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University of New South Wales Law Journal |
[2] The first theory Ostrom associated with the 17th century English philosopher Thomas Hobbes, although it can be traced back to ancient times. This is the idea that sovereignty is indivisible, and that in every state there must be some person or body in possession of the ultimate, final and overriding power. That repository of sovereignty may be the whole people gathered together, as in an Athenian democracy, or a representative assembly, or a king; but sovereignty must exist somewhere in the state and somebody must possess it, otherwise there is no government.
[3] The other theory Ostrom identified with the American founder James Madison, although again it is a theory with a very ancient lineage. This is the theory of countervailing power. It holds that the establishment of a system of government does indeed require that power be conferred on persons or bodies, but also holds that those persons or bodies will turn their powers to unexpected ends and abuse them unless they are subject to limitations and constraints. To vest all power in the whole people, as in an Athenian democracy, merely transfers and enlarges the problem. To give the people control over the government through the medium of election is not sufficient, because majorities can abuse their powers as well as kings. The way to guard against this is to confer different powers on different persons or bodies and set them to check and balance each other. It is not necessary to give supreme power to anybody.
[4] These differing ideas of
government affect the way in which systems of government work, as people who
follow the two theories
of power attempt to put them into practice.
Ostrom’s purpose was to re-explain and revive the Madisonian theory of
countervailing
power, because it had fallen into some disfavour, and to
demonstrate its relevance to the practice of government in the United States
and
the wider world.
[6] The Hobbesian theory of undivided sovereignty re-emerged in the 19th century, in Walter Bagehot’s classic exposition of the British parliamentary system, The English Constitution.[2] Quoting Hobbes with approval, Bagehot sought to demonstrate that the British system was far superior to any other, precisely because it vested sovereignty in a single place – the House of Commons. In his opinion, the fusion of executive and legislative powers, through the House of Commons and the Cabinet, gave British government a quality and efficiency not matched by systems of divided power, such as the American one. Having the people elect different levels of government and different bodies within the government, in the hope that they would check and balance each other, merely resulted in a muddle, and was the source of America’s failings. In contrast, having the people (on a limited franchise) elect the all-powerful House of Commons, and the House elect the Cabinet, was the secret of imperial Britain’s great success.
[7] The Madisonian theory of countervailing power was represented for the Australian founders by the work of another Englishman, James Bryce, in his book The American Commonwealth.[3] Bryce’s exposition of how the American people, scattered across a vast continent, delegated their powers to the different levels of government and to the two houses of the legislature, which represented them at different levels, was frequently quoted by the Australian founders, many of whom hoped that Australia would emulate both the democracy and the immense scale of the ‘Great Republic’.
[8] The Australian Hobbesians were the ‘responsible government men’, those who believed that the British parliamentary system was best and who wished to follow it as closely as possible. They insisted that Australia had to have a cabinet system, with the executive government carried on by a ministry supported by a majority of the House of Representatives. Their most vociferous spokesman was Isaac Isaacs, who believed that the Australian people should elect a national government through the House of Representatives, and who was sceptical of the notion of the Senate (representing the people equally by State) acting as a check on the House.[4]
[9] The
Australian Madisonians were those who styled themselves as the true federalists,
those who considered that the division of
power between the State and federal
governments, and between the two Houses of the central legislature, would be the
vital ingredients
of the new system. Their chief spokesman was Richard Baker. He
expounded and defended the theory of the double majority: with the
House of
Representatives representing the people as a whole, and the Senate representing
them equally by their State; a law would
not pass unless it was supported by a
majority of the people and by a majority of the people in a majority of States,
which is the
true formula of a federation. So important did Baker regard this
principle, and the concomitant requirement that the two Houses be
equal in
power, that he endeavoured to persuade the convention to abandon the cabinet
system of government whereby the Cabinet is
responsible to one House only.
Instead, he attempted to substitute a separately constituted executive, as in
the United States or
Switzerland, but on this point he was outvoted by the
‘responsible government men’ and those who wished to stay with
the
system they
knew.[5]
[11] To an extent both
sides were vindicated by subsequent developments. As Isaacs envisaged, federal
elections came to be seen as
the selection of a central government through a
majority of the House of Representatives. Baker’s attack on the
‘British
sham’ of responsible government as producing autocratic
Prime Ministers and feeble parliaments was borne out by the rigid ministerial
control over the House of Representatives to which we are now resigned. Thus,
the system developed in ways which disturbed both schools
of thought.
[13] Hostilities resumed in 1901, when the first ministry presented to Parliament the first two Supply Bills to provide the new Government with the money it needed to operate. The wording of one Bill suggested that the grant of money was the sole prerogative of the House of Representatives, and the funds in the other Bill were sought in a single sum, with the implication that the Senate did not need to know what the money was to be spent on. Was this merely a slavish adherence to British practices, or was it a last-ditch attempt by the ‘responsible government men’ to rewrite the Constitution? The Senate did not care what it was. Incited no doubt by Richard Baker, then its President, the Senate refused to pass the Bills until the offending words were removed and a list was provided showing what the money was for. For the sake of the money, the Government was willing to comply.[6]
[14] The arrival of organised political parties, and the presence of the same parties in the Senate as in the House of Representatives, did not end the ideological divide, but perpetuated it in a different form. Parties simply change sides according to whether they are in government or in opposition. The party in power tends to support the prerogatives of the executive government and the exclusive rights of the House of Representatives, while the party in opposition tends to support parliamentary checks and balances, and they adjust their theoretical positions accordingly. Thus in 1914, the Labor Party Opposition, holding a majority in the Senate, presented to the Governor-General an address objecting to the Cook Government’s advice that both Houses should be dissolved under s 57 of the Constitution for the first time. The address was a resounding defence of the Senate’s right to reject or to amend any legislation and a forthright statement of the theory of checks and balances.[7]
[15] Two factors have modified this pattern of partisan rotation. Firstly, in the period from about 1920 to about 1950, the theory and practice of checks and balances went into something of an hibernation, with only occasional outbreaks, such as those of 1929-32 when the Senate made life difficult for the Scullin Government. During this period, for reasons related to wider historical developments, a ‘Westminster hegemony’ prevailed. Australians came to see their system of government as fundamentally British, or at least one that should aspire to emulate the British model. The federal system was seen as something of an historical encumbrance, and the Senate as an unfortunate colonial substitute for a House of Lords. This prevailing view corresponded with intellectual trends in the rest of the world. Federalism and Madisonian theories of divided power were out of fashion, a situation which authors like Ostrom later set out to correct.
[16] Secondly, the events of 1975, when the non-Labor parties used a fortuitous majority in the Senate to force the Whitlam Government to an election, with the assistance of the Governor-General, has somewhat dampened the Labor Party’s enthusiasm for checks and balances. In more recent times, however, the Labor Party, when in opposition, has not hesitated to join with minor parties in the Senate to reject or amend government legislation and to use the Senate’s inquiry powers to expose government misdeeds and mistakes.
[17] The revival of Madisonian theory and practice in Australia was influenced by one highly significant institutional change: the introduction in 1949 of proportional representation for elections to the Senate. The new electoral system resulted in the Senate becoming arguably more representative than the House of Representatives, in the sense that parties win seats in the Senate very nearly in proportion to their share of votes. By contrast, under the House of Representatives electoral system parties usually win majorities with less than 50 per cent of the vote, and often with fewer votes than their main rivals.[8]
[18] This
situation has given legitimacy to the Senate’s use of its legislative
powers under the Constitution. A majority of the Senate, by whatever combination
of parties it is composed, can claim to represent a majority of the electors,
whereas a government in the House of Representatives usually represents only a
plurality of the electors, and sometimes not even
that.
[20] The revival in Australia of the theory and practice of countervailing power reflected a world-wide development. The intellectual reappraisal, led by authors like Ostrom, developed into a flood of literature on the subject, largely but not exclusively focussing on the founders of the United States and the problems of the British polity.[10] The decline of Britain was accompanied by a decline of the British model. In Britain, a constitutional and parliamentary reform movement sought the adoption of institutions to divide the hitherto concentrated power of the state. Membership of the European Union imposed a Bill of Rights and a quasi-constitutional court on the previously sovereign Parliament, and a quasi-federal system has now been established. The other old European states similarly ventured down the road of decentralisation and restraining the state. The collapse of the command economies and the complexity of contemporary issues have destroyed the naïve faith in centralised government power as the solution to all problems. Countries with constitutions which restrain government power appear to have fared rather better on most measures of success.
[21] In Australia,
the Constitution may be
changed only with the consent of the electors, who are thereby the real
possessors of sovereignty. They have demonstrated
a strong suspicion of
proposals to increase government power; they are instinctive Madisonians. It has
often been observed that most
proposals for constitutional change have been
rejected because they would have enhanced the power of the central executive
government.
The rejection of the proposed republic model in the November 1999
referendum conforms with this pattern. The ‘minimalist model’
of an
appointed head of state dismissible by the Prime Minister was designed to
preserve the ministerial monopoly of executive authority,
but could not be
‘sold’ to electors generally believed to favour a republic in
principle.
[23] The contest, however, will continue. The
notion that Australia has, or should have, a ‘Westminster system’ is
deeply
entrenched in the political classes and in both major parties. Indeed,
when in power, they often try to act as if it were true. So
long as Prime
Ministers and governments believe that their powers provide the key to success,
and that enhancement of those powers
would be in the best interests of the
country, Hobbes and Madison will remain at war in the Australian political
system, and the
ghosts of Isaacs and Baker will continue to haunt our public
forums.
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URL: http://www.austlii.edu.au/au/journals/UNSWLawJl/2001/56.html