Responsible Government, Statutory Authorities and the Australian Constitution

Date01 March 2020
Publication Date01 March 2020
AuthorBenjamin B Saunders
DOI10.1177/0067205X19890445
SubjectArticles
Article
Responsible Government,
Statutory Authorities
and the Australian
Constitution
Benjamin B Saunders*
Abstract
This article examines the compatibility of extra-departmental executive agencies, a defining feature
of the modern regulatory state, with responsible government, one of the architectonic principles
of the Australian Constitution. Some scholars have argued that a constitutional implication derived
from responsible government should be drawn limiting the types of entities that may be established
by the Commonwealth and imposing requirements relating to the relationship that must exist
between ministers and entities within their portfolio. This article argues that the view that inde-
pendent statutory agencies are a derogation from the principles of responsible government rests
on a misunderstanding of responsible government. Responsible government is an inherently
evolutionary system: as incorporated into the Australian Constitution, responsible government was
intended to be flexible and non-prescriptive, allowing for change in the governmental arrange-
ments considered necessary from time to time. Independent statutory agencies should not be seen
as a challenge to the true principles of responsible government but a legitimate evolution in
governance arrangements, which the Constitution deliberately left open.
I Introduction
Responsible government is one of the architectonic principles of the Australian Constitution and a
defining feature of our hybrid constitutional arrangements.
1
The traditional theory of responsible
government posits an elegant chain of accountability flowing from the government to the people:
Parliament is elected by the people and subject to periodic re-election; the government holds office
* Senior Lecturer and Alfred Deakin Postdoctoral Research Fellow, Deakin Law School, Deakin University. My thanks to
Dan Meagher, Matthew Groves and the anonymous reviewers for helpful comments on earlier drafts. The author may be
contacted at b.saunders@deakin.edu.au.
1. Amalgamated Society of Engineers v Adelaide Steamship Co Ltd (1920) 28 CLR 129, 147 (Knox CJ, Isaacs, Rich and
Starke JJ) (‘Engineers Case’); R v Kirby; Ex parte Boilermakers’ Society of Australia (1956) 94 CLR 254, 275 (Dixon
CJ, McTiernan, Fullagar and Kitto JJ) (‘Boilermakers’ Case’); Australian Capital Television Pty Ltd v Commonwealth
(1992) 177 CLR 106, 135, 184–5 (Dawson J) (‘ACTV’).
Federal Law Review
2020, Vol. 48(1) 4–29
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DOI: 10.1177/0067205X19890445
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by maintaining the confidence of the legislature and is liable to forfeit that confidence through
mismanagement or adopting disagreeable policies. Thus, the government is accountable to Par-
liament for its actions and Parliament is accountable to the people who elect it. The traditional
Westminster model government subsumes the entirety of the public sector within this chain: every
public entity is notionally within the portfolio of a minister, who is accountable to Parliament for
the actions of those entities.
The massive growth in government bureaucracy, and in particular the growth of extra-
departmental executive agencies, is a defining feature of the modern regulatory state.
2
The size,
composition and nature of the public sector has changed enormously since federation. The number
of public sector employees has increased exponentially and there has been a proliferation of
officers, agencies, authorit ies, boards, corporations and oth er entities.
3
This development has
placed the principle of responsible government under immense strain. Independent statutory
offices and authorities do not neatly fit within the tidy schema envisioned under the traditional
conception of responsible government whereby governmental functions are carried on by depart-
ments, subject to ministerial oversight. The sheer size of modern government bureaucracies makes
it difficult for ministers to monitor the activities of every entity, officer and official connected with
their portfolio.
Some have viewed the growth of extra-departmental executive agencies with concern, consid-
ering this to be inconsistent with or a threat to responsible government, which is assumed or even
mandated by the Constitution.
4
One response has been to argue that the Constitution places
limitations on the types of entities that may be established by the Commonwealth and imposes
requirements relating to the relationship that must exist between a minister and entities within the
minister’s portfolio. One leading scholar argued that the British system of responsible government
‘does not countenance the existence of government officials for whom no one is accountable or
responsible in the Parliament’; accordingly, legislation which establishes government officials or
entities which are not under the control of a minister may be of questionable constitutional
validity.
5
The text of the Constitution does not co ntain any prohibition to this effec t, and so
arguments such as these seek to draw an implication from the incorporation of responsible gov-
ernment into the Constitution.
These arguments fall within a broader trend to seek to ‘constitutionalise’ certain of the princi-
ples of responsible government, that is, to argue that that responsible government—or, more
accurately, a particular conception of responsible government—should be entrenched as a con-
stitutionally mandated and legally enforceable feature of the Constitution, and that the conventions
2. Benedict Sheehy and Don Feaver, ‘Re-Thinking Executive Control of and Accountability for the Agency’ (2016) 54(1)
Osgoode Hall Law Journal 175, 196.
3. In 1901, there were 6 Commonwealth government departments, with approximately 133 800 persons employed by the
Commonwealth and State governments: A Barnard, N G Butlin and J J Pincus, ‘Public and Private Sector Employment
in Australia, 1901–1974’ (1977) 10(1) Australian Economic Review 43, 50. As at June 2018, there were 1 987 000 public
sector employees in Australia, which includes 240 700 Commonwealth, 1 558 700 state government and 187 600 local
government employees: Australian Bureau of Statistics, ‘Employment and Earnings, Public Sector, Australia, 2017–18’,
Australian Bureau of Statistics (Result Summary Release, 8 November 2018) <http://www.abs.gov.au/ausstats/abs@.
nsf/mf/6248.0.55.002>.
4. Terence Daintith and Yee-Fui Ng, ‘Executives’ in Cheryl Saunders and Adrienne Stone (eds), The Oxford Handbook of
the Australian Constitution (Oxford University Press, 2018) 587, 589.
5. Geoffrey Lin dell, Responsible Government and t he Australian Constitution: C onventions Transformed into Law ?
(Federation Press, 2004) 18 (emphasis in original).
Saunders 5

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