The Principle of Responsible Government

download (1).jpeg

Responsible Government is the term used to describe a political system where the executive government, the Cabinet and Ministry, is drawn from, and accountable to, the legislative branch. The term should not be confused with the everyday meaning of responsible. The term is a political concept and has nothing to do with the idea of governments behaving in a correct, proper or responsible manner when making decisions.

Mulholland v Australian Electoral Commission [2004] HCA 41 (at 220):

“Numerous judicial observations have recognised the significance of the requirement of direct choice by the people for the constraints that may be imposed through electoral law on the fulfillment of the constitutional idea of representative democracy. Clearly, that idea lies at the heart of the democratic character of the Constitution, by which the sovereign people of Australia control their destiny in the deployment of governmental power within the Commonwealth. [Nationwide News Pty Ltd v Wills (1992) 177 CLR 1 at 71; ACTV (1992) 177 CLR 106 at 137 per Mason CJ.]. They do this by reserving to themselves, as electors, approval of alterations to the Constitution [s 128]; by the institution of the system of responsible government that renders the Executive answerable to the Parliament[s 64. See R v Kirby; Ex parte Boilermakers’ Society of Australia (1956) 94 CLR 254 at 275; McGinty (1996) 186 CLR 140 at 269]; and by the requirement that each House of Parliament must be “directly chosen by the people”[ss 7, 24].

R v Kirby; Ex parte Boilermakers’ Society of Australia (1956) HCA 10 (at 275):

“Probably the most striking achievement of the framers of the Australian instrument of government was the successful combination of the British system of parliamentary government containing an executive responsible to the legislature with American federalism. This meant that the distinction was perceived between the essential federal conception of a legal distribution of governmental powers among the parts of the system and what was accidental to federalism, though essential to British political conceptions of our time, namely the structure or composition of the legislative and executive arms of government and their mutual relations. The fact that responsible government is the central feature of the Australian constitutional system makes it correct enough to say that we have not adopted the American theory of the separation of powers. For the American theory involves the Presidential and Congressional system in which the executive is independent of Congress and office in the former is inconsistent with membership of the latter. But that is a matter of the relation between the two organs of government and the political operation of the institution. It does not affect legal powers.”

McGinty v Western Australia (1996) HCA 48 (at 269):

“Responsible government has been said in this Court to be a central feature of the system devised by the framers of the Australian instrument of government. (R v Kirby; Ex parte Boilermakers’ Society of Australia (1956) 94 CLR 254 at 275; affd (1957) 95 CLR 529.). It appears not from express terms so much as from the requirement in the last paragraph of s 64 that a Minister be a member of the Senate or the House of Representatives. Other central features are the separation of the judicial power of the Commonwealth and the doctrine of judicial review of legislative act and executive decision for constitutional validity. These are essential elements of federalism, but again, to a significant degree, the result is to be seen as a matter of necessary inference from consideration of the text and structure of the Constitution. ((1956) 94 CLR 254 at 276-278. See also R v Sharkey (1949) 79 CLR 121 at 148.). The Constitution also established for the Commonwealth, and prescribes and gives effect to, a system of representative government. This was accepted by the whole Court in Australian Capital Television. ((1992) 177 CLR 106 at 137-138, 150, 168, 184-185, 210-211, 229.).”

Australian Capital Television Pty Ltd v Commonwealth (1992) HCA 45:

MASON C.J. at 30.

“On the other hand, the principle of responsible government – the system of government by which the executive is responsible to the legislature – is not merely an assumption upon which the actual provisions are based; it is an integral element in the Constitution. (Amalgamated Society of Engineers v. Adelaide Steamship Co. Ltd. (1920) 28 CLR 129, per Knox C.J., Isaacs, Rich and Starke JJ. at p 147). In the words of Isaacs J. in The Commonwealth v. Kreglinger and Fernau Ltd. and Bardsley (1926) 37 CLR 393, at p 413): “It is part of the fabric on which the written words of the Constitution are superimposed.” 

The implication of fundamental rights

The adoption by the framers of the Constitution of the principle of responsible government was perhaps the major reason for their disinclination to incorporate in the Constitution comprehensive guarantees of individual rights. “(T)he Australian Constitution is built upon confidence in a system of parliamentary Government with ministerial responsibility”: Attorney-General (Cth); Ex rel. McKinlay v. The Commonwealth (1975) 135 CLR 1, per Barwick C.J. at p 24). They refused to adopt a counterpart to the Fourteenth Amendment to the Constitution of the United States. Sir Owen Dixon said. (Sir Owen Dixon, “Two Constitutions Compared”, Jesting Pilate, (1965), p 102): “(they) were not prepared to place fetters upon legislative action, except and in so far as it might be necessary for the purpose of distributing between the States and the central government the full content of legislative power. The history of their country had not taught them the need of provisions directed to control of the legislature itself.” The framers of the Constitution accepted, in accordance with prevailing English thinking, that the citizen’s rights were best left to the protection of the common law in association with the doctrine of parliamentary supremacy. Sir Anthony Mason, “The Role of a Constitutional Court in a Federation”, (1986) 16 Federal Law Review 1, at p 8).”

DAWSON J. at 20.

“In addition to representative democracy there is also written into the Constitution the principle of responsible government. See ss.62, 64. It is true that no attempt was made to spell out what responsible government entails – that was felt to be an impossible task – but there is sufficient to make it readily apparent that the system adopted was that of responsible government, that is, the system by which the executive is responsible to the legislature and, through it, to the electorate. That has never been doubted. In the Engineers’ Case (1920) 28 CLR, at p 146 the principle of responsible government was described as pervading the Constitution. See also The Commonwealth v. Kreglinger and Fernau Ltd. and Bardsley (1926) 37 CLR 393, at pp 411 et seq; Victorian Stevedoring and General Contracting Co. Pty. Ltd. and Meakes v. Dignan (1931) 46 CLR 73, at p 114; New South Wales v. The Commonwealth (1975) 135 CLR 337, at pp 364-365. And in the Boilermakers’ Case, Reg. v. Kirby; Ex parte Boilermakers’ Society of Australia (1956) 94 CLR 254, at p 275 it was referred to as “the central feature of the Australian constitutional system”.

McHUGH J. at 15.

“The Constitution also gives effect to a system of responsible government. (Amalgamated Society of Engineers v. Adelaide Steamship Co. Ltd. (1920) 28 CLR 129, at p 147; The Commonwealth v. Colonial Combing, Spinning and Weaving Co. Ltd. (1922) 31 CLR 421, at pp 446-447; The Commonwealth v. Kreglinger and Fernau Ltd. and Bardsley (1926) 37 CLR 393, at p 413)

The words “directly chosen by the people” in ss.7 and 24 of the Constitution have to be interpreted against the background of the institutions of representative government and responsible government to which the Constitution gives effect but does not specifically mention. The words of ss.7 and 24 must be construed by reference to the conceptions of representative government and responsible government as understood by informed people in Australia at the time of federation.

In The Commonwealth v. Kreglinger and Fernau Ltd. and Bardsley at pp 411-412., Isaacs J. said: “it is the duty of this Court, as the chief judicial organ of the Commonwealth, to take judicial notice, in interpreting the Australian Constitution, of every fundamental constitutional doctrine existing and fully recognised at the time the Constitution was passed, and therefore to be taken as influencing the meaning in which its words were used by the Imperial Legislature”. His Honour went on to say at p 413 in that case that the principle of responsible government is “part of the fabric on which the written words of the Constitution are superimposed”.

Representative government involves the conception of a legislative chamber whose members are elected by the people. But, as Birch points out, Representative and Responsible Government, (1964), p 17), to have a full understanding of the concept of representative government, “we need to add that the chamber must occupy a powerful position in the political system and that the elections to it must be free, with all that this implies in the way of freedom of speech and political organization”. Furthermore, responsible government involves the conception of a legislative chamber where the Ministers of State are answerable ultimately to the electorate for their policies. As Sir Samuel Griffith pointed out in his Notes on Australian Federation (1896), p 17), the effect of responsible government “is that the actual government of the State is conducted by officers who enjoy the confidence of the people”.

It is not to be supposed, therefore, that, in conferring the right to choose their representatives by voting at periodic elections, the Constitution intended to confer on the people of Australia no more than the right to mark a ballot paper with a number, a cross or a tick, as the case may be. The “share in the government which the Constitution ensures” would be but a pious aspiration unless ss.7 and 24 carried with them more than the right to cast a vote. The guarantees embodied in ss.7 and 24 could not be satisfied by the Parliament requiring the people to select their representatives from a list of names drawn up by government officers.

If the institutions of representative and responsible government are to operate effectively and as the Constitution intended, the business of government must be examinable and the subject of scrutiny, debate and ultimate accountability at the ballot box. The electors must be able to ascertain and examine the performances of their elected representatives and the capabilities and policies of all candidates for election. Before they can cast an effective vote at election time, they must have access to the information, ideas and arguments which are necessary to make an informed judgment as to how they have been governed and as to what policies are in the interests of themselves, their communities and the nation. As the Supreme Court of the United States pointed out in Buckley v. Valeo (1976) 424 US 1, at pp 14-15), the ability of the people to make informed choices among candidates for political office is fundamental because the identity of those who are elected will shape the nation’s destiny.

It follows that the electors must be able to communicate with the candidates for election concerning election issues and must be able to communicate their own arguments and opinions to other members of the community concerning those issues. Only by the spread of information, opinions and arguments can electors make an effective and responsible choice in determining whether or not they should vote for a particular candidate or the party which that person represents. Few voters have the time or the capacity to make their own examination of the raw material concerning the business of government, the policies of candidates or the issues in elections even if they have access to that material. As Lord Simon of Glaisdale pointed out in Attorney-General v. Times Newspapers (1974) AC 273, at p 315): “People cannot adequately influence the decisions which affect their lives unless they can be adequately informed on facts and arguments relevant to the decisions. Much of such fact-finding and argumentation necessarily has to be conducted vicariously, the public press being a principal instrument.”

The words “directly chosen by the people” in ss.7 and 24, interpreted against the background of the institutions of representative government and responsible government, are to be read, therefore, as referring to a process – the process which commences when an election is called and ends with the declaration of the poll. The process includes all those steps which are directed to the people electing their representatives – nominating, campaigning, advertising, debating, criticising and voting. In respect of such steps, the people possess the right to participate, the right to associate and the right to communicate. That means that, subject to necessary exceptions, the people have a constitutional right to convey and receive opinions, arguments and information concerning matter intended or likely to affect voting((351) See the definition of “political matter” in ss.95B, 95C and 95D of the Act.) in an election for the Senate or the House of Representatives. Moreover, that right must extend to the use of all forms and methods of communication which are lawfully available for general use in the community. To fail to give effect to the rights of participation, association and communication identifiable in ss.7 and 24 would be to sap and undermine the foundations of the Constitution.

Robert Garran explains the principle of Responsible Government in Commentaries of the Constitution. (pages 703 to 707) “The system of Responsible Government as known to the British Constitution has been practically embedded in the Federal Constitution, in such a manner that it cannot be disturbed without an amendment of the instrument.”

“There are perhaps few political or historical subjects with respect to which so much misconception has arisen in Australia as that of Responsible Government. It is, of course, an elementary principle that the person at whose volition an act is done is the proper person to be held responsible for it. So long as acts of State are done at the volition of the head of the State he alone is responsible for them. But, if he owns no superior who can call him to account, the only remedy against intolerable acts is revolution. The system called Responsible Government is based on the notion that the head of the State can himself do no wrong, that he does not do any act of State of his own motion, but follows the advice of his ministers, on whom the responsibility for acts done, in order to give effect to their volition, naturally falls. They are therefore called Responsible Ministers. If they do wrong, they can be punished or dismissed from office without effecting any change in the Headship of the State. Revolution is therefore no longer a necessary possibility ; for a change of Ministers effects peacefully the desired result. The system is in practice so intimately connected with Parliamentary Government and Party Government that the terms are often used as convertible. The present form of development of Responsible Government is that, when the branch of the Legislature which more immediately represents the people disapproves of the actions of Ministers, or ceases to have confidence in them, the head of the State dismisses them, or accepts their resignation, and appoints new ones. The effect is that the actual government of the State is conducted by officers who enjoy the confidence of the people. In practice they are themselves members of the Legislature. The ‘ sanction’ of this unwritten law is found in the power of the Parliament to withhold the necessary supplies for carrying on the business of the Government until the Ministers appointed by the Head of the State command their confidence. In practice, also, the Ministers work together as one body, and are appointed on the recommendation of one of them, called the Prime Minister. And, usually, an expression of want of confidence in one is accepted as a censure of all. This is not, however, the invariable rule; and it is evidently an accidental and not a fundamental feature of Responsible Government.” (Sir Samuel Griffith, Notes on Australian Federation, 1896, pp. 17-18)

The origins of Responsible Government 

In 1867 the Australian continent was divided into six separate British colonies, five of them with some form of responsible government. British occupation began with a convict settlement (at Sydney, in 1788), but population growth was slow until the discovery of gold in 1851, almost simultaneously in New South Wales and Victoria, followed by the rapid development of the wool industry. The population trebled, from 405 000 in 1850 to 1.4 million in 1867 (together with about 70 000 Aborigines, who then and for a century afterwards were not counted in censuses).

New South Wales was the first colony to be settled, and indeed in the early days covered the whole eastern half of the continent. By the 1840s it was moving towards representative government. In 1850 the British Parliament passed the Australian Colonies Government Act, which separated Victoria from New South Wales and gave that colony a Legislative Council on the same basis as New South Wales-that is, two-thirds elected and one-third appointed by the Governor. The act permitted the existing legislatures in Van Diemen’s Land and South Australia to be modified on similar lines, and envisaged such a legislature for Western Australia. The act also gave the various legislative councils, when reformed, the power to alter their colonial constitutions, subject to royal assent. A strong hint was given that bicameral legislatures were desirable.

The British government was not prepared to grant the colonies control over land policy and revenue from the sale of land until they were economically self-supporting. This was dramatically achieved by the discovery of gold in 1851, and in 1855 the British government agreed, with minor amendments, to the Constitution proposed by the New South Wales Legislative Council. There was no dispute about the Assembly, which was elected on a fairly wide male franchise, soon changed to manhood suffrage. A group led by Wentworth attempted to establish an hereditary upper house-the bunyip aristocracy, it was sarcastically called-but had to be satisfied with a house the members of which were appointed for life on the advice of the Assembly. By 1867 the New South Wales system was working reasonably well.

Tasmania was the second colony to be settled, a penal colony being founded in Hobart in 1803. Even by 1867 Tasmania had a population of only 95 000; the Tasmanian Aborigines were almost extinct. After transportation to the rest of Australia was ended, Tasmania became the receptacle for convicts from Britain, India and the other colonies. This system was stopped in 1853, the colony (previously Van Diemen’s Land) was renamed Tasmania, and representative institutions were introduced, culminating in responsible government in 1854. The upper house was elected by voters with the requisite property or educational qualifications. There was a lesser property qualification for the lower house.

Settlements were established at Perth and Fremantle in 1829, but the surrounding land was poor, and migrants were scarce. In 1867 Western Australia was the only colony still receiving convicts, who had been asked for in 1850 to overcome the labour shortage. (Transportation was to stop in 1869, under pressure from the other colonies.) In 1867 Western Australia had no effective representative organisations, and was not to achieve responsible government until 1890.

Victoria was settled from Tasmania in 1834. It shared in the great gold and wool booms of the 1850s, and its development to responsible government moved with that of New South Wales, with one significant difference. From 1856, the Victorian Legislative Council was elected, rather than appointed, and had a separate electoral roll, with a heavy property or educational qualification. There was a much smaller property qualification for voters for the Legislative Assembly. Sixty thousand men could vote for the Legislative Assembly in 1856, but only ten thousand for the Legislative Council. Adult male franchise for the Assembly came in the following year. As one of the great issues for the colonial government was land development, the scope for conflict between the two houses was immense. In fact, in 1865 and again in 1867 the Legislative Council rejected the annual appropriation bill. The Council was probably technically in the right, for the Legislative Assembly had on each occasion incorporated in the appropriation bill a contentious provision that would not otherwise have been passed by the Council (‘tacking’ it was called). Great confusion and bitterness had resulted.

Bagehot was obviously thinking of Victoria when he wrote scathingly about responsible government in Australia, which he said did not work as well in the Australian colonies as in North America:

“The lower classes there are mixed, convicts came first, and gold diggers followed … there is a rich class which has little power, which is subject to a lower class, unfit to govern even itself, and still more unfit to govern those above it … there is no such respect among the uneducated as would induce them to accept the judgement of the educated.”

It was a happier picture in South Australia, founded in 1836 as one of the Wakefield colonial schemes (there were also five in New Zealand). Edward Gibbon Wakefield (1796-1862) produced a colonisation scheme designed to attract skilled migrants; land values were to be deliberately kept high, and the revenue used to entice further suitable migrants. He produced his scheme while in prison for the abduction of an heiress. The South Australian Colonization Act of 1834 had promised self-government when the population reached 50 000. In 1850, when the population was 63 000, a legislative chamber of eight crown nominees and sixteen elected representatives was created, as provided for in the Australian Colonies Government Act. Six years later South Australia achieved responsible government on the Victorian model, though with a smaller property qualification for the upper house.

South Australia was a leader in democratic developments. It had adult male suffrage, one man one vote, for the lower house from 1856. It was the first to have triennial parliaments. It created secret voting by ballot, thereafter usually called the Australian ballot. And, although it had little to do with democracy, it produced a simplified system of transfer of land titles (the Torrens title) which was copied in many countries.

The last Australian colony to be formed was Queensland. Though it had been settled in 1826, it had been separated from New South Wales only in 1859, when its population (not counting Aborigines) was about 20 000. The new colony of Queensland was immediately granted self-government and parliamentary institutions on the 1856 New South Wales model.

The idea of an Australian union of some kind surfaced periodically. The Secretary of State for the Colonies, Earl Grey, had back in 1847 recommended a single assembly to DEAL with matters of common Australian interest, but despite its support by a committee of the Privy Council, the proposal was stillborn. There is no doubt it was premature. Worse still, the colonists had not been consulted, and Australians were already starting to show that odd and rather unappealing combination of an almost fawning desire to have the approval of the ‘home’ country coupled with a fierce resentment of any apparent attempt by that country to dictate to them. Nevertheless the Colonial Office did not completely give up. In 1851, after the separation of Victoria from New South Wales, the Governor of New South Wales was given the additional title of Governor-General of Australia, but he had no power in that role, and the appointment made no difference.

Although there was resistance to the imposition by Britain of a system of inter-colonial co-operation, opinion in the colonies was beginning to stir. In 1852 the Presbyterian cleric, Dr Lang, clamoured for an American-style federation with two legislative chambers (coupled with independence from Britain, which rendered his advocacy ineffective in the climate of the times). A year later a committee of the New South Wales Legislative Council and a Victorian constitutional committee each talked vaguely of an Australian general assembly, but there is no evidence that they seriously faced the problem of how they could combine, in a single chamber, reasonable equality of representation of individual voters together with arrangements ensuring that the smaller colonies need not fear domination by the larger. The latter provision was essential if there were to be any chance of a federal scheme being accepted.

The idea of a federal assembly, apparently a single chamber and always with very limited powers, recurs over the years, as for instance in Wentworth’s Memorial of 1857 and a report of a New South Wales select committee of the same year. There were numerous colonial conferences from 1863 onwards but it was to be a quarter of a century before real progress towards federation was made.