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Australia
and Parliamentary Orthodoxy:
A Foreign Perspective on Australian Constitutional
Reform*Alan J. Ward Let me start by explaining how I came to
be here. For a number of years I have studied parliamentary governments in the
Commonwealth and Europe, and in that process I developed an eight-part model which
captured, I thought, the essence of parliamentary government. Then I came face
to face with the Australian Senate, which seemed, at first glance, to play by
different rules. So I had to spend some time investigating Australia, and that
ultimately brought me to Canberra. Today I want to talk about three things.
First, I want to explain why I now think that Australia fits my parliamentary
model. Second, I want to consider the role that upper houses play in Australian
government. And third, I want to make some suggestions for constitutional reform
that I expect you to find naive. I will necessarily paint with a very broad brush,
given the scope of the topic, and for that I ask your forgiveness. As John Wayne
once said, `I don't do nuance.' I also recognise that Australians have been debating
these subjects since at least the Federation debates of the 1890s, and very intensively
during the republic debates of recent years, but I thought it might be useful
to have a foreign perspective on these matters. First, then, why do I think
Australia is a relatively orthodox parliamentary state, and what does that mean
anyway? When I taught in Australia in the 1960s, federal politics was dominated
by Robert Menzies, who listed heavily in the direction of things British, and
so did academic interpretations of Australian government. In a 1964 article, for
example, Gordon Reid wrote, `All seven units of government in Australia are based
on the Westminster model … For Australians it was the sine que non
of internal self-government'. [1] Since the 1960s, however,
Australian political scientists have often described the federal government in
non-Westminster terms. In 1980, Elaine Thompson coined the term Washminster
to describe a hybrid American and British model of government. [2]
When Dean Jaensch endorsed this notion 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'. [3] I think Jaensch was wrong, although I can appreciate
why someone comparing Canberra and Westminster very specifically might be drawn
to their dissimilarities: federalism, a formal constitution, judicial review,
and the like. But if one were to focus on a generic model of parliamentary government,
not the Westminster variant, British and Australian similarities would become
very clear. Furthermore, as David Butler argued many years ago they illuminate
each other in very useful ways. [4] At the core of parliamentary government is
the parliamentary executive, the principle that the government must have the support
of a majority in Parliament. I should note at the outset that there are actually
two kinds of parliamentary executive. In one, the members of the government sit
as voting members of Parliament. We find this model in the Australian Commonwealth,
Japan, and Germany, amongst other states. In the other model government members
are not voting members of Parliament, although they may speak there. We find this
model in many continental European countries, including Belgium, Austria, and
the Czech Republic. I will primarily talk about the former, the internal executive
model. It has eight core characteristics. Some of these are constitutional rules,
and some are behaviours that follow from rules. The first characteristic
is what Walter Bagehot, in 1867, called fusion, the rule that members of
the government sit in Parliament. Unusually for Australia, this rule is written
into all Australian Constitutions, federal, state, and territory. The second
characteristic is also a rule, that the government must have the support of a
majority in Parliament, or in the lower house of a bicameral Parliament, and it
must resign if it loses that support. This is the essence of what colonial politicians
called responsible government. At a minimum, as practiced in Britain, this
rule requires the government to have a majority on confidence motions and major
budget votes, but in many European constitutions it means much more. It can mean,
for example, as in Spain, that the lower house appoints the Prime Minister, approves
his choice of ministers, and approves his program before he takes office. Each
decision is by a majority vote. [5] This notion
of majority rule came to the Australian colonies by order of the Colonial Office
in the 1850s but it has been written into only one Australian Constitution, the
ACT Act 1988. Nonetheless, with the notable exception of Sir John Kerr,
who sacked a government with a lower house majority in 1975, it is observed everywhere
in Australia as a convention. The third characteristic is the one that
gave me doubts when I first looked at Australia. It is the rule that in a bicameral
parliament, one chamber has primacy. The parliamentary model rejects the proposition
that a government can be responsible to two chambers, because they might be controlled
by different majorities. When I looked at what primacy means, it became
clear to me that Australia satisfies this condition, at both the federal and state
levels. Primacy is measured by four things, all of which are very clearly identified
in a number of ways in modern parliamentary constitutions. First, the government
is formed by the party or coalition which has a majority in the lower house. Second,
the Prime Minister is a member of the lower house. Third, a majority of ministers
sit in the lower house. And fourth, the lower house, or effectively the government
that controls the lower house, possesses legislative initiative. Financial bills
originate there, and most other legislation begins there too. Furthermore, legislation
that originates in the upper house is most often government legislation, introduced
there because of time constraints in the other house. In most parliamentary states,
the upper house may only delay, not deny, legislation, but even where an upper
house has the power to deny all, or certain, bills, as in the German and Indian
federations, there is a presumption that the government will determine the bulk
of the legislative program. This is certainly true of Australia, and I was intrigued
to find that Senate Standing Orders provide for government senators to chair each
of the legislation committees, even when the government is in the minority in
the Senate. You certainly do not find this in Washington. Australia, therefore,
meets all four of these standards of lower house primacy, and this raises a very
interesting question. The Washminster argument depends, above all, on the notion
that the founders adopted an American federal Senate, and gave it American powers
to reject any bill, including supply. Like its American counterpart, the Australian
Senate lacks financial initiative. Unlike the American Senate, it may not amend
a budget, but both senates may reject a budget. It is from this perspective that
Elaine Thompson argues that the Australian Senate is not a house of review in
the English sense. `The Senate is powerful in its own right. It is a second chamber
in the American sense.' She adds that this `stand-off principle of Australian
federalism is at odds with the idea that the government governs with the support
of the lower house.' [6] But if the founders created
a nearly co-equal upper house which is at odds, as Thompson says, with a government
which is responsible only to the lower house, why does Australia satisfy the four
standards of lower house primacy that I have identified? It is clear that
the founders considered the American Senate when they were devising the federal
Senate, but we tend to overlook the fact that in 1900, when the Commonwealth Constitution
was adopted, the House of Lords, the Canadian Senate, the New Zealand Legislative
Council, and all the colonial legislative councils had the power to reject any
bill, including supply, and this fact had absolutely nothing to do with American
federalism. Thompson says the Australian Senate is an American upper house, but
one could as easily have said its powers are those of a colonial Legislative Council.
These powers were not unusual at the time, although they were in the process of
being curtailed in the parliamentary practice of the time. However, the federal
justification for the powers was new to Australia and the Senate was unique in
being a popularly elected upper house. It was its legitimacy, therefore, and not
only its powers, that John Quick, for one, at the Sydney Convention in 1897, believed
would lead the Senate to assert itself in an American way. Hence, in his view,
the need for constitutional procedures to adjust disputes between the two houses.
[7] What the founders found difficult to predict, however,
was quite how assertive the Senate might be. In particular would it act so as
to make a government responsible to the other house unworkable? Winthrop Hackett
was alluding to this when he said, at the 1891 Constitutional Convention, `[E]ither
responsible government will kill federation, or federation, in the form which
we shall, I hope, be prepared to accept it, will kill responsible government.'
[8] For those who thought responsible government would
fail, the decision to entrust the executive to the Governor-General and not spell
out the rules of responsible government in law meant that the Governor-General
would be free to adopt a non-British style of executive—the Swiss model was
mentioned—if responsible government were to fail. [9] But the majority position at the Convention was to
wait and see. Perhaps Australia could muddle through. Once the federation
settled down, Australia did muddle through. The government and the Senate learned
to work together pretty much as state governments learned to work with Legislative
Councils. This happened because parliamentary norms prevailed over American senatorial
norms, and these led to the primacy of the lower house. It seems to me, furthermore,
that parliamentary norms are growing stronger over time in Australia. No upper
house has rejected supply since 1952, in Victoria. The Labor and Australian Democrat
parties believe supply should never be denied, and the Liberal party makes only
a very theoretical defence of this power. And finally, no-one appears to relish
the thought of replaying the crisis of 1975, when the Senate blocked a vote on
supply. I will return to this subject a little later, but having dallied
overlong on the primacy of the lower house, let me deal quickly with the remaining
five characteristics of parliamentary government. The fourth characteristic
is a behaviour pattern that follows a rule. If a government can only take office,
and remain in office, with the approval of a majority in the lower house, there
is a huge incentive to organise disciplined parliamentary parties because without
them governments would come and go every week. It is party discipline, of course,
that gives the government its control of the lower house, and where parties are
represented in both houses they are customarily directed from the lower house
because that is where government is won or lost. Parties are not conspicuous in
parliamentary constitutions, but they are creeping into provisions on casual vacancies
in Australia, and they are very evident in Standing Orders. Characteristics
five and six of the parliamentary model follow from everything I have said so
far. The fifth is that parliamentary government is Cabinet government. The executive
is a committee of the majority in the lower house. And sixth, within the Cabinet,
the Prime Minister or Premier has decisive influence. Between them, the Prime
Minister and Cabinet control the resources and legal authority of office. They
also control a disciplined parliamentary party or parties, national party organisations,
and media attention. If effective executive power lies with the Prime Minister
and Cabinet, it follows, and this is my seventh characteristic, that there is
no place in the model for a strong head of state. In fact some small Pacific Island
states dispense with a separate head of state altogether by combining the jobs
of Prime Minister and President, which proves, perhaps, that a state does not
absolutely have to have a separate head of state. Finally, all the characteristics
I have identified so far—fusion, government with majority support, the primacy
of the lower house, parties, Cabinet government, the special powers of the Prime
Minister, and the weakness of the head of state—lead in one direction, to
the concentration of power in the hands of the Prime Minister and Cabinet, who
dominate the lower house through party discipline. Indeed, a perennial complaint
levelled at parliamentary government is that it creates the `executive state',
with governments that are too strong and legislatures that are too weak. If
you have followed me so far it will be obvious that I think Australia falls squarely
within that group of states that one can call parliamentary. There is almost no
`Wash' in the model and a great deal of `minister', or rather a great deal that
is parliamentary in the sense that I have outlined. This is a model that can accommodate
federal and unitary states, monarchies and republics, bicameral and unicameral
states, and relatively powerful upper houses as well as weak ones. All can share
these eight characteristics. That said, every parliamentary state is different
from every other one in some way and I want, as my second topic, to say something
favourable about the special way Australia operates parliamentary government,
specifically the role of the upper house. The upper house is always a problematical
chamber in a bicameral system and many countries have chosen not to have one.
Indeed, only fifteen British Commonwealth members have a second chamber. The fundamental
problem is how to give the second chamber sufficient legitimacy and authority
to avoid redundancy, but not so much as to make it impossible for a government
selected from the lower house to govern. It is always in the interest of
a government to resist any growth in the authority of the upper house, but too
many parliamentarians and academics have internalised the government's value that
a strong upper house is unnatural in a parliamentary system. Recently an English
friend, a constitutions specialist, sent me this message: I went to a `seminar'
at the Lords, on reform of the Lords, by Lords, last week. A better argument for
abolition you'd go far to find; complacent not to say smug, with not an idea between
them except to agree with the Labour Lord chairing the event that the future Lords
must be more legitimate than at present but `less legitimate than the more legitimate
House' so as not to be a source of potential `trouble'. It is hard to believe
that the `Labour Lord' referred to is a member of the party of upper house reform
in the United Kingdom! I found the same kind of timidity about upper house
reform in Ireland. The Irish Senate has defeated a government motion only three
times since the present constitution was adopted in 1937, but the Constitution
Review Group that published a report in 1996 made no substantial suggestions for
Senate reform. Indeed, the group would not be unhappy were the Senate to be abolished.
Eamon de Valera, who as Irish Prime Minister was responsible for the present Irish
Constitution, believed that Parliament exists to elect the government, and should
then get out of the way, and the Review Group accepted this view implicitly. Everything
it recommended about Dail Eireann (the lower house), the Senate, the President,
and the government was designed to protect the government. [10]
There was no recognition in the Review Group report of the excessive concentration
of power in the executive that Australians call `the executive state', even though
Ireland had already begun a round of judicial inquiries into government misconduct
that continues today and closely parallels the royal commissions into government
corruption or impropriety conducted in four Australian states in the 1990s. What
the Australian inquiries found was that parliamentary executives in the states
do not adequately monitor themselves, that parliaments do not adequately monitor
executives, and that systems of public service accountability are hopelessly flawed.
[11] To date the Irish have not come to this conclusion.
If you accept, as I do, that the concentration of power in the executive
is an unfortunate, and very often corrupting, characteristic of modern parliamentary
government, you will probably accept that just about the only check on the executive
comes from a house that it does not control. Sometimes it is the lower house that
is not controlled, if the government finds itself dependent on independents or
minor parties for its majority. This happened in New South Wales and Tasmania,
for example, in recent years, where governments had to concede substantial reforms
of Parliament in order to secure majorities. [12] In
Australia it is generally to the upper house that one looks for a check on the
executive. It would be redundant here to record what the Australian Senate has
done in the past thirty years in this regard, but I want to stress that state
upper houses have asserted themselves too since they were democratised between
1950 and 1978. For example, 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. [13] All very admirable in my view. Scott Bennett finds
similar developments elsewhere. There is, he says, a new `upper house ethos',
and Legislative Councils are `no longer ridiculed as retirement homes for geriatrics
or attacked as the havens of ultra-conservative politicians.' [14]
The important lesson from Australia about the upper house is that, contrary
to what is generally believed overseas, effective parliamentary government does
not collapse when an upper house asserts itself. I know that Australian federal
and state governments often have to tailor their budgets and bills to accommodate
the upper house, which is no bad thing if the upper house is a legitimately representative
body, but the evidence is strong that governments still hold the legislative initiative
and get most of what they want, and certainly most of what they absolutely need,
out of the upper house. [15] What we see at work in state and federal upper
houses most of the time is what Senator Fred Chaney describes as `a degree of
enforced reasonableness', enforced in the sense that unless the Senate restrains
itself, governing is impossible. [16] Barbara Page writes, `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.' [17]
Australian politicians understand what parliamentary government entails, and they
do not push it to the point that it freezes up, which is exactly what has happened
in the United States in recent years of divided government in the executive President
model. The last major review of House of Representatives procedures was,
I think, the Blewett report of 1993 and the data it presented showed me, at least,
that the Labor Governments of 1983 to 1996 undermined the House of Representatives
by mauling question time and misusing the guillotine. But Blewett's own conclusion
from this was not the one we hear most often in the northern hemisphere, that
there should be reform of the lower house with lots and lots of new committees
and expanded private members' opportunities. He knew the Australian federal government
would not accept this. It already feels harassed by Senate committees and is not
about to add House of Representatives committees to its problems. Instead, in
his Gordon Reid lecture, published in 1994, Blewett said: 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. [18]
I think this was an awfully wise statement, one that probably only an Australian
would make because the upper house is so discounted in other parliamentary countries.
Furthermore, the statement applies to state parliaments as well as the Commonwealth.
Indeed, the Royal Commission on WA Inc. recommended just such a role for the Western
Australian Legislative Council in 1992. It also recommended that no ministers
should sit in the Council in order to distance the upper house from the ministry.
[19] Turning to the upper house for effective
review and scrutiny, as Blewett suggests, is not without risk. There is the risk
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 members. There is only so much that the Tasmanian Legislative
Council, for example, with nineteen members, can do, or even the Commonwealth
Senate, with seventy-six members covering over forty committees. The question
of giving upper houses additional staff support to do their jobs adequately has
to be addressed. On balance, however, I think that Australian bicameralism is
working quite well. Furthermore, it is being 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. Having said something nice
about Australia I want to end with my third topic, on a critical note, by addressing
reform. I realise that I will be talking about matters which will be decided,
in large part, by the referendum on an Australian republic later this year [1999],
but what I have to say should be relevant whatever the voters decide. If the republic
is approved under the terms proposed by the 1998 Constitutional Convention and
the government, Australia will enter the new century with a pre-modern Constitution
that no informed person I have met on this visit to Australia thinks is adequate.
They see it as a very poor choice, and those who propose to vote for the republic
will do so in hopes that the Constitution can be improved later. The record of
constitutional reform in Australia should not give them much hope in that regard.
If the republic proposal is rejected, reformers will gather their forces to try
again, but they may have a very long wait. I want to deal primarily with
the executive and what we in the United States call reconciliation, meaning reconciling
differences between the two houses. These subjects are related and I think that
reform in both of them could be directed quite consciously at perfecting and clarifying
the parliamentary model that I described earlier. Doing this would, I think, eliminate
unnecessary tension and uncertainty in the Australian political system, and would
make some sections of the Constitution intelligible for the first time to the
average citizen. Constitutional literacy is very important in a democracy
and for that reason I find the calculated constitutional obfuscation practiced
here to be irresponsible. [20] At the 1897 Constitutional Convention, Joseph Carruthers
pleaded with his colleagues. `Here we are framing a written constitution …
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.' [21]
Dicey, you may recall, explained in 1887 how constitutional law in Britain was,
and still is, qualified by customary rules, called conventions. In law the monarch
ruled but in practice, by convention not law, the executive was in the hands of
a prime minister and cabinet selected from the majority in the House of Commons.
This was how the Australian colonies, now states, arranged the executive in the
nineteenth century, and it was how the Commonwealth Constitution arranged the
executive in 1900. All but two of the central rules of parliamentary government,
that ministers must sit in Parliament and financial bills must originate in the
lower house, were left to convention, not law, in the new federation, as in the
colonies. What is astonishing to an outside observer, and would surely have astonished
Carruthers, is that the Constitution for the republic will be little better. The
1998 Constitutional Convention's recommendations for an Australian republic, which
will be written into the constitution if voters approve a republic in November
1999, make no serious attempt to clarify the executive in the Constitution. We
will still be left having to quote whole pages of Dicey to explain the revised
Australian Constitution. This indicates that Australia is making very heavy
weather of codifying or redefining constitutional conventions, the rules that
define the executive and relations between upper and lower houses. This criticism
applies at both the state and federal levels, but I will concentrate on the latter.
As you know, executive power in the Commonwealth is vested in the Crown. The prime
minister and cabinet are not created by the Constitution and there is no requirement
that the government have the support of a majority in the lower house, or that
the Governor-General accept ministerial advice. Although the proposed republican
Constitution will identify the Prime Minister and other ministers in Section 59,
the Constitution will not create or define those offices or require the President
to appoint ministers having the support of a majority in Parliament. That will
be the prerogative of the President, as it is of the Governor-General. Furthermore,
while the President will be obliged to accept the advice of ministers and the
Federal Executive Council in some matters, this obligation will not extend to
all matters and the Federal Executive Council in Section 59 is not the same institution,
in law, as the Cabinet. One is left to wonder why a country would go to
the immense trouble of modernising its Constitution to become a republic on the
centenary of its Constitution without using the opportunity to write the model
of government it actually practices into constitutional law. What seems widely
unappreciated here is that virtually every parliamentary country, other than Britain
and the three old dominions, has committed the rules of parliamentary government
to constitutional law quite successfully. Latvia did it, for example, in 1922.
Ireland went most of the way that year, with no objection from the British government
of the time, and finished the job in its 1937 Constitution. Germany and Japan
received detailed parliamentary constitutions after World War II, and the post-1947
parliamentary countries of the British Commonwealth, in Asia, the Caribbean, and
the Pacific, identify parliamentary government in constitutional law. William
Dale, Legal Adviser to the Commonwealth Office from 1961 to 1966, describes how
Whitehall lawyers drafted at least thirty-three independence constitutions. Most
of the new states adopted the British model, and all of them wrote British constitutional
conventions into law. `And this,' Dale observes, `from almost the only country
in the world to be itself without a written constitution.' [22]
And finally, the reactivated constitutions of the newly democratised states of
Eastern Europe, Bulgaria, the Czech Republic, Estonia, Hungary, Lithuania, Poland,
and the new Slovak Republic, similarly identify parliamentary government in law,
although most of them practice the external executive variant. As early
as 1922, therefore, and many times since 1947, states have been able to write
the conventions of parliamentary government into constitutional law quite successfully.
There is nothing so mysterious, so subtle, so nuanced about conventions that they
cannot be written into law, once their purpose is clear. There have been several
attempts to correct this deficiency in Australia. Sir Henry Parkes tried, for
example, in resolutions introduced into the National Australasian Convention in
1891, but was rebuffed. [23] In 1983 and 1985, following the debacle of 1975,
the perambulating Constitutional Convention that ran from 1973 to 1985 tried again.
It identified an extraordinary list of forty-three constitutional conventions,
far more than is necessary and some of which it invented, which is not quite how
conventions are supposed to grow. But it could not agree to place them in the
Constitution and it resolved that they should simply be respected as conventions.
[24] The republic debate provided an opportunity
to revisit the question but the ball was dropped again. The 1998 Constitutional
Convention accepted the view of the Republic Advisory Committee of 1993, better
known as the Turnbull Committee, that the Governor-General has two kinds of powers,
ordinary and reserve. Ordinary powers are those that, by convention, are always
exercised on the advice of ministers: issuing writs for elections, appointing
judges and ministers, summoning Parliament, assenting to legislation, entering
into treaties, and declaring war and peace. Reserve powers are those that are
ordinarily exercised on the advice of ministers but which may, in unspecified
but exceptional circumstances, be exercised without, or contrary to, ministerial
advice. They include refusing the royal assent to bills, appointing and dismissing
a prime minister, and dissolving, or refusing to dissolve Parliament. The Turnbull
committee recommended that the Constitution should recognise that ordinary powers
may only be exercised on the advice of a minister, but it reluctantly recommended
that a republican President should retain the reserve powers. [25]
This is what Prime Minister Paul Keating recommended to Parliament in 1995, [26]
it is what the 1998 Constitutional Convention also recommended, [27]
and it is what will be adopted if the republic is approved. Section 59 of the
Constitution will read: The President shall act on the advice of the Federal
Executive Council, the Prime Minister or another Minister of State; 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. Think carefully about what this says. It requires
the President to act on advice except in the case of unspecified reserve
powers that shall be exercised in accordance with unspecified constitutional
conventions. Bear in mind that the reserve powers are unspecified because, over
and over again, in constitutional debates going back at least to the Federal Conventions
of the 1890s, Australians have determined that they cannot be defined. Bear in
mind, too, that constitutional conventions are by definition non-legal rules,
and you will see how odd Section 59 is. The President, it says, will be obliged
to accept advice, except when he or she decides not to, and in those cases, when
exercising totally legal, if unspecified, reserve powers, the President shall
be bound by non-legal rules. Given this calculated ambiguity, how is the High
Court supposed to rule on a government petition to annul an act of the President
which was contrary to ministerial advice and, in the government's view, either
did not involve a reserve power or violated a constitutional convention? The court
would be obliged to determine matters which a host of Australian authorities have
deemed to be indeterminable. I know that the proposed Section 59 is the outcome
of a difficult process of bargaining, in which there had to be give and take,
but it is still a constitutionally absurd provision. The fact that Section 38A
of the New South Wales Constitution is very similar does not make it any less
so. Why do Australians cling like leeches to constitutional conventions
and reserve powers? Prime Minister Paul Keating offered three very conservative
reasons when he presented his republican proposals to the House of Representatives
in 1995. First, he said that conventions offer a constitution the flexibility
with which to respond to changing circumstances. However, as the Turnbull committee
report points out, the reserve powers are used so rarely in Australia that they
cannot possibly support a theory of constitutional evolution. [28]
For example, only one Commonwealth government has been dismissed by a Governor-General,
in 1975, and experts still disagree over whether he acted properly. Furthermore,
why do so few countries, none with a modern constitution, recognise this kind
of flexibility as a valuable constitutional attribute? Second, Keating
argued that codification would open the reserve powers to judicial review, thereby
involving the High Court in political disputes. This strikes me as an essentially
monarchist argument. Republics have no difficulty subjecting executive acts to
judicial review because only sovereigns, not presidents, are beyond the law. Furthermore,
I see nothing in the proposed Section 59 to preclude judicial review should a
government decide to challenge a presidential decision. Indeed, the notions of
reserve powers and conventions would be specifically fixed in the Constitution
for the first time, and hence subject to court interpretation. Third, Keating
argued that because the reserve powers will only be exercised in unpredictable
circumstances, they cannot be codified with precision. This was repeated time
and again by members of the Constitutional Convention in 1998, but it is simply
false. What Australia calls reserve powers are either eliminated from, or dealt
with quite specifically in, a great many constitutions. Heads of state in parliamentary
republics have few discretionary powers, and those they do have are carefully
prescribed by law, not convention. I would also add that the circumstances
which might trigger the use of the reserve power are not really as unpredictable
as Keating suggested. Four contingencies are usually cited, all of which can be
satisfactorily addressed in constitutional law. The first is that the head of
state must have a reserve power to refuse his assent to an unconstitutional act
of Parliament. Why does this have to be a reserve power, in the Australian sense?
Why cannot a head of state be authorised to refuse assent to an unconstitutional
act, particularly if that decision is reviewable? In Ireland, for example, the
President may refer a bill she thinks unconstitutional to the Supreme Court, after
consulting the Council of State, and she need only sign it if the court finds
the bill constitutional. Irish Presidents have referred nine bills to the court
since 1937. The second contingency is that a reserve power is needed in
case the government acts illegally. I presume that this means that the government
asks the President to act illegally, because other illegal government acts can
be challenged in the courts. In this case, I would argue that a President could
safely be given constitutional authority to refuse illegal advice, and even to
dismiss a government for cause, perhaps after taking advice from some statutory
body, a Council of State, for example, as in Portugal. [29] This would be a political act but the final decision
would always rest with Parliament, which has to find a new government, or with
the electorate if there is a dissolution. Furthermore, in a republic there are
always procedures to impeach a President who acts capriciously. Impeachment to
remove a President is a traditional feature of republican constitutions, but Section
62 of the proposed Australian Constitution will give the power of dismissal to
the Prime Minister alone, a very odd way to insulate the presidency from politics.
The third contingency is that there might be a deadlock in the process
of government formation requiring the intervention of the head of state. My view
is that a modern parliamentary constitution should eliminate the false notion
that the use of a reserve power can make this problem go away, and almost all
of them do. Some permit the head of state to act as a broker between political
leaders, or to nominate someone, a `formateur' in the European sense, to act as
a broker, or even, as a last resort, to name a prime minister for the lower house
to approve. But there is no escaping the fact that there are really only two ways
to resolve a deadlock in government formation in a parliamentary democracy, by
political accommodation in the lower house or at the ballot box. The most a President
can do is jump-start a process that has stalled, and this power can safely be
provided in law. There is no need for an unspecified reserve power for
any these three contingencies. There arguably is such a need for a fourth contingency,
the one that occurred in 1975. The upper house might refuse supply to the government
and the head of state might decide to dismiss a prime minister who refused to
resign or request a dissolution. Ever since the Australasian Federal Conventions
of the 1890s, this has been the critical argument for reserve powers, and it was
very evident in the 1998 debates too. However, I do not think that the facts of
the 1975 crisis support a reserve power. I think they show instead that no head
of state would ever want to act as Sir John Kerr did then because it would start
another almighty political and constitutional row, which nobody wants. Furthermore,
if we set 1975 aside, it is clear that in practice Australian politicians in the
Commonwealth and the states have resolved the possible conflict between a government
and the upper house over supply in favour of the government. They might argue
over the details of the budget, but no government is going to be driven out of
office by being denied enough money to govern. My conclusion, as an outsider,
is that Australians should accept this question as settled in practice and amend
the state and Commonwealth constitutions in two respects. First, they should recognise
that governments must have the confidence of the lower house only. Second, they
should provide that an upper house may not destroy a government by blocking the
supply of money for the ordinary annual services of government, which is
to say, for the day to day operation of government under existing law. This has
been proposed time and time again, in the states and the Commonwealth. It was
recommended in one form, for example, by the 1988 Constitutional Commission, which
argued that supply should not be rejected in the first three years of a four year
Parliament, [30] but in Australia only New South Wales has settled
the issue by a constitutional reform. I recognise that it will be argued
by some that the absolute key to the power of Australian upper houses is their
power over supply. Without that, the whole estimates process in the Commonwealth
Senate, for example, which is so important to the Senate's oversight role, would
be toothless. The power to reject supply serves as a kind of nuclear deterrent;
a powerful weapon, even if never used. I think this argument is problematical,
but if it is accepted, one can still amend a constitution in such a way that a
crisis of supply can be resolved very quickly, without the use of reserve powers,
and not drawn out in turmoil. There might be, for example, an automatic dissolution
of both houses if supply is rejected or delayed beyond some statutory period.
This would expose both the government and every member of Parliament to a general
election, something few politicians relish. This formulation would depart from
a pure parliamentary model by making the government accountable to the upper house
in this one case, but it would be preferable to the uncertainty that now surrounds
supply. While dealing with supply, Australians might also turn their attention
to the issue of conflict between the two houses on ordinary bills, and I know
many of you have. As I have said, none of the procedures for resolving deadlock
work adequately, either in the states or the Commonwealth. Like the power to block
supply, the double dissolution followed by a joint sitting of a Parliament, which
is provided in the Commonwealth and some state constitutions, is used primarily
as a threat not a constructive constitutional device, which is not the best use
of a Constitution. Foreign experience does not offer much guidance in this matter,
because the lower house can override the upper in most cases, but there are a
few precedents that might help. In India, for example, Parliament can move to
a joint sitting without a double dissolution in a case of deadlock, and I know
this has been suggested here. But you do not absolutely have to solve this
problem in constitutional law because the Goods and Services Tax (GST) legislation
of this year shows that a government can negotiate a deal if it wants one. What
seems odd to me, however, is that after fifty years of proportional representation
in the Senate and the states, Australian governments have still not internalised
the art of negotiation. We hear, for example, that the Coalition and the Australian
Democrats did not meet to discuss the GST until the government lost the support
of the Independent, Senator Harradine, and hence its majority for the budget,
in the Senate. Negotiation is dragged out of governments here like pulling teeth.
The experience of parliaments in Europe is that a proportional representation
election generally precedes a period of negotiation. It is not a prelude to a
slanging match between people who need each other, which is the Australian way
because political relationships are dominated by the customary confrontational
behaviour of government and opposition in the lower house. The good news on this
front, however, may be Prime Minister Howard's interview with the ABC after he
and Senator Lees, the Australian Democrat leader, had agreed on the terms of the
GST bill to be presented to the Senate. When his interviewer, Barrie Cassidy,
pointed out that the Democrats in the Senate were not, after all, `a threat to
democracy,' the Prime Minister agreed, and noted that `in a sense a bit of the
political paradigm has been altered today.' [31] If
those responsible for constitutional reform had been able to codify the executive,
eliminate the reserve powers, clarify the issue of supply, and possibly review
conflict resolution procedures, I am sure they would have been able to give the
Australian people what they really want in the republic referendum, even if they
really should not, which is a popularly elected President. This would have been
so because there would have been no significant powers for an elected President,
claiming a popular mandate, to abuse. Australia could have had an Irish President,
which would be no bad thing. About half the parliamentary republics in the world
have popularly elected presidents and half do not, and it does not seem to make
a dime's worth of difference, because every elected President operates within
a framework of clearly understood, and very limited, powers. This was understood
by many speakers in the 1998 Constitutional Convention, but the necessary reform
of the Constitution to eliminate reserve powers eluded them. Instead, the 1998
Constitutional Convention agonised to create a presidential selection process
that would produce a `non-political' President who would not abuse the reserve
powers. And what a mess they made of it. The nominating committee the Convention
recommended is not to be trusted to nominate the best person for the job because,
in an indictment of all politicians, it will be obliged to nominate a political
eunuch, someone who is a member of neither a political party nor a parliament.
Then the Prime Minister will make a recommendation from the committee's short
list, which will be confidential. This recommendation must be seconded by the
Leader of the Opposition and approved by a two-thirds majority of both houses
of Parliament. This process will produce someone who is not associated
with partisan politics, it is true, but the nomination and dismissal procedures
for the President provide an extraordinary role for one of the most partisan people
in the country, the Prime Minister. He or she will nominate half of the thirty-two
person presidential nominating committee and the Prime Minister's supporters,
those who form a majority in the House of Representatives, will appoint another
three or four. And once the President is installed, the Prime Minister alone will
be authorised to dismiss the President, without a stated cause. The only constitutional
restraint on the Prime Minister is that within thirty days, the House of Representatives
may vote against the dismissal, which would constitute a vote of no confidence
in the Prime Minister. But that chamber is controlled by the Prime Minister's
party or coalition, and even if you can imagine it censuring a Prime Minister,
this act would not bring back the President automatically. He or she will have
to be reappointed by the same process as the original election. All this strikes
me as cumbersome and unnecessary. The only benefit for Australia is that the process
will probably not produce an Australian version of Jessie `the Hulk' Ventura,
the professional wrestler who was elected Governor of Minnesota in November 1998.
This discussion of the appointment and dismissal of the President reminds
me that the Prime Minister is the one certain winner in the Australian constitutional
debate. John Howard is a monarchist who would rather see no change to the Constitution,
but if it happens, the enormously powerful position of the Prime Minister already
present in the Australian monarchy will be confirmed. As I have argued above,
parliamentary government has the effect of concentrating power in the centre,
in the Cabinet and the Prime Minister. This has made for a particularly powerful
government in Britain and the old dominions because the Prime Minister and Cabinet
control the royal prerogatives through their advice to the head of state: the
appointment of public servants, military officers, and judges, declarations of
war, and the signing of treaties. Republican constitutions are not so generous
to governments and some, at least, of these responsibilities are invariably shared
with the legislature. This will not be the case in Australia. In their determination
to rock as few boats as possible by adopting a minimalist approach to constitutional
change, constitutional reformers have simply rolled over the prerogative from
the Governor-General to the President, and that means that the extraordinary powers
of Australian prime ministers and their ministerial colleagues have been confirmed.
That, surely, is another opportunity missed. Question — In
the lower house, if the Premier or the Prime Minister was elected by the lower
house—rather than the way it is now—would this change the power of the
Prime Minister? Alan Ward — It might. I think it has changed
the power of the Chief Minister in the ACT because the election is secret. I think
it might not, if it's public. If it's an open election, then the Prime Minister
who is the leader of the majority party or coalition will always get elected.
I don't think that, given the present party sanctions and the norms of party behaviour,
an open election in Parliament is going to change the powers of the Prime Minister.
I don't think in general that it would make very much difference. What
would make an enormous difference would be to codify the powers of the Prime Minister
and codify the powers of the Government. I don't think any codified Constitution
would give a republican Prime Minister the kinds of powers that you're proposing
to give the Prime Minister here through his advice to the President, which are
extraordinary, such as the appointment of judges and all sorts of public officials,
declaring war and peace, and entering into treaties. Once you start to spell it
out, its absurdity becomes evident. That is certainly Campbell Sharman's view.
So one of the reasons why Australians don't want to spell out the government's
powers is that, as soon as you start to codify, you realise that you can't give
the Prime Minister all those royal prerogatives, which will become presidential
prerogatives. So I think that starting to spell things out and open up the process
will lead you down a different road. Prime ministers do behave differently
in the European model where the government is external to parliament. Parliament
takes on some independence from government, even though the government has to
have the support of the majority there. So prime ministers in, say, the Hungarian
Parliament, do not enforce the same sort of discipline that you would find in
a parliament where the Prime Minister and the ministers sit in, and are involved
in the management of the place. There are two kinds of selections of prime
ministers. There is one where the Prime Minister is nominated or elected by the
lower house—that's the Irish system and most European systems. The other
is that the head of state selects someone who in his or her judgement has the
support of the majority in the house. That's the monarchists' way of moving in
a republican direction. I think that's eminently desirable. Question
— You mentioned party discipline and you mentioned South Australia a
couple of times. I sat under a professor of political science and history in Adelaide—W.G.K.
Duncan—and he was passionate on parliamentary democracy and, if I recollect
correctly, one of his principles was a two party system. Could that not be your
eighth principle? Alan Ward — Not without narrowing the model
to the point that it starts to exclude countries like Ireland. There are too many
parliaments around the world which have some form of proportional representation
in the lower house. Once you've accepted that, then you've accepted that two party
politics is unlikely. You end up with the Irish system. I don't think there has
been an Irish government for about twenty years which has not been a coalition
government. I don't think it's two party politics once you've got proportional
representation. So I wouldn't put that in the model because it restricts the model
far too much. Question — In your model would you include the
present government of South Africa? And what would you do about Israel, where
they're electing the Prime Minister? Alan Ward —No, I wouldn't
include South Africa, though I honestly don't know enough and I would have to
take that question on notice. Until recently Israel had a parliamentary
system in which the lower house was elected by pure proportional representation,
and the threshold was effectively one or one and a half percent of the vote, so
it had lots of little parties. This meant that every government had to be a very
tortuous coalition and in fact every government was dependent upon the votes of
tiny religious parties in the end. So what the Israelis in their wisdom
decided to do was to get stronger government by electing the President—for
example, as they do in France—where you allow anybody to run, but you end
up with a run-off between the two leading candidates. It was thought that this
would force the system into duopoly. But the actual result is that they elect
the new President that way, but they continue to elect their Parliament the old
way. They therefore elect a prime minister who has a majority of the popular vote,
but his party does not have a majority in Parliament, and there is a clash between
a presidential system and majority government. I know a few political scientists
in Israel who called this lunacy. They've now run two elections under this
system—I don't think they'll run a third under it. It's very easy to amend
the Israeli constitution by just an ordinary act of Parliament. They were already
talking about amending it before the second election, and I suspect they will
amend it before the next one, unless things work out reasonably smoothly. But
the changes to the rules have not solved the problem of government formation thus
far. I wouldn't put the Israeli system in my model. To me, the Israeli
system is sui generis, it's on it's own. It's like the Finnish system.
No one else has it. Question — I was pleased to hear you demolish
Elaine Thompson's use of `Washminster', because I think this has been too easily
accepted and repeated for a number of years. I would draw attention to the fact
that in the 1950s, Percy Partridge said that any nation that thought the combination
of responsible government and federalism would produce a new creature was quite
wrong—that our government had developed very much on British lines. When
you stressed that the Senate had roughly the powers of a colonial legislative
council, you hit the nail upon the head because, although we copied the American
Constitution a great deal, the point was that in the debates there were constant
references to examples of the then upper houses, particularly South Australia.
Alan Ward — Yes. Question — In Australia
we have a three-level system of government, the federal, state and local government,
with the exception of the ACT. Do you have any comments on the desirability of
trying to reduce three levels to two levels? Alan Ward — No,
I don't see any need. I'm a pluralist who does not like excessive central control.
But let me use this question to say something about federalism. One of the things
I'm rather unhappy about here—and you see it described in Brian Galligan's
work—is the way the levels of government interact. A lot of what goes on
is not really federalism. It is dominated by a kind of state to federal government
diplomacy, which is conducted secretly, covertly. You don't know really what's
going on. You see the state and federal governments caucusing somewhere to sort
things out, in ways that we don't see in the USA. I think this is, in large part,
because the states have handed over too much of their power to the Commonwealth.
I think the decision to hand the federal government control of universities,
for example, was a disastrous one. The states have also handed over their budget
power. Now, because of a High Court decision on excise taxes, the Commonwealth
controls just about all the taxing powers in the country. There's not much left
but for the states and the federal government to bargain, in a kind of diplomatic
way, for their shares. This is non-parliamentary and I don't like it very much.
I don't know how you can reverse it, but you should try to stop it going any further.
Footnotes* This paper was presented as a
lecture in the Senate Occasional Lecture Series at Parliament House on 18 June
1999. [1] Gordon S. Reid, `Australia's Commonwealth
Parliament and the “Westminster Model”', in Colin Hughes (ed.), Readings
in Australian Government, Queensland University Press, St. Lucia, Qld, 1968,
p. 109. [2] Elaine Thompson, `The “Washminster”
Mutation', in Patrick Weller and Dean Jaensch (eds), Responsible Government
in Australia, Drummond, Richmond, Vic., 1980, pp. 32–40. Thompson makes
no mention of the Washminster model in her recent book chapter, `The Constitution',
in Rodney Smith (ed.), Politics in Australia, Allen and Unwin, St. Leonards,
NSW,1997, pp. 85–103. [3] Dean Jaensch, Parliament,
Parties, and People: Australian Politics Today, Longman Cheshire, Melbourne,
1991, p. 214. [4] David Butler, The Canberra
Model, Cheshire, Melbourne, 1973. [5] Spanish
Constitution, Articles 99–100. [6] Thompson,
`The “Washminster” Mutation', pp. 34, 36–7. [7]
Australasian Federal Convention, Debates, Sydney, 15 September 1897, p.
552. [8] J.A. La Nauze, The Making of the Australian
Constitution, Melbourne University Press, Melbourne, 1972, p. 41. [9]
See Sir Samuel Griffith at the National Australasian Convention, Sydney, 1891.
[10] Alan J. Ward, `The Constitution Review Group
and the “Executive State” in Ireland', Administration, vol. 44,
no. 4, winter 1996–97, pp. 60–61. [11]
In Queensland, South Australia, Victoria, and Western Australia. See Alan J. Ward,
`Responsible government and recent constitutional change in Australia and New
Zealand', Adelaide Law Review, vol. 15, no. 2, p. 1. [12]
Alan J. Ward, `Minority government and the redefinition of parliaments in Australia
and New Zealand', Legislative Studies, vol. 11, no. 2, Autumn 1997, pp.
3–5. [13] Barbara Page, `Developments in
the Legislative Council of New South Wales since 1978', Legislative Studies,
vol. 5, no. 2, summer 1991, pp. 24–27. [14]
Scott Bennett, Affairs of State: Politics in the Australian States and Territories,
Allen and Unwin, Sydney, 1992, p. 71. [15] See
the publication, Business of the Senate, published annually by the Table
Office, Department of the Senate, Commonwealth Parliament. [16]
F.M. Chaney, `Bicameralism Australian style: governing without control of the
upper house', The Parliamentarian, vol. 69, no. 3, July 1988, p. 170. [17]
Page, op. cit., pp. 28–29. [18] Neal Blewett,
`Parliamentary reform: challenge for the House of Representatives', Australian
Quarterly, vol. 65, no. 3, spring 1995, p. 12. [19]
Bruce Stone, `Accountability reform in Australia: the WA Inc Royal Commission
in context', Australian Quarterly, vol. 65, no. 2, winter 1993, pp. 25,
27. [20] Campbell Sharman addresses this issue
in `The Senate and Good Government', Papers on Parliament, No. 33, May
1999, pp. 153–170. [21] Australasian Federal
Convention, Debates, Adelaide, 19 April 1897, p. 913. [22]
William Dale, `The making and remaking of Commonwealth constitutions', International
and Comparative Law Quarterly, vol. 42, January 1993, p. 67. [23]
La Nauze, op. cit., p. 38. [24] Australian Constitutional
Convention, Adelaide, Proceedings, 1983, vol. 1, pp. 319–22, and Australian
Constitutional Convention, Brisbane, Proceedings, 1985, pp. 7–45,
389–91. [25] Republic Advisory Committee,
An Australian Republic, Canberra, 1993, vol. 2, pp. 241–95.
[26] Sydney Morning Herald, 8 June 1995.
[27] Report of the Constitutional Convention,
Canberra, 2-13 February, 1998, vol. 1, p. 45. [28]
Republic Advisory Committee, An Australian Republic, Canberra, 1993, vol.
1, p. 99. [29] Portuguese Constitution, Article
195.2. [30] Report of the Constitutional Convention,
Canberra, 2-13 February, 1998, vol. 1, p. 17. [31]
ABC transcript, 28 May 1999. 
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