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November 29, 2004
I have often argued for a revival of Parliament as a more significant part of the political system, often centring on the role of the Senate, or a growing of the scope for the Senate's committee input. This is a check and balance on the dominance of the executive. It is the powerful role of the Senate and the work of its committees that constitute the structural checks on the powers of Ministers and the executive.
On this account the villian is the executive, the victim is the House of Representatives and the saviour is the Senate.
Things are beginning to change as a result of the last election. It is a historic change.
The flavour of federal Parliament is that things are inwaiting for June 30th 2005, when the Coalition has control of the Senate. You can feel the muscle of executive dominance building up. The Coalition is in no hurray to rush their legislation through the next seven months. They can afford to sit and wait, as the Coalition will have a stranglehold on the Senate for around a decade.
Even if the ALP regain the House of Representatives in 2007, it will face a Coalition controlled Senate.
So how do we understand executive dominance?
My understanding is the executive dominates and controls the Parliament as a consequence of a disciplined two-party system. The party that has the majority of seats in the House of Representative can legislate and govern with few retrictions on its legislation.
The constitution appears to assume that parliament holds the executive to account. The Constitution does not codify that role or provide Parliament with accountibility mechanisms outide simple majority rule such as, independent Speaker, committees chaired by non-government members, Parliamentary confirmation of senior appointments to the public service and statutory authorities.
All we have are the conventions of reponsible government surrounding ministerial accountablity to Parliament. And I am not sure what that means anymore.
In contrast, Craven appears to argue that our constitutional system depends for its efficacy on a pervasive constitutional psychology.
In his Conversations with the Constitution Greg Craven talks about the fear of executive dominance. He says:
"This fear is the negative polarity of a profound ambivalence toward the executive. On the one hand, we are alarmed by it, and wish to limits its powers. On the other hand, we are highly depend upon it, demanding that it order our society and protect us from all ills, mortal, moral, and monetary. Simply, we expect our executive to govern us, but worry that they will take that expectation to heart."
Craven goes on to diagnose a fatal disease of executive government in our political tradition.
"There is only one fatal disease of executive governments in our tradition: an administration can survive being 'uncaring', 'unresponsive', even 'cruel' or 'dictatorial', but let a consensus form that it is 'weak' and it will succumb more quickly than a cane toad in an icebox.This is our relationship with the executive: we fear and mistrust it as the constitutional equivalent of a standover man, but if it is not adequately ruthless, we will despise it like a ruckman without punch."
This is about psychology of power exercised and not about the conventions that constrain executive dominance through responsible government. It is the psychology of strong government through executive dominance.
I would suggest that the fatal disease is that the political parties control the executive and the executive controls parliament (both the House and Senate).The major obstacle to reform is the increasing constraint of party discpline, as no political party is going to place limits on their power.
The disease is the vacuum in the heart of the Constitution about the exercise of political power by a dominant executive. The remarks by Justice Kirby in a recent speech are a counter to this. He says:
" ...in a federation, with a written constitution, the notion of unchecked legislative power, that can diminish fundamental human rights without hindrance or protection from the courts, is not likely to prevail in the long run, in the antipodes anymore than elsewhere."
For more on legal bedrocks and parliamentary sovereignty see this post.
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