1. Executive Government Conventions Making Sense of Chapter 2 of the Constitution

2. CONVENTIONS Conventions underpin the operation of the Australian Constitution and the Executive Government. A convention is an unwritten rule, an accepted practice. The Westminster parliamentary system is built around these kinds of unwritten rules.

3. CONVENTIONS The Australian Constitution makes no mention of the position of Prime Minister, or of the Cabinet (the REAL executive) There is no rule that says the Prime Minister must be a member of the House of Representatives. A literal reading of the Constitution suggests that the Governor-General runs the government.

4. CONVENTIONS The Conventions

5. CONVENTIONS All ministers must be members of parliament. This convention is reinforced by the Constitution in s 64, which says in part… “After the first general election no Minister of State shall hold office for a longer period than three months unless he is or becomes a senator or a member of the House of Representatives”

6. CONVENTIONS The ministry must command the support - "confidence" - of the lower house, the House of Representatives. This convention is reinforced by the requirement of s 53 that all money bills must originate in the House of Representatives. Without the ability to secure "supply" from the House of Representatives, a ministry is obliged to resign or call an election. This last occurred in 1941 when the House of Representatives voted to reduce the size of the government's budget by one pound. The then Prime Minister, Arthur Fadden, resigned and the ALP's John Curtin was commissioned to form a government.

7. CONVENTIONS The Governor-General acts on the advice of ministers Despite enormous Express Powers allocated to him by Chapter 2 of the Constitution – the GG only exercises his formal Express Powers on advice. Other Express Powers are fictional and not exercised at all.

8. CONVENTIONS Collective Ministerial Responsibility Cabinet meets in secret and speaks with one voice (Cabinet Solidarity) Ministers who are not prepared to accept the collective decisions of Cabinet are expected to resign. Ministers who speak out in public against Cabinet decisions can expect to be dismissed by the Prime Minister. The Ministry as a whole is collectively responsible to parliament

9. CONVENTIONS Individual Ministerial Responsibility Ministers are expected to take responsibility for… their departments the actions of their staff themselves (personal conduct etc)

10. CONVENTIONS Appointed officials are loyal to their current Minister – they’re apolitical / not partisan Public servants are appointed members of the executive arm. They are loyal to their current Minister, whichever party is in government. This ensures that the public service provides “frank and fearless” advice and carries out the policy of the government

11. CONVENTIONS Parliamentary supremacy Parliament’s decisions cannot be overturned by any institution in society, except by other future parliaments. It is the supreme body of society, above all others. This convention is problematic in Australia. Our High Court can overturn the Federal Parliament’s legislation if it contravenes the Constitution (if it is ultra vires). This is a consequence of the Washminster Model. The Federal Parliament’s supremacy is, of course, limited by the federal system and the allocation of some powers to other parliaments (states). Britain’s parliament does not have these problems because Britain is unitary, has no written constitution and no constitutional court to strike down its legislation

12. CONVENTIONS HOMEGROWN CONVENTIONS Because the Australian system is a hybrid of Westminster and Washington some local conventions have emerged that don’t exist in Britain.

13. CONVENTIONS HOMEGROWN CONVENTIONS The powers of the Queen and the GG are either fictional (never exercised) or merely formal (exercised only on advice) and therefore do not exist (ss 1, 2, 28, 57, 59, 68 & 72) This convention was breached in the 1975 Constitutional Crisis

14. CONVENTIONS HOMEGROWN CONVENTIONS The powers of the GG that are in conflict with responsible government are inactive (ss 61 to 64) This convention was breached in the 1975 Constitutional Crisis

15. CONVENTIONS HOMEGROWN CONVENTIONS The government has the right to nominate the Senate President (this is an extension of the government’s right chose the Speaker in the House) There is no equivalent office in the House of Lords – hence no Westminster convention

16. CONVENTIONS HOMEGROWN CONVENTIONS The Senate’s power to “negotiate” money bills This convention arose from the rejection of the supply bills of the Whitlam Government in 1974 – 75 and grew in importance since 1981 when the Senate has been more active since minor parties have held the balance of power.

17. CONVENTIONS REVIEW The Australian system of executive government is based on the Westminster system of Responsible Government Chapter 2 of the Constitution creates a “virtual monarch” for the purposes of vesting sovereignty. Read literally, this Chapter appears to give the GG sweeping executive power

18. CONVENTIONS REVIEW These sweeping powers are constrained in the same way as the English Monarch’s executive power – that is by unwritten convention Chapter 2 of the Constitution MUST be understood in the light of these conventions

19. CONVENTIONS REVIEW The Washminster Hybrid necessitates some homegrown conventions to deal with unique features that the Westminster System does not possess The “melding” together of the Westminster and Washington Models creates some tension and doubt in the Australian system – ie when conventions conflict with the written Constitution