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House of Representatives                                Ch 2                                                 p 46

Constitutional conventions

The existence of a wide range of conventions of the Constitution ¹ plays a fundamental part in Parliament/Executive Government relations. These conventions are numerous, and in some cases there is no universal agreement that they exist. Conventions are based on established precedent and practice and in many respects have their foundation in British law and practice established before 1901. They are subject to change by way of (political) interpretation or (political) circumstances and may in some instances be broken.

Constitutional conventions are of great significance in the exercise of the reserve powers of the Crown. This is particularly evident in the exercise of the power of dissolution, ² vested by the Constitution solely in the Governor-General but not normally exercised without regard to convention.

The workings of responsible government, the concept of ministerial responsibility (collective and individual) and the existence of Cabinet (not mentioned in the Constitution) are for all practical purposes the subject of constitutional convention. The Constitution made no mention of political parties until 1977 when section 15, relating to the filling of casual vacancies in the Senate, was amended. Also majority or minority groups and the offices of Prime Minister and Leader of the Opposition are not mentioned.

Constitutional convention and the way it is interpreted and applied may, on occasions, have the same force as, but be not superior to, the Constitution itself, and its existence has been recognised by important cases of the High Court. ³ Crisp briefly defines constitutional conventions as:

. . . extra-legal rules of structure or procedure or principle, established by precedent, consolidated by usage and generally observed by all concerned. They will affect the operation of the Constitution and may affect the working of the law but they themselves have not the force of law. ⁴

Professor Gordon Reid interprets the phrase as follows:

. . . the expression is little more than an article of political rhetoric and . . . our academic constitutional lawyers were publicly [in 1975] using it as such.

It is well known that Australia’s written Constitution is silent on many important aspects of government. It says nothing about the Prime Minister, the Cabinet, responsible government, ministerial responsibility, electing a government, dismissing a government, parliamentary control, what is to be done if the Senate refuses to pass an appropriation Bill (or a supply Bill), and so on. In reality this void is filled-in by well established practice, methods, habits, maxims, usages, many of them of long-standing, which were inherited from colonial Parliaments, which in turn inherited them from Westminster. It is these practices, methods and usages which tend to be referred to, albeit vaguely, as ‘conventions of the Constitution’. ⁵

Although reference to constitutional conventions is made throughout this text, it is not intended to identify and separately examine in depth the full range and meaning of all of them, ⁶ as they have been subjected to continuing political questioning which has left the status of many so-called conventions in doubt.

Even though the division is not always clear, there are other conventions which may fall under such headings as governmental, (party) political, and parliamentary. Parliamentary convention may be considered to be synonymous with parliamentary practice which is, as the term implies, of very broad scope.

In referring to the British constitutional framework Mill referred to these rules as ‘the unwritten maxims of the constitution’. Twenty years later Dicey called them ‘the conventions of the constitution’ while Anson referred to them as ‘the custom of the constitution’. Sir Ivor Jennings, The law and the Constitution , 5th edn, University of London Press, London, 1959, pp. 81 ff.

Also prorogation and appointing the time for holding sessions, (Constitution, s. 5) and other powers. See ‘Governor-General’ in Ch. on ‘The Parliament and the role of the House’.

See , for example, Amalgamated Society of Engineers v. Adelaide Steamship Co. Ltd (1920) 28 CLR 129 (Engineers Case) and more recently Cormack v. Cope (1974) and others discussed in Ch. on ‘Disagreements between the Houses’.

L. F. Crisp, Australian national government , 5th edn, p. 352.

G.S. Reid, ‘The double dissolutions and joint sitting commentaries’, in Gareth Evans (ed.), Labor and the Constitution 1972-1975 , Heinemann, Melbourne, 1977, p. 244.

Suggested references include Sawer, Federation under strain ; Evans, Labor and the Constitution ; Cooray, Conventions, the Australian Constitution and the future ; Saunders and Smith, Paper prepared for Standing Committee D (of the Australian Constitutional Convention) identifying the conventions associated with the Commonwealth Constitution .