April 04, 2019

Horse 2527 - The Constitutional Background To The Budget Reply Speech

The week of the Federal Budget in an accountancy firm is always fraught with terribleness. Not only do we get to read through a document which is massive and full of myriad implications but in an almost deliberate attempt to prove Jean-Paul Sartre's misquoted saw that 'hell is other people', the great collective of other people beat down at your door with variations on one question: what's in it for me? Since the number of people in the Commonwealth is orders of magnitude greater than myriad, the number of individual answers to the question is also orders of magnitude greater than myriad.
The one question which was the most vexing came from my boss, who didn't ask about what was contained in the budget but the exceptionally easy to ask and seemingly impossible to answer, question of:

Why does Bill Shorten give the Budget Reply Speech and not Chris Bowen?

After much deliberation, I still have no idea really.
Firstly, here is some constitutional background¹.

Fact 1 - There is no Protocol for forming Government mentioned in the Constitution.

Parliament in order to work the machinery of government needs to raise and spend money in order to do so. That responsibility lies with the parliament as a whole and the notion that there needs to be a government at all, is still only really held up by fairly tenuous convention which as has been proven in the UK, can just as easily be pulled down at a snap, as there have been various Unity Governments where the whole parliament is the government.

Fact 2 - There is no Prime Minister mentioned in the Constitution.

Despite the fact that we'd been doing parliamentary democracy in Australia for 45 years when Federation happened, and the convention that there should be a Premier of executive government was well established, the more than a decade long bunfight which finally resulted in the Constitution still never mentions by name either a Premier or a Prime Minister.
Section 64 provides that the Governor-General can appoint Ministers of the Crown but there is no direction as to the nature and scope of who those Minsters are.

The Governor-General may appoint officers to administer such departments of State of the Commonwealth as the Governor-General in Council may establish.
- Section 64, Commonwealth of Australia Constitution (1900)

Fact 3 - The Treasurer is the de jure and de facto administrator of Money Bills.

Section 53 of the Constitution provides that Money Bills must originate in the House of Representatives and that by inference determines who the government actually is.

Proposed laws appropriating revenue or moneys, or imposing taxation, shall not originate in the Senate. But a proposed law shall not be taken to appropriate revenue or moneys, or to impose taxation, by reason only of its containing provisions for the imposition or appropriation of fines or other pecuniary penalties, or for the demand or payment or appropriation of fees for licences, or fees for services under the proposed law.
The Senate may not amend proposed laws imposing taxation, or proposed laws appropriating revenue or moneys for the ordinary annual services of the Government
- Section 53, Commonwealth of Australia Constitution (1900)

If you can control the majority of the members in the House on matters of the supply of money and the confidence of the House, you are the government. There doesn't need to be an election (although given that we have political parties whose purpose is to control the majority of members in the House) and the Government can be changed in the blink of an eye simply by gaining the confidence of the majority of members.

Given that the Treasurer is the de jure and de facto administrator of Money Bills, then they are the one who hands down the prime bill which is Appropriation Bill No.1; which is otherwise known as the Federal Budget. Budget Night and the speech to parliament is the opening recommendation by the relevant Minister of the Crown to the House that they should accept the bill into law.

Fact 4 - There is no Opposition, Opposition Leader, or Shadow Cabinet mentioned in the Constitution.

The Shadow Cabinet are not Minsters of the Crown. There is no Constitutional requirement or basis that there even needs to be an Opposition. As there is no Constitutional basis for the Shadow Cabinet, there is no Constitutional basis for the Leader of the Opposition or the Shadow Treasurer.
Again, all of this hangs on convention which is like building a skyscraper out of tissue paper. It might look impressive but the whole thing blows over at the merest of agitation.

Those are the important facts of the case; and now we dive head first into the swirling waters of uncertainty.
I have no idea what the heck is going on.

The model of Westminster Parliaments is the eponymous parliament on the north bank of the Thames. Convention in the UK dictates that there is someone who reports from the parliament to the monarch; this person as the liaison between the monarch and the operating executive which actually administers and operates the Treasury of the Crown, is the First Lord of the Treasury. The First Lord of the Treasury existed before the notion that there should be a Prime Minister at all.
The person with the job of writing the cheques to operate parliament to in the United Kingdom is the Chancellor Of The Exchequer. They have in the past been the same person but if they are not then the cheque writer is the Second Lord of the Treasury.

The curious thing is that the first person to make a speech of objection to the nature and material of the Budget in parliament, is given by someone who is neither named in the Constitution nor needs to exist.
During the period from about 1868 to 1894, the series of rolling bunfights between Gladstone, Disraeli and Lord Salisbury, meant that they sat in all the positions of Prime Minister, Chancellor Of The Exchequer, Leader Of The Opposition, and Shadow Chancellor. There was also instances where the Prime Minister sat in the House of Lords, which isn't where Money Bills originate from.
Australia inherited these series of conventions which rather than founded in either reality or protocols of decency, were nothing more than skyscrapers made from tissue paper and filled with acid. Working my way through Hansard at the State Library of New South Wales, I have found no discernible pattern as to who gave the Budget Reply Speech, and saw that at various times it was either the Leader of the Opposition or the Shadow Treasurer.
And then it all got weird.

The Labor Party of Australia had actually been pretty stable in the period after Sir Robert Menzies left office and the Liberal/Country Party tore itself to pieces, going through Holt, McEwen, Gorton and McMahon in rapid succession (admittedly Harold Holt wandered off into the ocean; which was unfortunate). It hadn't appointed a Shadow Cabinet towards the end of the mess because there wasn't really much of a need to if the real Cabinet was so unstable that there wasn't anyone to Shadow.
So when Gough Whitlam did finally take office in 1972, his first ministry became a duumvirate with him as Minister for Everything and Lance Barnard as Minister for Everything Else. When normality returned, it was Frank Crean who became Treasurer and handed down the three appropriation bills of the Whitlam Government.

The first televised session of parliament in Australia came with the combined meeting of both houses following the 1974 Double Dissolution. This is significant because the very first televised Budget Reply Speech was by Opposition Leader Malcolm Fraser in 1975; which had the most singular end to a government in the nation’s history.
Every single Budget Reply Speech from 1975 onwards, as far as I can tell has been made by the Leader of the Opposition and as best as I can make out, the reason for doing so is that there is a camera pointed at them.

I don’t have a particularly good reason why it’s the Leader of the Opposition and not the Shadow Treasurer and I suspect the reason isn't particularly good either; it’s certainly not grounded in the Constitution which provides no direction whatsoever to a position that isn't even mentioned².

²It's the constitution. It's Mabo. It's justice. It's law. It's the vibe...

1 comment:

Simon Grady said...

That weird part of the internet where you wander into constitutional law.
Are you like a lawyer or something?