Oz Politics

Introduction

In Westminster systems of parliamentary democracy, the term “responsible government” describes a system of executive government accountability, first to the parliament and ultimately to the people. This system of accountability is meant to ensure that the government acts in ways that are approved by the people.

Under the principle of responsible government the Queen only acts with the advice of the Prime Minister and his or her government ministers, all of whom are members of and accountable to the parliament. The parliament is, in turn, representative of and accountable to the people. Historically, responsible government stands in contrast to the “irresponsible” government of those ancient monarchs who ruled with the advice of a small number of elites, who were neither members of nor accountable to the people’s representatives in parliament.

Responsible government is an important part of the device whereby the monarch’s royal prerogative powers and authority have been usurped to create a system of representative, parliamentary democracy. In some ways its evolution in eighteenth and nineteenth century England is no less dramatic than the French or American revolutions.

Responsible government has been described as disguised republicanism; leaving the United Kingdom (and subsequently Australia) with the forms and symbols of a monarchy (now described as a constitutional monarchy) but the substance of a republican executive government. Australia’s Constitution and system government cannot be understood without an understanding of the principle of responsible government.

Conventions of responsible government

Broadly, the principle of responsible government is comprised of a number of conventions, which can be summarised as follows:

The Crown acts

In the United Kingdom, the Crown is the legal source of the executive power of government. The executive power flows from the Crown’s historic, common law right to administer the realm. This common law right is sometimes referred to as the royal prerogative.

In the Australian Commonwealth, the Governor-General exercises the executive power of Commonwealth in the Monarch’s place and represents the Crown. Although the executive power of the Commonwealth is a statutory power under section 61 of the Australian Constitution, in practice it is analogous to the royal prerogative, which it replaced. The Governor-General complies with the principle of responsible government when he exercises the executive power of the Commonwealth. References to the Crown in the remainder of this section also apply to the Governor-General. Similarly, references to the royal prerogative powers apply to the executive power of Commonwealth.

In the Australian states, the governors exercise the Queen’s common law powers as her representative. In general, the royal prerogative in the states has not been replaced by a broad statutory provision like section 61 of the Australian Constitution, although some specific common law powers of the Queen have been replaced with statutory provisions. Like the Governor-General, state governors comply with the principle responsible government when they exercise the royal prerogative. References to the Crown in the remainder of this section also apply to state governors.

Only with the advice of the Prime Minister and Cabinet

The Crown must not act unilaterally. The Crown exercises executive power only with, and in accord with, the advice of the Prime Minister and the other ministers of State (also known as the government). In effect, the executive powers of government are thus transferred from the Crown to the Prime Minister and the other Ministers of State.

The Crown must appoint as Prime Minister, the acknowledged leader of the party (or coalition of parties) that has a majority of seats in the lower house of Parliament. If no party or coalition has a majority of seats, the Crown appoints the leader who has the support of a majority of seats.

Conceptually at least, the lower house in a Westminster parliament is an electoral college which selects the Prime Minister from among their number. Unlike the US electoral college, which is dissolved after it has chosen the President, the lower house in the Westminster system is, according to Bagehot, “in a state of perpetual potential choice; at any moment it can chose a ruler and dismiss a ruler”.

The Crown appoints ministers of state on the advice of the Prime Minister. Under Australian convention, Ministers may also come from the Senate, with the exception of the Prime Minister.

Because the Prime Minister and Cabinet have effectively usurped the functions of executive government, the Queen is described as a non-executive head of state. Although the Queen reigns she does not govern or rule over the nation.

Who are drawn from and have the confidence of the Parliament

As long as the Crown only acts on the advice of ministers of state, the Crown is not responsible for, and cannot be held accountable for, its actions. Rather, the Cabinet is responsible to the parliament for the monarch’s actions. While ever the Queen follows the advice of her ministers, the Queen can do no wrong.

Ministers of state (including the Prime Minister) must be members of parliament. Unlike the USA system of a separation of powers, the Westminster system has an overlapping membership between the executive and legislative arms of government. The Westminster system is sometimes referred to as a fused system of powers.

The government (the Prime Minister and other ministers) remains in office as long as it has the support of the majority in the lower house of parliament (the House of Representatives in the Commonwealth and the Legislative Assembly in the states). This support is usually lost when the governing party or the governing coalition loses its majority following a lower house election. Support is also lost when the lower house passes a motion of no confidence in the executive government. In Australia, the government must also have the support of the majority in the Senate at least once a year when it seeks the approval of parliament to raise taxes and spend taxpayer’s money.

The government must resign if it loses this support or confidence of the parliament. For another government to be formed, someone in the lower house of parliament must have the support of the majority of seats in the house to be appointed Prime Minister. If another government cannot be formed. The Crown calls an election for the lower house.

The support of the parliament is expressed through its support of the government’s legislation, especially its legislative proposals for taxation and expenditure. Under the conventions of responsible government, parliamentary support is also necessary for legislation that gives effect to the central policy program of the government.

Ministers are individually responsible to parliament for the policies, decisions and actions of their department and portfolio agencies. Ministers are responsible in the sense that they have a duty to explain in parliament the exercise of their powers and duties and to give an account to parliament of what is done by them in their capacity as ministers or by their departments. This is known as individual ministerial responsibility. Ministers are expected to resign if their house of parliament passes a motion of no confidence in them.

Each minister is supported by a department of state staffed with a “career” public service based on merit and not patronage, who are: permanent, politically neutral, and anonymous officials; motivated only by the public interest; obeying the minister’s every direction; serving any governing party equally; and not making policy decisions but merely implementing those policies decided by the government.

The government meets and deliberates in secret (Cabinet), and presents a unified voice to the Crown, the parliament and the public. Once a Cabinet decision is made, all ministers must support that decision or resign. This is known as Cabinet solidarity.

During the Cabinet decision making process, ministers should be able to express their views frankly in the expectation that they can argue freely in private while maintaining a united front when decisions have been reached. This is achieved through the practice of Cabinet confidentiality.

The government as a whole is collectively responsible to the parliament in Australia (the House of Commons in the UK) for its exercise of the monarch’s powers, its policies, its administration and its performance in any action it takes. This is known as collective ministerial responsibility.

The parliament can probe the executive through question time, committees of inquiry, Senate estimates hearings, and the like. Responsible government is also maintained through the accepted parliamentary procedures of censure motions, urgency motions, debates on matters of public importance, and the convention that ministers will resign if they are found to have misled the parliament.

The executive power of the Crown is subject to the legislative power of the parliament. The Crown and the ministers of state must comply with (valid) laws of the parliament. This is a key mechanism through which the legislature keeps the executive accountable.

Which in turn is representative of and accountable to the people

At elections, the parliament is responsible to the people for their choice, scrutiny and retention of the Prime Minister and Cabinet. (Parliamentarians are also accountable to the electorate for the laws they make and for their performance in representing the concerns of their constituency).

This completes the chain of accountability from officials (public servants) to a minister and Cabinet; from the minister and Cabinet to the parliament; and from parliament and Cabinet to the electorate.

Neither the Queen, nor the Governor-General, nor the state governors appear in this chain of accountability. This is because the Crown is neither responsible for ensuring good executive government nor protecting the Constitution. In a representative democracy, these are not appropriate roles for a non-elected office holder. (To put it another way, matters that can be resolved by the parliament or the courts of law should be left to those bodies).

Responsible Government in the Australian Constitution

The term “responsible government” does not appear in the Australian Constitution. Nor are all of the conventions of responsible government clearly or explicitly written into the Constitution. Australia’s founding fathers assumed largely that the principle of responsible government and its associated conventions were inherited from the United Kingdom with the grant of self-government, first of all to the six colonies and subsequently to the new federation.

Surprisingly, these conventions are not written down in an authoritative form. Furthermore, the conventions of responsible government are not fixed and may continue to evolve. Their precise scope is unclear, and there are disagreements about some of the details. They are not rules of law and generally they are not enforceable in the courts. Sanctions for breaches of the conventions are generally political, for example: sustained public criticism; or the refusal of the other participants in the system of government to cooperate with the Prime Minister, the Queen or (in Australia) the Governor-General.

While not explicit in the Constitution, the High Court has repeatedly taken notice of the principle of responsible government and interpreted the Constitution in the light of that principle. Key cases include the Engineer’s case in 1920, the Boilermaker’s case in 1956, Lange v Australian Broadcasting Corporation in 1997, and Egan v Willis in 1998.

Caveats in practice

In Australian Practice, the conventions of responsible government do not always operate as effectively as they might in Westminster theory.

Strong party discipline has limited the power of parliament to hold ministers responsible (either individually or collectively). Strong party discipline means that ministers with the support of the governing party need not resign if they (for example) mislead parliament or suffer a motion of no confidence. This raises the question of whether we have responsible parliamentary government or a more autocratic form of responsible party government. However, some would argue that the rise of the Senate Committees structure since 1970 has significantly improved the parliament’s capacity to scrutinise the executive.

The convention of individual ministerial responsibility has always been interpreted far more flexibly in Australia than the United Kingdom. At its most potent, Waldegrave (1996) reports that individual ministerial responsibility in Britain was asserted with phrases like, “The Minister is responsible for every stamp stuck on an envelope”, and “If a bed pan is dropped, the Minister will hear it”. In 1965 Billy Snedden, then Attorney-General, clarified that there is no compulsion to resign if the minister is free from personal fault and could not by reasonable diligence in controlling his department have prevented the mistake. (It should be noted that the extreme view of individual ministerial responsibility has been rejected by a number of British commentators).

Public sector reforms over the past twenty years have seen a transfer of responsibility from ministers to the heads of their departments. Now days, departmental heads are held responsible for the administrative actions of their departments. Ministerial responsibility really only applies to the personal actions and decisions of ministers and their immediate staff.

The increased use of political appointments to the upper levels of the public sector has seen a public service that departs from the ideal of political neutral body offering frank and fearless advice to the government of the day.

The new Administrative Law has made public servants more accountable directly to the public rather than through ministers: Administrative Appeals Tribunal Act 1975; Ombudsman Act 1976; Administrative Decisions (Judicial Review) Act 1977; and Freedom of Information Act 1982.

The incorporation of federalism and a supreme (High) court into Australia’s system of government precludes all responsibility being sheeted home to ministers within the process of a single sovereign parliament.

In 1975 the Queen’s representative - the Governor-General - acted unilaterally and on the advice from the Opposition Leader who did not have the confidence of the House of Representatives. This raises the question of when does the exercise of the Monarch’s so-called reserve powers become a return to the bad old days of “irresponsible” government.

In spite of this list of caveats, it should be noted that a similarly lengthy list of concerns can be raised about any system of government. Quite a number of commentators have argued that Australia is a very stable, representative democracy.

Want to find out more?

• The Guide on Key Elements of Ministerial Responsibility is available from the Department of the Prime Minister and Cabinet
• Christos Mantziaris’ research paper, Egan v. Willis and Egan v. Chadwick: Responsible Government and Parliamentary Privilege, is at the Parliamentary Library (reference Research Paper 12 1999-2000 dated 14.12.1999)
• There are a number of High Court cases that discuss the conventions of responsible government, available from www.austlii.edu.au and scaleplus.law.gov.au, including:
  • Egan v Willis (1998)
  • David Russell Lange v Australian Broadcasting Corporation (1997)
  • New South Wales v. The Commonwealth (1975) 135 CLR 337
  • Queen v Kirby; ex parte Boilermaker’s Society of Australia (1956) 94 CLR 254