Professor Gerard Carney refers to Egan v Willis (1998) 195 CLR 424 as a “triumph of responsible government”? Why? Do you agree?
A truly responsible government will take responsibility for its mistakes. It will also be able to take responsibility for the consequences of its actions and decisions on the people it governs. This means it will be accountable in its dealings with the public. A truly responsible government is not afraid of criticism and will be open to new ideas.
They should be transparent in their actions and decisions, as well as in their finances. They should not make any decisions without considering the opinions of their citizens, and they should work hard to keep their citizens informed about what’s happening.
The legislature is where laws are made, and it must ensure that they are fair and just and protect the rights of all citizens equally. The executive must ensure that these laws are implemented fairly and justly, without discrimination or prejudice.
The relationship between the government and the public must be vital for the effective functioning of society. However, to achieve this effective functioning, the three organs of the government need to play an important role by keeping the check and balance on the functioning of each government. But this proposition has a problem because it is a little challenging to implement as it can interfere with each department’s sovereignty. It can lead to the infringement of independence of the organs of the government.
However, on the contrary, if an adequate check and balance system isn’t maintained, then unreasonable powers may be exercised while making decisions for the nation and its people. So, the question arises about what should be done to maximize the nation’s welfare. Is it justifiable for a legislature to question the executive’s functioning and ask them to produce the records for whatever they have done?
How does a responsible government function in society, and what all steps can be taken to achieve a truly accountable government?
Egan v Willis is an example of a triumph of responsible government because it demonstrated the power of the Australian Constitution to protect its citizens from arbitrary and unreasonable actions by their government.
Professor Gerard Carney referred to Egan v Willis as a “triumph of responsible government” because it is an example of the High Court of Australia holding the executive accountable for its decisions. It is a demonstration of how Australia’s democratic system works.
Professor Gerard Carney supported the centrality of responsible government in Australian life. He referred to Egan v Willis as an example of how this requirement of responsible government was upheld.
This research essay attempts to explain and analyze why Professor Gerard Carney referred to the case of Egan v. Willis as a triumph of responsible government. It further analyzes whether Professor Carney was right in saying so.
But before understanding this, it is pertinent to understand the case, in brief, to analyze how it led to the triumph of responsible government, as pointed out by Professor Gerard.
II. BACKGROUND OF THE CASE
The New South Wales Legislative Council 1995 passed a resolution that contained the provision that state papers must be tabled in the house relating to various government activities. Later, one more resolution was passed, which said it would be sufficient for a minister to table the documents required to deliver to the house clerk.
Michael Egan, a treasurer, Minister for Energy, assisting the Premier and Leader of the Government in the Legislative Council, had four state papers that were eligible to be tabled before the house. But he refused to do so based on a cabinet decision. He did not table the documents asserting that the legislative council did not have such powers to compel them to follow the resolution.
The house held Egan guilty of contempt of court. He was ejected from the chamber on the instructions of Willis, President of the Council. He was also suspended from the house for the rest of the entire day.
Egan resorted to legal action against President Willis and pleaded that he was performing his duty and obeying the cabinet’s decision. He also questioned the power of the legislative council to order the production of organizational documents. Why is he being punished for the same?
The High Court finally delivered its judgment and affirmed that the legislative council had the power to call for state papers or executive documents. As the verdict was delivered, the council passed the extensive resolution and ordered Egan to deliver all the documents called in the past to the clerk.
However, Egan rejected this motion because the council should wait for the decision of Egan v. Chadwick. The judgment of Egan v. Chadwick would play a decisive role in determining whether privileged documents can be ordered.
Egan delivered all the documents by the deadline except for the 200 documents protected by the legal professional privilege and public interest community.
Finally, the decision of Egan v. Chadwick upheld the council’s power to order the production of State papers and even the privileged ones, except for the uncertain category of cabinet documents.
III. WAS PROFESSOR GERARD CARNEY CORRECT IN REFERRING TO EGAN V WILLIS, A CASE OF THE TRIUMPH OF RESPONSIBLE GOVERNMENT?
I agree with Professor Carney’s opinion on this case and that Egan v Willis was indeed a triumph for Australian courts upholding the rule of law. He argued that the case is a triumph because it is an example of Australian courts upholding the rule of law, and when they do so, they are doing their job.
The rule of law is essential because it ensures that no one is above the law. The decision of Egan v. Willis and Egan v. Chadwick upholding the council’s power to call for the state papers and the affirming of to call state papers which fall even in the privileged category, respectively, was a true success of the legislative council to uphold the principle of responsible government.
Professor Gerard Carney was correct when he referred to Egan v Willis, a case of the triumph of responsible government. This case is a triumph of responsible government because it shows the legislative branch’s power. The court ruled that Parliament can legislate for New South Wales and that it can do this without consulting with any other party.
To understand how this decision was a triumph of responsible government, it is vital to analyze the characteristics of responsible government and how this case fulfils those characteristics.
A responsible government is accountable to the people. It has a transparent and open government. It has a system of checks and balances to ensure that no single person or group can have too much power.
As rightly formulated by Lord Haldane in the Engineers case, “responsible government means a government under which the Executive is directly responsible to almost the creature of - the Legislature.”
There are many characteristics of a responsible government, but the most important ones are that they should be honest and accountable. They should also be transparent and democratic.
To be accountable, the government needs to have a system to track its policies’ effectiveness. Otherwise, they can’t know what is working and what isn’t. If there is no way for them to understand how well their policies work, then it will be impossible for them to make any changes.
Transparency is also crucial because if the government does not share information with its people, those people will not trust it. This can lead to many problems, such as protests or even riots. Not only with people, but the requisite information must also be shared with the legislature to keep track of how the executive implements its decisions.
Egan v. Willis helps to achieve these characteristics of responsible government. It enumerates the principles of honesty, transparency, and accountability within its judgment. And it is undeniable that these are the true tests to determine whether a government is responsible and whether it has seen success.
Also, if the legislature doesn’t keep a check on the executive’s action, then there will be no check on the executive’s working. As a consequence, the executive may end up exercising arbitrary and unreasonable powers. The doors of the judiciary are knocked on only when there is an unending dispute between these two organs. The judiciary also has a limited role while exercising its powers in respect of the other two organs of the government.
It cannot by itself start interfering in matters unless it is necessary to do so because this will amount to judicial overreach, which is not a good indicator for the effective functioning of the government. If this is the case, then the whole system of government functioning will hamper.
The idea of a responsible government would come to collapse. Therefore, a legislature needs to keep a check and balance on executive functioning. This system of checks and balances is not only to be exercised by the legislature on the other organs of government but also by the executive and legislature on each other. This works on the principle of a vicious circle of checks and balances where each organ with the primary motive of public welfare works together cooperatively.
The joint judgment, according to the present-day position rightly recognized as follows, “What is “reasonably necessary” at any time for the “proper exercise” of the “functions” of the Legislative Council is to be understood by reference to what, at the time in question, have come to be conventional practices established and maintained by the Legislative Council.”
Therefore, Professor Gerard Carney was true in pointing out Egan v. Willis as a triumph of responsible government.
The case of Egan vs. Willis provides a critical analysis of the power of a legislative council to order and review the state papers from the executive. This power ensures an adequate check and balance maintained on the functioning of legislature and executive. Judiciary plays a critical role in supporting this check and balance. This is evident in how the judiciary balanced maintaining the rights of the legislative council and the executive.
A trickling question regarding this issue was whether the legislative council and legislative assembly had the same status. It was concluded that both the legislative council and legislative assembly were equal legislative chambers except because the legislative council did not have the power to initiate and amend the money bills.
Various judgments have recognized the central role of the legislative council in both the parliamentary and constitutional systems. The principle of responsible government aids in holding ministers accountable for the activities in both houses.
The judgment rightly observed the following aspects of responsible government,
“One aspect of responsible government is that Ministers may be members of either house of a bicameral legislature and liable to the scrutiny of that chamber in respect of the conduct of the executive branch of government. Another aspect of responsible government, perhaps the best known, is that the ministry must command the support of the lower house of a bicameral legislature upon confidence motions. The circumstance that Ministers are not members of a chamber in which the fate of administration is determined in this way does not have the consequence that the first aspect of responsible government mentioned above does not apply to them. Nor is it a determinative consideration that the political party or parties, from members of which the administration has been formed, “controls” the lower but not the upper chamber. Rather, there may be much to be said for the view that it is such a state of affairs which assists the attainment of the object of responsible government of which Mill spoke in 1861.”The observation in Egan vs. Willis relied more on concluding that the legislative council has the inherent power to order government documents from a minister who is a member for scrutinization. Therefore, Professor Gerard Carney is true in holding the decision of Egan vs. Willis as a “triumph of responsible government.”
Lipton, Jacqueline, “Responsible Government, Representative Democracy And The Senate: Options For Reform”, Australasian Legal Information Institute <http://www.austlii.edu.au/au/journals/OtaLawRw/1987/2.pdf>
Nsw Parliamentary Library Research Service, Egan V Willis & Cahill: The High Court Decision (1999)
Winterton, George, State Constitutional Landmarks (Federation Press, 2006)
Amalgamated Society of Engineers v Adelaide Steamship Co Ltd, (1920) 28 CLR
Egan v Chadwick (1999) 46 NSWLR
Egan v Willis (1998) 195 CLR
Constitution Act 1902 (NSW).