Collective Ministerial Responsibility and Censure in Australia


One of my Australian readers commented on the previous post and linked to House of Representatives Practice, the Australian equivalent of O’Brien and Bosc’s tome, and its commentary on the censure of an individual minister.

Prime Minister and other Ministers

From time to time a specific motion of censure of or no confidence in a particular Minister or Ministers may be moved by the Opposition. The first case occurred in 1941, but the motion lapsed for the want of a seconder.[295] Such motions have become comparatively frequent in recent years,[296]often being directed at the Prime Minister. While the standing orders provide that a motion of censure of or no confidence in the Government shall have priority of all other business if it is accepted by a Minister as a censure or no confidence motion, there is no similar provision in respect of a motion of censure of or no confidence in a Minister. Such a motion is therefore, at least in theory, treated in the same way as any other private Member’s motion, including the speech times applicable to an ordinary motion, although after such a notice of motion has been given, standing orders may be suspended to enable the motion to be moved immediately.[297] It is common for Members, instead of lodging notices of such motions, to move to suspend standing orders to enable them to be moved immediately,[298] or for the substantive motion to be moved by leave.[299] A motion of censure of a Minister has been initiated by government action—the Leader of the House moving to suspend so much of standing orders as would prevent a shadow minister being compelled to move a motion of censure of the Minister ‘in place of the innuendo and imputation he is attempting to make by means of questions without notice’.[300]

A vote against the Prime Minister would have serious consequences for the Government. If the House expressed no confidence in the Prime Minister, convention would require that, having lost the support of the majority of the House of Representatives, the Ministry as a whole should resign, or alternatively the Prime Minister may advise a dissolution. The only occasion that a motion of censure of or no confidence in a Prime Minister has been successful was on 11 November 1975, when, following the dismissal of the Whitlam Government, a motion of no confidence in newly commissioned Prime Minister Fraser was agreed to. The terms of the motion also requested the Speaker to advise the Governor-General to call another Member, the former Prime Minister, to form a Government. The sitting was suspended to enable the Speaker to convey the resolution to the Governor-General, but did not resume as the House was dissolved by proclamation of the Governor-General.[301]

No motion of censure of or no confidence in an individual Minister (other than the occasion mentioned in respect of the Prime Minister in 1975) has been successful in the House. The solidarity of the Ministry and the government party or parties will normally ensure that a Minister under attack will survive a censure motion in the House. The effect of carrying such a motion against a Minister may be inconclusive as far as the House is concerned, as any further action would be in the hands of the Prime Minister, but parliamentary pressure has caused the resignation or dismissal of Ministers on a number of occasions.[302]

If a motion of no confidence in, or censure of, a Minister were successful and its grounds were directly related to government policy, the question of the Minister or the Government continuing to hold office would be one for the Prime Minister to decide. If the grounds related to the Minister’s administration of his or her department or fitness otherwise to hold ministerial office, the Government would not necessarily accept full responsibility for the matter, leaving the question of resignation to the particular Minister or to the Prime Minister.

A motion of lack of confidence in a Senate Minister has been moved in the House, and negatived.[303] Motions have been moved expressing no confidence in, or censure of, both the Prime Minister and another Minister.[304]

Interestingly enough, Australian authorities don’t regard such motions as inherently unconstitutional and prima facie breaches of the principle of collective ministerial responsibility. Based on those paragraphs, this is because House of Representatives Practice is taking into account a legitimate censure of an individual minister based on personal misconduct or departmental incompetence, which would also pass constitutional muster in Canada.

Also of interest is that the practice in Australia suggests that a censure of a Prime Minister in particular would amount to a motion of non-confidence in the government as a whole, which is consistent with the principle that the tenure of the Ministry as a whole does indeed depend upon the tenure of the Prime Minister. However, this idea of censuring the prime minister as a stand in for tabling a motion of non-confidence is more similar to the Germany’s “Chancellor Democracy”  than to what one would expect of the British House of Commons or Canadian House of Commons.

This system of kanzlerdemokratie, literally, “chancellor democracy,”[1] alludes to the centrality of the Chancellor relative to the cabinet, whose important flows from Germany’s Basic Law (its codified constitution).[2] After a general election, the President appoints a Chancellor on and in accordance with the Bundestag’s confirmation vote.[3] The Bundestag votes for a Chancellor, not for a party, who could best form a government that could command the confidence of that body. Similarly, the Bundestag can oust a government and propose another through a constructive vote of non-confidence directly at the Chancellor personally, not at the ministry as a whole as in the British and Canadian systems.[4] Ultimately, this flows from the German conception of responsible government and ministerial responsibility. Individual ministerial responsibility, as we understand it in Commonwealth parliamentarism, also exists in Germany, and ministers must take responsibility for the departments and portfolios. As in the Canadian system, the Chancellor assigns ministers their portfolios and can nominate and dismiss them at will. However, collective ministerial responsibility as we understand it in Canada, the United Kingdom, and Australia does not exist in Germany. There the similarities end. Ministers are responsible to the Chancellor for the conduct of their portfolios, not to the Bundestag directly. The Chancellor herself takes responsibility for the ministry as a whole, as per the Basic Law’s provisions on confirmation voting and constructive non-confidence. As Martin and Harrop put it, [The Chancellor] answers to parliament; ministers answer to her.”[5]

Overall, this slight variation in Australia shows the multiplicity of different constitutional conventions, customs, and practices within the Commonwealth Realms. The political institutions of Canada, Australia, and New Zealand are not clones of their progenitors in the United Kingdom; instead, they’re more like the offspring or descendants of their British forebears. They’ve each inherited and emphasised and developed different traits along separate paths. For example, Canada has weak bicameralism, while Australia has developed a powerful bicameralism to the point where its Senate rivals its House of Representatives and contains many “Senate Ministers” in Cabinet, further still to New Zealand, which abolished its Legislative Council in the 1950s and is a unitary state with a unicameral parliament. The idea of a uniform standard of constitutional conventions, norms, customs, and practices across the Commonwealth is as dead as the British Empire and the One and Indivisible Imperial Crown.

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[1] Rod Hague and Martin Harrop, Political Science: A Comparative Introduction, 5th Edition. (New York: Palgrave-MacMillan, 2007), 340.
[2] Ibid.,  341.
[3] Ibid.
[4] Ibid.
[5] Ibid.

 

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3 Responses to Collective Ministerial Responsibility and Censure in Australia

  1. Daniel says:

    ‘The political institutions of Canada, Australia, and New Zealand are not clones of their progenitors in the United Kingdom; instead, they’re more like the offspring or descendants of their British forebears. They’ve each inherited and emphasised and developed different traits along separate paths.’ This is such an important point for constitutional scholars to remember. I once saw an academic present a paper on Australia’s parliamentary structure, failing to even refer to an Australian source, preferring to assume that everything is exactly the same as in the UK.

    By the way there is a slight mistake. ‘New Zealand, which abolished its Legislative Council in the 1950s and is NOT a unitary state with a unicameral parliament (emphasis added)’ should read that it ‘is a unitary state with a unicameral parliament’. It is worthy of note, however, that their Parliament uses a mixed member proportional system which, to us Australians, is like having both the the House and the Senate sitting together as a single house. Great article though and glad you could use that source.

    • Thanks, Daniel. I have this really bad habit of either omitting the “not” or putting the “not” in where I don’t mean to do so. This is probably because we think more quickly than we can type, etc. I have corrected that mistake.

      Also, I’m not at all surprised to hear that some Australians make the mistake of presuming that evolution of political institutions never happened and that the Dominions are merely carbon-copies of the United Kingdom, because I’ve also encountered this attitude in Canada from Canadian scholars. Frankly, it’s just so mind-boggling! Obviously, it’s false. You need only to look at the upper houses and the fact that Canada and Australia have partially codified their constitutions to see that it’s false.

  2. B. Thomas Hall says:

    Another good piece. Technically though I don’t think this should be called “impeachment”, which is really the Lower House’s accusation of wrongdoing by someone who is then to be tried by the Upper House. The trial by the Upper House is a key component of impeachment procedure since the Lower House can only accuse, not try.

I invite reasonable questions and comments; all others will be prorogued or dissolved.

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