How unwritten rules shape ministerial accountability

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.