Tag Archives: Ryan Goss

Australian politics explainer: the writing of our Constitution

The Conversation

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The British parliament passed the Commonwealth of Australia Constitution Act in 1900. Museum of Australian Democracy

Ryan Goss, Australian National University

The Conversation is running a series of explainers on key moments in Australian political history, looking at what happened, its impact then, and its relevance to politics today. The Conversation


Since coming into effect in 1901, Australia’s Constitution has shaped – and been shaped by – our political history.

The Constitution is the highest law in Australia. It shapes the laws the federal parliament may pass, how it administers those laws, the way our courts work, and how the federal government interacts with the state and territory governments.

What happened?

In the late 1800s, there were six British colonies on the Australian continent. These stand-alone colonies had their own parliaments and governments, their own colonial constitutions, and even their own militaries.

When travelling from one colony to another, people had to pass through a customs check before crossing the border. And they had to pay taxes on goods they were carrying.

In the 1880s and 1890s, representatives of the colonies began the discussions that would lead to federation. They wanted to join together to create a national government while maintaining political power for each colony’s own government.

These discussions, which culminated in the Constitution we have today, were driven by many factors. Among these were the need to make trade easier within Australia, a desire to control immigration, and to improve defence arrangements for the continent.

In part, the Australian Constitution’s drafters were inspired by the United States and its Constitution; the structure of our Constitution looks quite similar to the Americans’.

But, crucially, Australian Federation did not involve a revolution against Britain. Instead, at Federation, Australia would maintain close links to the parliament in London, the British courts and the British monarchy.

Aside from some discriminatory provisions, the Constitution would not include acknowledgement or recognition of Indigenous Australians. Our system of government became a mixture of British-inspired elements, American-inspired elements and uniquely Australian elements.

Voters were asked to approve the draft Constitution at referendums held in all the colonies. All the colonies eventually voted in favour – though some only narrowly, and with most women and Indigenous Australians excluded from voting.

After being passed into law by parliament in London, the Constitution came into effect on January 1, 1901.

Edmund Barton and Alfred Deakin are considered founding fathers of Australia’s federation. National Library of Australia

What was its impact?

All this history has shaped our Constitution, and continues to shape our political history. Our Constitution establishes:

But it’s also important to remember that much goes unmentioned in our Constitution. Many key elements of our system of government don’t appear in the text of the Constitution. The prime minister, for instance, doesn’t rate a mention.

To help make up for the omissions, our political and legal history has been guided by rules known as constitutional conventions. These conventions are shaped by British history and by Australian history, and have occasionally proven very controversial.

Unlike many constitutional systems, Australia lacks any form of comprehensive bill of rights protections. Instead, Australia’s constitutional system was built on the principle that:

… the rights of individuals are sufficiently secured by ensuring, as far as possible, to each a share, and an equal share, in political power.

Nonetheless, the text of our Constitution shapes what our governments can do, and the way in which they can do it. The Constitution affects how governments spend money, the position of Indigenous Australians, and policy in areas ranging from industrial relations and marriage to the environment and asylum seekers.

Significantly, the Constitution also protects our role as citizens in choosing our representatives and in holding them accountable.

What are its contemporary implications?

The Constitution is hard to change. The federal parliament first must approve any proposed amendment. The amendment must then pass a referendum by a “double majority”: approved by a majority of voters as well as a majority of voters in a majority of states.

In 116 years, 44 attempts have been made to change the Constitution. Only eight have succeeded.

The failed attempts have included efforts to switch parliamentary terms from three years to four years, multiple efforts to protect basic civil rights, and the unsuccessful republic referendum to replace the monarch with an Australian. The last time the Constitution was successfully amended was in 1977.

Some may see this inflexibility as a strength: the Constitution is stable and enduring. But it also makes the Constitution very hard to update in response to changing times and changing values.

As a result, the Constitution is a document that reflects the priorities of the late 19th century more than the early 21st century.

Unsurprisingly, after 116 years of federation, there are many contemporary debates about the Constitution. Some are about how we should interpret the Constitution we have. Others are about finding ways to update our system of government without having to amend the Constitution.

But there are also debates about changing the Constitution, such as whether Indigenous Australians should be recognised in symbolic or substantive ways, whether the role of local government should be enshrined, or whether to replace the monarchy with an Australian head of state.

Or should we undertake a much more serious overhaul?

These questions reflect our history, and the answers to them will shape our future. But they also raise broader questions for all Australians: what do we expect from our politics? And what do we expect from our Constitution?

Ryan Goss, Senior Lecturer in Law, Australian National University

This article was originally published on The Conversation. (Reblogged by permission). Read the original article.

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How unwritten rules shape ministerial accountability

The Conversation

Ryan Goss, Australian National University

Recent police investigations into the alleged actions of Mal Brough, before he became special minister of state, have led some to suggest that “Westminster tradition” demands Brough step aside. But what does “Westminster tradition” mean in Australia, and how does ministerial responsibility work?

The Australian parliament’s website says the:

… federal government is held responsible to both the House of Representatives and the Senate.

But how? And why?

Australia’s Constitution sets the ground rules for its system of government. But many things one might expect to be in it simply aren’t there.

The Constitution doesn’t spell out how the prime minister is to be chosen, for instance, or when they should be obliged to resign. There’s no reference at all to the prime minister in the document. And although the Constitution requires ministers to be members of parliament, there’s no mention of terms such as “responsible government” or “ministerial responsibility”.

Despite this, jurist Sir Isaac Isaacs described responsible government as:

… part of the fabric on which the written words of the Constitution are superimposed.

And in a landmark 1992 High Court judgment, Chief Justice Anthony Mason said:

… the principle of responsible government – the system of government by which the executive is responsible to the legislature … is an integral element in the Constitution.

But where do we find this “integral element”, if not in the text of the Constitution?

What are conventions?

In many important areas of Australia’s system of government, much is determined by unwritten rules – or what we call “constitutional conventions”. Australia shares this characteristic with the UK’s Westminister system of government, on which Australia’s is partly based.

As British legal writer Sir Ivor Jennings put it, constitutional conventions:

… provide the flesh which clothes the dry bones of the law.

They are rules that help make the legal text of the Constitution work, and they can add some flexibility to constitutional arrangements by evolving over time.

Australia isn’t alone in relying on such conventions to make its Constitution work. Many countries have similar conventions to Australia’s; different legal systems also have different conventions. In the United Kingdom, for instance, it’s a convention that the Speaker of the House of Commons is truly independent of party politics – but there is no such convention in Australia.

As they are unwritten rules, it’s not always entirely clear when a constitutional convention exists, let alone exactly what it allows or requires. Unlike laws, constitutional conventions cannot be enforced in the courts.

So, when a convention is broken, the consequences are usually political rather than legal. Instead of being brought before the courts, a convention breaker is more likely to suffer political criticism, be the subject of popular outcry, or be punished at the ballot box.

But while conventions cannot be enforced in the courts, they’re understood by everyone involved to be important constitutional rules.

Why is it so?

When the Australian Constitution’s framers were drafting its text in the late 1800s, they thought certain things went without saying, given the way the system was designed.

That means Australia’s constitutional system is built on the assumption that all ministers will be responsible to the parliament and, through the parliament, responsible to the Australian people. But there’s no precise legal statement of how that assumption works, what it covers, and what happens if the ministers are not sufficiently responsible.

The general understanding is that ministers are accountable to parliament for their policy decisions, for the administration of their departments and for any relevant indiscretions. But these are unwritten rules: what does “accountable” mean anyway?

For some, it means the minister must resign upon the discovery of any misadministration or mistake. For others, accountability requires that the minister is obliged:

… to explain and to justify his or her conduct, the [parliament] can pose questions and pass judgement, and the [minister] may face consequences.

But there’s no authoritative view.

The reality is that political circumstances will determine what’s required of a minister, and the consequences for not meeting expectations. If a minister has the support of their party colleagues, for example, it’s possible that less will be required of that minister and that the consequences will be less severe than they might otherwise have been.

What chance reform?

A desire for greater certainty has led to some discussion in Australia – and elsewhere – of arguments in favour of codifying constitutional conventions and making them enforceable as a matter of law. This is certainly possible.

As recently as 1977, the Australian Constitution was amended to codify and entrench what had previously been a convention about filling casual vacancies in the Senate. The argument for codification may make most sense in the context of conventions about the Governor-General’s reserve powers, over which there was so much controversy in 1975.

But the risk of codifying conventions more generally is that we transfer power away from democratically elected representatives and towards the courts. If we legally require ministers to resign for poor administration of their departments, for example, a judge might have the final say about whether a particular minister should resign for a particular action. This may undermine the extent to which the people can control their government.

The question then becomes whether we prefer greater flexibility and democratic control over the government, or greater certainty and judicial control. But there may be a middle ground.

The Australian Department of Prime Minister and Cabinet, for instance, offers a “guidance” document on those constitutional conventions known as caretaker conventions. These conventions affect how government operates during election campaigns.

The document is “neither legally binding nor hard and fast rules”, and cannot be enforced in the courts. But it offers clarity for those affected by the relevant constitutional conventions. Similar guidance documents on other conventions could provide greater certainty about the relevant unwritten rules.

But, as things stand, it’s incumbent on all of us, as citizens in a democratic society, to ensure that our representatives hold our government to account.


This article is part of a series on breaking political conventions. Look out for more articles exploring various political conventions in the coming days.

The ConversationRyan Goss, Lecturer in Law, Australian National University

This article was originally published on The Conversation. (Reblogged by permission). Read the original article.

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