Abstract
Australia’s Constitution has been shaped by a blend of legal and political constitutionalism; yet there is limited attention given to political mechanisms of control in Australia. With the recent developments in the United Kingdom and the turmoil of Brexit that shifted the balance between legal and political constitutionalism, it is timely to examine how political constitutionalism has evolved in Australia. This article argues that Australian political constitutionalism is distinct from the United Kingdom as it is shaped not by internal conflict about the nature of the constitution but rather by the significant evolutionary development of fundamental institutions. In particular, it is argued that there are three critical junctures for political constitutionalism in Australia: the foundations of the Commonwealth, the formation of disciplined political parties and the rise of oversight bodies. It is contended that Australia may be reaching a new critical juncture due to the fragmentation of responsible government from privatisation and outsourcing and the rise of ministerial advisers.
I Introduction
From the theorisation of the debate in J A G Griffith’s expressive articulation in his Chorley lecture of 1978, 1 political constitutionalism has developed as a fundamental concept that underpins the unwritten constitution of the United Kingdom. Political constitutionalism is associated with ‘holding those who exercise political power to account…through political processes and in political institutions’, 2 such as the structuring of political decision-making through parliamentary processes. This is often contrasted with legal constitutionalism, that is, legal mechanisms for delimiting governmental power through the empowerment of the judiciary to enforce legal obligations via strong-form judicial review. 3 This article adopts the term ‘political constitutionalism’ in a broad sense to label those aspects of a constitutional system that (i) pertain to governmental accountability, and (ii) are located in the political rather than the legal or judicial branches of government, meaning that all nations have aspects of a political constitution.
Griffith’s position was that politicians who are answerable to the people through electoral processes, rather than unelected judges, should be responsible for making political decisions. 4 Based on Griffith’s political conception, ‘the democratic process is the constitution’, offering due process and the constitutive ability to reform itself. 5 This led to Griffith’s position against strong-form judicial review and bills of rights, where he claimed judges were essentially adjudicating political claims masquerading as legal ones. 6 From Griffith’s initial articulation sprang a wellspring of literature of both proponents of political constitutionalism 7 and antagonists in the form of legal constitutionalists, 8 who were pitted against each other with strident critiques of the other’s position.
More recently, scholars such as Bellamy and Tomkins have adopted a normative bent to political constitutionalism that based the desirability of a political constitution on the republican ideals of accountability (through the touchstone of ministerial responsibility), political equality and popular sovereignty. 9 Bellamy argued that the political constitution is sustained by the day-to-day activity of democratic politics as constituted by the people and is readily subject to challenge, modification and amendment through political activity. 10 This normative discourse has been coopted for ideological movements, such as the ‘Judicial Power Project’ by UK academics campaigning to reduce judicial overreach, funded by a Conservative-orientated think tank, Policy Exchange. 11 In turn, other scholars have rejected the legal/political constitutionalism dichotomy in favour of a more integrated approach incorporating both political and legal modes of control and seeking to elucidate the practices and processes that constitute a political constitution. 12 Thus, political constitutionalism is a highly contested concept with differing interpretations in the UK.
Alongside these developments, countervailing forces have seen the rise of legal constitutionalism in the UK, with new interpretative techniques and new statutorily conferred powers heralding a heightened place for courts on the constitutional stage. The recent UK Supreme Court decision of R (on the application of Miller) v The Prime Minister 13 marked a victory for legal constitutionalism in the UK. In ruling unlawful the controversial actions of Prime Minister Boris Johnson, who sought to prorogue Parliament two months before the deadline for the UK to exit the European Union, on the basis that it frustrated the ability of Parliament to undertake its constitutional scrutiny functions, 14 the Court treated what was previously regarded as a convention of prorogation as having legal consequences. Further, in the last few decades, there have been new constraints upon the UK Parliament with the introduction of the Human Rights Act 1998 (UK) and the requirement to comply with the European Communities Act 1972 (UK), giving the judiciary more latitude to issue statements of incompatibility or disapply laws, respectively. 15 Combined with the judicial assertion that these and other fundamental statutes are ‘constitutional statutes’ that can only be amended or repealed by express words, 16 although not constituting strong-form judicial review, these modern developments are inching towards legal constitutionalism.
As the deep existential clashes about the nature of the British constitution and recent shifts in the relationships between political and legal institutions in the UK show, the balance between legal and political constitutionalism in a particular jurisdiction is variable over time. In this context, this article provides a timely intervention in examining the evolution of political constitutionalism in Australia at the federal level, and considering whether the recent UK developments resonate in the Australian context, or whether there are other pressures at work, as well as what lessons can be gleaned from the evolution of political constitutionalism in Australia. Although there is much literature analysing the nature and scope of Australian legal constitutionalism focusing on judicial review, 17 there is a curious dearth of concomitant examination of political mechanisms of control in Australia. The recent decline of public faith in democracy and political institutions witnessed in Australia 18 provides additional impetus to more closely examine political mechanisms of control.
The author argues that Australian political constitutionalism is distinct from the UK as it is shaped not by internal conflict about the nature of the constitution but rather by the significant evolutionary development of fundamental institutions. In particular, it is argued that there are three critical junctures for political constitutionalism in Australia. First, there is the very foundations of the Commonwealth where the framers drafted a constitution that incorporated the evolutionary concept of responsible government, which was the precursor to an active parliamentary committee system and legislative mechanisms of financial accountability (Part II). The second phase is the formation of disciplined political parties, which reduced the effectiveness of political controls by more closely fusing the operation of the executive and legislature (Part III). The third phase is the rise of oversight bodies in the 1970s and 1980s, with the introduction of a range of statutory officers who report to Parliament, such as ombudsmen and auditors, with the function of monitoring the executive (Part IV). It is contended that Australia may be reaching a new critical juncture due to the onslaught of privatisation and outsourcing and the rise of ministerial advisers in executive government, which undermines legal and political constitutionalism (Part V).
II Foundations: An Evolutionary System of Responsible Government
A primary vehicle by which political constitutionalism is operationalised in Australia is via the concept of responsible government, which is a central organising pillar in the Australian Constitution. 19 Yet the Constitution itself is characteristically oblique and does not explicitly spell out the requirements of responsible government. 20 The conception of responsible government that may be described as conventional or traditional holds that the executive must be led by ministers who command the support of a majority of the lower house of Parliament and that those ministers must answer to Parliament for the actions of the executive, both collectively, in relation to the actions of the government as a whole, and individually, for what is done by the departments they control. 21
This article will trace the evolution of responsible government and its impact on political constitutionalism in the three critical junctures. Responsible government was designed to be a malleable concept that could adapt to suit the political exigencies of the day, meaning that its content and characteristics could change over time depending on law, convention and political practice. 22 According to Balkin’s terminology, responsible government could be seen as a ‘framework’ principle or standard, which successive generations could build upon through their parliamentary, judicial and legislative actions, rather than a firm rule that must be given a fixed meaning to constrain future generations. 23 Responsible government thus provides for an evolving set of political practices, although its outer limits are delineated by the judiciary; a typification of the boundary between legal and political constitutionalism.
Unlike the wide-ranging schisms in the UK about their constitution, the debate in Australia has been more limited and has centred on the contested boundary between legal and political constitutionalism; on what the courts should adjudicate and what they should leave to political practice. The Australian jurisprudence on responsible government has spawned strong implications into the Constitution, including protection of the implied freedom of political communication 24 and implied right to vote, 25 grounded within the text and structure of the Constitution that protected a system of representative and responsible government. Detractors have complained that the High Court overstepped the mark in bypassing political and constitutional channels to amend the Constitution, 26 while proponents have argued that these implied principles are legitimately protected as they form the critical underpinning of political accountability. 27
Given that responsible government is an evolutionary concept, it is necessary to consider what responsible government means in contemporary Australia. Although pro-Brexit commentators in the UK have contended that Parliament should be subordinate to government subject to its ability to vote ‘no confidence’ in the government, 28 these debates have found little echo in Australia. Rather, the argument that has resonated in Australia is that responsible government means that the executive must be subject to parliamentary scrutiny. 29
The differential focus of parliamentary accountability in Australia can be attributed to its strong upper house compared to parliamentary democracies such as the United Kingdom and Canada, with an elected rather than appointed Senate that possesses democratic legitimacy and coequal powers with the lower house. The importance of upper houses as a check on government was recognised by the High Court of Australia in Egan v Willis, where the Court viewed the upper house’s role as indispensable to the system of responsible government. 30 Combined with different electoral voting systems in the lower house (majoritarian) and upper house (proportional representation), this has led to strong bicameralism that creates the possibility for the upper house to act as an effective house of lawmaking and review—a house that is no less partisan than the lower house but one that is more effective in terms of scrutiny as it is not controlled by the governing party. 31
There are two main mechanisms for securing responsible government that have evolved in Australia: (1) through parliamentary practice via the mechanism of parliamentary committees, and (2) via the financial accountability of government to Parliament.
A Parliamentary Committees
Australian parliamentary committees have emerged as a main mechanism of scrutinising executive activities. 32 Senate committees tend to be the most active, particularly where the government does not have an upper house majority, although joint committees and even lower house committees under a hung parliament can play a useful scrutiny role.
For a large part of the existence of the Commonwealth, only a weak parliamentary committee system operated until the mid-20th century that largely did not scrutinise executive activities or legislation. 33 The rise of parliamentary committees dates from the late 1960s. 34 In 1970, the Senate established the first comprehensive committee system in the Australian Parliament by narrowly passing the motion by one vote facilitated by a government Senator, Ian Wood, crossing the floor. 35 In 1981, the Senate established the Scrutiny of Bills Committee to assess legislation for conformity to civil liberties and legislative principles. 36 In 1989, the Senate adopted procedures to refer Bills regularly to a consultation process. 37 The Legislative Instruments Act 2003 (Cth) established a comprehensive regime for the enacting, publication, tabling, registration, parliamentary scrutiny (including disallowance) and sunsetting of Commonwealth subordinate legislation. 38 This scrutiny regime was extended to all legislation by the replacement Legislation Act 2003 (Cth). The Human Rights (Parliamentary Scrutiny) Act 2011 (Cth) created a parliamentary scrutiny regime for rights consideration before Commonwealth legislation was passed. 39 A 2018 study found that there was a culture of rights scrutiny developing in Commonwealth parliamentary committees which, although did not prevent intrusion into the most serious individual rights, may moderate these intrusions. 40
These developments have gradually strengthened the parliamentary committee system to enable greater scrutiny over executive activities, spending and programmes, and represent the gradual strengthening of responsible government in terms of parliamentary practice.
B Financial Accountability
Another key element of responsible government is that of financial accountability of the executive to Parliament, where the government has to answer to Parliament for its expenditure of public funds, as enshrined in ss 81 and 83 of the Constitution, which requires all government revenue to be channelled through the Consolidated Revenue Fund, which can only be withdrawn through an appropriation made by law. In the relatively recent case of Williams v Commonwealth, the High Court effectively limited Commonwealth executive power by holding that there needs to be parliamentary approval for spending previously thought to be within the executive power to contract, based on the principle of responsible government. 41
In addition to High Court jurisprudence, financial accountability to Parliament has found legislative expression in the financial management framework. The Public Governance, Performance and Accountability Act 2013 (Cth) (‘PGPA Act’), a product of evolution of financial management legislation over 30 years, provides a comprehensive regime for the management of public funds, requiring departments, statutory authorities and government companies to provide financial accountability to Parliament. 42 The PGPA Act thus gives flesh to the principle of responsible government in its prescriptive requirements for the executive’s financial accountability to Parliament. For instance, Commonwealth entities must provide an annual performance statement to be tabled in Parliament. 43 Commonwealth entities must also prepare an annual report following each reporting period and provide it to their portfolio minister, who must then table the report in Parliament. 44 Government-owned and -controlled companies must furnish their portfolio minister with the company’s financial report, directors’ report and auditor’s report as required under the Corporations Act, which the minister must table in Parliament. 45
The 2018 review of the PGPA Act found that the PGPA Act’s performance framework had an overall positive impact on the quality of performance reporting of government agencies. 46 However, the review also found that ‘parliamentary scrutiny of corporate plans and annual performance statements is in its infancy’, with parliamentary committees focusing on procedural issues such as the timeliness of presentation of reports to Parliament, rather than actual performance information. 47 A supplementary approach to financial management could be that of comparator jurisdictions such as New Zealand, which have injected a greater focus on political priorities and/or results, either through the formal accountability process or separately, which have been considered to be successful in improving agency performance. 48
Thus, responsible government in Australia is secured through the strength of the High Court’s constitutional interpretation that shows a willingness to invalidate schemes that infringe these principles, and an active parliamentary committee system operating in the Senate, combined with a financial accountability framework to Parliament through the PGPA Act.
III Party Politics as Constraint
The second critical juncture marks a decline in responsible government and political constitutionalism due to the solidification of disciplined political parties in Australia. Although the founders of the Australian Constitution intended the Senate to be the house that represented state rights, the warning of some framers that the Senate would be dominated by party government did become Australia’s political reality. 49 The current dominance of Australian public life by large political parties which subject their parliamentary membership to a stringent voting discipline means that disagreement came to be channelled not through the branches of government but rather through the institution of political parties. 50
Australia has developed one of the highest levels of party discipline in the world. 51 However, this was not the case at federation, where the national party system was in flux and voting was not conducted in accordance with party lines, as Parliament was composed of representatives from six former colonial assemblies with vastly competing ideologies within parties on protectionism compared to free trade. 52 A watershed moment was the fusion of the ideologically opposed non-Labor parties (Free Traders and Protectionists) against their common foe, the Labor Party, in the first decade of federation to form the new Liberal Party, which paved the way for the current dominant two-party system. 53
Even since the mid-1890s, the Labor Party was a well-organised political machine with an extensive branch structure and Labor members of Parliament (‘MPs’) were bound by a formal pledge to vote together in a bloc after coming to a majority decision in caucus, ie the body of Labor MPs, with any MP who broke ranks being expelled from the party. 54 Although the Liberal Party did not have such a strong stranglehold on their MPs through formal procedures and paid ‘lip service to the idea of individual conscience and freedom’, 55 in practice party cohesion across the two major parties significantly increased in the first two decades of federation with the tightening of legislative rules that included time limits for speeches and guillotine, which ‘increased the ability of the executive to control the agenda’ and reduced the possibility for private members to influence the legislative process, thus increasing the reliance of MPs on parties. 56
The party machine has only increased in sophistication in the intervening years, leading to the near perfect party unity that characterises modern Australian legislatures. 57 As national party organisations control resources that are critical to a budding politician’s career prospects, such as preselection for seats and access to campaign finance, MPs are beholden to their party leaders and factions. 58 In this situation, the processes and procedures of Parliament are ‘subordinated to the party in government’, and responsible government becomes ‘a matter of responsibility to party’. 59 Party government has reduced MPs’ individual independence as well as the institutional independence between the executive and Parliament.
In the context of strong party discipline, parliamentary scrutiny increases where the government does not hold the balance of power, either through a situation of minority government, where major political parties are forced to form a coalition with minor parties in the lower house, or where the government does not have a majority in the upper house, thus forcing them to negotiate with crossbenchers from minor parties or the opposition to pass their legislation. In these situations, the opposition is able to utilise various weapons in its arsenal to create obstacles for the ruling party: internal legislative rules to obstruct or structure the progress of a bill through Parliament, parliamentary committees, forming coalitions with minor parties to gain the balance of power, and the like. 60
On the other hand, where the government holds the majority in both the lower and upper house, this results in the effective fusion between the executive and legislature and greatly reduces parliamentary scrutiny. The government is able to use its majority in both houses to submerge any resistance, notwithstanding even strenuous objections by the opposition and minor parties.
Yet the structural imperatives of a Senate elected on a different basis from the House of Representatives act as a counter-ballast to strong party discipline by reducing the probability of the upper house being controlled by the government. Since the introduction of proportional representation in the Senate in 1948, as now enshrined in the Electoral Act 1918 (Cth), 61 government control of the Senate has become the exception rather than the norm, with the government controlling the Senate for 23 per cent of the time. 62 This trend has become more pronounced as, in the period of more than 40 years from the Whitlam government to the present, the government has only controlled the Senate for 7.5 years. This can be contrasted with the period before proportional representation from 1909 to 1951, where the government controlled the Senate for about 78 per cent of the time. 63 This phenomenon is intensifying with the rise of the minor party vote in recent years, which may be a sign of increasing voter disenchantment with the two-party system. 64
Thus, the Electoral Act 1918 (Cth), in establishing a voting system that included proportional representation in the Senate, develops the concept of responsible government to enable upper house scrutiny of the executive. 65 This has resulted in the more recent trend of the Senate being more independent of government, which counterbalances the reduction of scrutiny through strong party discipline. As Lijphart argued, the effectiveness of bicameral legislatures is determined by the equality of formal legislative power, the method of selection (directly elected upper chambers enjoy democratic legitimacy and political influence) and incongruent electoral methods for each house (leading to governments often not controlling the upper house). 66 As the Australian Parliament demonstrates, even with a disciplined party system, proportional representation in an elected and coequal upper house increases the strength of bicameralism. In turn, this diffusion of power strengthens the independence of the legislature from government and is central to the effective operation of responsible government.
Despite this, the performance of Australian Parliaments in practice has been the subject of lamentation by commentators. 67 ‘The community’s low expectations of parliament’, John Uhr writes, ‘reflect the common Australian reputation of parliaments as wastelands of adversarial partisan politics’. 68 Parliamentary accountability in Australia (as in other Westminster jurisdictions) is weak if measured by ministerial resignations, with the number of non-resignations over controversies increasing over time in the 60-year period between 1947 and 2010. 69 In this period, there was not a single resignation for faults within departments (individual ministerial responsibility), and significant non-resignations for personal errors, such as former Prime Minister John Howard for misleading Parliament about asylum seekers throwing their own children overboard. 70 In terms of explanatory or amendatory accountability, ie ministers explaining their actions or taking remedial action, 71 Australian upper house committees are weakened by a constitutional convention claimed by ministers that they and their advisers do not appear before committees of the other house (most ministers being from the lower house), 72 a spurious convention that does not exist in other comparable Westminster jurisdictions. 73 These factors significantly weaken the effectiveness of upper house committees as a scrutiny mechanism and thus reduce the strength of political mechanisms of control.
IV The Rise of Oversight Bodies
In the third critical phase, political constitutionalism has been strengthened by the rise of oversight bodies in the 1970s through the proliferation of office-holders to monitor the executive, such as ombudsmen, auditors and commissions. 74 Within their legislative mandate, these watchdog bodies have a continuing function of review or enquiry in relation to particular aspects of executive activity. These oversight bodies are in effect given delegated authority by Parliament to oversee executive action and can be seen as alternate supports to responsible government. Australian oversight bodies often have a high level of independence from the executive and significant coercive powers to enter the premises of public organisations, question witnesses under oath and compel the production of documents. Parliament in turn has supervisory power over these bodies including the ability to decide upon their annual funding, to enact amending legislation that runs counter to the body’s interests, to subject them to onerous parliamentary committee hearings, and ultimately the power to legislatively reduce the functions of these bodies or abolish them completely. 75
Among these oversight bodies, the longest established and most indispensable are the Auditors-General, whose audits of departmental and agency spending, encompassing both regularity and quality of performance, are an essential support for parliamentary supervision of public finance. Ombudsmen have also become a permanent point of resort for citizens complaining of maladministration, and may have systemic investigatory powers, either instigated on their own motion or by government. Information Commissioners have been introduced more recently to police freedom of information regimes. Parliamentary budget officers play an important role in furnishing Parliament with independent analysis of the budget cycle, fiscal policy and financial implications of policy proposals.
Oversight bodies in Australia have been attacked by some governments with parliamentary majorities that have not been persuaded of their merits or enamoured of their activities through defunding, legislative amendment to reduce their powers and even personal attacks. 76 These vulnerabilities point to a need for streamlining and enhancing the protections of Australian oversight bodies, as has been done overseas. For example, Canada has a dedicated ‘agent of Parliament’ status which denotes certain protections (eg appointment, tenure, removal, salary, staffing processes), 77 which compares favourably to Australia’s ad hoc and uncertain use of the term ‘officer of Parliament’. 78
V The Strengthening of the Political Executive: A New Critical Juncture?
The rise of oversight bodies has been followed by countervailing forces that have led to the strengthening of the political executive in the last few decades from the 1970s, such as the introduction of ministerial advisers into the executive, growth in the volume of delegated legislation, 79 and widespread privatisation, contracting out and outsourcing.
The traditional method of organising government is through departmental structures, with ministers who possessed responsibility to Parliament at the apex. The funnelling of power and responsibility hierarchically through a single person, the minister, was seen to be the best method of ensuring that administration was conducted according to the wishes of Parliament, as representatives of the electorate. 80
However, major changes to governmental structures in the last few decades have undermined the neat linear relationship of ministers being responsible to Parliament for a public service department. First, the privatisation, contracting out and outsourcing of governmental functions in the 1990s has resulted in public services being delivered through a bewildering array of arms-length statutory authorities, government companies, contractors and private bodies, thus dispersing responsibility amongst ministers, heads of statutory bodies, boards of directors and contractors. Although statutory authorities and government corporations have long existed in Australia, 81 the extensive restructuring of government due to the ‘new public management’ movement that emphasises business-like government, and the shift of governmental policy towards corporatisation, created more arms-length bodies, such as statutory authorities and government corporations, alongside a wave of privatisations in the 1990s. 82
Following a period of fragmentation, the new millennium witnessed attempts to reverse the devolutionary tendencies of earlier reforms by focusing on ‘integrated governance’ and ‘whole-of-government’ initiatives, 83 and the rationalisation of the numbers of arms-length bodies from its zenith in the 1990s. 84 Despite this, there remain a large number of statutory authorities and government corporations in Australia today, 85 which has resulted in the dilution of the concept of responsible government as ministers are able to opportunistically evade responsibility by blaming others.
Further, the insertion of hundreds of partisan ministerial advisers as an additional layer interposed between ministers and the public service has bolstered the position and personal support of ministers relative to other branches of government. 86 These advisers have also allowed ministers to evade responsibility to Parliament by blaming their advisers for major controversies, while simultaneously claiming that there is a constitutional convention that their advisers do not appear before parliamentary committees. 87 Thus, the strengthened position of ministers has contributed to the dominance of the executive branch and greater resistance to the requirements of accountability.
In addition to the undermining of responsible government through ministerial obfuscation and deflection, legal constitutionalism via judicial review has been negatively impacted through the corporatisation of government, as Australian courts have adopted a formalist approach that precludes both common law and statutory judicial review of decisions of corporatised entities such as government companies. 88 This approach is at odds with the UK, which adopts a more dynamic ‘public function’ test that enables judicial review of the public functions of private bodies. 89 As a result of these developments, it can thus be argued that legal constitutionalism has retreated in Australia.
Therefore, while the rise of oversight bodies has provided supplementary mechanisms for checking executive action, the recent strengthening of the political executive through the rise of ministerial advisers and the trend towards privatisation, contracting out and outsourcing poses a challenge to parliamentary accountability and judicial review, and concomitantly is detrimental to both legal and political constitutionalism. These seismic structural and operational changes within the executive may indicate that we have reached a new critical juncture, at which further recalibration of mechanisms of legal and political constitutionalism is required. Within the context of a sprawling administrative state that has become increasingly plural, fragmented and dispersed, with a heterogeneous range of bodies, some of which are immune from judicial review by virtue of corporatisation and contracting out, oversight bodies have vastly increased in significance as a check on executive power.
VI Conclusion
Griffith’s treatise on political constitutionalism has had resonances in Australia. Within a context of limited rights protection, political constitutionalism in Australia has operated with a combination of parliamentary accountability and executive restraint and self-discipline, amid the chaos and turmoil of politics. The operation of responsible government, combined with parliamentary structures and electoral mechanisms that diffuse power, as well as executive monitoring mechanisms, form the basis for political control of executive action in Australia.
Yet Australian political constitutionalism is distinctive. While the British position reflects an external manifestation of deep internal angst about the nature of their constitution, with raging polemical debate from opposing camps about the appropriate roles of legal and political institutions, this discussion is largely absent in Australia. It has been well-accepted since Australian federation that the framers blended elements of both legal and political constitutionalism in drafting the Australian Constitution, drawn from the British and American models of constitutionalism, 90 so there has been no pressing impetus in Australia to embark on large-scale struggles about which model should triumph. Rather, the forces that have shaped Australian political constitutionalism are the significant evolutionary development of fundamental institutions at three critical junctures: federation, the formation of political parties and the rise of oversight bodies as monitoring mechanisms.
In the last few decades, further tensions have arisen from the strengthening of the political executive in Australia, which has challenged the effectiveness of legal and political mechanisms of control. The introduction of ministerial advisers into the executive and the privatisation and outsourcing of governmental functions have undermined both legal and political constitutionalism.
The depth and scale of structural and operational changes within the Australian executive may indicate that we have reached a new critical point where there is need for a further evolution and recalibration of the principles of legal and political constitutionalism in Australia. This could potentially be achieved through legislation (such as amending the ADJR Act) or political practice (through parliamentary procedures) such that executive accountability over corporatised entities may be preserved.
The historical development of political constitutionalism in Australia provides certain lessons to other Westminster-style democracies such the UK, which is undergoing a process of transition with Brexit. It shows that the foundational principles of political constitutionalism such as responsible government may be subverted over time by many factors, including shifts in political practices (eg the development of disciplined political parties) or major changes to the structures or operations of the executive (eg corporatisation and privatisation). Political constitutionalism involves a long-term relationship mediated between different institutional actors, sometimes fraught with tension, with the balance of power shifting over time. Thus, constant vigilance and reassessment of legal and political mechanisms of control are needed to ensure that government is effectively held to account.
In sum, with Australian political constitutionalism, we see the slow dance between the written and the unwritten, the allocation of responsibility accompanied by restraint, a gradual accumulation of parliamentary processes, layered with more modern executive monitoring mechanisms in the form of ombudsmen, auditors and commissioners. Such is the vibrant, complex and multifaceted nature of day-to-day resolutions of political conflict beyond the boundaries of the court.
