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House of Representatives                                Ch 13                                                 p 468

Tensions in the system of Cabinet government in a State-represented federal system

At the time of federation Quick and Garran discerned problems in the constitutional provisions relating to the powers of the two Houses. They recorded the following difficulties foreseen by some eminent federalists:

The Cabinet depends for its existence on its possession of the confidence of that House directly elected by the people, which has the principal control over the finances of the country. It is not so dependent on the favour and support of the second Chamber, but at the same time a Cabinet in antagonism with the second Chamber will be likely to suffer serious difficulty, if not obstruction, in the conduct of public business.

This brings us to a review of some of the objections which have been raised to the application of the Cabinet system of Executive Government to a federation. These objections have been formulated with great ability and sustained with force and earnestness by several Australian federalists of eminence, among whom may be mentioned the names of Sir Samuel Griffith, Sir Richard C. Baker, Sir John Cockburn, Mr. Justice Inglis Clark, and Mr. G.W. Hackett, who have taken the view that the Cabinet system of Executive is incompatible with a true Federation. (See “The Executive in a Federation”, by Sir Richard C. Baker, K.C.M.G., p. 1.)

In support of this contention it is argued that, in a Federation, it is a fundamental rule that no new law shall be passed and no old law shall be altered without the consent of (1) a majority of the people speaking by their representatives in one House, and (2) a majority of the States speaking by their representatives in the other house; that the same principle of State approval as well as popular approval should apply to Executive action, as well as to legislative action; that the State should not be forced to support Executive policy and Executive acts merely because ministers enjoyed the confidence of the popular Chamber; that the State House would be justified in withdrawing its support from a ministry of whose policy and executive acts it disapproved; that the State House could, as effectually as the primary Chamber, enforce its want of confidence by refusing to provide the necessary supplies. The Senate of the French Republic, it is pointed out, has established a precedent showing how an Upper House can enforce its opinions and cause a change of ministry. On these grounds it is contended that the introduction of the Cabinet system of Responsible Government into a Federation, in which the relations of two branches of the legislature, having equal and co-ordinate authority, are quite different from those existing in a single autonomous State, is repugnant to the spirit and intention of a scheme of Federal Government. In the end it is predicted that either Responsible Government will kill the Federation and change it into a unified State, or the Federation will kill Responsible Government and substitute a new form of Executive more compatible with the Federal theory . . .

. . . the system of Responsible Government as known to the British Constitution has been practically embedded in the Federal Constitution, in such a manner that it cannot be disturbed without an amendment of the instrument. There can be no doubt that it will tend in the direction of the nationalization of the people of the Commonwealth, and will promote the concentration of Executive control in the House of Representatives. At the same time it ought not to impair the equal and co-ordinate authority of the Senate in all matters of legislation, except the origination and amendment of Bills imposing taxation and Bills appropriating revenue or money for the ordinary annual services of the Government. ¹

Quick and Garran , pp. 706-7. For further information and argument on the conflict of principles of responsible government and federalism see for example, Australian Constitutional Convention 1977, Standing Committee D, Special report to Executive Committee on the Senate and supply , 23 June 1977 (especially pp. 39-45); Sir Billy Snedden, The Constitution, Parliament and the Westminster heritage , 20 October 1979, House of Representatives, Canberra; Report of the Advisory Committee on Executive Government , Constitutional Commission, Canberra, June 1987; John Uhr, Deliberative democracy in Australia: the changing place of Parliament , Cambridge University Press, 1998, especially pp. 77-81; and Brian Galligan, A Federal Republic: Australia’s constitutional system of government , Cambridge University Press, 1995.