|
|
Chapter 6 - A Guarantee of Government by the Majority |
 |
|
|
|
|
Chapter 6 - A Guarantee of Government by the Majority
Majority Rule is the Missing Rule
Perhaps the most basic principle of democracy is that the will of the majority should prevail.
This is reflected in the rule traditionally adopted in practice, that the party which has majority support in the House of Representatives forms the Government of the Commonwealth. Sometimes the rule is expressed in the form that the Prime Minister must ‘have the confidence of the House of Representatives’, meaning that a majority in that House supports the Prime Minister remaining in that position.
Every election is contested on this basis. Yet try finding the rule in our Constitution. It is not there. Those who claim the Constitution works well rarely mention this glaring omission. In the 21st century, this makes about as much sense as failing to state, in the rules of soccer, that the team which scores the most goals will be the winner.
This is one example of a common problem with our Constitution - the democratic rules which we expect will operate in practice are not written down, and are contradicted by the written rules which are legally binding. The source of the problem is that the Constitution is based more on monarchy than democracy. It cannot be completely overcome except by removing the monarchy.
Why the omission?
The reasons for the omission are debatable. Many people played a role in drafting the Constitution. Different people may have had different reasons for leaving out the requirement for majority rule. Most lawyers however would not dispute what I suggest was the main reason. The lawyers who drafted the Constitution in the 1890s, trained in British law and loyal to the British Empire, followed British practice as much as possible, and majority rule in Britain was an unwritten rule. That the majority forms the Government was thought to be so obvious that it was unnecessary to spell it out in the Constitution.
The consequences of omitting a vital rule
Every legal document is drafted according to what is known or foreseen at the time it is prepared. If circumstances develop later which were not foreseen, the document will often be useless. Seventy-five years after the Constitution was adopted we found that the effect of omitting the majority rule requirement was that the Governor-General had the legal power to remove a Prime Minister who commanded majority support in the House, and to appoint the Leader of the Opposition who was in the minority. Given that experience in 1975, it can no longer be said that it is obvious the Governor-General has to appoint the majority leader as Prime Minister.
In 1975, the minority which controlled the Senate was able to have the majority thrown out. It would be foolish to think this could not happen again. While it is unlikely the problem will recur in the same way, there are many realistic scenarios which could result in a Prime Minister with a majority again being ousted. Some are examined in Appendix 1.
1975 sounded a warning which it would be negligent to ignore. Our system can malfunction badly when reliance is placed on the undemocratic written rules ahead of the democratic unwritten rules.
The obvious solution is to include in the written rules a requirement that the Government will be formed by the majority in the House of Representatives. The Advancing Democracy model does that through proposed sections 64A and 58A(ii). What possible objection could supporters of the present Constitution have to that amendment? It will only be opposed by those who are not genuine supporters of democracy; those who want to be able to throw out an elected Government which is not of their choosing.
Guaranteeing the majority forms the Government is however only part of the solution. Two further impediments to majority rule must be overcome.
Allowing the Government to Govern - Preventing Senate Blackmail
The next impediment to majority rule is the ability of the minority, which lost the election but which controls the Senate, to prevent the majority which won the election from governing, and to force it to an early election when it is electorally unpopular.
A Senate in conflict with the governing majority has been and will always be endemic in a Constitution which creates two Houses of Parliament, with nearly equal powers, one elected on a democratic basis while the other is elected on the basis of equal representation of each State. (See Appendix 2 for an explanation of why the Senate is less democratic than the House of Representatives.)
However, the Senate obstruction in the 1975 constitutional crisis was of an altogether different kind. The Senate’s blocking of the supply of money to the Government was not due to any specific objection to the bills it blocked. It blocked supply purely for the purpose of preventing the Government from governing, so as to induce the Queen’s representative to abandon the convention that the majority was entitled to govern. It was an outrageous abuse of power specifically designed to deny the results of the election the previous year.
It is not necessary to change or remove the Senate’s power to defer or reject legislation in order to prevent that power from being abused. The blocking of supply in 1975 was a tactic designed to cause the Governor-General to exercise his power to dismiss a Prime Minister. Remove the power of dismissal and the tactic becomes pointless.
The Advancing Democracy model prevents the appointment as Prime Minister of anyone other than the person supported by the majority in the House of Representatives- see proposed ss. 64A and 58A(ii). It prevents an early election unless the House votes in favour of one. Upon adoption of those changes, the blocking of supply by the Senate would cease to be a practical way of changing the Government, without any reduction in the Senate’s legal power.
The Illegality Argument
A further advantage of including in the written Constitution a guarantee of Government by the majority is that it will eliminate any argument that the Head of State has a power or duty to intervene if the Government is acting illegally. Any such power will cease to exist. Whether the Government is acting lawfully is a matter for the Courts. Who should form the Government is a matter for the House of Representatives. There is no justification for a royalist relic playing a role in either decision. The intellectual invalidity of the illegality argument is dealt with in Appendix 4.
Allowing the Government to Govern - the Exercise of Executive Power
Once the majority becomes the Government, can it actually govern? Another peculiarity of our Constitution is that it does not give the power to govern to the Government. In Constitutional terms, Government power - the power to administer our laws - is called executive power. In section 61, the Constitution gives all executive power to the Queen, then says it is exercisable by her representative, the Governor-General. The Governor-General may appoint Ministers under section 64, but alternately he or she may not. Or they may be appointed, but find their decisions overridden by the Governor-General, using a combination of s.61 and the power in s. 67 to control appointments in the public service. Even command of the military is vested in the Governor-General: s.68.
It is quite possible that a Government could be appointed, then find that on particular issues it has little actual control over the management of Government administration. (This danger would be much greater if the Governor-General, or a President, was elected without any change in the powers of the position). Scenario 3 in Appendix 1 illustrates how the Governor-General could take power from the elected Government.
Again, the fault lies with our obsolete monarchy. Historically, the King ran the Government. Our Constitution reflects this faithfully in its written words, while what we all expect to happen in practice - Government by elected Ministers - is merely an unwritten, unenforceable Constitutional convention.
The Advancing Democracy model fixes this problem by placing all executive powers presently held by the Governor-General where they should be - with a Government comprised of the Prime Minister and Deputy Prime Minister appointed by the House of Representatives, plus the Ministers the Prime Minister appoints: proposed ss.61A & 64A. The role of Cabinet would be formally recognised in s.65A(i). The Head of State would have no executive role.
Limiting executive power
The Advancing Democracy model has a further advantage - it clarifies what is meant by executive power. The description of executive power in the current section 61 has caused confusion which has contributed (in part) to several challenges in the High Court to Government action. Presently s.61 reads as follows:
“The executive power of the Commonwealth is vested in the Queen and is exercisable by the Governor-General as the Queen’s representative, and extends to the execution and maintenance of this Constitution, and of the laws of the Commonwealth.”
Some judges have attempted to imply into s.61 a wider range of powers on the basis that they necessarily follow from the Commonwealth’s status as an independent nation. On the whole, this attempted expansion of Commonwealth power has had only limited success, and it received a significant setback in the case of Pape v Commissioner of Taxation [2009] HCA 23.
However, the interpretation of Constitutional provisions can change as the composition of the Court changes. In the early 1990s, the Liberal and National parties campaigned in favour of changing the allegedly ‘activist’ direction of the High Court, which meant they wanted to appoint more conservative judges. This policy was duly implemented by the Howard Government, and it had a major effect on the interpretation of the law. It will be just as possible for future Governments to appoint more ‘progressive’ or ‘activist’ judges who reverse this trend and cast aside the recent consensus in the Pape case.
The range of Government powers should not unexpectedly expand or contract according to the opinions of unelected, unaccountable judges. It is far better if the people clearly define the range of powers in the Constitution, so that the judges have less room to move when interpreting them.
The current definition of executive power is unsatisfactory. Traditionally the Kings of England held prerogative powers, which have been ‘inherited’ by the Governor-General via s.61 (and also by our State Governors under State Constitutions). Virtually every legal text which describes prerogative powers includes the warning that the powers are unclear in extent. Some prerogative powers are written into the Constitution, with resultant confusion as to whether the written term supersedes and overrides any prior understanding of the power, or whether the prior common law concerning the power affects the interpretation of the constitutional provision. Reference is also made by politicians and lawyers to the ‘reserve’ powers of the Queen and Governor-General. The phrase usually refers to the apparently discretionary powers given in the Constitution, some of which were once prerogative powers, but opinions differ on which powers are ‘reserve’ and how many there are. (Note that it is not possible for ordinary Australians to read their Constitution and find out which powers are ‘prerogative’ or ‘reserve’ powers.)
This is another challenge to those who support our Constitution. Most are wary of giving Government open-ended powers. Yet for the whole of Australia’s existence they have tolerated ‘royal’ power being defined with a hopeless lack of precision, even though our substitute ‘royal’ has often used those powers in whichever way the Government of the day has directed. Why do vague limits on Government power become acceptable when they are exercised in the name of the Queen?
The solution is to abolish all prerogative and reserve powers, then write those parts of them which should survive into the Constitution as express powers, precisely defined so they can be understood by ordinary voters as well as by judges. This is what the Advancing Democracy model does: see proposed sections 62A and 62B. The opportunity for judges to expand and contract the limits of Government power depending on their own preferences will be limited.
The proposed s.62A also abandons the archaic and vague phrase “maintenance of this Constitution”. The words “administration, implementation and protection of this Constitution” are easier to understand and less open to misinterpretation.
Finally the current consensus from cases such as Pape and Davis v The Commonwealth [1988] HCA 63 is that section 61 does include additional powers consistent with Australia’s place as a separate nation. Rather than have this depend on judicial implications from words such as “maintenance”, it is better to add a specific statement that executive power includes:
“The power to engage in activities for the benefit of Australia where in the circumstances prevailing at the time of such engagement the States lack the practical power to engage in those activities ”.
This is an accurate summary of the current range of the power - see Drafting Notes 62A.8 to 62A.11 and 62A.31 to 62A.37 under s.62A for a complete explanation. It will not remove all controversy, but it is an improvement.
Go to next chapter |
|
|
Chapter 6 - A Guarantee of Government by the Majority
Majority Rule is the Missing Rule
Perhaps the most basic principle of democracy is that the will of the majority should prevail.
This is reflected in the rule traditionally adopted in practice, that the party which has majority support in the House of Representatives forms the Government of the Commonwealth. Sometimes the rule is expressed in the form that the Prime Minister must ‘have the confidence of the House of Representatives’, meaning that a majority in that House supports the Prime Minister remaining in that position.
Every election is contested on this basis. Yet try finding the rule in our Constitution. It is not there. Those who claim the Constitution works well rarely mention this glaring omission. In the 21st century, this makes about as much sense as failing to state, in the rules of soccer, that the team which scores the most goals will be the winner.
This is one example of a common problem with our Constitution - the democratic rules which we expect will operate in practice are not written down, and are contradicted by the written rules which are legally binding. The source of the problem is that the Constitution is based more on monarchy than democracy. It cannot be completely overcome except by removing the monarchy.
Why the omission?
The reasons for the omission are debatable. Many people played a role in drafting the Constitution. Different people may have had different reasons for leaving out the requirement for majority rule. Most lawyers however would not dispute what I suggest was the main reason. The lawyers who drafted the Constitution in the 1890s, trained in British law and loyal to the British Empire, followed British practice as much as possible, and majority rule in Britain was an unwritten rule. That the majority forms the Government was thought to be so obvious that it was unnecessary to spell it out in the Constitution.
The consequences of omitting a vital rule
Every legal document is drafted according to what is known or foreseen at the time it is prepared. If circumstances develop later which were not foreseen, the document will often be useless. Seventy-five years after the Constitution was adopted we found that the effect of omitting the majority rule requirement was that the Governor-General had the legal power to remove a Prime Minister who commanded majority support in the House, and to appoint the Leader of the Opposition who was in the minority. Given that experience in 1975, it can no longer be said that it is obvious the Governor-General has to appoint the majority leader as Prime Minister.
In 1975, the minority which controlled the Senate was able to have the majority thrown out. It would be foolish to think this could not happen again. While it is unlikely the problem will recur in the same way, there are many realistic scenarios which could result in a Prime Minister with a majority again being ousted. Some are examined in Appendix 1.
1975 sounded a warning which it would be negligent to ignore. Our system can malfunction badly when reliance is placed on the undemocratic written rules ahead of the democratic unwritten rules.
The obvious solution is to include in the written rules a requirement that the Government will be formed by the majority in the House of Representatives. The Advancing Democracy model does that through proposed sections 64A and 58A(ii). What possible objection could supporters of the present Constitution have to that amendment? It will only be opposed by those who are not genuine supporters of democracy; those who want to be able to throw out an elected Government which is not of their choosing.
Guaranteeing the majority forms the Government is however only part of the solution. Two further impediments to majority rule must be overcome.
Allowing the Government to Govern - Preventing Senate Blackmail
The next impediment to majority rule is the ability of the minority, which lost the election but which controls the Senate, to prevent the majority which won the election from governing, and to force it to an early election when it is electorally unpopular.
A Senate in conflict with the governing majority has been and will always be endemic in a Constitution which creates two Houses of Parliament, with nearly equal powers, one elected on a democratic basis while the other is elected on the basis of equal representation of each State. (See Appendix 2 for an explanation of why the Senate is less democratic than the House of Representatives.)
However, the Senate obstruction in the 1975 constitutional crisis was of an altogether different kind. The Senate’s blocking of the supply of money to the Government was not due to any specific objection to the bills it blocked. It blocked supply purely for the purpose of preventing the Government from governing, so as to induce the Queen’s representative to abandon the convention that the majority was entitled to govern. It was an outrageous abuse of power specifically designed to deny the results of the election the previous year.
It is not necessary to change or remove the Senate’s power to defer or reject legislation in order to prevent that power from being abused. The blocking of supply in 1975 was a tactic designed to cause the Governor-General to exercise his power to dismiss a Prime Minister. Remove the power of dismissal and the tactic becomes pointless.
The Advancing Democracy model prevents the appointment as Prime Minister of anyone other than the person supported by the majority in the House of Representatives- see proposed ss. 64A and 58A(ii). It prevents an early election unless the House votes in favour of one. Upon adoption of those changes, the blocking of supply by the Senate would cease to be a practical way of changing the Government, without any reduction in the Senate’s legal power.
The Illegality Argument
A further advantage of including in the written Constitution a guarantee of Government by the majority is that it will eliminate any argument that the Head of State has a power or duty to intervene if the Government is acting illegally. Any such power will cease to exist. Whether the Government is acting lawfully is a matter for the Courts. Who should form the Government is a matter for the House of Representatives. There is no justification for a royalist relic playing a role in either decision. The intellectual invalidity of the illegality argument is dealt with in Appendix 4.
Allowing the Government to Govern - the Exercise of Executive Power
Once the majority becomes the Government, can it actually govern? Another peculiarity of our Constitution is that it does not give the power to govern to the Government. In Constitutional terms, Government power - the power to administer our laws - is called executive power. In section 61, the Constitution gives all executive power to the Queen, then says it is exercisable by her representative, the Governor-General. The Governor-General may appoint Ministers under section 64, but alternately he or she may not. Or they may be appointed, but find their decisions overridden by the Governor-General, using a combination of s.61 and the power in s. 67 to control appointments in the public service. Even command of the military is vested in the Governor-General: s.68.
It is quite possible that a Government could be appointed, then find that on particular issues it has little actual control over the management of Government administration. (This danger would be much greater if the Governor-General, or a President, was elected without any change in the powers of the position). Scenario 3 in Appendix 1 illustrates how the Governor-General could take power from the elected Government.
Again, the fault lies with our obsolete monarchy. Historically, the King ran the Government. Our Constitution reflects this faithfully in its written words, while what we all expect to happen in practice - Government by elected Ministers - is merely an unwritten, unenforceable Constitutional convention.
The Advancing Democracy model fixes this problem by placing all executive powers presently held by the Governor-General where they should be - with a Government comprised of the Prime Minister and Deputy Prime Minister appointed by the House of Representatives, plus the Ministers the Prime Minister appoints: proposed ss.61A & 64A. The role of Cabinet would be formally recognised in s.65A(i). The Head of State would have no executive role.
Limiting executive power
The Advancing Democracy model has a further advantage - it clarifies what is meant by executive power. The description of executive power in the current section 61 has caused confusion which has contributed (in part) to several challenges in the High Court to Government action. Presently s.61 reads as follows:
“The executive power of the Commonwealth is vested in the Queen and is exercisable by the Governor-General as the Queen’s representative, and extends to the execution and maintenance of this Constitution, and of the laws of the Commonwealth.”
Some judges have attempted to imply into s.61 a wider range of powers on the basis that they necessarily follow from the Commonwealth’s status as an independent nation. On the whole, this attempted expansion of Commonwealth power has had only limited success, and it received a significant setback in the case of Pape v Commissioner of Taxation [2009] HCA 23.
However, the interpretation of Constitutional provisions can change as the composition of the Court changes. In the early 1990s, the Liberal and National parties campaigned in favour of changing the allegedly ‘activist’ direction of the High Court, which meant they wanted to appoint more conservative judges. This policy was duly implemented by the Howard Government, and it had a major effect on the interpretation of the law. It will be just as possible for future Governments to appoint more ‘progressive’ or ‘activist’ judges who reverse this trend and cast aside the recent consensus in the Pape case.
The range of Government powers should not unexpectedly expand or contract according to the opinions of unelected, unaccountable judges. It is far better if the people clearly define the range of powers in the Constitution, so that the judges have less room to move when interpreting them.
The current definition of executive power is unsatisfactory. Traditionally the Kings of England held prerogative powers, which have been ‘inherited’ by the Governor-General via s.61 (and also by our State Governors under State Constitutions). Virtually every legal text which describes prerogative powers includes the warning that the powers are unclear in extent. Some prerogative powers are written into the Constitution, with resultant confusion as to whether the written term supersedes and overrides any prior understanding of the power, or whether the prior common law concerning the power affects the interpretation of the constitutional provision. Reference is also made by politicians and lawyers to the ‘reserve’ powers of the Queen and Governor-General. The phrase usually refers to the apparently discretionary powers given in the Constitution, some of which were once prerogative powers, but opinions differ on which powers are ‘reserve’ and how many there are. (Note that it is not possible for ordinary Australians to read their Constitution and find out which powers are ‘prerogative’ or ‘reserve’ powers.)
This is another challenge to those who support our Constitution. Most are wary of giving Government open-ended powers. Yet for the whole of Australia’s existence they have tolerated ‘royal’ power being defined with a hopeless lack of precision, even though our substitute ‘royal’ has often used those powers in whichever way the Government of the day has directed. Why do vague limits on Government power become acceptable when they are exercised in the name of the Queen?
The solution is to abolish all prerogative and reserve powers, then write those parts of them which should survive into the Constitution as express powers, precisely defined so they can be understood by ordinary voters as well as by judges. This is what the Advancing Democracy model does: see proposed sections 62A and 62B. The opportunity for judges to expand and contract the limits of Government power depending on their own preferences will be limited.
The proposed s.62A also abandons the archaic and vague phrase “maintenance of this Constitution”. The words “administration, implementation and protection of this Constitution” are easier to understand and less open to misinterpretation.
Finally the current consensus from cases such as Pape and Davis v The Commonwealth [1988] HCA 63 is that section 61 does include additional powers consistent with Australia’s place as a separate nation. Rather than have this depend on judicial implications from words such as “maintenance”, it is better to add a specific statement that executive power includes:
“The power to engage in activities for the benefit of Australia where in the circumstances prevailing at the time of such engagement the States lack the practical power to engage in those activities ”.
This is an accurate summary of the current range of the power - see Drafting Notes 62A.8 to 62A.11 and 62A.31 to 62A.37 under s.62A for a complete explanation. It will not remove all controversy, but it is an improvement.
Go to next chapter |
|
|
|
|
|
|
|
|