Sometimes, when something seems so wrong, you just know it can’t be right.
Take, for example, the former Prime Minister appointing himself, on the q.t., as a co- Minister to a number of regularly and publicly announced appointments to his Ministry.
If it’s possible to have one co-Minister for a portfolio, why not, say, 20 co-Ministers for each portfolio?
Sounds faintly ridiculous? It is. It totally defies the concept of ‘representative and responsible government’ we inherited from Britain and under which government is administered, department by department, with each department under the direction of a Crown appointed Minister, who is then responsible to the people who elected them to office, via the Parliament, for their department’s – and their own – actions or inactions.
If it’s possible to have 20 co-Ministers for each department, is it also possible to have just one Minister, one MP, say the PM, formally appointed as the Minister responsible for each department with no co-Ministers? Why not?
Sounds wrong? Sure does, can’t be right.
Because our system of government, as noted, is based on the inherited British model which relies on us, the citizens, through a fair electoral system, electing our representatives to the Parliament, with the party/network/group who control the numbers in the House of Representatives taking control of the Treasury benches and advising the Crown/Governor General who is to be appointed to the various Ministerial offices.
We the citizens understand/expect the Ministers so appointed to set about administering properly the laws falling under their department’s umbrella and taking steps to implement the policies they promised at the last election that saw them take office.
We understand and expect that the Ministers will answer to us, the citizens, through the Parliament, for their and their department’s actions – or inactions. We expect them to be accountable to the public for their and their department’s actions – or inactions.
And we understand that there will be a Ministry of Ministers, plural. We understand and accept that some Ministers may have more than one portfolio. But we certainly don’t understand and expect that just one person will be administering all departments.
If it’s possible theoretically to have one MP administering all departments, then we cease to have something called ‘representative and responsible government’. No longer would we have public power shared among the parliamentary representatives chosen by the people. Instead we would have executive power concentrated in the hands of one person. More like what happens in Pyongyang. Certainly a different concept of government.
In theory, at an election, Candidates X, Y, Z and all the others could ask to be elected on the express understanding that they, if backed by a sufficient number of colleagues, would exercise all the functions of government, all executive power, as the PRIME MINISTER – perhaps SOLE MINISTER would be a better description. One supposes they might even indicate that they will appoint some of their supportive colleagues as junior or assistant, even as co-Ministers. But however it were to be expressed, the form and theory of the government we would then have would be more than subtly different from what we now have. As important as the Parliamentary leaders of our present parties are to the electoral successes of their parties, and as much as we tend to refer to our elections these days as increasingly ‘presidential’, candidates do not in fact stand for election as ‘President’.
Our Constitution is markedly and designedly different from that of the United States, which was closely regarded by the drafters of the Australian Constitution when ours was debated in the years leading up to 1901. This point was made by the High Court of Australia in the landmark 1997 case of Lange v The ABC where the High Court found there is an implied right of free political speech under the Constitution, with the result that some uncharitable things said about politicians in the exercise of that right, can’t be considered defamatory of them.
Why did the judges find this implied right in the Constitution? You’ve guessed it – because they recognised that our undoubted system of ‘representative and responsible government’ couldn’t operate without it.
Here’s what the High Court relevantly said (free of the footnotes) in Lange –
‘Representative and responsible government
Sections 7 and 24 of the Constitution, read in context, require the members of the Senate and the House of Representatives to be directly chosen at periodic elections by the people of the States and of the Commonwealth respectively. This requirement embraces all that is necessary to effectuate the free election of representatives at periodic elections. What is involved in the people directly choosing their representatives at periodic elections, however, can be understood only by reference to the system of representative and responsible government to which ss 7 and 24 and other sections of the Constitution give effect.
That the Constitution intended to provide for the institutions of representative and responsible government is made clear both by the Convention Debates and by the terms of the Constitution itself. Thus, at the Second Australasian Convention held in Adelaide in 1897, the Convention, on the motion of Mr Edmund Barton, resolved that the purpose of the Constitution was “to enlarge the powers of self-government of the people of Australia”.
Sections 1, 7, 8, 13, 24, 25, 28 and 30 of the Constitution give effect to the purpose of self-government by providing for the fundamental features of representative government. As Isaacs J put it:
“[T]he Constitution is for the advancement of representative government”.
Section 1 of the Constitution vests the legislative power of the Commonwealth in a Parliament “which shall consist of the Queen, a Senate, and a House of Representatives”.
Sections 7 and 24 relevantly provide:
“7 The Senate shall be composed of senators for each State, directly chosen by the people of the State, voting, until the Parliament otherwise provides, as one electorate.
24 The House of Representatives shall be composed of members directly chosen by the people of the Commonwealth, and the number of such members shall be, as nearly as practicable, twice the number of the senators.”
Section 24 does not expressly refer to elections, but s 25 makes it plain that the House of Representatives is to be directly chosen by the people of the Commonwealth voting at elections. Other provisions of the Constitution ensure that there shall be periodic elections. Thus, under s 13, six years is the longest term that a senator can serve before his or her place becomes vacant. Similarly, by s 28, every House of Representatives is to continue for three years from the first meeting of the House and no longer. Sections 8and 30 ensure that, in choosing senators and members of the House of Representatives, each elector shall vote only once. The effect of ss 1, 7, 8, 13, 24, 25, 28 and 30 therefore is to ensure that the Parliament of the Commonwealth will be representative of the people of the Commonwealth.
Other sections of the Constitution establish a formal relationship between the Executive Government and the Parliament and provide for a system of responsible ministerial government, a system of government which, “prior to the establishment of the Commonwealth of Australia in 1901 … had become one of the central characteristics of our polity”. Thus, s 6 of the Constitution requires that there be a session of the Parliament at least once in every year, so that 12 months shall not intervene between the last sitting in one session and the first sitting in the next. Section 83 ensures that the legislature controls supply. It does so by requiring parliamentary authority for the expenditure by the Executive Government of any fund or sum of money standing to the credit of the Crown in right of the Commonwealth, irrespective of source. Sections 62 and 64 of the Constitution combine to provide for the executive power of the Commonwealth, which is vested in the Queen and exercisable by the Governor-General, to be exercised “on the initiative and advice” of Ministers and limit to three months the period in which a Minister of State may hold office without being or becoming a senator or member of the House of Representatives. Section 49 of the Constitution, in dealing with the powers, privileges and immunities of the Senate and of the House of Representatives, secures the freedom of speech in debate which, in England, historically was a potent instrument by which the House of Commons defended its right to consider and express opinions on the conduct of affairs of State by the Sovereign and the Ministers, advisers and servants of the Crown. Section 49 also provides the source of coercive authority for each chamber of the Parliament to summon witnesses, or to require the production of documents, under pain of punishment for contempt.’
The High Court’s recognition of our Australian system of ‘representative and responsible government’ in these terms is premised on there being a ‘system of responsible Ministerial government’, not a government by one MP, or a government where a co-Minister, known or unknown to the electors, can override the other, or otherwise cause the puppets strings of the other to be pulled.
As I say, sometimes, when something seems so wrong, you just know it can’t be right.
Sometimes, when something governmental is not ethically right, it’s also Constitutionally wrong.
In the present instance, there is every reason for thinking the idea of co-Ministers is Constitutionally wrong.
We, of course, don’t know just what advice, qualified or unqualified, the former PM had when he did what he did.
It’ll be interesting, however, to see what the current PM’s Constitutional law advisers tell him now!
* By Michael Barker, Editor, Fremantle Shipping News