Limitations on Constitutionalism Assignment Sample

• Subject Name : Law

The Commonwealth Constitution and The Pandemic

Introduction to Limitations on Constitutionalism

Several fundamental principles act as a foundation of the law of the land of every country i.e. the constitution. Similarly, the anachronistic principles of representative democracy and the responsible executive are the raison d’être of the commonwealth constitution and they work in tandem ‘checking and balancing each other’. According to Article 12 of the Cabinet Handbook[1], the Australian constitution follows the Westminster or Parliamentary form of government to which Collective solidarity[2] of the cabinet is the holy grail. But, the inevitable conflict arises when this system of government of a Unitary model is applied to a federal state.

This essay outlines the apparent deadlock within the separation of powers in a government and responsible and accountable parliament. For that, it becomes imperative to trace the development and origin of these principles and their incorporation into the constitution.

A Representative and Responsible Government

The Parliament of Australia[3] comprises of the following:

1. The Queen who is the head of the commonwealth
2. The Senate which is analogous to the House of Lords in England
3. The house of Representatives analogous to the House of Commons in England

In responsible government the executive i.e. the arm of the government that overlooks the execution of the law is responsible to the legislature i.e. the law-making arm of the polity. However, the cabinet headed by the Prime Minister is derived from the legislature. So, executives are the part of the legislature too ensuring collective responsibility[4]. For this reason, it is said that the cabinet and ministry ‘float and sink’ together.

Since ministers are the members of the commonwealth parliament, they are answerable for the actions taken by them with respect to their assigned portfolios to the parliament. This is made sure by appointing a shadow minister in the opposition for maintaining the transparency and accountability of the ministry. Members of this house are directly elected by the people.

The Senate[5] is the upper house representing the different states of Australia and self-governing territories. Twelve senators from every state are elected to the senate irrespective of the population of the states. The territories elect two senators each for their representation. This makes the total strength of the senate at 76. Their term is fixed by the constitution at six years as per the last paragraph to s. 7, The Senate. The term of the House of Representatives and senators elected from the territories are the same. The members of the Senate are elected by the system of proportional representation or the system of the single transferable vote. Every three years, half of the senate is newly elected[6].

Whereas the House of Representative is concerned, it is divided into 150 electorate that comprises of 150 members. Each electorate is further divided and represents eighty to ninety thousand voters. Every state is having an electorate with proportion to the population of its entire territorial area. The largest state in terms of the population i.e. the New South Wales houses forty-nine electorates. Tasmania is the smallest state in terms of population and it has five electorates. Elections to the House of Representatives are held after three years[7]. The accountability of the government is maintained through the elections.

It basically means that the power of governing as exercised by the Crown as per the Monarchical form of government would now be exercised according to the popular will of the people. The constitutional provisions are in line with this spirit. For example, the government is obliged to resign if a No-confidence motion[8] by the lower house is passed.

The National Cabinet: An Answer to The Clarion Call for Expeditious Decision Making

Etymologically, Cabinet means a small room, and from the convention introduced by Charles I from the 17^th century, the Privy council means a piece of advice tendered in a private room[9]. The kings used to call their favourite ministers to take advice from them.

Now, to take expeditious and effective decisions in the times of the pandemic caused by COVID-19, the National Cabinet was formed on March 13, 2020. It comprises of Prime Minister, Leaders of the state and territories. It is advised by the Australian Health Protection and Principles Committee (AHPPC).

However, it is pertinent to note that it replaced COAG or The Council of Australian Governments as its decisions would have proved to be infructuous in want of immediate authority. COAG was established in the year 1992 by Keating Government[10] to facilitate coordination between the Federal Government and leaders of the state and territories.[11]

A Hybrid Agency of The State

The constitutional and legal status of the body is hard to define. It is the perfect example of a smoothly functioning paradox. Cabinet doesn’t have any constitutional status. It is a part of the council of ministers who give binding authority to its decision by ratifying them[12]. It is bound by the principles of collective responsibility, cabinet solidarity, confidentiality,[13] and ministerial responsibility.[14] 

But, these conventions don’t per se apply to the National Cabinet. Anne Twoomey is of the view that these procedures and practices will not apply to the body unless it adopts them unanimously. According to him, it would be logical to hold that principles of confidentiality and privileges must be extended to it but principles like collective responsibility will not apply because of its equal proportion in the composition[15].

Upholding Transparency and Accountability in The Pandemic

The foremost focus of the National Cabinet is on controlling the pandemic and making the toppling economy steady. It will work through sub-committees[16] of prioritised portfolios.

It is driven by the aid and advice of experts from myriad domains. the umbrella provisions and inclusive rules aim at closing the gap and women’s safety. Over twenty ministries would be consolidated while the remaining nine are to be re-arranged thus cutting the lazy bureaucratic ideologies[17].

It will follow the practices and procedures followed by the Federal Cabinet with more flexibility to ensure the security of documents and their accessibility. NC now meets fortnightly but they will continue to meet every month after pandemic gets over[18].

Intergovernmental instrumentalities like the National Cabinet identify and encourage regional and cultural diversities. It acts like a treaty in-between states and territories. However, there is no denying that Parliament is suspended but, after the crises ends, all the decisions made by the Cabinet would be passed through the usual scrutinising process[19]. 

The constitution[20] puts a limitation on introducing tax reforms. Any bill imposing or reducing a tax liability could not be proposed in the Senate but by a minister of the House of Representatives. PM Scott Morrison hinted on tax reform for the approaching budget in October[21]. 

Transparency and Accountability Reforms Requited After the Pandemic

Jennifer Menzies is the principal research fellow at Griffith University. According to her, the National Cabinet is the amalgamation of accountability and effective decision making by the government that could come in plausible and possible conflict with constitutionalism[22].

The National Cabinet fails to incorporate the basic tenet of democracy i.e. proportional representation which is recognised by the parliament. All the states, whether small or big, have a similar number of representatives that encourages the generation of partisan views among citizens[23]. Therefore, the juxtaposition of two contrary beliefs might disturb the balance of nationalism.

One of the major setbacks of the National Cabinet is the control of the Council on Federal Relations in the funding of the projects. There is a plausible risk where a particular policy could be disregarded simply for funding rather than merits[24]. So, the Australian government might find a way to escape the rhetoric. Halting a scheme on the basis of funding is against the principles of establishing an ideal state.

There were instances where the monopoly of states in decision making has put them on a stand-off recently. Disputes regarding the reopening of schools and borders for economical benefits[25] have surfaced. This policy of the National Cabinet creates deadlocks and lacks impetus of control[26].

Conclusion on Limitations on Constitutionalism

 The establishment of national cabinet to achieve rapid and efficacious response to issues of national importance has paved a way for a hybrid separation of powers. Its powers, privileges, and immunities are analogous to the federal cabinet. Evidence reflect the burgeoning need of these types of intergovernmental agencies. But, in the times of national crisis, its nature of being unaccountable and overarching fundamental rights could be ignored. It is noteworthy that control of financiers gives an upper hand to the commonwealth. These unprecedented and desperate times have united politicians of different ideologies to reach a common end through their coordination and administration. However, a fear of retardation looms over this structure. Politicians and intelligentsia fears that this would not work well after the crises ends and this could only be answered in the forthcoming time.

References for Limitations on Constitutionalism

Cabinet Handbook, Commonwealth of Australia (7th ed., 2012).

Commonwealth of Australia, Cabinet handbook (Department of Prime Minister and Cabinet 13^th ed 2019) s 2.

Commonwealth of Australia Constitution Act, 1900.

House of Representatives, House of Representatives Practice (Australian Government Publishing Service, 7^th ed, 2018) ch 9.

Tom Burton, ‘National cabinet creates a new federal model’ Financial Review, (online at 18 March 2020) <https://www.afr.com/politics/federal/national-cabinet-creates-a-new-federal-model-20200318-p54bar>

Lesley Russell, ‘The national cabinet’s in and COAG’s out. It’s a fresh chance to put health issues on the agenda, but there are risks’, The Conversation (online at 10 June 2020) < https://theconversation.com/the-national-cabinets-in-and-coags-out-its-a-fresh-chance-to-put-health-issues-on-the-agenda-but-there-are-risks-140165> 

Georgia Hitch, ‘Scott Morrison says National Cabinet here to stay, will replace COAG meetings in wake of coronavirus ‘, ABC News (Online at 29 MayMay 2020) < https://www.abc.net.au/news/2020-05-29/coag-scrapped-national-cabinet-here-to-say-coronavirus-update/12300636>

Michelle Grattan, ‘Scott Morrison strengthens his policy power, enshrining national cabinet and giving it ‘laser-like’ focus on jobs’, The Conversation (online at 29 May 2020) < https://theconversation.com/scott-morrison-strengthens-his-policy-power-enshrining-national-cabinet-and-giving-it-laser-like-focus-on-jobs-139678>

Jennifer Menzies, ‘What is the national cabinet and is it democratic?’, The Conversation (online at 31 March 2020) < https://theconversation.com/explainer-what-is-the-national-cabinet-and-is-it-democratic-135036>

Phillip Coorey, ‘National cabinet unshackles the economy’, (online at 12 July 2020) < https://www.afr.com/politics/federal/shackles-are-lifted-off-the-economy-20200611-p551sd>

[1] Cabinet Handbook, Commonwealth of Australia (7th ed., 2012).

[2]Commonwealth of Australia, Cabinet handbook (Department of Prime Minister and Cabinet 13^th ed 2019) s 2

[3]Commonwealth of Australia Constitution Act, 1900, s 1

[4] Commonwealth of Australia, Cabinet handbook (Department of Prime Minister and Cabinet 13^th ed 2019) s 2

[5] Ibid s 7.

[6] Ibid s 13.

[7] Ibid s 28.

[8]House of Representatives, House of Representatives Practice (Australian Government Publishing Service, 7^th ed, 2018) ch 9.

[9] Tom Burton, ‘National cabinet creates a new federal model’ Financial Review, (online at 18 March 2020) <https://www.afr.com/politics/federal/national-cabinet-creates-a-new-federal-model-20200318-p54bar>

[10]Lesley Russell, ‘The national cabinet’s in and COAG’s out. It’s a fresh chance to put health issues on the agenda, but there are risks’, The Conversation (online at 10 June 2020) < https://theconversation.com/the-national-cabinets-in-and-coags-out-its-a-fresh-chance-to-put-health-issues-on-the-agenda-but-there-are-risks-140165>

[11] Georgia Hitch, ‘Scott Morrison says National Cabinet here to stay, will replace COAG meetings in wake of coronavirus ‘, ABC News (Online at 29 MayMay 2020) < https://www.abc.net.au/news/2020-05-29/coag-scrapped-national-cabinet-here-to-say-coronavirus-update/12300636>

[12] Commonwealth of Australia, Cabinet handbook (Department of Prime Minister and Cabinet 13^th ed 2019) s 2

[13] Ibid.

[14] Ibid.

[15] Tom Burton, ‘National cabinet creates a new federal model’ Financial Review, (online at 18 March 2020) <https://www.afr.com/politics/federal/national-cabinet-creates-a-new-federal-model-20200318-p54bar>

[16] Lesley Russell, ‘The national cabinet’s in and COAG’s out. It’s a fresh chance to put health issues on the agenda, but there are risks’, The Conversation (online at 10 June 2020) < https://theconversation.com/the-national-cabinets-in-and-coags-out-its-a-fresh-chance-to-put-health-issues-on-the-agenda-but-there-are-risks-140165> 

[17] Michelle Grattan, ‘Scott Morrison strengthens his policy power, enshrining national cabinet and giving it ‘laser-like’ focus on jobs’, The Conversation (online at 29 May 2020) < https://theconversation.com/scott-morrison-strengthens-his-policy-power-enshrining-national-cabinet-and-giving-it-laser-like-focus-on-jobs-139678>

[18] Georgia Hitch, ‘Scott Morrison says National Cabinet here to stay, will replace COAG meetings in wake of coronavirus ‘, ABC News (Online at 29 MayMay 2020) < https://www.abc.net.au/news/2020-05-29/coag-scrapped-national-cabinet-here-to-say-coronavirus-update/12300636>

[19] Jennifer Menzies, ‘What is the national cabinet and is it democratic?’, The Conversation (online at 31 March 2020) < https://theconversation.com/explainer-what-is-the-national-cabinet-and-is-it-democratic-135036>

[20] Commonwealth of Australia Constitution Act, 1900, s 52

[21] Phillip Coorey, ‘National cabinet unshackles the economy’, (online at 12 July 2020) < https://www.afr.com/politics/federal/shackles-are-lifted-off-the-economy-20200611-p551sd>

[22] Jennifer Menzies, ‘What is the national cabinet and is it democratic?’, The Conversation (online at 31 March 2020) < https://theconversation.com/explainer-what-is-the-national-cabinet-and-is-it-democratic-135036>

[23] Ibid.

[24] Lesley Russell, ‘The national cabinet’s in and COAG’s out. It’s a fresh chance to put health issues on the agenda, but there are risks’, The Conversation (online at 10 June 2020) < https://theconversation.com/the-national-cabinets-in-and-coags-out-its-a-fresh-chance-to-put-health-issues-on-the-agenda-but-there-are-risks-140165> 

[25] Commonwealth of Australia Constitution Act, 1900, s 92

[26] Phillip Coorey, ‘National cabinet unshackles the economy’, (online at 12 July 2020) < https://www.afr.com/politics/federal/shackles-are-lifted-off-the-economy-20200611-p551sd>

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