Responsible Government, Statutory Authorities and the Australian Constitution

• Published in: Federal law review 2020-03, Vol.48 (1), p.4-29
• Main Author: Saunders, Benjamin B
• Format: Article
• Language: English
• ISSN: 0067-205X; 1444-6928
• DOI: 10.1177/0067205X19890445

This article examines the compatibility of extra-departmental executive agencies, a defining feature of the modern regulatory state, with responsible government, one of the architectonic principles of the Australian Constitution. Some scholars have argued that a constitutional implication derived from responsible government should be drawn limiting the types of entities that may be established by the Commonwealth and imposing requirements relating to the relationship that must exist between ministers and entities within their portfolio. This article argues that the view that independent statutory agencies are a derogation from the principles of responsible government rests on a misunderstanding of responsible government. Responsible government is an inherently evolutionary system: as incorporated into the Australian Constitution, responsible government was intended to be flexible and non-prescriptive, allowing for change in the governmental arrangements considered necessary from time to time. Independent statutory agencies should not be seen as a challenge to the true principles of responsible government but a legitimate evolution in governance arrangements, which the Constitution deliberately left open.