Responsible Government and the Australian Constitution book forum

James Stellios provides the first post in our book forum on Ben Saunders’ Responsible Government and the Australian Constitution. To see all posts, please click here.

James Stellios

25.06.2024

Introduction

In this comment I offer observations on Associate Professor Saunders’ book, Responsible Government and the Australian Constitution (Hart, 2023) (Saunders), focusing primarily on the doctrinal implications of the book’s thesis. I will start by reflecting on the institutions of ‘representative and responsible’ government. While often presented as a composite expression, the institutions are distinct in principle, and that distinctiveness might have important implications for the role of judicial review. Further complicating the place of judicial review within the constitutional system is the tension created by the combination of political and legal constitutionalism, as each conception of constitutionalism contemplates a different means for controlling government power. Finally, I briefly reflect on the doctrinal implications of these constitutional features.  

‘Representative and responsible government’ – a composite expression?

‘[R]epresentative and responsible government’ is often used as a composite expression to describe the system of government established by the Constitution (see e.g. Lange at 557). In his new book, Associate Professor Saunders explains that the framers ‘conceived of responsible government as a system that was designed to, and did, enable self-government by the people, who would govern indirectly, and actively, through the institution of Parliament’ (Saunders 209). Under the Australian constitutional system, ‘political sovereignty is exercised through the mechanisms of representative and responsible government’ (Saunders 140). It is ‘a fundamentally political system of government’ (Saunders 164).

It might be added that the political authority that is constituted by this system of government has two dimensions: the exercise of power and the control of it. To borrow what Professor Michael C Dorf said about democracy in the United States (‘The Coherentism of Democracy and Distrust’ (2005) 114 YLJ 1237, at 1240-1241):  ‘democracy turns out to be important … so that the people can carry out their projects … and for limiting government’s potential excesses’. In short, the system of government described by the compound expression ‘representative and responsible’ government signifies that the political authority of the people – both in terms of power and control – is exercised by the people’s representatives in Parliament.

While ‘representative and responsible’ government is often presented in a composite way, that is not always the case. For example, the classic statement by Knox CJ, Isaacs, Rich and Starke JJ in the Engineers Case identified ‘responsible’ government as one of the features of the Australian Constitution which set it apart from the US Constitution. Their Honours referred to the following statement by Lord Haldane in the House of Commons, delivered upon the introduction of the Bill for the Act to constitute the Commonwealth of Australia (Engineers at 147, emphasis added):

The difference between the Constitution which this bill proposes to set up and the Constitution of the United States is enormous and fundamental. This bill is permeated through and through with the spirit of the greatest institution which exists in the Empire, and which pertains to every Constitution established within the Empire – I mean the institution of responsible government, a government under which the Executive is directly responsible to – nay, is almost the creature of – the Legislature. This is not so in America … [W]e establish a Constitution modelled on our own model, pregnant with the same spirit, and permeated with the principle of responsible government.

By contrast, six years later in Federal Commissioner of Taxation v Munro, Isaacs J said (at 178, emphasis added):

… The Constitution, it is true, has broadly and, to a certain extent, imperatively separated the three great branches of government, and has assigned to each, by its own authority, the appropriate organ. But the Constitution is for the advancement of representative government, and contains no word to alter the fundamental features of that institution.

In both Engineers and Munro, the High Court was called upon to consider the validity of Commonwealth legislation, and the respective references in each case to ‘responsible’ and ‘representative’ government informed the extent to which the Court was prepared to develop and apply constitutional doctrine, and to signal the Court’s posture on judicial review.

However, the separate reference to each institution highlights that the institutions are distinct in principle, albeit that ‘[r]esponsible government is closely related to representative government’ (Saunders 157), and their distinctiveness might have doctrinal implications (to be addressed further below).

Political vs legal constitutionalism: a tension for the scope of judicial review

As Associate Professor Saunders explains, the inclusion of this ‘fundamentally political’ system of government within a written Constitution alongside a tradition of judicial review gives rise to a tension between political authority and legal constraint (Saunders 21, 131). It is a tension that arises from the blending within our constitutional framework of the competing conceptions of political constitutionalism and legal constitutionalism (Saunders 18-23). In essence, it is a tension between, on the one hand, the role of the political process in exercising and controlling power and, on the other hand, the role of the courts in keeping political authority within legal limits. It would be wrong to assume that the mere reduction of a system of government into writing immediately gives rise to an assertion of legal constitutionalism by the judiciary. The relationship between the judiciary and the political arms of government must be one of substance, not form. However, equally, it would be a mistake to assume that there is no role for the judiciary to control political power because the system of government is one that derives from political constitutionalism.

This tension between political authority (particularly political control) and legal constraint gives rise to a fundamental question about the constitutional relationship between the Parliament and the judiciary and, more specifically, the legitimate role of the judiciary in keeping the political arms of government within their authority. The judicial resolution of that tension marks out constitutional doctrine.

Implications for doctrinal questions

Having identified these key constitutional features, it is then possible to reflect briefly on the doctrinal implications covered in the book.

There are doctrinal questions that seem to lie exclusively at the heart of the political conception of responsible government. For example, as Associate Professor Saunders persuasively argues, the political nature of responsible government ‘points to the need for flexibility in allowing the executive to be structured so as to attain meaningful accountability’ (Saunders 189). Similarly, because the operation of responsible government historically was a matter for convention to be controlled through the political process, the judicial enforcement of those conventions is unlikely to be well supported in many cases (Saunders 189-192) (although it might be justified in some circumstances to support the effective functioning of representative government). Furthermore, responsible government would seem to support a relaxed level of scrutiny of parliamentary appropriations as accepted in Combet v Commonwealth (see Saunders 205-207).

However, as the focus of a doctrinal question shifts from the constitutional demands of responsible government to the effective workings of representative government, there might be a stronger case for political control to be supplemented by legal constraint. Take, for example, the scope of executive power and the need for parliamentary approval for government action and spending. As Associate Professor Saunders argues, an understanding of the political character of responsible government must be relevant to such questions as they go to the core of that institution (Saunders 197-205), particularly given the history of executive dominance over public finance (Saunders 203, drawing from Will Bateman, Public Finance and Parliamentary Constitutionalism (CUP, 2020)). However, these questions also implicate the federal structure of representative government. One of the core reasons in Williams v Commonwealth (Williams (No 1)) for rejecting the view that the Commonwealth had an unlimited power to spend money appropriated under s 81 of the Constitution was that such a view was inconsistent with federal representative government. While government spending would be supported by an appropriation Act enacted by Parliament, the Senate has a limited role in initiating and controlling appropriations and, consequently, a diminished role in overseeing government expenditure. As Gummow and Bell JJ said (at [143]), there would be ‘a deficit in the system of representative government’. Thus, federal representative government provided a foothold for the supplementation of political control with legal constraint, although I agree that this was a bold assertion of judicial oversight. (See James Stellios, Zines and Stellios’s The High Court and the Constitution (Federation Press, 7th ed, 2022) 438.)

A more obvious example is the protection of political communication for the effective operation of the federal system of representative government. Should this feature of representative government be left exclusively to political control, or can it be supplemented by legal constraint and, if so, by how much? I have struggled with this question in the past, and have argued that the federal structure of representative government provides a solid justification for the judicial enforcement of that system, including the constitutional protection of political communication (see ‘Using Federalism to Protect Political Communication: Implications from Federal Representative Government’ (2007) 31 MULR 239, 252-7).

However, the position has also been accepted, drawing solely from national representative government as such, that legal constraints are justified where there is imbalance between political power and political control within representative government. That is, legal constraints may be justified where there is dysfunction in the operation of representative government – a representation reinforcing role for the judiciary, in the tradition of Professor John Hart Ely’s account of judicial review.

This position was accepted by Gageler J (as he then was) in McCloy v New South Wales, where his Honour said (at [114]) that a ‘paradox inherent in the nature of the majoritarian principle’ that political communication ‘is peculiarly susceptible to being restricted or distorted … precisely because the exercise of legislative or executive power is subject to the ultimately controlling influence of electoral choice’. Similarly, in Murphy v Electoral Commissioner, in the context of constitutional protections for voting, his Honour explained (at [95]) that the ‘judicial enforcement’ of the requirements of ss 7 and 24 had to be ‘sensitive to the inherent strengths and weaknesses of institutional structures’ particularly ‘the inherent potential’ for legislative authority over the electoral process ‘to be exercised to exclude from the political process persons whose participation is unwanted by, or inconvenient to, those who currently form majorities’. Again, representative government has provided the foothold to justify the supplementation of political control with legal constraint.

In the context of political communication, the impact of representative government on the level of judicial scrutiny and deference to the legislature is still contested. (Contrast Gageler J in McCloy at [114] with Edelman J in LibertyWorks at [201].) However, other than emphasising the accountability of the executive government to the Parliament (and, thereafter, to the electorate) as a foundation for the constitutional protection of political communication (as in Lange), the political institution of responsible government might have nothing more to add to the role to be played in this context by judicial constraint (cf Saunders 195).

Space does not permit a more detailed engagement with Associate Professor Saunders’ work. It is enough to say that he has produced a sophisticated, nuanced and provocative study of responsible government, which significantly enhances our understanding of the history of that institution and its place in the Australian constitutional framework.  

James Stellios is a Professor at the ANU College of Law and a barrister at 6 St James Hall Chambers.

Suggested citation: James Stellios, ‘Responsible Government and the Australian Constitution book forum’ (25 June 2024) <https://www.auspublaw.org/blog/2024/6/responsible-government-and-the-australian-constitution-book-forum>