Responsible Government and the Australian Constitution book forum - Author’s Response

Benjamin B Saunders replies to reflections from James Stellios and Leslie Gonye on his book Responsible Government and the Australian Constitution. To see all posts, please click here.

Benjamin B Saunders

1.07.2024

Introduction

I am grateful to Professor James Stellios and Leslie Gonye for their interaction with my book – from two very different perspectives.

The book is an expansion and development of my PhD research, which was a historical examination of the views of the framers of the Constitution regarding responsible government, completed in 2017. At the time, Professor Stellios encouraged me to develop further some aspects of my work, including giving further examination to the concepts of ‘popular sovereignty’ and the ‘sovereignty’ of the people, and also reflecting further on the doctrinal implications of my thesis.

Those recommendations provoked important parts of my research post PhD, resulting in two publications: ‘Popular Sovereignty, ‘the People’, and the Australian Constitution: A Historical Reassessment’ (2019) 30 Public Law Review 36 and ‘History and Constitutional Interpretation: Applying the ‘Cambridge School’ Approach to Interpreting Constitutions’ (2020) 40(3) Oxford Journal of Legal Studies 591, both co-authored with Dr Simon P Kennedy. This research fed into chapters 6 and 7 of the book.

My book argues that, given that the provisions which incorporate or assume responsible government in the Australian Constitution are sparse, it must be understood in light of its political and constitutional history – indeed, that it cannot be accurately understood otherwise. I argue that responsible government is an inherently flexible system, having evolved over a long period of time, and that popular sovereignty and accountability are core to the Australian conception. I argue that responsible government reflects a strongly political approach to constitutionalism which accords a significant role to the political branches of government. One of the key tensions I grapple with is the incorporation of such an approach within a written and judicially enforceable Constitution; given the sparsity of the text I caution against over-judicialisation of the principles and conventions of responsible government.

Perhaps unsurprisingly, several of these themes are picked up in the comments made by Stellios and Gonye.

James Stellios on representative and responsible government

Professor James Stellios’s response considers the doctrinal implications of my argument, specifically whether there is a case for a stronger judicial role in relation to representative government. Although ‘representative and responsible government’ is often used as a composite expression, the institutions are conceptually distinct, and this might carry ‘important implications for the role of judicial review’. In particular, Professor Stellios argues that ‘there might be a stronger case for political control to be supplemented by legal constraint’, especially where, for example, there is ‘dysfunction in the operation of representative government’.

So much may readily be granted in principle – and John Hart Ely’s representation reinforcing account of judicial review has been extremely influential in constitutional theory. It may also be readily conceded that the provisions of the Constitution which establish representative government are much more detailed and prescriptive than the provisions which relate to responsible government. This may be considered to support an argument for greater legal control.

There are several potential counter-arguments. One is that the Australian Constitution reflects a particular form of representative government, namely one closely tied to the Westminster traditions of constitutionalism. My book argues that there is a need to preserve flexibility in relation to the functioning of responsible government, so as to preservice the political sovereignty of the Australian people. Many of these considerations – although perhaps not all – are arguably applicable to representative government, and the courts have sometimes acknowledged as much.

A second is that an argument for greater legal controls raises the obvious question as to what legal controls should exist to protect representative government. There is little room for doubt that the express terms of the Constitution which enshrine representative government are enforceable by the courts. Any further legal constraints would need to be securely anchored in the text and structure of the Constitution.

Leslie Gonye and parliamentary mechanisms of executive scrutiny

Accountability for government action is a key preoccupation of public law, and widely recognised to be a core feature of responsible government. It is widely believed that the power of Westminster Parliaments has declined as against the executive, for reasons which include executive dominance of the lower house, and the sheer size of the executive compared with that of Parliament. As such, it is often asserted that Parliament’s ability to hold the executive to account is limited. Although this is at variance from the theory of responsible government, this is not necessarily a problem. My book suggests that ‘executives have an incentive to self-regulate and in so doing may exercise much more effective supervision than Parliament could’ (135), and notes the many mechanisms for intra-executive accountability that have developed, which go some way towards filling the scrutiny gap.

Leslie Gonye provides a corrective perspective, arguing (primarily with regard to the New South Wales Legislative Assembly, the House in which he served as Deputy Clerk) that many mechanisms exist within the parliamentary framework to hold the executive to account. These includes the independence of the office of Speaker, Estimates Committees which continue to ‘vigorously interrogate the Executive’, reforms to the procedure for questions on notice which require a response with 35 calendar days, and legislative committees, among others. Gonye argues that these developments have significance for responsible government, by acting as a ‘constraining hand on government’.

Opinions many differ as to the respective merits and effectiveness of those mechanisms, particularly as compared with other analogous mechanisms. Nevertheless, it would be difficult to deny that the robust functioning of parliamentary mechanisms of accountability is to be welcomed, and contributes to the vigour and effectiveness of our democracy. I therefore welcome Leslie Gonye’s strongly Parliament-focused account of executive scrutiny.

Conclusion

There remains controversy about the nature and effectiveness of responsible government, as well as the extent to which its conventions ought to be enforceable by the courts. That is not surprising, given the cryptic and unwritten nature of responsible government. Divergent views are therefore to be expected and welcomed. I extend my thanks again to Professor James Stellios and Leslie Gonye for their valuable thoughts on my book.

In his book The Political Illusion, Jacques Ellul argued that conflict and tension are the lifeblood of democracy: for humanity to exist within democracy, ‘it is necessary to maintain at all costs the differentiations that spark communication and relationships. All assimilation (such as of an inferior or minority group to a superior or majority group), all adaptation (of the individual to society), and all integration … must be avoided’ (237). That is no less true in the domain of constitutional law.

One of the things I hope to have achieved with the book is to have demonstrated the value of a particular approach to constitutional interpretation. I outlined an approach that takes history seriously as the starting for any meaningful engagement with a historical text, and provided a case study in which (I hope) fresh light was shed upon a well-trodden institution. I hope that my book stimulates further creative research, grounded in detailed readings of the historical material, without being enslaved to the past.

Benjamin B Saunders is an Associate Professor at Deakin Law School.

Suggested citation: Benjamin B Saunders, ‘Responsible Government and the Australian Constitution book forum - Author’s Response’ (1 July 2024) <https://www.auspublaw.org/blog/2024/7/responsible-government-and-the-australian-constitution-book-forum-authors-response>