Australian constitutional conventions in comparative perspective

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Overview/objectives

  • To deepen critical discussion and understanding of Australian constitutional conventions;
  • To explore recent comparative developments in comparable parliamentary systems—New Zealand, Canada and the United Kingdom;
  • To inform Australian discussion and analysis with comparative thinking and developments, and to promote Australian contributions to international discourse;
  • To focus particular attention on key issues including:
    1. the nature and definition of conventions; including how they fit with constitutional law in hybrid constitutions like that of Australia and Canada (partly written, partly conventional);
    2. the Governor-General’s role, reserve powers, and legitimate sources of advice;
    3. caretaker conventions;
    4. formation of governments, hung parliaments, minority governments;
    5. agreeing and codifying conventions, cabinet manuals;
    6. constitutional reform via conventional means, including Indigenous recognition.

Australian constitutional conventions are surprisingly neglected, even though they are a vital part of the constitutional system. The 2010 Australian federal election that produced no clear party winner exposed widespread uncertainty about how the unwritten conventions of our parliamentary system of government should function in such instances. The Gillard Labor government that was formed holds office with cross-bench support and does not control the Senate. Other Westminster-derived parliamentary democracies have grappled with similar issues and progressed further in reformulating and codifying conventions that deal with coalition and minority governments and multi-party cabinets. New Zealand’s mixed-member proportional electoral system makes majority government unlikely; Canada before the last election had a minority Conservative party government; and the United Kingdom currently has a governing coalition.

Increasingly, Westminster-derived parliamentary democracies are experimenting with non-traditional governing arrangements, while traditional understandings of unwritten conventions are being challenged. This is apparent at the sub-national level in Australia where South Australia, Tasmania and the Australian Capital Territory, have had independents and minor party parliamentarians serving in cabinets but outside coalitions and with special concessions. In the Australian Capital Territory and now at a Commonwealth level, the government has entered into written parliamentary agreements with a minor party. Minority governments, close elections, and a powerful Senate where minor parties often hold the balance power are now common occurrences, while the dominant framework of analysis remains a traditional parliamentary majoritarian one. Australia has more experience in harmonising strong bicameralism with responsible government, something Canadian Senate reformers envy. And yet the recent disclosure of the role Sir Anthony Mason played, while a justice of the High Court, in advising the Governor-General Sir John Kerr in the 1975 constitutional crisis has reignited controversy over conventions regarding viceregal powers and responsible government.

The workshop will clarify the important unwritten conventions at the heart of our parliamentary system of responsible government, and in doing so produce a special issue for Parliamentary Studies (or similar) or an edited collection. It will focus particular attention on a cluster of conventional issues that are typically interlinked but listed separately in the following. First, and more broadly, the nature and definition of conventions, and how they fit with constitutional law in hybrid constitutions like that of Australia and Canada where there is a strong tendency for law to predominate. A sleeper issue here is prorogation, invoked in Canada during the previous minority government to terminate all business pending before the houses of parliament. Whether this could be invoked in Australia and the effect on Senate business need considering.

Second, the reserve powers of f the Governor-General or crown to act independently of prime ministerial advice, and the legitimate sources for such advice. It seems implausible to limit the Governor-General to the government’s own law officers, but contentious whether the judiciary should be engaged.

Third, caretaker conventions that limit the activities of governments once an election has been called. While caretaker conventions have generally received bipartisan support, there is uncertainty over how they could be enforced and unclear what would happen in emergencies or urgent situations, or during prolonged caretaker periods where major decisions cannot be deferred.

Fourth, how governments are to be formed in the event of a hung parliament; and how minority and coalition governments are formed; as well as how governments are brought down; and whether fresh elections should be called or an alternative prime minister appointed.

Fifth, whether and to what extent conventions should be codified; and how this might be done with particular reference to advances in New Zealand, Canada and the United Kingdom.

And sixth, the scope for constitutional reform via conventional means, and whether this is a promising avenue for Indigenous recognition. This area is unexplored, but potentially promising.

This workshop will contribute to an international discussion of Constitutional conventions in Westminster-derived parliamentary democracies. It picks up issues raised at a recent Canadian workshop held at the David Asper Centre for Constitutional Rights at the University of Toronto on ‘Adjusting to a New Era of Parliamentary Government’. Professor Peter Russell, a leading scholar from that workshop and noted author on minority government in Canada, will attend. The workshop will consider lessons from New Zealand’s Cabinet Manual, a pioneering attempt at codifying conventions, as well proposals by the Constitution Unit of University College London to develop a similar manual for the United Kingdom.

We are inviting a leading scholar from both these jurisdictions. The workshop will bring together some of Australia’s leading political scientists, parliamentary scholars and constitutional lawyers, including several Academy Fellows, in addition to ECRs. Many of the participants have previously worked together with an established record of collaboration and strong publication records. Ideally, we would like to hold this workshop before 30 June 2013 to be able to produce some of the workshop outcomes (see later section) before the next federal election.

Event Schedule

Contact Information

Academy of the Social Sciences in Australia

    ABN: 59 957 839 703
  • Location: 26 Balmain Crescent, Acton, ACT 2601
  • Postal: GPO Box 1956, Canberra, ACT 2601
  • +61 .2 62491788
  • +61 .2 62474335
  • secretariat@assa.edu.au

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