the day to day execution of power within the Australian polity.
Constitutional conventions play an important part in organising and regulating public power by regulating activities which are left uncontrolled by the formal rules, or they may qualify the practical operation of the formal rules laid down in legislation or by the court. As such, conventions play an important role in constructing and regulating the relationship between the Parliament and the executive government, and the relationships between different elements in the executive government.37
The executive government of each of the Commonwealth and the States reflects a tension between legal technicality and political reality. A substantial number of legal powers and discretions are vested in the Governor-General and Governors, yet the ministers, as leaders of the dominant political party, have a strong interest in controlling the way in which those powers and discretions are exercised. Some of the formal powers are stated in constitutional instruments, but many others appear in ordinary legislation. Generally, these powers are exercised in line with policy settled by the Crown’s political advisers, the current minsters and the initiative of those advisers.
This simple proposition reflects one aspect of the system of responsible government, which controls the relationship between ministers and the Crown. The relationship is not spelt out in any formal, justiciable rules, though allusions are made to it in sections 62, 63 and 64 of the Commonwealth Constitution, s 7(5) of the Australia Act 1986 (Cth), the Letters Patent of South Australia, Tasmania, Victoria and Western Australia.
As a consequence, through the application and interpretation of the Constitution during the ninety-five years since federation, the creation of a responsible government by popular election has continued to legitimise the right of the state to wield power, with the constitution and its conventions providing the essential formal conditions for stable government.38
The Imbuing Of Responsible Cabinet Government Into The Australian System
The British heritage of Australia’s parliamentary system has had a persistent impact on the Australian polity. As occurred in Britain during the nineteenth century, the development of mass party politics accompanied the growth of disciplined party membership. The consequence of this was that the cabinet representing the executive, rather than remaining the servant of the legislature became its master.39
Despite some debate to the contrary, it appears that the people moulding the Commonwealth Constitution were well aware of the potential influence of political parties on the Federation.40 As the political party, or coalition of parties controlling a majority of seats in the House of Representatives forms the government, to maintain office and govern effectively the government needs to maintain the support of a majority as a means to enact legislation, and in particular, to ensure the passage of money bills that finance the government’s operations.
As denial of supply to the government by the legislature customarily leads to the resignation of the government, theoretically, under this system of government, the executive is made accountable to the electors, and the government is checked, through the parliament. In this way, the government remains accountable to the Parliament, and the Parliament to the electorate.
While the role played by political parties within the parliament may have allowed the cabinet to gained control of the legislative function, it is nevertheless argued that the cabinet is responsible to the legislature, and that there are controls and limitations on the exercise of executive power.41It must be however acknowledged that this system does not work in practice as incisively as in theory, largely because ministers and governments are largely immune from parliamentary sanctions due to the operation of party discipline. Parties will usually close ranks, unless expediency makes a sacrifice more palatable.
Further clouding the ability to definitively define the extent to which the reach of the parliamentary executive is limited in the interests of compromise, responsiveness and individual liberty is Australia’s federal arrangements. Because sovereignty is divided, and because executive power is often exercised through joint Commonwealth-State action, it is frequently difficult to isolate a responsible minister. Ministers are able to exploit this ambiguity and deny responsibility for government actions by attributing bale to the other tier of government or arguing that there are federal constraints.
Therefore, parliament’s capacity to restrain the exercise of executive power rests very heavily on the doctrines of individual and collective ministerial responsibility. Within the confines of the formal distribution of powers described above, these doctrines are central to the notion that the government and its public service are made accountable to the parliament and the electorate. Individual ministries are said to be accountable to the parliament for their own and their department’s actions. Collective ministerial responsibility requires that all minsters take responsibility for the government’s decisions. Members of the ministry are unable to deny responsibility for the government’s action by disassociating themselves from cabinet decisions.
Nevertheless, because the Senate does not have the Constitutional capacity to directly determine the fate of the government the Senate has been less constrained by the influence of disciplined party government, which has totally dominated the House of Representatives, and hence has been freer to develop a more autonomous role under the Constitution.42
While the Senate has strong ties with State parties, the Senate has never been a States’ house because State parties are branches of federal parties with similar ideological colour and policy programs. Nor since introduction of proportional representation in 1949 has the Senate been a party house in the sense of being exclusively a forum for contests between the major parties. Rather, it has been a multiparty house with the minority parties and independents having a strong influence on passage of legislation and other activities, thus allowing the Senate to become what Reid and Forrest called ‘a chamber totally different in character from the House of Representatives.43
The Influence Of Party Politics On The Australian System
While the dominant view of the political science profession and of political leaders like Prime Minister Keating has been that our system is primarily one of party, replacing parliamentary, responsible governments44, whether their is any value in exploring what in practice will never be achieved is a matter of academic disposition. This problem came to the fore in 1975 when the question arose as to how far the Senate is supposed to work with a responsible government executive based primarily in the House of Representatives, or whether it should be free to exercise its independent status (limited in scope as it is by the language of section 53) in checking what it sees as the excesses of executive action.
In response, the usual proposal is to tamper with the Senate’s powers with respect to money matters. An alternative would be to change the executive system of responsible government. As we have seen, the founders incorporated both institutions into the Constitution - the Senate with the power to pass or not pass money bills and a responsible government executive, albeit obliquely stipulated, based in the House of Representatives. They provided no failsafe mechanisms for breaking deadlocks, assuming that in the absence of such a mechanism good sense would prevail and a compromise be reached. While disciplined have parties sharpened the institutional mismatch, it remains an open question whether the Senate’s powers or the responsible government executive need changing. Perhaps, as Brian Galligan notes, if all the key players are fully aware of the institutional design of the Constitution, as they were not in 1975, the system could work reasonably well.45
Whatever the case, as the double dissolution of 1975 ultimately produced, the reference of such political disputes can be referenced back to the people through popular elections. In this sense, though somewhat more attractive in theory than in the reality of achieving re-election mid-term, this provides the Australian system with the ultimate capacity to check the distortion produced my majority factions.
As I have canvassed in this essay, Australia is a compound republic that continues to evidence some of the tensions that it has inherited as a consequence of its mixed constitutional inheritance and misunderstood expectations arsing from that heritage.
While it is inevitable that the party-driven parliamentary executive will produce some tension in the formal theory of limited government, the ability of a party-driven parliamentary executive to dominate the House of Representatives as a shield against censure of the executive is ultimately open to the scrutiny of the Senate and is subject to the disapproval of the electorate through the executives sensitivity to popular opinion and ultimately subject to their sanction during popular elections.
As it is inevitable that the constitutionally defined rule of law, like any rules of law depend upon the intelligent exercise of judgement in their enforcement, the integrity of a constitutional system depends as much upon the use of appropriate theory in its maintenance as in its original formulation.46 If it lies with the people who authorise the Australian political system to continue, then ultimately the influence of the party system as a discordant element in the Australian system is tempered by the capacity of the electorate to reject party as an overarching criteria for electing candidates, and if rationality were to prevail, could vote on that basis to eject the predominance of party based candidates.
While the majoritorianism of a party-driven parliamentary executive may within certain limits considered above be the discordant element of the Australian system, it is my contention that parties are an inevitable if not integral component of liberal democratic governance, and while limiting the theoretical efficacy of the checks and balances within the Australian system. In conclusion, whether the ideal embodied in that design has been challenge by the persistence of political parties in providing an expanded immunity to the cabinet from the internal censure of the parliament, I believe that the ultimate capacity for the people to control the composition of parliaments within the federation operates to check those distortions and the democratic foundation of the Australian system.
1Galligan, B. A Federal Republic: Australia’s Constitutional System of Government, Cambridge: Cambridge University Press, 1995 250.
2C Sharman, Australia as a Compound Republic. Politics, 25(1), 1990 3.
3C Sharman, Australia as a Compound Republic. Politics, 25(1), 1990 5.
4H Emy and O Hughes, Australian Politics: Realities in Conflict, Sth. Melbourne: Macmillan, 1988 183.
5H Emy and O Hughes, Australian Politics: Realities in Conflict, Sth. Melbourne: Macmillan, 1988 464.
6While Territories appear very similar to States, the power afforded to the Commonwealth by section 122 provides far less immunity from Commonwealth control than is afforded the States.
7C Sharman, Australia as a Compound Republic. Politics, 25(1), 1990 2.
8J Summers, ‘Parliament and Responsible Government in Australia’ in Government, Politics and Power in Australia, Melbourne: Longman Cheshire, 1988 7.