Abbott, Tony, 103 Accountable Government: a Guide for Ministries

Cambridge University Press 978-1-107-10024-4 - Constitutional Conventions in Westminster Systems: Controversies, Changes and Challenges Edited by Brian Galligan and Scott Brenton Index More information

INDEX

Abbott, Tony, 103 Freedom of Political Communication Accountable Government: A Guide for cases in, 39–42 Ministries and Ministers of State, Freedom of Speech cases in, 42–3 78 High Court’s approach to ACT. See Australian Capital Territory conventions in, 39–43 adaptable conventions, 133–5 hung parliaments in, 101–2 Allan, T. R. S., 26–7 hybrid political system in, 55–6 Anderton, Jim, 228–9 Lange v. ABC in, 39–40 Aroney, Nicholas, 2, 13, 70 legislative dominance in, by party, Attlee, Clement, 82, 97, 152 118–20 Attorney-General v. Jonathan Cape,27 minority governments in, 121 Australia. See also cabinet governments multi-party governance in, 128–31 bicameral legislatures in, 158, 162–4, national constitution in, as written, 30 169–70 1975 constitutional crisis in, 10, ‘By Boat, No Visa’ advertising 56–60, 207–13 campaign in, 102–4 non-traditional Westminster cabinet composition in, 118–20 systems, 9 cabinet dominance in, 123–6 parliamentary approval of military cabinet rules and procedures in, action in, 33 80–2, 86 parliamentary structure in, 144–5, caretaker conventions in, 95, 102–4 147–8 codiﬁcation of constitutional political coalitions in, 117–21 convention in, 21–2, 233–5 preferential voting in, 127 codiﬁcation of legislature system in, proportional representation in, 164 5 reserve powers in, extension of, 58 Constitution Amendment Bill in, responsible government in, core 214 conventions of, 38–43, 58 constitutional amendments in, 59 sovereignty of parliament in, 12 constitutional conventions in, standing orders in, 138–9 204–6 transitions between governments in, as constitutional monarchy, 51–2 101–2 constitutional reform in, 214–15 two-party systems in, 126 conventions in, 142–3 upper houses in, 158, 164–6 double-dissolution election in, 66–7 Australian Capital Territory (ACT), DPM&C in, 81, 95 129 Egan v. Willis in, 40–1 Australian Senate Practice (Odgers), Federal Executive Council in, 51–2 143–4

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index 267

Bagehot, Walter, 53, 145, 235 Cabinet Manual, for New Zealand, Bailey, K. H., 67 35–6, 225–8, 234, 258 Baldwin, Stanley, 147 Cabinet Manual, for the United Banfield, Andrew, 121, 251–2 Kingdom, 36, 181–6, 254–5 Barber, Nick, 31 Calwell, Arthur, 145–6, 154 Barry, Nicholas, 251 Cameron, David, 98, 101–2, 129 Bartlett, David, 130 173–4, 182 Barwick, Garfield, 59, 209 Campbell, Kim, 104, 194 Beattie, David, 224 Canada bicameral legislatures appointed upper house in, 167–9 in Australia, 158, 162–4, 169–70 bicameral legislatures in, 158–62, in Canada, 158–62, 169–70 169–70 in New Zealand, 162–4 Bloc Quebecois Party in, 60–1, 199 Blewett, Neal, 77 cabinet formation in, 192 Bloc Quebecois Party, 60–1, 199 caretaker conventions in, 96–7 Bogdanor, Vernon, 64 Charter of Rights and Freedoms in, Bolger, Jim, 221 197 Brash, Don, 133 codification of constitutional Brenton, Scott, 52 convention in, 21–2, 234 British North America Act 1865, 37 codification of legislature system in, Brown, Gordon, 36, 64, 82–3, 98, 107, 5 173, 181–2 collective responsibility in, 195 Bruce, Stanley, 80 confidence conventions and, 143 Bryce, Quentin, 65 Constitution Act 1867 in, 55, 191–2 Bunton, Cleaver, 208 Constitution Act 1981 in, 253, 256 Burke, Tony, 103 as constitutional monarchy, 51–2 Butler, David, 140 courts system in, 196–8 ‘By Boat, No Visa’ advertising election periods in, 193–4 campaign, 102–4 electoral reform in, 9 Byng, Julian, 192–3 executive conventions in, 192–3 formal rules compared to Cabinet Diary (Blewett), 77 conventions in, 190–2 cabinet governments hung parliaments in, 102 application of traditional King–Byng crisis in, 61, 192–3 conventions in, 73 Legislative Assembly Act in, 243–4 broad conventions of, 75–9 legislative dominance in, by party, collective responsibility in, 75–6, 118–20 87–9 legislative structure of, 189 conventions and, 74–5, 84–9 Manual of Official Procedure of the flexibility of, 86 Government of Canada,35–6, 96, guidelines for, 84–6 246–7 interpretation of responsibilities in, ministerial responsibility in, 78, 73 194–6 ministerial responsibility in, minority governments in, 121, 76–7 198–201 origins of, 73–4 national constitution for, 30, 36–8 procedural rules for, 79–86 parliamentary approval of military resignations from, 76 action in, 33–4

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Canada (cont.) Pearson airport controversy and, parliamentary structure in, 145, 148, 104–5 160 preservation of institutional memory Patriation Reference case in, 19–20, with, 110 36–8 principles of, 98–9 Pearson airport controversy in, restrictions in, 100 104–5 risks for public servants with, 108–9 political consensus in, 55 as semi-convention, 93 political development of, 189 transitions between governments PPF and, 244 and, 99–102, 106–8 Privy Council in, 51–2 in the United Kingdom, 97–8 prorogation crisis in, 10, 36–8, 60–2, Carnell, Kate, 129–30 198–201, 236–8 Charter of Rights and Freedoms, 197 Public Service Employment Act in, Chrétien, Jean, 194 109 Churchill, Winston, 97, 150 responsible government in, 194–6 Civil Service Code, 109 Senate in, 160 Clark, Helen, 5–6, 79, 228–30 sovereignty of parliament in, 12 coalitions, political Supreme Court in, 19 in Australia, 117–21 transitions between governments in, collective responsibility with, 75–6 99–101 MMP electoral systems and, 218 two-party systems in, 126–7 in New Zealand, 5–6, 122–3, 132, 2008 constitutional crisis in, 199–200 229–30 upper houses in, 158–62 in the United Kingdom, 107, 184–5 Cappe, Mel, 242 codiﬁcation of constitutional caretaker conventions conventions, 233–6 aims of, 91 in Australia, 21–2, 233–5 application of, 99–102 in Canada, 21–2, 234 in Australia, 95, 102–4 in constitutional reform, 20–2 ‘By Boat, No Visa’ advertising in New Zealand, 21, 234 campaign and, 102–4 societal change as result of, 235–6 in Canada, 96–7 in the United Kingdom, 21, 234 characteristics of, 92–4 collective responsibility, 72 components of, 97 in cabinet governments, 75–6, 87–9 controversies with, 102–8 in Canada, 195 currency crises and, 105–6 in Ireland, 79 documentation in, 94–102 in multi-party governments, 128, DPM&C and, 95 133–5 functions of, 110 in New Zealand, 79, 134, 228–30 government accountability and, 91–2 with political coalitions, 75–6 guidance documents and, 92 in the United Kingdom, 134 incumbent government limitations Colston, Mal, 208 under, 93 conﬁdence conventions, 143 knowledge transfers through, 94 Considerations on Representative in New Zealand, 97, 223–6 Government (Mill), 139–40 origins of, 94–102 Constitution, U.S., 29–30 outgoing government limitations Constitution Act 1867, 55, 191–2 under, 93 Constitution Act 1981, 253, 256

index 269

Constitution Act 1986, 34, 217, 224–5, constitutional morality, 13 251–2, 255 law and, 25 Constitution Amendment Bill, 214 constitutional reform constitutional conventions. See also in Australia, 214–15 Australia; Canada; codification of codification of conventions as part constitutional conventions; of, 20–2 constitutional reform; New consequences of, 256–9 Zealand; United Kingdom drivers of, 250–3 as binding, 18–20 forums for change in, 254–6 constitutional law and, 11 Constitutional Reform Act 2005, 173 contested, 142–3 Constitutional Reform and Governance defined, 8, 92 Act 2010, 109, 173, 179, 255 Dicey on, 13, 24, 141, 235, 240 constitutions, national elements of, 204 law compared to, 28–31 functions of, 8–9, 218–19 in New Zealand, evolution of, 34–6 law as distinct from, 24–8 unwritten, 30 legal view of, 11–13 written, 30 obligations of, 20 conventions. See also caretaker political consensus and, 240–1 conventions; constitutional political view of, 13–18 conventions; executive power of dissolution under, 238–40 conventions practitioner workshops for, 241–4 adaptable, 133–5 recognition criteria for, 18–19, 25–6 for appointed upper houses, 166–9 rule of law and, 12–13 in Australia, 142–3 sovereignty of parliament and, 12 Australian High Court’s approach to, stakeholders in, 18 39–43 with unwritten national cabinet governments and, 84–9 constitutions, 30 codifications of, 179–81 with written national constitutions, confidence, 143 30 constitutional context for, 28–31 Constitutional Conventions (Marshall), constitutional law and, 25 10, 19–20 defined, 24–8 constitutional crisis Dicey definition of, 24 in Australia, 10, 56–60, 207–13, 264 for elected upper houses, 164–6 in Canada, 199–200 formal rules compared to, in Canada, double-dissolution election and, 190–2 66–7 fundamental, 93 with monarchies, 64–5 knowledge transfers with, 94 in New Zealand, lack of, 62–3 law compared to, 28–31, 43–4 reserve powers and, 62 life cycle of, 93–4 in the United Kingdom, 64–5 meso, 93 constitutional law modifications of, 178 constitutional conventions and, 11 parliaments and, 137, 141 convention and, 25 as practice-dependent, 93 constitutional monarchies, 51–2 precedent arguments for, 37 democracy in, 56 through precedents, 93 legislative power structure within, 54 Sewel convention, 28, 32 reserve powers with, 52–3, 62–5 theoretical arguments for, 37

270 index

conventions (cont.) formal executives with, 55 types of, 93 political consensus with, 55 upper houses and, 164–70 political view of, 54–6 properties of, 65–7 democracies, 56. See also majoritiarian prorogation crisis and, in Canada, democracies; two-party systems 60–2 Department of the Prime Minister and real executives with, 55 Cabinet (DPM&C), 81, 95, reserve powers with, 52–3, 62–5, 142 67–70 Dicey, A. V., 11–13 responsible government and, 67–70 on constitutional conventions, 13, 24, 141, 235, 240 Federal Executive Council, in Australia, on executive conventions, 53–4 51–2 on rule of law, 12–13 Federalist Papers (Madison), 16–17 on sovereignty of parliament, 12 Feldman, David, 27–8 Dion, Stéphane, 61, 199, 236–7, 239–48 Field, Albert, 208 double-dissolution election, Fixed Term Parliaments Act 2011, 66–7 173–4, 184–5, 255 DPM&C. See Department of the Prime Flanagan, Tom, 239, 241–2 Minister and Cabinet Forsey, Eugene, 1 Duncan, Grant, 62–3, 122, 251 Fox, Charles James, 152 Fraser, Malcolm, 66–7, 207–8, 251 ‘Eastminster’ systems, 2 Freedom of Political Communication ECHR. See European Convention on cases, in Australia, 39–42 Human Rights Freedom of Speech cases, in Australia, Egan v. Willis,40–1 42–3 elections. See also preferential voting Freeman, E. A., 24 in Canada, 193–4 fundamental conventions, 93 caretaker conventions and, 91 electoral reform. See also constitutional Gillard, Julia, 59–60, 65, 148 reform Glorious Revolution of 1688, 16 in Canada, 9 government. See cabinet governments; in New Zealand, 9 minority governments; multi- in the United Kingdom, 9 party governments; responsible Elliott, Mark, 31 government The English Constitution (Bagehot), 53 Grifﬁth, Samuel, 55–6 Erskine May treatise, 138–9 Guidelines for Post-election European Convention on Human Consultations with Independent Rights (ECHR), 177 Members, 101 Evatt, H. V., 1, 67 Gustafson, Barry, 105 executive conventions. See also constitutional monarchies Hague, William, 33 in Canada, 192–3 Hardie Boys, Michael, 63–4, 220–1, 255 constitutional crisis and, in Australia, Hardin, Russell, 15–16 56–60 Harper, Stephen, 60, 78, 96, 199–200, deﬁned, 51, 53 236–8, 246, 251–2. See also democracy in, 56 prorogation crisis, in Canada Dicey on, 53–4 Hart, H. L. A., 14

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Hasluck, Paul, 141 national constitutions compared to, Hawke, Bob, 72–3 28–31 Hazell, Robert, 142, 242 precedent arguments for, 37 Heard, Andrew, 198, 246–7 theoretical arguments for, 37 Hennessy, Peter, 82, 86 Law, Andrew Bonar, 147 Hirschl, Ran, 18 Law of the Constitution (Dicey), 11 Hobbes, Thomas, 16–17 Layton, Jack, 243, 244 House of Commons Procedure and Legislative Assembly Act, 243–4 Practice, 151 Legislative Consent convention. See House of Lords, 166–9, 176 Sewel convention House of Representatives Practice, 141– Lijphart, Arend, 116 3, 151 Lindell, Geoffrey, 41, 69–70 Howard, John, 150 Locke, John, 16–17 Howse, Neville, 80 Low, Anthony, 62 Hughes, Billy, 80 Human Rights Act of 1998, 173, 177 Macdonald, John A., 237 Hume, David, 15, 17 Madison, James, 16–17 hung parliaments, 101–2, 220 Major, John, 82, 252–3 majoritiarian democracies. See also Income Tax Act, 123 Canada; New Zealand; United India, ‘Eastminster’ system in, 2 Kingdom infra-conventions, 93 in Australia, 117–21 interest group pluralism, 127–8 cabinet dominance in, 123–6 Ireland concentration of executive power, collective responsibility in, 79 in majority cabinets, 117–25 ministerial responsibility in, 79 disproportional election systems in, 127 Jean, Michäelle, 60, 236 interest group pluralism in, 127–8 Jennings, Ivor, 19, 25–6, 140–1, 240 minority and multi-party executive judicial courts system. See also Supreme arrangements in, 124–5 Court, in Canada two-party systems, 126–7 in Canada, 196–7 in Westminster systems, 117–28 malapportionment, 165 Kelly, Ros, 150 Malaysia, ‘Eastminster’ system in, 2 Kernaghan, Kenneth, 195 Manual of Ofﬁcial Procedure of the Kerr, John, 40, 70, 209, 251 Government of Canada,35–6, 96, King, William Lyon Mackenzie, 192–3 246–7 King–Byng crisis, 61, 192–3 Marshall, Geoffrey, 10, 19–20, 27 Martin, Paul, 96, 198–9, 246 Labour-Alliance coalition, in New Mason, Anthony, 59, 70 Zealand, 5–6 May, Erskine, 138 Lange, David, 106 McGuinty, Dalton, 243 Lange v. ABC,39–40 McHarg, Aileen, 15, 31 Laurier, Wilfred, 152–3 McLay, Jim, 224, 254 law. See also constitutional law McLeay, John, 154 constitutional morality and, 25 McPhee, Ian, 103 conventions compared to, 28–31, Meighen, Arthur, 192–3 43–4 Menzies, Jenny, 53

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Menzies, Robert, 95, 145–6 national constitutions. See meso conventions, 93 constitutions, national Mill, J. S., 139–40 New Zealand Milliner, Bert, 208 bicameralism in, 162–4 Milne, Cheryl, 242 cabinet collective responsibility in, ministerial responsibility 79, 134, 228–30 in cabinet governments, 76–7 cabinet composition in, 118–20 in Canada, 78, 194–6 Cabinet Manual for, 35–6, 225–8, in New Zealand, 78 234, 258 probity compared to, 76–7 caretaker conventions in, 97, 223–6 resignations and, 76 codification of constitutional ministries, in parliaments convention in, 21, 234 confidence requirements for, 149 codification of legislature system in, 5 electoral losses for, 147–9 Constitution Act 1986 in, 217, formation of, 144–5 224–5, 251–2, 255, 34 minority governments constitutional crises in, lack of, 62–3 in Australia, 121 as constitutional monarchy, 51–2 in Canada, 121, 198–201 currency crises in, 105–6 development of, 116 electoral reforms in, 9 MMP electoral systems and, 218 evolution of national constitution in, in New Zealand, 229 34–6 Miragliotta, Narelle, 251 hung parliament in, 220 mixed-member proportional (MMP) Labour-Alliance coalition in, 5–6 electoral system legislative dominance in, by party, coalition governments and, 218 118–20 minority governments and, 218 limitations of power in, 34–6 in New Zealand, 10–12, 35, 97, malapportionment issues in, 165 217–18, 220–3 mid-term electoral crises in, 219–23 Modern Constitutions (Wheare), 18 ministerial responsibility in, 78 monarchies. See also constitutional minority governments in, 229 monarchies MMP system in, 10–12, 35, 97, constitutional crises with, 64–5 217–18, 220–3 formal executives with, 55 multi-party governments in, 131–3 legislative power structure with, 54 national constitution in, as Moore, Michael, 129 unwritten, 30 Muldoon, Robert, 105, 223–6, 251, political coalitions in, 5–6, 122–3, 254 132, 229–30 Mulroney, Brian, 104 preferential voting in, 127 multi-party governments, 128–33 ratification process for federation, adaptable conventions with, 217–19 133–5 sovereignty of parliament in, 12 in Australia, 128–31 Standards of Integrity and Conduct, collective cabinet responsibility in, 109 128 transitions between governments in, development of, 116 99–100 in New Zealand, 131–3 Treaty of Waitangi and, 217 Munro, Colin, 26 two-party systems in, 126 Murphy, Lionel, 150 upper houses in, 162–4

index 273

New Zealand Bill of Rights Act 1990, Question Time in, 153–4 217 senate structure in, 147 Newfoundland, Canada, 158 sovereignty of, 12 1975 constitutional crisis, in Australia, speakers in, 154–5 10, 56–60, 207–13 standing orders in, 138–9 political legacy of, 210–13 in the United Kingdom, 12, 32–4, no-confidence motions, 149–50 101–2, 177–87 working functions of, 138 O’Donnell, Gus, 98, 134, 181–2, 244 Patriation Reference case, 19–20, 36–8, 197 Palmer, Geoffrey, 218 judicial involvement in, criticisms of, Papua–New Guinea, ‘Eastminster’ 38 system in, 2 Patterns of Democracy (Lijphart), 116 Parliament Act 1911, 27, 145 Pearson airport controversy, 104–5 parliaments. See also bicameral Peters, Winston, 221 legislatures; executive Petit, Philip, 129 conventions; upper houses, in Ponsonby rule, 179, 255 parliamentary systems Powell, Jonathan, 88 amendment procedures with, 146 PPF. See Public Policy Forum approval of military action, in A Practical Treatise on the Law, Australia, 33 Privileges, Proceedings and Usage Canada, 33–4 of Parliament (May), 138 the United Kingdom, 32–4, preferential voting 177–87 in Australia, 127 in Australia, 144–5, 147–8 in New Zealand, 127 Australian Senate Practice and, prime ministers. See also specific prime 143–4 ministers Cabinet Manual for, cabinet rules and procedures for, 36, 181–4 interpretation of, 84–6 in Canada, 145, 148, 160 Question Time for, 154 codification within, 140 Privy Council, in Canada, 51–2 colour schemes for, 151 prorogation crisis, in Canada, 10, 36–8, conventions and, 137, 141 60–2, 198–201, 236–8 Erskine May treatise and, 139 aftermath of, 200–1 essential rules of, 138 Public Policy Forum (PPF), 244 executive domination of, 30–1, 45 Public Service Act, 103 House of Representatives Practice, Public Service Employment Act, 109 141–3, 151 house structure within, 144, QPM. See Questions for Procedure for 146–7 Ministers hung, 101–2, 220 Question Time, 153–4 legislative authority of, 14–15 for prime ministers, 154 legislative processes within, 145–6 Questions for Procedure for Ministers ministries within, 144–5, 147–9 (QPM), 82, 252–3 no-confidence motions in, 149–50 opposition leaders in, 153 Rann, Mike, 130 party discipline with, 147 referendums, in the United Kingdom, physical design for, 151–2 175–6

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reform. See constitutional reform; Supreme Court, in Canada, 19, 196–7, electoral reform 197–8 Reid, G. S., 142–3 Patriation Reference case, 19–20, reserve powers 36–8, 197 in Australia, extension of, 58 constitutional crises and, 62 Tasmanian Legislative Council, 165 with constitutional monarchies, 52– Tiernan, Anne, 53 3, 62–5 Treaty of Waitangi, 217 defined, 67–70 Trinidad and Tobago, ‘Eastminster’ with executive conventions, 52–3, system in, 2 62–5, 67–70 Trudeau, Justin, 168 resignations, 76 Tune, David, 103–4 responsible government two-party systems in Australia, core conventions of, in Australia, 126 38–43, 58 in Canada, 126–7 in Canada, 194–6 in majoritiarian democracies, 126–7 collective responsibility in, 72 in New Zealand, 126 defined, 67–70 in the United Kingdom, 127 Richardson, Graham, 150 2008 constitutional crisis, in Canada, Roosevelt, Franklin, 29 199–200 Rudd, Kevin, 65–6, 102–4 rule of law UK. See United Kingdom application of, 37 Underwood, Peter, 130 constitutional convention and, 12–13 United Kingdom (UK). See also cabinet Russell, Peter, 52, 60, 102, 251–2 governments; Ireland; Scotland appointed upper house in, 166–9 Salisbury-Addison convention, 258 cabinet composition in, 118–20 Scotland, legal sovereignty in, 15 Cabinet Manual in, 36, 181–6, Scotland Acts, 174–5 254–5 Second Treatise of Government (Locke), cabinet rules and procedures in, 16–17 82–4 semi-conventions, 93 caretaker conventions in, 97–8 caretaker conventions as, 93 Civil Service Code in, 109 Sewel convention, 28, 32, 174–5 coalition government in, 107, 184–5 Sharman, Campbell, 55 codification of constitutional Shipley, Jenny, 221–2, 257–8 convention in, 21, 179–81, 234 Slipper, Peter, 154 collective responsibility in, 134 Smith, David, 58 constitutional crises in, 64–5 Sneddon, William ‘Bill’, 207 as constitutional monarchy, speakers, 154–5 51–2 stakeholders, in constitutional Constitutional Reform Act 2005 in, conventions, 18 173 Standards of Integrity and Conduct, Constitutional Reform and 109 Governance Act 2010 in, 109, 173, standing orders, in Australian 179, 255 parliament, 138–9 constitutional reform in, historical Statute of Westminster 1931, 27 development of, 173–4 Stephen, Ninian, 66–7 electoral reform in, 9

index 275

executive guidance, codification by, unwritten national constitutions, 30 181 upper houses, in parliamentary systems Fixed Term Parliaments Act 2011 in, abolishment of, 160–2 173–4, 184–5, 255 appointed, conventions for, 166–9 House of Lords in, 166–9, 176 in Australia, 158, 164–6 Human Rights Act of 1998 in, 173, in Canada, 158–62, 167–9 177 elected, conventions for, 164–6 hung parliaments in, 101–2 historical design of, 158–9 intergovernmental agreements limitations of power for, 157 codified in, 179–80 in New Zealand, 162–4 legislative dominance in, by party, in Newfoundland, Canada, 158 118–20 in the United Kingdom, 166–9 limitations of monarchy power in, 44–5 Ward, Joseph, 63, 219–20 modified conventions in, 178 Watt, Ian, 103 national constitution in, as Weller, Patrick, 53 unwritten, 30 West, Stewart, 72–3 Parliament Act 1911 in, 27, 145 Westminster systems. See also parliamentary approval of military Australia; Canada; constitutional action in, 32–4, 177–87 monarchies; executive parliamentary committees in, conventions; minority codification by, 180 governments; multi-party Ponsonby rule in, 179, 255 governments; New Zealand; proportionality conventions in, for United Kingdom House of Lords, 176 academic neglect of, 1–2 QPM in, 82, 252–3 codification of, 5 referendums in, requirements for, majoritiarian democracies, 117–28 175–6 national comparisons of, 1 Salisbury-Addison convention in, non-traditional, 9 258 Wheare, Kenneth, 18 Scotland Acts in, 174–5 Whitlam, Gough, 40, 150, 251. See also Sewel convention in, 28, 32, 174–5 1975 constitutional crisis, in sovereignty of parliament in, 12 Australia statute codifications in, 179 written national constitutions, 30. transitions between governments in, See also Australia; Canada 99–102, 106–8 Freedom of Speech cases and, 42–3 two-party systems in, 127 Patriation Reference case and, 36–8 United States (U.S.), authority of Constitution in, 29–30 Yeend, Geoff, 72