Should politicians be legally accountable for their election promises?

Brendan Norris

Originally published in 1996/1997, Issue 2

It is obvious that the majority of the population finds the breaking of promises, especially those made during an election, unpropitious in anything but the most dire of circumstances. It could be said that if politicians’ election promises were legally enforceable, the politicians would be forced to tell the truth and adhere to them; they would have to put a considerable amount of thought into them before they were released.

It would be impossible to implement the legal enforceability of election promises though, because of the format and procedures of our governmental’ and legal systems. The major reason is that the question, in stating “legally accountable”, suggests that election promises should be enforceable before the courts. However, that would mean that judges would be overseeing the operation of Government and the Parliament. If this was the case, it “would be contrary to Dicey’s Rule of Law” (Senator O’Chee, 1996), which requires laws to be made by Parliament and interpreted by the courts; therefore keeping the legislative, executive and judicial powers separate. If the courts were able to enforce election promises, they would have to possess the right to force the Parliament to legislate in certain ways, or to review legislation to ensure that it conforms with prior promises. In his famous An Introduction to the Study of the Law of the Constitution, A.V. Dicey asserted that:

The principle of parliamentary sovereignty means neither more nor less than this, namely? that Parliament … has, under the English Constitution, the fight to make or unmake any law whatever; and, further, that no person or body is recognised by the law of England as having a right to override or set aside the legislation of Parliament, (Wade, 1967: 39-40

This excerpt illustrates the fact that the government has the power to make or change or reject any law that it wants to. Furthermore, there is no one recogsed by the constitution as having the power to overrule any legislation that the government makes. However, there was a second rule that Dicey intended to go hand-in-hand with this one, namely “the universal rule or supremacy throughout the Constitution of the ordinary law,” (O’Neill, 1988). By this he meant that Parliament has, as its duty, to adhere to the normal law when legislating. Therefore, Parliament cannot make legislation that infiinges upon people’s basic rights.

As was proven in the New South Wales Court of Appeal decision in Building Construction Employees and Builders Labourers Federation (BLF) v Minister for Industrial Relations and another (unreported 3 1 October, 1986), Dicey’s first principle is still adhered to. The judge in that case used the Diceyan view when the BLF appealed against the govemment’s decision to deregister it. The judge stated,

While the extra-curial discussion has been going on, the courts in England and jurisdictions stemming from Westminster have consistently acted on the assumption of parliamentary supremacy, (O’Neill, 1987: 2-7).

Thus, a serious debate about the nature and extent of parliamentary supremacy was brushed aside. The fact that Dicey’s rule is constantly applied in judicial situations is evident. Whether this first principle is beneficial or pernicious (in that it disregards the doctrine of fundamental rights) it is still followed. Therefore, for the simple reason of respecting the separation of powers, it would be impossible for parliamentarians’ election promises to be enforceable before the courts.

One aspect of law which needs to be examined is the right of people to locus standi – which is the night to petition the courts – for judicial review of the actions of the elected government in this case. Usually in civil law the people who are entitled to enforce a contract are those who are parties to it. In this case of election promises, the people who should have locus standi are those who accepted the ‘contract’; in reality, the people who voted for the government. Obviously, these people would be impossible to identify in this situation. Furthermore, assuming that anyone had locus standi, the courts would become clogged with political litigants, delaying the operation of the law for those with serious civil and criminal matters. As well as this, the operation of the government would be hopelessly delayed with the hundreds and probably thousands of law suits. As a result, this aspect of law alone could dismiss the possibility of legally enforcing election promises.

There are several deterrents for a politician to consider in relation to broken promises. The major one would obviously be the re-elecfion of his party. However the censure of a minister, which is supposed to end in resignation, is also a strong deterrent. In addition to these, on numerous occasions there have been calls for politicians to be covered by the Trade Practices Act 1979. This, and supplementary State Fair Trading Act legislation, stipulate that parties shall not in trade or commerce engage in misleading or deceptive conduct, or conduct that is likely to mislead or deceive. Many people have questioned whether Trade Practices legislation would bind politicians to honour their election promises. The answer is, regretfully for many, “No.” The reason is because politicians are not involved in “trade or commerce”, as illustrated in the Durant v Greiner (1990) case.

In Durant v Greiner (1990) it was clearly demonstrated that politicians are not bound by the stipulations of Trade Practices legislation, and consequently are not legally accountable for electoral promises under these Acts. in this case, the parents of a child attending a primary school near Sydney sued the then-Premier of New South Wales, Nick Greiner, and the Minister for Education. The allegations were that the Premier had made comments during the election that the child’s school would not be closed, and then the parents suffered loss as a result of, and in reliance on, the statements made. The plaintiffs’ case argued that Premier Greiner and the Minister for Education were professional politicians. The fair trading legislation, both state and federal, clearly covers the activities of people engaged in “a professional activity.” However the judge held that the professional activity in the Act was supposed to include activities of a business nature. “Statements made by politicians were not within the scope of the extension of the Act,” (Pengilley, 1991). As a result of this simple assertion, the defendants escaped the fair trading legislation, and were not held legally accountable.

Another of the plaintiffs’ arguments was that the “carrying on of education by the state of New South Wales” (Pengilley, 1991) constituted a business activity. The judge, however, described the government’s provision of State schools to members of the public and the provision of free instruction as being “both historically and traditionally, a service to the community provided by the government, rather than activity, which, as between the government and the community, could be characterised as a business,” (Pengilley, 199 1). The judge asserted that the reason the defendants were not legally accountable under this Act was because they were not engaging in es that it covers people activities of a business nature. The Act clearly states only engaged in “trade or commerce”, and so the plaintiffs’ case failed, and Premier Greiner and the Minister for Education escaped legal liability for their electoral promises.

Ultimately, it seems as though the remedies against politicians who break promises are the common ones we all know-vote against them, or mount a campaign against them. Presumably, democracy is all about the opportunity and the ability of the people to make their own choices concerning who they want as their representatives. The democratic format and philosophies of our nation leave constituents to make their own decisions about who to vote for, and consequently, the people hold the power in the choice of our nation’s leaders.

As has been made evident, it would be impossible to make politicians legally accountable for their election promises, due to the fact that the separation of powers and Dicey’s first rule of law forbid it. Trade Practices legislation doesn’t cover it, and it would be impossible to identify the holders of locus standi. The separation of powers has been a part of governmental and legal systems for hundreds of years because it is a remedy to counter the abuse of power by those who have it. If society is to maintain order, it must be adhered to under all circumstances. Trade Practices legislation covers activities of a business nature, excluding political activities, and consequently politicians will be able to make necessary decisions confidently I , and not worry about civil law suits in relation to fair trading legislation. If the principle of locus standi were conformed to, we would be faced with the ludicrous situation of having anyone who voted for the government as possible political litigants. Our courts are congested enough as it is, without having thousands of people suing the government for broken promises. Undoubtedly, it would be detrimental to society to have an unelected and unrepresentative judicial system restricting the power of a democratically elected and representative government.


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