Executive Government Conventions

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Executive Government Conventions

• Making Sense of Chapter 2 of the Constitution

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CONVENTIONS

• Conventions underpin the operation of the
  Australian Constitution and the Executive
  Government.
• A convention is an unwritten rule, an accepted
  practice. The Westminster parliamentary system is
  built around these kinds of unwritten rules.

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CONVENTIONS

• The Australian Constitution makes no mention of
  the position of Prime Minister, or of the Cabinet
  (the REAL executive)
• There is no rule that says the Prime Minister
  must be a member of the House of Representatives.
  
• A literal reading of the Constitution suggests
  that the Governor-General runs the government.

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CONVENTIONS

• The Conventions

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CONVENTIONS

• All ministers must be members of parliament.
• This convention is reinforced by the Constitution
  in s 64, which says in part
• After the first general election no Minister of
  State shall hold office for a longer period than
  three months unless he is or becomes a senator or
  a member of the House of Representatives

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CONVENTIONS

• The ministry must command the support -
  "confidence" - of the lower house, the House of
  Representatives.
• This convention is reinforced by the requirement
  of s 53 that all money bills must originate in
  the House of Representatives.
• Without the ability to secure "supply" from the
  House of Representatives, a ministry is obliged
  to resign or call an election. This last occurred
  in 1941 when the House of Representatives voted
  to reduce the size of the government's budget by
  one pound. The then Prime Minister, Arthur
  Fadden, resigned and the ALP's John Curtin was
  commissioned to form a government.

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CONVENTIONS

• The Governor-General acts on the advice of
  ministers
• Despite enormous Express Powers allocated to him
  by Chapter 2 of the Constitution the GG only
  exercises his formal Express Powers on advice.
  Other Express Powers are fictional and not
  exercised at all.

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CONVENTIONS

• Collective Ministerial Responsibility
• Cabinet meets in secret and speaks with one voice
  (Cabinet Solidarity)
• Ministers who are not prepared to accept the
  collective decisions of Cabinet are expected to
  resign. Ministers who speak out in public against
  Cabinet decisions can expect to be dismissed by
  the Prime Minister.
• The Ministry as a whole is collectively
  responsible to parliament

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CONVENTIONS

• Individual Ministerial Responsibility
• Ministers are expected to take responsibility
  for
• their departments
• the actions of their staff
• themselves (personal conduct etc)

10
CONVENTIONS

• Appointed officials are loyal to their current
  Minister theyre apolitical / not partisan
• Public servants are appointed members of the
  executive arm. They are loyal to their current
  Minister, whichever party is in government.
• This ensures that the public service provides
  frank and fearless advice and carries out the
  policy of the government

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CONVENTIONS

• Parliamentary supremacy
• Parliaments decisions cannot be overturned by
  any institution in society, except by other
  future parliaments. It is the supreme body of
  society, above all others.
• This convention is problematic in Australia.
  Our High Court can overturn the Federal
  Parliaments legislation if it contravenes the
  Constitution (if it is ultra vires). This is a
  consequence of the Washminster Model.
• The Federal Parliaments supremacy is, of
  course, limited by the federal system and the
  allocation of some powers to other parliaments
  (states). Britains parliament does not have
  these problems because Britain is unitary, has no
  written constitution and no constitutional court
  to strike down its legislation

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CONVENTIONS

• HOMEGROWN CONVENTIONS
• Because the Australian system is a hybrid of
  Westminster and Washington some local conventions
  have emerged that dont exist in Britain.

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CONVENTIONS

• HOMEGROWN CONVENTIONS
• The powers of the Queen and the GG are either
  fictional (never exercised) or merely formal
  (exercised only on advice) and therefore do not
  exist (ss 1, 2, 28, 57, 59, 68 72)
• This convention was breached in the 1975
  Constitutional Crisis

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CONVENTIONS

• HOMEGROWN CONVENTIONS
• The powers of the GG that are in conflict with
  responsible government are inactive (ss 61 to 64)
• This convention was breached in the 1975
  Constitutional Crisis

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CONVENTIONS

• HOMEGROWN CONVENTIONS
• The government has the right to nominate the
  Senate President (this is an extension of the
  governments right chose the Speaker in the
  House)
• There is no equivalent office in the House of
  Lords hence no Westminster convention

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CONVENTIONS

• HOMEGROWN CONVENTIONS
• The Senates power to negotiate money bills
• This convention arose from the rejection of the
  supply bills of the Whitlam Government in 1974
  75 and grew in importance since 1981 when the
  Senate has been more active since minor parties
  have held the balance of power.

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CONVENTIONS

• REVIEW
• The Australian system of executive government is
  based on the Westminster system of Responsible
  Government
• Chapter 2 of the Constitution creates a virtual
  monarch for the purposes of vesting sovereignty.
  Read literally, this Chapter appears to give the
  GG sweeping executive power

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CONVENTIONS

• REVIEW
• These sweeping powers are constrained in the same
  way as the English Monarchs executive power
  that is by unwritten convention
• Chapter 2 of the Constitution MUST be understood
  in the light of these conventions

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CONVENTIONS

• REVIEW
• The Washminster Hybrid necessitates some
  homegrown conventions to deal with unique
  features that the Westminster System does not
  possess
• The melding together of the Westminster and
  Washington Models creates some tension and doubt
  in the Australian system ie when conventions
  conflict with the written Constitution