Constitutional Conventions

John Kilcullen
Copyright (c) 2000, 2004, R.J. Kilcullen.

The classic discussion of constitutional conventions is A.V. Dicey, Law of the Constitution, chapters 14 and 15 (tenth edn., pp. 417-473; cf. Wade's introduction, p. cli ff).

Conventions are rules that are NOT enforced by the courts of law, but by some other means -- by public opinion, by the consciences of individuals involved, by informal sanctions such as uncooperative behaviour. (A "sanction" in this context is a penalty or cost imposed to enforce a rule.) Such enforcement may seem weak, but such non-legal sanctions are basic to our political institutions. The ultimate reason why judges enforce the law, and not their own ideas, is that they believe they ought to do so. The ultimate reason why the military forces obey the government is that their members believe they ought to do so. (See David Hume, "Of the First Principles of Government".) Given that judges, soldiers and others believe they ought to enforce the law, some rules can then be effectively enforced as laws.

There is a custom of speaking or writing as if constitutional conventions are facts to be discovered by examining how political actors have actually behaved and do behave (with the unsatisfactory implication that if a convention is disobeyed often enough it ceases to be a convention). This is perhaps a relic of the medieval view that custom creates obligation. If, however, conventions are not merely customs but rules enforced by public opinion etc., then discovering what the conventions are is a matter of discovering, not what political actors do, but what political rules people want to enforce, and we can criticise and amend the conventions by arguing that it would be better to enforce other rules.

Different people wish to enforce different rules, and new rules are proposed from time to time. To count as a "convention" a rule has to be widely accepted in the community -- how widely cannot be defined. Rules not yet widely sanctioned we could call "proposed conventions". Perhaps the crucial thing before a rule counts as "widely accepted" is that it should be a rule that various opposed political groups have appealed to in the past, so that those who are breaking it now have acknowledged it when it benefited them. Some conventions are rules understood and sanctioned by elites (politicians themselves, journalists, constitutional experts), others are understood and sanctioned by electors generally. Sanctions are usually not overwhelming. Electors who disapprove of some breach of what they regard as a convention may nevertheless vote for the guilty politician because they think other issues are more important.

It is possible to say that some of the rules that people want to enforce are conventions, namely those that have in the past been widely accepted on all sides, and that some rules should be conventions, namely rules that you and I think ought to be accepted on all sides -- and in the meantime we will enforce these rules if we can. The fact that a proposed rule is not legally enforcable and is not accepted by many people (perhaps because they have not thought about it yet) is no reason why those who do support it should not penalise politicians who break it.

Every system of government, whether it has a written constitution or not, has conventions, because there are always normative questions that the written constitution does not settle on which people have opinions. If today's conventions were written into the constitution other conventions would begin to develop as new issues arose.

What are the conventions of the Australian Constitution? The main ones seem to be:

It should be noted that it is the Prime Minister individually, and not the Cabinet or the House of Representatives, who advises the Governor-General to call a general election. This is important, since there may be some situations in which a party wins an election and then dumps the leader under whom they won: unless the deposed leader in such a case can call an election, the electorate has been deceived.

What matters are omitted from the "most matters" in which the Governor-General must follow advice? The matters not included are called the "reserve powers", so the question is the extent of the reserved powers. (The expression is unfortunate, since it seems to suggest that the monarch has "granted" some powers to Parliament and "reserved" others for herself. In the 16th century this might have been a reasonable view, but it is not now.) The key to making sense of the so-called reserve powers is to recognise that the Governor-General's legal powers are very comprehensive -- legally the Governor-General is the executive Government. The conventions of responsible government prohibit the Governor-General from personally exercising these legal powers, but if a Governor-General decided to defy the conventions, the courts would not declare his or her action illegal, since constitutional conventions are not enforced by the courts. What the notion of "reserve power" amounts to is that in some exceptional situations the Governor-General might, without or against the advice of ministers enjoying the confidence of the lower house, actually exercise some of the legal powers the Constitution attributes to him, not only without incurring legal sanctions, but also without incurring (to any significant degree) the informal sanctions that normally enforce the conventions of responsible government. For instance, a Governor-General might in some (unimaginable) case dissolve the House of Representatives against the advice of a Prime Minister with majority support in the House of Representatives without incurring the general disapproval of the community.

(In 1975 Sir John Kerr dismissed the Whitlam government (see the dismissal), but not without incurring widespread disapproval. Kerr's reasons, and Garfield Barwick's reasons, differed from the commonly held view of the conventions of responsible government by alleging that a Government needs the confidence not only of the lower house but also of the Senate.)

 It is impossible, or at least very difficult, to define in advance which legal powers in which situation a Governor-General might without widespread disapproval exercise against the advice of a Prime Minister with majority support in the lower house. There may not be any. It would therefore be better to give up talking of "the reserve powers" as if there were some such well-defined powers that people with arcane knowledge of the Constitution could specify. If the Governor-General's powers were codified there would probably be only one thing that would need to be left to his discretion, viz. finding someone to form a government in a situation in which no one party or coalition had a majority in the House of Representatives. Otherwise the "reserve powers" could well be done away with.

Some of the drafters of our Constitution believed that there might be an incompatibility, or at least conflict, between federalism and responsible government, because a federation requires some sort of upper house to represent the component parts (States), and if the upper and lower houses come into conflict a Government supported by the lower house might not be able to govern. In fact such conflict may arise not only in a federal system but in any Parliament in which there is an upper house. In Britain such conflict occurred within a few years after the Commonwealth of Australia was established; it was resolved in Britain by the Parliament Act of 1911. This Act restricted the ability of the House of Lords to block "money bills" passed by the House of Commons. In the our system there is no legal restriction on the Senate's power to block money bills (budget, appropriation bills, supply bills), but some people believe that in Australia there is, or should be, a convention that the Senate will not block "supply bills", i.e. bills that authorise the Government to spend money. Others would qualify this: the Senate will not block supply "for party-political purposes" or "except to enforce other conventions of the constitution" or "except to protect vital state rights". There is no agreement.

For further discussion see Bryan Palmer on Reponsible Government, Reserve Powers, etc.

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