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Constitutional Conventions in Australia

The Australian Constitution makes no mention of political parties, the Cabinet or of the position of Prime Minister.

All these are conventions by which our system operates in practice.

A convention is not a law, merely an accepted way of doing something.

Many conventions in our system operate in those sections of the Constitution which deal with the Executive Government.

Chapter 2 of the Constitution (Sections 61-70) sets out how the Government of Australia shall operate. It makes no mention of the Cabinet, political parties or the Prime Minister.

Examples of Constitutional Conventions

Section 61: “The executive power of the Commonwealth is vested in the Queen and is exercisable by the Governor-General as the Queen’s representative, and extends to the execution and maintenance of this Constitution, and of the laws of the Commonwealth.”

In practice, it is the Cabinet, led by the Prime Minister, which performs this task.

Section 62: “There shall be a Federal Executive Council to advise the Governor-General in the government of the Commonwealth, and the members of the Council shall be chosen and summoned by the Governor-General and sworn as Executive Councillors, and shall hold office during his pleasure.”

In practice, the Governor-General, acting on the advice of the leader of the majority party in the House of Representatives, summons members of the majority party and swears them in as ministers.

Section 64: “The Governor-General may appoint officers to administer such departments of State of the Commonwealth as the Governor-General in Council may establish. Such officers shall hold office during the pleasure of the Governor-General. They shall be members of the Federal Executive Council, and shall be the Queen’s Ministers of State for the Commonwealth.”

In practice, the ministers are chosen by the Prime Minister who advised the Governor-General of the names and jobs allocated to the ministers.

It was this section of the Constitution that the Governor-General used to dismiss the Whitlam Government in 1975.

Section 68: “The command-in-chief of the naval and military forces of the Commonwealth is vested in the Governor-General as the Queen’s representative.”

In practice, the Prime Minister and the Defence Minister are in charge of the armed services. It is unlikely that the armed services would accept orders from the Governor-General if they were not also Government orders.

Section 28: “Every House of Representatives shall continue for three years from the first meeting of the House, and no longer, but may be soon dissolved by the Governor-General.”

In practice, Prime Ministers decide when the House will be dissolved and elections called. The one power that both major parties give exclusively to their leaders is the power to decide election dates.

Section 72: “The Justices of the High Court and of the other courts created by the Parliament.. shall be appointed by the Governor-General in Council.”

In practice, judges are appointed by the Prime Minister, possibly with advice from the Attorney-General and Cabinet. The Governor-General simply acts on the Prime Minister’s advice and rubber-stamps the decision.

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Malcolm Farnsworth
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