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Constitutional and Parliamentary Conventions

Conventions underpin the operation of the Australian Constitution and the Executive Government.

A convention is an unwritten rule, not a law. It is an accepted way of doing something. The Westminster parliamentary system is built around these kinds of unwritten rules.

The Australian Constitution combines literal interpretation with convention. Whilst some sections are adhered to literally, others operate by accepted practices, often built up over centuries.

For example, the Australian Constitution, in its original form, makes no mention of the position of Prime Minister, the Cabinet, or political parties. 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.

These are some of the most significant conventions:


Appointment of Governor-General

Section 2 of the Constitution says: “A Governor-General appointed by the Queen shall be Her Majesty’s representative in the Commonwealth…

In practice, the Governor-General is chosen by the Prime Minister of the day, possibly in conjunction with Cabinet. In the early years of the Federation, the Governor-General was appointed from Britain. In the early 1930s, Prime Minister James Scullin visited London in order to apply pressure on the British government to allow the appointment of Sir Isaac Isaacs as Governor-General. Isaacs eventually became the first Australian to hold the position. Since the 1960s, all Governors-General have been Australians.


Parliamentary Sessions

Section 5 of the Constitution says: “The Governor-General may appoint such times for holding the sessions of the Parliament as he thinks fit, and may also from time to time, by Proclamation or otherwise, prorogue the Parliament, and may in like manner dissolve the House of Representatives.

In practice, the government of the day decides when Parliament will sit. These are intensely political decisions made by the Prime Minister and the most senior members of the government and its advisers.


Terms of Parliament

Section 28 of the Constitution says: “Every House of Representatives shall continue for three years from the first meeting of the House, and no longer, but may be soon dissolved by the Governor-General.

This section is interpreted literally in the sense that no House of Representatives may continue for longer than three years. However, the earlier dissolution of the House is not decided by the Governor-General, but by the Prime Minister of the day.

Officially, the Prime Minister calls upon the Governor-General to “request” a dissolution. In most cases, the request is granted.

However, there are historical incidents of Governors-General rejecting or querying this advice. There were three occasions between 1901-10 when such requests were rejected by the Governor-General. In 1983, the Governor-General, Sir Ninian Stephen, sent the Prime Minister, Malcolm Fraser, away with instructions to provide detailed argument in support of his request for a double dissolution of the Parliament.


Executive Government Conventions

Chapter 2 of the Constitution (Sections 61-70) sets out how the Government of Australia shall operate. It makes no mention of the Cabinet, political parties or the Prime Minister.

An Australian Federal ministry must fulfill a number of constitutional requirements and conventions:

  1. All ministers must be members of parliament. This requirement is stipulated in Section 64 of the Constitution.
  2. The Westminster system requires that the ministry must command the support – “confidence” – of the lower house, the House of Representatives. This convention is reinforced by the requirement of Section 53 that all appropriation 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.

Section 61 states: “The executive power of the Commonwealth is vested in the Queen and is exercisable by the Governor-General as the Queen’s representative, and extends to the execution and maintenance of this Constitution, and of the laws of the Commonwealth

In practice, it is the Cabinet, led by the Prime Minister, which performs this task.

Section 62 states: “There shall be a Federal Executive Council to advise the Governor-General in the government of the Commonwealth, and the members of the Council shall be chosen and summoned by the Governor-General and sworn as Executive Councillors, and shall hold office during his pleasure.

In practice, the Governor-General, acting on the advice of the leader of the majority party in the House of Representatives, summons members of the majority party and swears them in as ministers. The Executive Council operates in accordance with the Constitution, but the Governor-General always acts on the advice of his or her ministers.

Section 64 states: “The Governor-General may appoint officers to administer such departments of State of the Commonwealth as the Governor-General in Council may establish. Such officers shall hold office during the pleasure of the Governor-General. They shall be members of the Federal Executive Council, and shall be the Queen’s Ministers of State for the Commonwealth.

In practice, the Prime Minister is the person who leads the party with a majority in the House of Representatives. The ministers are chosen by the Prime Minister who advises the Governor General of the names and portfolios to be allocated to them.

It was this section of the Constitution that the Governor-General used to dismiss the Whitlam Government in 1975. This is the only instance in Federal political history of the Governor-General exercising the so-called Reserve Powers in this way.

Section 68 states: “The command-in-chief of the naval and military forces of the Commonwealth is vested in the Governor-General as the Queen’s representative.

In practice, the Prime Minister and the Defence Minister are in charge of the armed services. It is unlikely that the armed services would accept orders from the Governor-General if they were not also Government orders.

Section 72 states: “The Justices of the High Court and of the other courts created by the Parliament.. shall be appointed by the Governor-General in Council.

In practice, judges are appointed by the Cabinet. The Governor-General simply rubberstamps the decision at a meeting of the Executive Council. There is no known instance of the Governor-General attempting to influence these decisions.


Collective Ministerial Responsibility

This is a vital convention in a Westminster-based parliamentary system such as Australia’s.

Cabinet meets in secret and speaks with one voice. 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.

In 1989, for example, a minister in the Hawke ALP government, Gary Punch, resigned from the ministry because of his disagreement with a Cabinet decision involving the extension of the runway at Sydney Airport in his electorate of Barton.

In practice, cabinet solidarity is not always maintained. In coalition government, Liberal and National Party ministers have been known to disagree with one another. The Labor government during the late 1980s and early 1990s occasionally saw public disagreements between ministers over issues such as telecommunications. In 2010, some ministers in the Gillard Labor government expresse their disagreement with the party’s official policy on same-sex marriage.


Individual Ministerial Responsibility

Ministers are expected to take responsibility for the administration of their departments, the actions of their staff and themselves.

This principle has become increasingly difficult to interpret and enforce, given the size and complexity of modern government. Often, the political support of the Prime Minister is the most crucial factor determining whether ministers survive scrutiny and criticism of their conduct. This was evident in the survival of Foreign Affairs Minister, Alexander Downer, in 1996, after claims that he misled Parliament. Similarly, Health Minister, Dr. Carmen Lawrence, survived criticism during 1995 because of support from Prime Minister Keating.

In recent times ministers have come under attack over conflict of interest claims. This led to the resignation of Assistant Treasurer, Senator Jim Short, in 1996. Furthermore, allegations of misconduct by ministers in relation to Travel Allowance claims led to the resignations of three ministers (John Sharp, David Jull and Peter McGauran) in September 1997. In 2009, Defence Minister Joel Fitzgibbon resigned from the Rudd Government for breaching the conflict of interest provisions of the ministerial code of conduct.


Caretaker Conventions

Caretaker Conventions apply during the period immediately before and after an election.

Because the Parliament has been dissolved, the executive government can no longer be held to account. The caretaker conventions require that the government makes no significant policy decisions during the election period, makes no major appointment, and does not enter into contracts or arrangements that would bind a future government.

The caretaker period ends when an election result is clear or when a new government is sworn in.

More information on Caretaker Conventions at the Federal, State and Territory levels is available here.

Malcolm Farnsworth
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