In Praise of Parliament
In this, the 800th anniversary of the signing of the Magna Carta, perhaps it is timely to reflect on Churchill’s oft-quoted description of democracy:
Many forms of government have been tried, and will be tried in this world of sin and woe. No one pretends that democracy is perfect or all wise. Indeed it has been said that democracy is the worst form of government except for all those other forms that have been tried from time to time.
I believe this description still holds true.
Parliament remains the bulwark for individual freedom.
Australia’s system of parliamentary democracy derives from Westminster, but our founding fathers had a world search for what else was on offer when it came to writing our national Constitution. Clearly the strength of our Senate owes a lot to the United States model, as does the naming of our people’s chamber as the House of Representatives as opposed to the House of Commons. Nonetheless, our incorporation of a dash of Washminster has not turned us from the ancient roots of parliamentary democracy into a congressional system; rather, it has sent us on the road to our very own Ausminster, a supremely secure and stable parliamentary democracy that is the envy of nations the world over.
Unlike Britain but like the United States, Australia has a written Constitution and is a federation, whereas Britain has an unwritten constitution and is a union. As a consequence, the capacity of the Australian Parliament to legislate is limited to the powers ceded to it by the states to either exercise exclusively or share. In addition there is executive power, which is limited in turn by judgments of our High Court, itself established by the Constitution. Former lord chief justice Tom Bingham addresses in his book The Rule of Law the question of whether parliaments with written constitutions are truly sovereign, as they are constrained by court decisions determining parliament’s ability to enact valid laws, since a court can declare legislation ultra vires and therefore invalid. Bingham refers to the 1872 statement of the Queen’s Bench that ‘there is no judicial body in the country by which the validity of an act of Parliament could be questioned’. He further quotes Vernon Bogdanor’s definition of parliamentary sovereignty as ‘what the Queen in Parliament enacts is law’. Thus, our Constitution would appear to define the Australian Parliament as not being sovereign. However, our parliament still has the power to circumvent a decision of a court where it relates to interpretation of enacted law by passing further legislation to overturn the effect of that decision.
There are those, including me, who argue that the system of representative parliamentary democracy that began with Magna Carta is properly defined by whether the rule of law is continuously upheld by that system
Contemporary democracy as we know it has been an evolutionary process. Magna Carta can be stated as its starting point. Certainly the complete embrace of the charter by the United States and its frequent citing in contemporary legal discourse reinforces this view. The charter is probably more accurately described as the logical successor to the coronation oaths of successive kings prior to the odious King John. Sir James Holt, English medieval historian (recently passed away), considered that laymen had been familiar with the concepts set out in Magna Carta long before 1215, and had understood them well. The charter was therefore well accepted from the beginning and grew in strength with various iterations from 15 June 1215 to Henry III’s Charter in 1225. Magna Carta and the rule of law, as we understand them, are intrinsically linked and the Parliament of Australia is the inheritor of this tradition.
The office of the Speaker is one of the oldest, dating from 1377, only preceded by the clerk: one who could read and write, and therefore inform members of parliament. The Speaker’s role has evolved just as the exercise of monarchical power has devolved. Sir Thomas Hungerford was the first person to be given the title of Speaker. Originally the Speaker was the spokesman for the monarch and this remained unchanged until 1642 when Speaker William Lenthall established once and for all that the Speaker is the spokesman and servant of the House of Commons. As retold by Matthew Laban in his book Mr Speaker: The Office and the Individuals since 1945, when King Charles I famously entered the House of Commons in 1642 to try to arrest five members of parliament, he asked the Speaker where they were. Speaker Lenthall replied, ‘May it please your Majesty, I have neither eye to see, nor tongue to speak in this place, but as the House is pleased to direct me, whose servant I am here.’
Until 1728, Speakers continued to hold other political appointments connected to the executive, that is, the ministry. Speaker Arthur Onslow, who served from 1728 to 1761, decided to resign his position as treasurer of the Navy in favour of being independent of executive government. Laban writes that this longest-serving Speaker set standards that still have influence today. Evolving the position further, Speaker Henry Addington in 1796 established the practice that the Speaker only has a casting vote and not a deliberative vote. He also established the precedent that it be exercised in favour of the status quo.
Erskine May is the name synonymous with parliamentary procedure in Britain and many other Westminster-style parliaments. May was clerk of the Commons in 1844 when he wrote A Treatise upon the Law, Privileges, Proceedings and Usage of Parliament. He went on to edit nine editions and it is now in its 24th. It is commonly called Britain’s parliamentary bible. The standing orders of the Australian House of Representatives used to refer to Erskine May in cases not provided for by orders or practice of the House, even though we have had our own book of practice since 1981. In 2004 the reference was removed from the standing orders, although our practice still references May. Australia’s House of Representatives Practice, now our parliamentary bible, is in its sixth edition, the current edition having been edited by our immediate past clerk, Bernard Wright.
Section 50 of our Constitution provides that:
Each House of the Parliament may make rules and orders with respect to:
(i) the mode in which its powers, privileges, and immunities may be exercised and upheld;
(ii) the order and conduct of its business and proceedings either separately or jointly with the other House.
This is the source of our standing orders in both Houses. Other parts of the Constitution also define how our parliament must function. For instance, money bills can only be introduced in the House of Representatives. The Australian Parliament has also codified the laws relating to parliamentary privilege; a move not made in Westminster. Clearly Westminster has been hugely influential on the development of our representative democracy, but Australia has struck out on its own. First, the very nature of our Constitution being the result of conventions, interstate trade-offs and written by Australians makes us unique. A strong Senate that can bring a government down, as it did in 1975 with the dismissal of the Whitlam government; the introduction of parliamentary discipline with the Scrutiny of Bills Committee; the landmark creation of a second chamber for the House of Representatives known as the Federation Chamber (which continues to evolve with the amount of work it can entertain), are three significant examples. It is interesting to note that Britain has copied Australia by introducing a scrutiny of bills process and creating Westminster Hall as their second lower house chamber.
Economic crises have also challenged, but it is the ability of democratic governance to allow individuals with innovative ideas to emerge and push a free society, governed by the rule of law, into renewed prosperity.
A salient difference, however, is the way in which the speakership operates. Whereas the Speaker of the Commons must resign from his or her party and virtually see his or her constituents disenfranchised, the Speaker of the Australian House of Representatives remains politically active by retaining party member-ship, but being impartial in the chair. Indeed, Standing Order 41(f ) specifically provides that the Speaker may participate in private members’ business. Then Speaker Anna Burke exercised this right under these provisions in 2013 to make a constituency statement in the Federation Chamber, noting ‘it is a rarity for a Speaker to be on their feet, but the one thing you do not give up on becoming Speaker is being the member for your electorate’. Indeed, I led debate on both a bill and a motion in the House of Representatives, from the Speaker’s chair, which related directly to my administrative responsibilities as Speaker. The House of Representatives Practice sets out the House’s position: practice in the House of Representatives has been to change the Speaker with a change of government. This provides a Speaker who is politically affiliated but who is required to be impartial in the Chair, rather than a Speaker who is both independent and seen to be independent. Historically, the Speaker has not been required to sever his or her connection with the governing party. Speakers have attended party meetings and have not, of necessity, refrained from election campaigning.
There are those, including me, who argue that the system of representative parliamentary democracy that began with Magna Carta is properly defined by whether the rule of law is continuously upheld by that system. In my view it is. Democracy has been challenged frequently. Certainly, either world war would have resulted in totalitarian rule if the aggressors had been successful. Economic crises have also challenged, but it is the ability of democratic governance to allow individuals with innovative ideas to emerge and push a free society, governed by the rule of law, into renewed prosperity. That to me ensures it is a system worth the fight to maintain.
The Parliament of Australia, where I had the honour to preside in the House of Representatives, is the inheritor of a grand tradition; one that has established the principle that no-one is above the law, no matter how mighty. We share this inheritance with other nations and parliaments that enshrine the rule of law. The challenges will continue but Churchill’s words, with which I began, are more than a match for the doubters. Parliament remains the bulwark for individual freedom.
This is an essay from the democracy issue of Meanjin, Vol 74, No 3, Spring 2015.