The Governor-General and Governor-Magistrate

How do you enforce checks and balances in a parliamentary system?

Separating Powers in a Parliamentary System

The separation of powers is a mess in the parliamentary system. Because the executive cabinet can be drawn from both upper and lower houses (in the states that have both), then there is no clean constitutional check on the executive cabinet by the Senate. Not withstanding party discipline muddying the waters further.

So a simple delineation would be to make Senators ineligible for positions on the Executive Cabinet or Executive Council. Senators would then be Senators and purely legislative rather than a mix of Executive/Legislative.

But what of the rise of a-constitutionality that has been appearing. One of the problems is that the founding document of any government is its constitution. In the case of parliaments like the federal parliament and many of the states, such as NSW, Victoria and Queensland; the constitution is a singular document that determines the authority and sovereignty of not only parliament, but also the three branches of government - the executive, the legislative and judicial.

Supposedly the judicial interprets constitutional limits on legislative law-making and executive implementation of those laws. But they require challenges to be brought to them first. They are passive. In the meantime legislation that is unconstitutional or of dubious constitutional stature is implemented anyway.

A good example of this is the Workchoices legislation. There is nothing in the federal constitution which gives the federal parliament authority over industrial relations. It relies on the tenuous interpretation of the corporations power. The constitutionality of the legislation is being challenged by NSW, Western Australia and Tasmania. Yet the legislation has become law in the meantime.

A similar issue arises with rights. This is a basic principle of Republican governance that there are individual political rights. These are basic precepts that cannot be legislated over, nor ignored when executing law.

Governor-General

Since the Governor-General is a pretty candy on a stick, it makes sense to give the Governor-General something to do in terms of a political role. This would need to be an area of modern government that is not being done and needs attention.

Since the Governor-General is the final arbiter of all things executive, it makes sense that the Governor-General should veto legislation that contravenes a Bill of Rights and the Constitution.

It will need to be made plain that the Governor-General cannot veto legislation because the bill costs too much, has too much debt in it, or creates nationalises Randwick Rugby Club. The Governor-General can only veto legislation that is unconstitutional.

Any legislation that the Governor-General veto is sent back down to the Senate (who now doesn't have any executive members in it at all) who can override the Governor-General with a 75% super-majority. This will stop a repugnant Governor-General thwarting genuine legislation.

The Senate will also be able to start criminal proceedings into the Governor-General after achieving a super-majority. This will have to be ratified by the House of Representatives who would also need a super-majority. This will stop factional retribution against the Governor-General.

That covers the check and balance between legislative and executive in relation to unconstitutional legislation being created.

There may also need to be a clause in the constitution where the Governor-General, instead of veto-ing the legislation can pass it immediately to the High-court to judge on its constitutionality.

Again this could be over-ridden by a Senate super-majority. This would stop repugnant legislation being passed and then being decided five years later that it is unconstitutional and no longer valid.

Governor-Magistrate

The other problem is when the Executive acts, rather than legislates, in a manner that is repugnant to the constitution, to political rights , to liberty or even just to common law (ie corruption or delinquence of duty).

This is another check and balance that is needed in the system. The Governor_Magistrate is a mix of Chief Magistrate and Vice-President. The Governor-Magistrate is the head of the Senate and can cast a vote when the Senate is tied.

The Governor-Magistrate can also initiate commissions into the Executive. These have to pass the Senate with a majority. This is the proactive check and balance on how the Cabinet is executing laws.

Run-down

I would prefer if the candidates for Governor-General and Governor-Magistrate didn't run on the same ticket, nor that it be party political, but it will be. I don't think this is a bad thing, just non-ideal.
adam: Referee-General: I\'ve also been thinking about the G-G in the context of NaCoWriMo. Something I\'m weighing up is giving the G-G not a veto but a delay.

If the Governor-General is presented with a piece of legislation they consider unconstitutional, or of dubious constitutionality, they may refer it to the High Court directly. The High Court then rules on the legislation before it becomes law.

I\'m also thinking of specifying a mandatory delay of at least one month between the referral and the decision of the High Court. This is to defuse any false sense of urgency or constitutional crisis behind the veto.

Following the analogy where the G-G is referee to the scrapping teams of government, this is like penalised league players fronting up to the tribunal during the following week.
cam: This is kind of what I intended the: Governor-Magistrate to be, but I wandered. I wanted the Governor-Magistrate to represent the check and balance where legislative, executive and judicial collide. So the Governor-Magistrate would be the pro-active component referring to the judicial. ie commissions and tests of constitutionality of laws.

Veto is harsh, but political rights are inalienable or otherwise liberal democracy ceases to exist. With the Senate over-ride it gives the chance for a repugnant GG to be walked over.

But like you stated, the problem is getting unconstitutional law to the judicial for review before it becomes law and is challenged later. I think this is a necessary pro-active step from a meta-executive, which the Governor-General and a Governor-Magistrate would be.

cam
dlatimer: Quoting from McGarvie\'s Book \'Democracy\': [Under the current system, the] right of a Governor-General or Governor to counsel Ministers upon the performance of the powers and functions is unlimited. Although possessing that wide right, today they usually confine themselves to counselling to secure the integrity and effectiveness of operation of the constitutional and governmental system. Their counselling seeks to ensure that Ministers exercise their powers and functions consistently with the Constitution and the basic constitutional principles, and with the practices of good government. It also seeks to ensure that governmental powers are effectively exercised to achieve their purpose.

Except when relevant to the attainment of those objectives it is not common practice in Australia to counsel on issues of policy or discretion. Broadly, by electing the government majority, the electorate authorises the Government and Ministers to decide those issues. Ministers are responsible through Parliament to the community for decisions of policy or discretion. Ordinarily, it is for public opinion, citizens generally, Parliament and the electorate, but not the Governor-General or Governor, to have an influence in these areas. Occasionally Ministers\' attention is drawn to consequences of proposed actions which may have been overlooked.

Modern government, ever more complex, is under strain as it seeks, in the information age, with scarce financial and human resources, to cope with its task and with the continuing changes of our time. Important traditional checks on executive government are less effective than they once were. Through the party system a Government now usually controls Parliament, or at least its Lower House, instead of the other way round. Ministers increasingly rely on political ministerial advisers instead of the Public Service. Public servants\' employment and tenure conditions do not encourage them to give advice Ministers would not want to hear. Among the checks which now complement the traditional ones are administrative tribunals, ombudsmen and parliamentary committees. The scrutiny and counselling performed by the operative head of state is another. Because counselling is confidential, there is little public awareness that it occurs. Not much is written on the way it is carried out. As Governor of Victoria, counselling was a vital part of my role.

In Victoria [where McGarvie was governor], most counselling relates to the exercise of powers as Governor in Council. Since the earliest colonial times the practice in Australia has been to delegate to the Governor in Council the exercise of many more powers than those exercised in the United Kingdom by the monarch on the advice of the Privy Council.

http://www.mup.unimelb.edu.au/democracy/065.html
http://www.mup.unimelb.edu.au/democracy/066.html
adam: Mandate: I suspect Governors and Governors-General hold back from giving advice these days because of their extraordinarily weak mandate. This is also the ultimate reason the Queen refrains from any role as umpire or cooler, non-partisan head.
dlatimer: Does it happen: McGarvie writes that he undertook the councilling role seriously and we do not have any information from other recent governors. We cannot suspect either that it does or does not happen, because the governors do not tell. Perhaps the less public they are, the more effective their councilling.

McGarvie emphasises that this oversight is about constitutional process and not about policy decisions. In the book, I believe there is the example of confirming that minister X has consulted minister Y, on a matter which overlaps portfolios.

 
adam: My mistake: today they usually confine themselves to counselling to secure the integrity and effectiveness of operation of the constitutional and governmental system

I interpreted that to mean Governors consult less now than in McGarvie\'s day. However checking wikipedia it appears McGarvie\'s day was a mere 10 years ago and conventions are unlikely to have shifted radically since then :)

A Sortitionist's Constitution

My entry into the Constitution Fun Challenge. It has three separate branches and attempts to divide any power structure under a principle of elected, specialist and sortitionist.

This started out as a Westminster style system with some modifications that we have discussed in the past like a Rights Referee Governor-General. Then I added a People's Chamber in the house which was a quarter of the house; but I turned it into a sortitionist's body with only a couple of specialists left, with the Treasurer leading the house.

The Senate becomes a supra-national body, able to accept representation outside of Australia itself as needed. The Senate is also composed of elected specialists (ie politicians) and act as the main check on a separate executive.

The Executive contains the Governor-General and Cabinet. The Governor-Magistrate is like a vice-president, but is part of the Judicature. Kind of a mix between VP and Chief Magistrate. The GM is tasked with actively intervening in the executive's actions and setting forth commissions and inquiries. Probably needs some more refinement, but I like the active watchdog role on the executive. The Judicature also has a Citizens Council which is the sortitionist body for the Judicature.

The states get more of a role too, as a federalist system, they get the most involvement in the Judicature which watches the Executive (who corrodes state power the fastest).

Thanks to Avocadia for the use of his Bill of Rights which makes up section 2.8. This entry is incomplete and I will return to it next CFC.
1.Constitution
    1. A constitution for the Republic of the Southern Seas.
    2. This document defines the Commonwealth Government.
    3. The constitution defines the responsibilities of the three equal, but separate, branches of Australian republican government; Executive, Legislative and Judicature.
2.Commons
    1. The republic recognizes that the commons cannot be reduced or suspended; by referendum, emergency, or a declaration of war by parliament.
    2. The republic recognizes that a citizen is any individual under the jurisdiction of the government of this constitution.
    3. The republic recognizes that an individual's political rights are inviolable.
    4. The republic recognizes that an elector is a citizen born in Australia, or an individual within the jurisdiction of Australia who is above the age of majority.
    5. The republic recognizes that no election is legitimate without a secret ballot; where the ballot sheets are of uniform shape and colour; and where the elector's ballot is cast anonymously.
    6. The political limits espoused in this constitution are not complete, and the limits on legislative, executive and juridical authority are far greater, however history has shown these political rights are the ones most commonly transgressed by corrupt and tyrannous government.
    7. The Governor Magistrate has the authority to instigate criminal proceedings against the Governor-General, members of parliament or members of the judicature, should the commons be abrogated by an act of the Executive, bill of the Legislative, or legal decision of the Judicature.
    8. The Executive shall execute no law; the Legislative shall make no law; and the Judicature shall endorse no law as constitutional; that:

      Freedom
      1. deprives an individual of life
      2. limits or deprives an individuals freedom to express their beliefs, opinions or lifestyle.
      3. limits or deprives an individual's freedom of movement
      4. limits or deprives an individual's freedom of association
      5. limits or deprives an individuals freedom to peacefully assemble with other individuals.
      6. limits or deprives an individuals right to peaceful protest.

        Liberty
      7. detains an individual indefinitely without charge.
      8. limits or removes an individuals right to have counsel with them upon arrest or questioning.
      9. limits or removes an individuals right to a writ of habeous corpus upon detention.
      10. back-dates punitive measures for an offence.
      11. permits an individual to be detained for longer than six months without trial or resolution
      12. enabling an individual to be tried for an offence more than once.
      13. limits or removes an individual's right to refuse law enforcement access to their property, or permission to search their person and property, unless there is a warrant issued to search specific property for evidence of a specific crime.
      14. limits or removes an individuals choice to divulge no information other than their identity, verbally, when under suspicion from law enforcement for a specific crime.
      15. limits, reduces or removes an individual's right to own property
      16. deprives the individual of property, or devalues an individual's property without fair exchange or consent.

        Equity
      17. discriminates against an individual on the basis of race, age, gender, sexual preference, wealth, health, religion, associations or prior criminal record.
      18. limits or removes equal treatment under the law for an individual on the basis of race, age, gender, sexual preference, wealth, health, religion, associations or prior criminal record.
      19. limits or removes access to government services for an individual on the basis of race, age, gender, sexual preference, wealth, health, religion, associations or prior criminal record.

        Democracy
      20. disenfranchises an elector.
      21. denies an elector representation
      22. denies an elector the ability to run for election
      23. reduces or removes an individual the ability to petition their representatives for a redress of grievances.
      24. abolishes the secret ballot
      25. increases the period between elections beyond eight years.
      26. criminalises, or outlaws a political party.
      27. removes access to the Public Service for parties with elected parliamentary members.
    3.Executive
    1. The Executive is the sole body in the republic authorised to execute laws.
    2. The Executive shall, as demanded in this constitution, faithfully implement and execute the laws passed by the legislative.
    3. The Executive shall, as demanded in this constitution, submit to juridical oversight of the execution of laws.
    3.4.Governor General
      1. The Governor General shall be elected by popular election.
      2. The Governor-General cannot serve more than two terms of office or eight years, depending on which comes first.
      3. The Governor-General shall veto any law, bill or act which contradicts the limits of Legislative authority in the commons.
      4. The Governor-General shall veto any law that does not meet the holder's approval and return the law to the Legislative along with written objections.
      5. The Governor-General is the head of the Executive Council.
      6. The Governor-General shall nominate the Ministers that comprise the Executive Council.
      7. The Governor-General shall nominate a Minister, to replace any Ministers removed by successful no-confidence motions in parliament, who has resigned, or replaced by the Governor-General's choice.
      8. The Governor-General shall nominate the Ministerial Departments required to execute the laws passed by the legislative.
      9. The Governor-General shall present, to a dual sitting of parliament with the Executive Council present, a report on the Executive Ministries.
    3.5.Executive Council
      1. The Executive Council shall consist of Ministers who head a Ministerial Department as constructed by Legislative bill.
      2. ...
4.Legislative
    1. The Legislative is the sole body in the republic authorised to make laws, acts and bills.
    2. The Legislative shall make no law that persists beyond twenty-five years.
    3. The Legislative shall be composed of two bodies; the Senate and House.
    4. The Legislature shall not present a bill to the Governor-General to be signed into law unless both Senate and House have passed the exact same bill.
    4.5.Senate
      1. The Senate shall be composed of multi-member districts consisting of constituent states, territories and/or extra-national territories.
      2. The Senate electoral districts shall be apportioned members based on population of the constituent districts.
      3. A Senator cannot serve more than twenty-five years in Parliament.
      4. The Senate shall conduct non-budgetary commissions and inquiries into the conduct of the Governor-General, Executive Council and Public Servants in the Executive Ministries.
      5. The Senate shall conduct commissions and inquiries into the conduct of the Judicature.
      6. The Senate shall, upon majority vote, recommend further investigations into the Executive to the Governor-Magistrate for conduct by the Citizens Council.
      7. The Senate shall approve or reject any Judicial nominations.
      8. The Senate shall approve or reject any Executive Council nominations.
      9. The Senate shall not initiate any money bills.
      10. The Senate shall not initiate any no-confidence votes on the non-elected members of the Executive Council.
      11. The Senate shall be able to pass by two-thirds majority, no-confidence motions on non-elected members of the Executive Council.
    4.6.House
      1. The House shall be composed of two internal bodies, of which one will be elected, and the other chosen from the general population by sortition.
      2. A House member cannot serve more than twenty five years in Parliament.
      3. The elected members shall be known collectively as the House Elected Body and individually as House Electors.
      4. The sortitionist members shall be known collectively as the House Citizens Body and individually as House Citizens.
      5. The House elected body shall consist of a maximum of one House Elector for each state, and territory.
      6. The Treasurer shall be chosen by majority in the House Elected Body as the head of the House.
      7. The Treasurer shall chair, or delegate the position of chair, all inquiries and commissions into the budgetary needs and financial conduct of the Executive, Legislative and Judicature.
      8. The Treasurer shall present each year, to a dual sitting of parliament with the Executive Council present, a report on the budget.
      9. The House Citizens Body shall not consist of less than one sortitionist for each twenty thousand of population.
      10. The House Citizens Body shall vote on all bills.
      11. The House Citizens Body shall be chosen by lot each year.
      12. A citizen who has been chosen for consecutive House Citizen Bodies shall be disqualified and another sortitionist, who is not a current, nor immediately prior member of the House Citizens Body, shall take their place.
      13. A House Citizen shall be able to vote in absence.
      14. A House Elector shall not vote in absence.
      15. The House shall be able to pass by two-thirds majority, no-confidence motions on non-elected members of the Executive Council.
      16. A House Citizen may introduce legislation, in person or anonymously.
    4.7.Sergeant at Arms
      1. ...
5.Judicature
    5.1.Governor Magistrate
      1. The Governor-Magistrate shall be appointed by the States.
      2. The Governor-Magistrate cannot serve in office more than two terms of or eight years depending on which comes first.
      3. The Governor-Magistrate can divert bills or acts, prior to their signing into law by the Governor-General, deemed to be of dubious constitutionality to the High Court to determine their constitutionality.
      4. The Governor-Magistrate can recommend commissions and inquiries into the conduct of the Legislature for the Citizen's Council to conduct.
      5. The Governor-Magistrate shall forward all Senatorial recommendations for commissions and inquiries into the Executive for the Citizen's Council to conduct.
      6. The Governor-Magistrate shall present all findings of commissions and inquiries into the conduct of the Executive and Legislature to joint sittings of Parliament with the Executive Council present.
    5.2.High Court
      1. The High Court shall be the sole authority to interpret the constitution.
      2. The High Court shall contain a Chief Justice and as many other Justices, but no less than two, as parliament determines necessary.
      3. A Justice shall not serve on the High Court, for more than twenty-five years.
      4. A Justice shall not serve on, or be appointed to, the High Court if they are above seventy years of age.
    5.3.Citizens Council
      1. The Council shall be composed of sortitionists chosen by lot from the states and territories.
      2. A citizen who has been chosen for consecutive Citizen's Councils shall be disqualified and another sortitionist, who is not a current, nor immediately prior member of the Citizens Council, shall take their place.
      3. The Council shall ensure fair access by citizenry to the data and documents produced by government.
      4. The Council shall grant or reject; as well as oversee, freedom of information access by the citizenry.
      5. The Council shall grant or reject, as well as oversee, national security access by the citizenry.
      6. The Council shall conduct commissions and inquiries, as recommended by the Governor Magistrate, into the conduct of the Legislative.
      7. The Council shall conduct all commissions and inquiries into ethics for the Legislative.
      8. The Council shall conduct all commissions and inquires into corruption for the Legislative.
6.States
    1. The States shall nominate a qualified Judge, by majority, to fill any vacancy in the High Court.
    2. The States shall bring forward proceedings of impeachment against a member of the High Court who has approved into constitutional law legislation that abrogates the Commons.
    3. Upon impeachment the decision shall only be over-turned by a super-majority of Senate and House.
    4. ...
7.Other
    1. Auditor General
    2. Citizen Auditors
    3. Referendum
    4. Citizen Referenda

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