Constitutional conventions

A convention is a set of agreed standards and ways of doing things, often taking the form of a custom. It is not a law, but merely an expectation of how one must behave.

According to British legal scholar A V Dicey in 1883, conventions ‘may regulate the conduct of the several members of the sovereign power, the Ministry, or other officials—are not really laws, since they are not enforced by the courts.

Canadian scholar Peter Hogg wrote ‘What conventions do is to prescribe the way in which legal powers shall be exercised. Some conventions have the effect of transferring effective power from the legal holder to another official or institution. Other conventions limit an apparently broad power, or even prescribe that a legal power shall not be exercised at all.’

For example, the Constitution makes no mention of the PM, Cabinet or political parties, yet these bodies are present in the system,

Governor-General

  • S 2 says that the GG is appointed by the Queen to be her representative in the Commonwealth.
  • Initially, this was so, but James Scullin pressured the UK government to allow Isaac Isaacs to be GG. Gradually, the GG became chosen by the Queen based on the advice of the PM in conjunction with the Cabinet.

Sessions of Parliament

  • S 5 says that the GG may schedule sitting times for parliament and prorogue them as they think fit.
  • In practice, the GG acts only on the advice of the government.

Casual Vacancies

  • Originally, s 15 stated that if a senator’s seat became vacant, the replacement will be chosen by the state government. Changed in the 1977 referendum to codify the convention.
  • It was convention that the state gov’t would appoint a person from the same political party as the original senator, but it was breached in 1975 when the NSW and QLD gov’ts replaced Labor senators with non-Labor (Milliner and Murphy replaced by Field and Bunton), which allowed the Opp’n to control the Senate.

Terms of Parliament

  • Section 28 states that the HoR shall can continue until up to 3 years from its first sitting, but can be dissolved sooner by the GG.
  • Early dissolution of the HoR is decided by the PM, who requests a dissolution from the GG. Sometimes, the GG may reject or ask for more details before they approve.

Executive Government

Chapter 2 of the Constitution does not mention anything about the PM or the Cabinet.

  • s. 61 which vests executive power in the Queen and GG with the ability to maintain and execute laws: the PM and Cabinet does this.
  • s. 62 establishes a Federal Executive Council made up of senior ministers chosen by the GG as advisers. The majority party in the HoR gets to choose rather than the GG, and the GG always acts on the advice of his ministers.
  • s. 64 allows the GG to appoint ministers. The PM is the leader of the majority party in the HoR, and the ministers are chosen by the PM (again, the GG rubberstamps this).

Convention was broken in 1975 Kerr dismissed the Whitlam gov’t using this section, the only instance of the GG using his reserve powers and acting on his own volition.

Appointment of High Court Justices

s. 72 states that HC judges are appointed by the GG. In reality, the judges are rubberstamped by the GG on advice of the Cabinet, after consultation with State Attorney Generals.

Note that many constitutional conventions were broken in the 1975 crisis.

  •  Convention that states would appoint a senator from the same party was broken, allowing the Opp’n to control the Senate
  • Convention that the Senate would always pass the Budget was broken
  • Convention that PM would resign if he could not pass the budget was broken, forcing Kerr to break convention by dismissing Whitlam and appointing Fraser, even though Whitlam still had the majority in the HoR

 

 

 

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