How people elect parliaments
The Australian Constitution requires that elections to be held to populate the two chambers of the Parliament: the House of Representatives and the Senate
The houses of the Parliament do not exist in isolation but are part of a greater structure – a system referred to by judicial and political observers as one of representative and responsible government. This phrase sums up the basic nature of the system of democracy established by the Constitution as one in which the government is accountable to the Parliament, and the Parliament in turn is accountable to the people – a two-step accountability which in theory makes the government ultimately accountable to the people.
The expression representative and responsible government is the also central to understanding the place of elections in our public life, and the ways in which the conduct of elections should take place. The phrase was referred to frequently by the founders who wrote the Constitution, and was well understood by all those working in, and commenting on, the governance culture of late 19th century Britain and Australia.
The expression and each of its two components representative government and responsible government have appeared regularly in the High Court’s interpretations of the Australian Constitution since federation, explaining what national institutions such as Parliament are for, and clarifying how the validity of legislation, the common law and the actions of officials are constrained by the character of the political system which the Constitution creates and sustains.
The most significant part of this jurisprudence dates from the emergence of the ‘political communication’ rulings from the early 1990s, and the more recent ‘enrolment’ cases that have drawn from similar principles. The decisions in these cases have centred around a need to protect the essential character of the constitutional arrangement of institutions, and in particular those relating to election of Parliament. The Court has ruled that the law requires a strong degree of protection of the representative character of the houses of Parliament.
In the 1997 decision in the case of Lange v ABC the Court held that the need to protect the representative character of the Parliament is not merely of theoretical interest, but impacts directly on the interpretation of the common law and on the scope of Parliament’s capacity to enact legislation. The following passage explain the Court’s reasoning:
“Representative and responsible government
Sections 7 and 24 of the Constitution, read in context, require the members of the Senate and the House of Representatives to be directly chosen at periodic elections by the people of the States and of the Commonwealth respectively. This requirement embraces all that is necessary to effectuate the free election of representatives at periodic elections. What is involved in the people directly choosing their representatives at periodic elections, however, can be understood only by reference to the system of representative and responsible government to which ss 7 and 24 and other sections of the Constitution give effect.
That the Constitution intended to provide for the institutions of representative and responsible government is made clear both by the Convention Debates and by the terms of the Constitution itself. Thus, at the Second Australasian Convention held in Adelaide in 1897, the Convention, on the motion of Mr Edmund Barton, resolved that the purpose of the Constitution was “to enlarge the powers of self-government of the people of Australia”.
Sections 1, 7, 8, 13, 24, 25, 28 and 30 of the Constitution give effect to the purpose of self-government by providing for the fundamental features of representative government. As Isaacs J put it: “[T]he Constitution is for the advancement of representative government”.
This conclusion, now known as the Lange test, holds that if legislation, law or official actions adversely impact the protected constitutional situation (representative and responsible government), those laws or actions will be invalid unless they can show that they serve a purpose which is compatible with the essential system of government, and are also appropriate and adapted to achieve that purpose.
The content of the compound phrase representative and responsible government is well known. The ‘responsible government’ element requires that the executive government – the ministry – be accountable to Parliament, in particular to the House of Representatives. The term ‘responsibility’ has a narrow meaning; to be ‘responsible’ is to be accountable or answerable to the House on an ongoing basis, including being subject to continual questioning and being subject to removal from office if the support of the House should be lost.
The idea of responsibility stands in direct contrast to a monarchical form of government, in which the ministry is not answerable to Parliament. It also stands in contrast to systems of government where the executive, even if elected, has a fixed term of office, as in the United States and other presidential systems. In a system of responsible government the ministry may be dismissed at any time by the lower house of Parliament. The fact that the holding of office by the ministry is dependent on the ongoing confidence of the lower house gives crucial force to the idea of responsibility. In support of this relationship, the ministry is also continually subject to the scrutiny and criticism in the Parliament, through powers held by both the Senate as well as the House. (See Egan v Chadwick and Egan v Willis.)
The institutions of this system of government developed with the goal of directly influencing the character and the conduct of the executive government.
The ‘representative’ element of ‘representative and responsible government’ requires that the Parliament in question has a particular character; it must be a Parliament which is representative of the people. An unrepresentative Parliament will not suffice. This is so fundamental that Justice Sir Isaac Isaacs reached the conclusion cited above that “the Constitution is for the advancement of representative government”. It follows that the process by which the people elect representatives to the houses of Parliament is central to the existence of a system of representative government. (See Federal Commissioner of Taxation v Munro (1926).)
In recent years the Court has repeatedly held that Australian constitutional law protects these characteristics of the Australian system of government, if necessary by setting aside any part of the common law, the enactments of Parliament and the actions of officials which undermine that position. The Court developed the Lange test to this end.
Several cases following the Lange ruling have clarified this constraint on Parliament’s scope of legislative action by upholding the need for Parliament to be elected under conditions where voters exercise choice that is formed in a climate of open communication. (See Langer (1996), McGinty v WA (1996), Monis (2103) and Unions NSW v NSW (2013).)
Another line of judgements (Roach (2010) and Rowe v AEC (2013)) have required that Parliament be elected by all of the people who are eligible to participate in that choosing. These rulings have given effect to that goal by placing limits on Parliament’s capacity to enact amending laws which hinder any of those people from participating.
Over the past two decades the Lange position has repeatedly been confirmed and refined into an enduring judicial formula for determining the validity of laws. These judgements provide a ‘pathway of reasoning’ by which to test the validity of legislative provisions:
If a provision of legislation*, either in its terms, operation of effect, effectively burdens** the system of representative government established by the Constitution (which includes the choosing by ‘the people’ of representatives to sit in the houses of Parliament), then to be valid, the law must (a) serve some legitimate purpose the fulfilment of which is compatible with the maintenance of the constitutionally prescribed system of representative government, and (b) be reasonably appropriate and adapted to serve that purpose***.
(* Note that all of Commonwealth laws, state laws and executive actions are also constrained by this principle, following the judgement in Unions NSW v NSW.)
(** In regard to this first limb of the test, the 5-justice majority in Unions NSW v NSW held that “A law will be invalid where it…may be taken to affect the system of government for which the Constitution provides…” (para 19). “The first question is whether [a provision] effectively burdens [the requirements for electing a representative parliament, in this case by infringing free communication] either in its terms, operation of effect.” (para 36). “The identification of the extent of the burden imposed…is not relevant to the first enquiry”. (para 40) In his supporting judgement Justice Keane added that “the limitation upon government power arises from ss 7, 24, 64 and 128 of the Constitution as a matter of necessity to ensure their effective operation” (para 103). The reason this principle exists is “to ensure the political sovereignty of the people of the Commonwealth, who are required to make the political choices necessary for the government of the federation…”(para 104). This “limitation on governmental power…is indispensable to the effective operation of these provisions of the Constitution…” (para 109).)
(***The majority in Unions NSW v NSW wrote as follows: “the second limb of the Lange test…asks whether the provision is reasonably appropriate and adapted, or proportionate, to serve a legitimate end in a manner which is compatible with the maintenance of the prescribed system of representative government. The enquiry whether a statutory provision is proportionate in the means it employs to achieve its object may involve consideration of whether there are alternative, reasonably practicable and less restrictive means of doing so.” (para 44). At para 115 Keane J then summarised the two limbs of the Lange test in the language used above.)
Following the constitutional principles articulated by the Court, it should be clear that authority is not given to the Parliament to enact laws that undermine the mandated system of representative and responsible government.
Nor may the state parliaments enact such laws, nor may the executive governments at either level undertake actions that do so.
Nor should any court applying the common law side with conclusions that undermine that system.
The Court’s decisions mainly speak of representative government, but it is occasionally made clear that the phrase responsible and representative forms a single larger conception of the system of government in question, The responsible government aspect of this principle has not been extensively considered in isolation by the Court. The Egan cases in 1996-97 are the only major relevant judgements. It may well be that there are judicial decisions yet to come regarding the relationship between the houses of Parliament and the executive, for example in regard to the production of information demanded by the Houses, the accountability of ministers, or laws enacted relating to the appropriation processes of the Parliament.
Nor is the scope of the protection of the system of representative and responsible government limited only to the recently litigated topics of freedom of speech and electoral enrolment. The Court has reached decisions on those topics because it concludes that representative and responsible government as an outcome must be protected. A place cannot be protected if some gates are locked but others are left open, so it must be the case that the application of these principles extends to laws not only on those two subjects, but to all legislation and official action. If it were otherwise, then the required constitutional order would not in fact be protected. So there will be more categories of legislative subject matter yet to be tested against the constitutional protection that the Court requires.
We saw this in 2015, when the Court decided a major case relating to state legislation governing political donations (McCloy v NSW).
This does not mean that judicial decisions applying the Lange test to individual cases will be specifically predictable. The Court has laid down a ‘pathway of reasoning’, but what result that pathway leads to on each issue that gets litigated is always open to the different application of the process to the facts by different judges.
There is a competing rule used by the Court when determining the validity of legislation, which is that of deference. On technical subjects, it is common for the Court to allow Parliament a wide range of discretion as to how to address a policy issue. In such cases the Court will be careful to distinguish the judicial task of determining the scope of Parliament’s powers from the question of what particular legislation makes an appropriate use of that power. The Court does not defer to Parliament in regard to the definition of Parliament’s scope of legislative power, only on the selection of legislative choices that fall within that scope.
The rationale for this rule is that Parliament, as the elected and accountable body, has the greater democratic mandate and accountability to determine policy questions. Thus the deference arises directly from the idea that Parliament is representative of the people.
However, the application of the principle of judicial deference to the specific question of legislation determining the composition of Parliament contains an obvious circularity. Should the Court defer to Parliament regarding the validity of legislation which would make Parliament a less representative body? If Parliament is not to be representative, then the case for deference to its legislative enactment disappears. If the Court were to permit Parliament to legislate for an unrepresentative composition of itself, the Court may itself be said to have failed to correctly apply the constitutional mandate that a system of representative and responsible government be created and sustained.
Taking all these issues into account it follows that legislation, official actions and perhaps even parliamentary procedural rules that interfere with the answerability of the ministry to the Parliament, or undermine the representative character of that Parliament, will be invalid unless they satisfy an analysis using the Lange test. At the least such laws will be subject to modification in their effect so as to be compatible with the required constitutional regime of representative and responsible government.
April 2014, revised February 2016
This article is based on extracts from my Submission 181 to the Joint Standing Committee on Electoral Matters inquiry into the 2013 election which took place during 2014.
Egan v Chadwick (1999)
Egan v Willis (1998) 195 CLR 424
Federal Commissioner of Taxation v Munro (1926) CLR 153 at 178.
Lange v Australian Broadcasting Corporation (1997) 189 CLR 520
Langer v Commonwealth (1996) 186 CLR 302
McCloy v New South Wales  HCA 34
McGinty v Western Australia (1996) 186 CLR 140
Monis v The Queen  HCA 4
Roach v Electoral Commissioner  HCA 43
Rowe v Australian Electoral Commissioner (2010) 85 ALJR 213
Unions NSW v New South Wales  HCA 58