Montesquieu's writings on the doctrine of separation of powers heavily influenced the American founding fathers such as Madison and Hamilton. The American Presidential system has proven to be one of the most stable and clean political systems. Yet other Presidential systems have proven open to usurpation by dictators and tyrants.

The Parliamentary system in comparison was an emergent system that grew out of the need to route power away from a Monarch while still maintaining their ceremonial authority. It mixes the executive and legislative arms of government, yet has proven a fairly stable form of liberal democracy.

It is fair to say that an future evolutionary form of Australian Government, at the state and federal level will have to incorporate a parliamentary system. There are many well established conventions and the Australian people are familiar with the system. Consequently, the positives and negatives of the parliamentary system need to be understood so any evolutionary system encourages the former and inhibits the latter.

Checks and Balances

Montesquieu divided the political sphere into sovereign and administrative. The monarch occupied the sovereign component and the administrative was dominated by the executive, legislative and judicial arms. This is the separation of powers. They are defined by;

• The executive executes laws.
• The legislative makes laws.
• The judicial interprets laws.

For example in a libertarian civic society. The Executive runs the police force. The Legislative makes the laws that the police force enforces and the Judicial interprets those laws to determine any punitive measures against offenders. That is government at its most simplest. Nothing about health, education, roads, child-care, tax-breaks, etc etc etc.

Oneness

An aspect of Montesquieu's political philosophy is that the separation of powers is at its most strongest when no individual can occupy a position in more than one branch of government at the one time. In Madison's implementation of this philosophy in the American republic, separation of powers is the means by which liberty is preserved and government's predilection to tyranny inhibited.

From the Federalist Paper No.47;

One of the principal objections inculcated by the more respectable adversaries to the Constitution, is its supposed violation of the political maxim, that the legislative, executive, and judiciary departments ought to be separate and distinct. In the structure of the federal government, no regard, it is said, seems to have been paid to this essential precaution in favour of liberty. The several departments of power are distributed and blended in such a manner as at once to destroy all symmetry and beauty of form, and to expose some of the essential parts of the edifice to the danger of being crushed by the disproportionate weight of other parts. No political truth is certainly of greater intrinsic value, or is stamped with the authority of more enlightened patrons of liberty, than that on which the objection is founded.

The accumulation of all powers, legislative, executive, and judiciary, in the same hands, whether of one, a few, or many, and whether hereditary, self-appointed, or elective, may justly be pronounced the very definition of tyranny.

Madison saw that having those department's wholly separate from each other an operating in isolation was just as dangerous to liberty as having their powers collapsed into one person. Madison sought to tap the natural negative passions of humanity in the American implementation of Montesquieu's separation of powers, so that the three arms of government were balanced against each other in a kind of natural harmony. Where each arm would be maintaining a watchdog on each other. Protecting their own arm's influence and power while ensuring that the other arms do not gain more influence and power - especially at their own expense.

The magistrate in whom the whole executive power resides cannot of himself make a law, though he can put a negative on every law; nor administer justice in person, though he has the appointment of those who do administer it. The judges can exercise no executive prerogative, though they are shoots from the executive stock; nor any legislative function, though they may be advised with by the legislative councils. The entire legislature can perform no judiciary act, though by the joint act of two of its branches the judges may be removed from their offices, and though one of its branches is possessed of the judicial power in the last resort. The entire legislature, again, can exercise no executive prerogative, though one of its branches constitutes the supreme executive magistracy, and another, on the impeachment of a third, can try and condemn all the subordinate officers in the executive department.

In the United States we see this balancing act in the appointment of Judges to the Supreme Court. The Executive nominates judges. The Legislative has to confirm those appointments.

Governor-General and Prime Minister

In the Australian Parliamentary systems, the Executive is the Governor or Governor-General. The Legislative is the upper and lower houses. In the case of the States it is the Legislative Assemblies and Legislative Councils. For the Commonwealth Government it is the Senate and House of Representatives.

Parliamentary systems have an Executive Council that is composed of the chair and the Executive Cabinet. The Governor or Governor-General is the head of the Executive Council. The Prime Minister or Premier heads the Executive Cabinet who advises the Governor-General or Governor respectively. The cabinet is composed of senior ministers in the majority government such as the Treasurer and Foreign Minister.

A formal reading of the Australian Constitution would have the reader believe all Executive Authority is contained in the Governor-General as the Queen's representative. There is no mention of the position of Prime Minister. Section's 60 through 62 contain the mention of the Executive Council;

61. The executive power of the Commonwealth is vested in the Queen and is exercisable by the Governor-General as the Queen's representative, and extends to the execution and maintenance of this Constitution, and of the laws of the Commonwealth.

62. There shall be a Federal Executive Council to advise the Governor-General in the government of the Commonwealth, and the members of the Council shall be chosen and summoned by the Governor-General and sworn as Executive Councillors, and shall hold office during his pleasure.

63. The provisions of this Constitution referring to the Governor-General in Council shall be construed as referring to the Governor-General acting with the advice of the Federal Executive Council.

The Governor-General is largely a ceremonial position whose Executive powers don't extend far beyond commissioning governments, dissolving parliament and writs for elections. There is also the gnarly reserve powers. The implied power of the Governor-General to dissolve an elected government. This occurred when John Kerr removed the Gough Whitlam Government in 1975, and in NSW when Phillip Game removed the government of Jack Lang during 1932.

The informal power of the Executive arm of government is completely tied up in the Prime Minister and Executive Cabinet. Australia practices one of the most absolute forms of party discipline, consequently most of the Executive power is tied into the Prime Minister. Backbenchers are nothing more than numbers for the policies of the Prime Minister when bills come to parliamentary vote. This is true for the House of Representatives and Senate.

A Foot On Each Bank of the Murrumbidgee

The Australian Prime Minister and State Premiers have a foot in two arms of government; the Executive and Legislative. The Prime Minister and Premiers have control over what laws are enacted, how those laws are funded and how they are implemented. Courtesy of party discipline, the will of the Prime Minister is rarely, if ever crossed.

This congruence of the Executive and Legislative powers is the weakness in the Parliamentary system and where liberty requires the maximum protection. A Prime Minister can write a tyrannous law. Through party discipline can have it passed in the House of Representatives and Senate. Through convention the ceremonial Governor-General passes it. The Prime Minister, through the offices of the Executive; such as the Australian Federal Police, Australian Defence Force, Immigration Department etc; can then execute that law in an arbitrary manner.

We might scoff thinking we are a reasonable people, with a reasonable government, and that this it will never happen in Australia. But Australians are human too, and suffer from the negative passions as much as anyone else from other nations. Australian government history is littered with instances of tyranny against minorities and individuals.

Violence of Faction

Party discipline is very strong in Australia. Conscience voting in the House of Representatives and Assemblies is almost unheard of. Another issue with parties or factions is their potential violence. Once they reach the majority in government, they can use the monopoly on violence and coercion of the government to punish their opponents. Violence can be open, and include baton wielding police and military; it can also be insidious. Other examples of the violence of faction include;

• Abolition of the secret ballot
• Electoral Fraud
• Malapportionment

In the parliamentary system faction can also play a positive as well as negative role. As scrymarch noted, factions can be used to tack upstream against the political opinion of the majority. The change from protectionist policies to economic rationalism, and the volatility those policies entailed, is a good example of this.

Ironically it is likely that the factional structure of the majority government is what keeps the Prime Minister position from becoming a permanent dictator. Westminster systems suffer from a slow oscillation in the change of government, but this preferable to a usurper illegally claiming the Executive position.

The negative passions of humans include the desire for more power, and the desire to rule others in an absolute manner. In a liberal democracy the closest thing to this is the Prime Minister or Premier position. For every Prime Minister there is a Parliament full of Representatives who desire that position. A Prime Minister that reaches too far will be challenged by others wanting the throne.

The Prime Minister is not an elected position, those that occupy it do so at the pleasure and patience of the majority party. A President is a singular elected position and more open to being usurped for it. This does not mean that Parliamentary government is superior to a Presidential system. Both have their advantages and disadvantages.

Protecting Liberty

The straddling of the Prime Minister and Executive Cabinet across two arms of government is a cause for concern. It makes the enacting and execution of tyrannous laws particularly easy. In the case of minorities and individuals who have no representation in Parliament, it places them at undue risk to be subject to such laws.

The Australian Republic must first protect liberty. The operation of government is a secondary concern. For the purposes of equity, the Governor-General position must be popularly elected and have the confidence and legitimacy that stems from it. By the same token the Governor-General and Prime Minister must not be squabbling over who has the real Executive authority in the Westminster government.

Taking the protection of liberty and a popularly elected Governor-General as starting points this suggests the role of the Governor-General should be the enforcement of a Bill of Rights. Stopping repugnant and tyrannous legislation that comes from the Parliament. The Bill of Rights will serve to codify the legislation that the Governor-General can veto. If the Governor-General steps outside of that authority, it is impeachment time.

This role for the Governor-General protects the rights of the individual, but does not take in the potential for that role to be polluted by party discipline. Another arm of government is needed, a Fourth Estate in addition to the Executive, Legislative and Judicial. These are the Ratifiers. This is group of individuals, approximately one percent of the population at any time, that are chosen by sortition to give their vote to a particular bill.

The Ratifiers cannot vote yes for a bill, they can only vote no or abstain. An opt-out form of bill voting. They also do not contribute to the debate on a bill as Ratifiers. they can contribute as citizens, but not as Ratifiers. Being a Ratifier on a bill infers no title or authority. They are an anonymous group. A secret ballot for a legislative bill.

The Ratifiers are there as a statistical weight against party politics to stop truly repugnant legislation from ever getting to the Governor-General.

cam

Bruce Schneier 's ideas have been commented about on SSR in the past in relation to security. However in this article titled; Unchecked presidential power he has a look at separation of powers and the aggrandization of the executive branch in times of war.

Schneier argues the greater danger in the recent revelation, even confession, that the Bush Administration instructed the NSA to eavesdrop on American citizens without bothering to go through a FISA issued warrant is in the breaking of separation of powers.

This isn't about the spying, although that's a major issue in itself. This is about the Fourth Amendment protections against illegal search. This is about circumventing a teeny tiny check by the judicial branch, placed there by the legislative branch, placed there 27 years ago -- on the last occasion that the executive branch abused its power so broadly.

Schneier addresses Yoo's justification for the circumventing of judicial approval by the claim that the US is at war with terrorism, and in a time of duress on national security the Executive should be able to do everything they can to ensure the security of the state. Firstly, no war has been declared. Something which the US Constitution is explicit about. The American Founding Fathers required that declaring war be the sole authority of the Legislature, as war itself often only bolsters power to the Executive.

The result is that the president's wartime powers, with its armies, battles, victories, and congressional declarations, now extend to the rhetorical "War on Terror": a war with no fronts, no boundaries, no opposing army, and -- most ominously -- no knowable "victory." Investigations, arrests and trials are not tools of war. But according to the Yoo memo, the president can define war however he chooses, and remain "at war" for as long as he chooses.

This is indefinite dictatorial power. And I don't use that term lightly; the very definition of a dictatorship is a system that puts a ruler above the law. In the weeks after 9/11, while America and the world were grieving, Bush built a legal rationale for a dictatorship. Then he immediately started using it to avoid the law.

Schneier finishes with a warning that separation of powers is a fundamental tenet of liberal democracy;

Laws are what give us security against the actions of the majority and the powerful. If we discard our constitutional protections against tyranny in an attempt to protect us from terrorism, we're all less safe as a result.

The United States has greater separation of powers between the Executive, Legislature and Judicial than Australia's Westminster system does. In the US the Executive is the President and his Executive Cabinet of appointed secretaries, such as the secretary of defence, secretary of state etc. The legislature is the Senate and House of Representatives, also known collectively as Congress. The Judicial is the federal court system which the President nominates candidates for and the Senate approves or rejects.

In summary the Legislature makes laws, the Executive executes those laws, and the Judicial interprets those laws. One of the issues is that Bush made up his own laws when he made an executive order that contravened a law from the legislature, and without judicial oversight. With that executive order he became Executive, Legislature and Judicial all in one person. This is commonly what the old Kings were.

In the Westminster system the Executive is split between the Governor-General [GG] and the Prime Minister [PM]. The Governor-General is the formal Executive but the Constitution limits the GG's power by demanding that the GG only take advice from the Prime Minister.

The Prime Minister is the informal Executive, and the PM's senior ministers make up the Executive Cabinet. For instance the Treasurer, the Foreign Minister, the Health Minister etc. The Legislature is the Senate and House of Representatives which are collectively known as Parliament. The Judicial is the commonwealth court system. Appointments to the Judicial arm are made by the Prime Minister.

One of the problems in the Westminster system is that the power of the Executive is embedded in the Legislature. The Prime Minister not only makes laws, but also executes them. As a consequence the separation of powers is weak in the Westminster system, especially when the one check on the Executive, the Senate, is controlled by the same party as the Prime Minister's.

Separation of powers is supposed to put the tensions between each branch of government in balance, ensuring that one arm cannot crowd out the others and claim all authority to themselves. It is a barrier to tyranny. One that is inherently weak in Australia, and it appears being eroded in the US under the auspices of the national security state.

More information;

• Separation of Powers or Executive Authority?
• Joh Bjelke-Petersen and Unicameral Parliament
• Separation of Powers and Parliamentary Systems

Separation of powers is an important principle, it stops an individual, or a small group of individuals acting as judge, jury and executioner. Strong separation of power promotes a nation of laws, rather than a nation of men and protects against arbitrary government. I was surprised to read of Frank Browne in Michael Fullilove's collection of speeches. Browne was accused, sentenced and gaoled by the Australian Federal Legislature.

Frank Browne

During the mid-fifties Browne ran the free weekly newspaper, Bankstown Observer . He was also known for printing and distributing a pamphlet called Things I Hear which Fullilove described as muckraking in Drudge Report style. In May 1955 Browne wrote an article titled, "MHR and Immigration Racket". Browne alleged that the member for Reid, Charles Morgan had engaged in immigration racketeering. Morgan claimed that the newspaper article should be referred to the House of Representatives Standing Committee of Privileges for investigation. This committee investigated Morgan's claims, and decided that a breach of privilege had occurred and that Browne, along with the newspaper's owner Raymond Fitzpatrick, should be required to appear infront of the committee.

The House of Representatives heard the charges against Browne and Fitzpatrick and on a motion from Robert Menzies, the house voted that the two men serve ninety days in gaol each. This is the only time that Federal parliament has gaoled an Australian citizen. Though DIMIA has been skating around this recently, if Australian citizens caught in the indefinite detention debacle can be called gaoling. Browne protested his handling at the hands of parliament;

It is considered the right of every Australian citizen charged with an offence that he, first must be charged; and secondly; he must have legal representation. That is denied to me even here. He must have the case against him proved, and he need not answer incriminating questions. There there is the fact that he must have the right to cross-examine his accuser. And lastly, he must have the right to appeal. There is also another inherent right which is always observed in every court in this Commonwealth, and every court where there is any reasonable conception of justice - that he shall present his case in an atmosphere which shall not have had the effect of prejudging him.

Browne continued with a warning to Parliament;

I say that, if this Parliament establishes a precedent and takes the right of punishment into its own hands, the rights that have been fought for since 1215, and even before, are seriously endangered. The right of free speech is endangered. You talk about intimidation, sir. You visit exemplary punishment and what happens? There will not be a journalist in the land, not a newspaper proprietor in the land, who will feel free ...

The High Court backed the legislature using Section 49 of the Constitution. From the case ;

Constitution. The Constitution in s. 49 provides : - "The powers, privileges, and immunities of the Senate and of the House of Representatives, and of the members and the committees of each House, shall be such as are declared by the Parliament, and until declared shall be those of the Commons House of Parliament of the United Kingdom, and of its members and committees, at the establishment of the Commonwealth."

The case goes on to define privilege, contempt and the power of the House of Commons and its relation to the House of Representatives through Privy Council cases.

For s. 49 says that, until the powers, privileges and immunities of the House are declared by Act of Parliament, the powers, privileges and immunities of the House shall be those of the Commons House of Parliament of the United Kingdom at the establishment of the Commonwealth.

The language is such as to be apt to transfer to the House the full powers, privileges and immunities of the House of Commons. As Lord Cairns has said, an essential ingredient, not a mere accident, in those powers, is the protection from the examination of the conclusion of the House expressed by the warrant.

So the legal argument was, the House of Common can do it, and since there is no Australian federal act saying parliament cannot do it, federal parliament were not committing an illegal act. But what of the doctrine of separation of powers?

Then it was argued that this is a constitution which adopts the theory of the separation of powers and places the judicial power exclusively in the judicature as established under the Constitution, the executive power in the executive, and restricts the legislature to legislative powers. It is said that the power exercised by resolving upon the imprisonment of two men and issuing a warrant to carry it into effect belonged to the judicial power and ought therefore not to be conceded under the words of s. 49 to either House of the Parliament.

It is correct that the Constitution is based in its structure upon the separation of powers. It is true that the judicial power of the Commonwealth is reposed exclusively in the courts contemplated by Chap. III.

It is further correct that it is a general principle of construction that the legislative powers should not be interpreted as allowing of the creation of judicial powers or authorities in any body except the courts which are described by Chap. III of the Constitution. Accordingly, it is argued that a strong presumption exists against construing s. 49 in a sense which would enable the particular power we have before us to be exercised by the Senate or the House of Representatives.

It was pointed out that in the case of the Inter-State Commission s. 101 had received a construction which made it impossible to invest the Inter-State Commission with the character of a court and confide to it judicial functions, because it was not a body which fell within Chap. III. That was relied upon as an instance or example of the kind of construction or interpretation which we were urged to adopt in the case of s. 49.

The High Court chose an explicit reading of Section 49, which enabled the House of Representatives to adopt all the powers of the much older, and informal British House of Commons. The constitutional ineptitude of the "Bearded Men" strikes again. The judge writes;

Accordingly, all the arguments which have been advanced for giving to the words of s. 49 a modified meaning, and the particular argument for treating them as not operating, fail. We are therefore in a position of having before us a resolution of the House and two warrants which conclusively show that a breach of privilege has been committed and the two persons who seek release are properly held by the person to whom these proceedings are addressed, Mr. Edward Richards.

It follows that the applications for the writs of habeas corpus should be refused and we accordingly refuse them.

ORDER. Applications refused.

Australia's parliamentary system has weak separation of powers anyway, but in the Browne and Fitzgerald incident it wielded absolute power. The legislature made itself King.

More Information

• national Archives of Australia: Fact Sheet 204

The internet supposedly has a permanent memory, but opinion polls on an Australian Republic are exceptionally difficult to find. The Pandora Archive has some from an archive of the Australian Republican Movement website . But they aren't specific on whether people want to vote for the Head of State or not, and how they want the Head of State to be elected. This is one problem with making the Republic popular, the other is what to do with the powers of the Executive.

So what do people want? Polling is the best means to determine this, and there isn't that much information at our fingertips to see what resonates with public opinion. Do people want to elect the Head of State (I am guessing yes)? What do they want the Head of State called? How do they want the Head of State to perform their duties?

This is the area where public opinion needs to be tapped for the wisest, and most popular outcome.

The other problem, which is probably better done by specialists, is what to do with the Executive. By specialists, I mean *not politicians*, their role in this would be too selfish.

We have several problems in our system. The Constitution is supposed to be a reflection of the will of the people and set the limits on legislative authority. Courtesy of Griffiths, Barton et al, we have crap constitution which has not been able to restrain federal excess, or legislative tyranny.

A Bill of Rights is a necessity in Australia to place legislative limits on the House and Senate.

The other is that we have poor separation of powers. Government is divided into three arms, Executive, Legislative and Judicial. The legislative makes laws, the executive executes or enforces those laws and the judicial interprets the laws.

In Australian Parliament, the executive and legislative are both contained in the House. The Prime Minister can make a tyrannous law, fund the enforcement of that tyrannous law and then oversee its enforcement. Between a weak constitution and poor separation of powers, we have seen parliament abuse their authority blatantly and with devastating social effect in the past.

The question of what to do with the executive, especially if the people want to be actively involved in the process of selection and election of the Head of State are going to have to be answered.

One of the enlightenment thinkers which heavily influenced the American Republic was a French bloke with a big nose by the name of Charles de Secondat, baron de Montesquieu . He came up with a technology called Separation of Powers. This is where government is divided into three distinct and independent areas; making laws, implementing laws and interpreting laws. We know these as the Legislative, Executive and Judicial.

The US has one of the purest systems of separation of powers, as well as one of the strongest systems of checks and balances. This is where each arm monitors the operations of the branches of government. I will discuss this in terms of the American Washington system. Westminster systems need not apply .

Back before liberal democracy they had a problem where kings, despots, tyrants etc used to make laws up on the spot, enforce those laws on the spot, hand down sentences on the spot and tax people on the spot. It represents arbitrary government and got a bit of a bad name.

The American founding fathers looked to all the present systems of government, read up on the enlightenment philosophers and decided to come up with something better. A system of government that was resilient to the negative and selfish passions of politicians. One that would make America free forever from the tyranny and despotism of being subject to a King.

They put down all this thinking into the US Constitution and Hamilton, Madison and Jay explained it in great detail in the Federalist Papers . A must read for anyone interested in the philosophical basis of the American republic.

• Executive: In the US system this is the Administration headed by the elected President. The executive cannot make laws, nor interpret them or pass sentence on them. The President can only execute the laws that the legislative branch of government has made.

• Legislative: This can be bicameral or unicameral. In the US it is bicameral with a Senate and a House of Representatives. These two houses make the laws and money bills. These are the laws that the Executive must execute. It also provides the funding to execute those laws.

• Judicial: This branch interprets laws that are made by the legislative.

The separation of powers doctrine also contains counterbalance. For instance the legislative must approve the executive's appointments to the judicial. The executive can veto a legislative bill. The judicial can determine a law made by the legislative unconstitutional.

These stop the branches acting in a tyrannical manner in their own little fiefdoms of distinct power.

This is all tied together with a constitution. A single document that describes in detail the powers of each branches and the checks and balances on each branch. The constitution defines the limits of executive, legislative and judicial authority. As a consequence, when interpreting government action, it is an absolute.

Through the factional system, politicians have impugned themselves to varying degrees from the limits written into constitutions. The next iteration or innovation for liberal democracy will probably be having a democratically elected magistrate who's sole concern and authority, is to ensure that the constitution is not being broken and tyranny being committed.

cam [ x-posted to husi ]

I like the idea of the executive cabinet coming from elected parliamentarians. This allows the people to keep the truly repugnant out of, not only parliament, but also cabinet. Yet in these days of ever-increasing social democracy an officious administrator is needed over a politician to keep the reigns on all the spending and ensure that the intended outcomes are met. Neither of these issues addresses the problem of how to structure the executive so that there is strong separation of powers between the arms of government.

Executive Cabinet

A simple innovation in the current parliamentary systems practised in Australia at the federal and state levels would be limiting the Executive Cabinet to drawing its members from either the House of Representatives or Assembly. This would at least give the upper houses, such as the Senate or Legislative Councils, some focus in acting as a check and balance on the combined power of the Executive and Legislative which is present in the lower house.

Currently the Executive Cabinet can be composed of members from both houses. This is not true of Queensland, the Northern Territory or the ACT, who have unicameral systems and lack an upper house. Between factions who can enforce party discipline and the mixing of the houses in the Executive, there is little stopping Executive over-reach.

In the federal system the Executive Council is composed of the Governor-General and the Executive Cabinet. The cabinet is headed by the Prime Minister and is composed of the government's senior ministers. The federal constitution makes no mention of the Prime Minister at all, which is the position of most power in the federal government. The Governor-General is also a ceremonial position and constitutionally must take the advice of the government of the day in how the Governor-General will act.

This is a throw-back to the Australian government's Westminster origins. In the United Kingdom the parliamentarians wanted to keep the King as the ceremonial head of the nation for political, religious and nationalist purposes; but strip the King of any political power in parliament. As a consequence, after King George lost the America's, and parliament became stronger and stronger in defying the King's interventions in politics, the convention became that the Prime Minister would advise the King.

Australia adopted a similar system in 1901 despite the monarch having no power left in the British system. Basically Australia adopted a system that is predicated on a hack to route power away from the monarch and neuter the King's ability to interfere in the process of government.

Executive Function

The goal of separating the Executive from the Legislative is so that one branch of government makes laws (the legislative) and the other implements or executes those laws (the executive). This is to stop one person, or one body of government, making a repugnant law, funding that repugnant law and then enforcing that repugnant law. It is a barrier to tyranny.

With the ever increasing legislation and growth in government function and responsibility the executive cabinet, and its portfolios have grown. In the United States the secretaries to the President are appointed, through Senate agreeance. These have also grown in number since the days when the American republic was first founded. Despite the stronger separation of powers in the US system, there has been no inhibition on the growth of government, nor any increase in ministerial or secretarial accountability. Factions have successfully managed to dampen those effects.

So should Australia adopt a separate executive?

Purity of principle would require it and strong separation of powers remains the best way to deal with the inevitable negative passions of those that seek power. Yet the parliamentary system is relatively stable, and seemingly no more, or less prone to tyranny than a Presidential one. A separate Executive poses the problems of elected vs appointed officials. In the United States some counties and states try to address this by having elections for the Attorney-General and Sheriffs.

Does separating the executive and legislative functions give more positive outcomes? This must be answered yes. The checks and balances which are enabled by separating the two branches of government increase oversight and limit the room for a branch to fall into extremism. There is limited possibility for this in a parliamentary system where the Prime Minister dominates - and coupled with parliamentary discipline, a majority in both houses can mean that a government will guillotine legislation and bills through.

So Parliamentary or Presidential systems both suffer at the hands of factionalism.

Governor-General

The Governor-General is a political eunuch in the Australian system. Because of the inherent weakness in our constitution and its separation of powers, electing a Governor-General will probably force a showdown between the Prime Minister and Governor-General over executive powers. Both will claim mandates from the people to see their policies implemented and enforced.

One way is to get around this is to make the Governor-General represent the constitution and a bill of rights. The Governor-General would be constitutionally required to veto any bill that contravenes the constitution or the bill of rights. This would give the Governor-General a small area of executive and constitutional responsibility that is separate to the executive power of the Prime Minister so they don't try to steal each others executive authority.

This would also be a strong check on tyranny, as candidates for the Governor-General position would compete over who can protect the constitution and the rights of those under the government the best. But veto is a check on legislative power rather then executive power. This would not stop a Prime Minister passing a benign law and then enforcing it in a repugnant manner. The sedition laws are probably a good example of where this could be open to abuse.

The check on executive implementation of laws under a strong separation of powers and checks and balances is by the legislative. Committees and other legislative functions are intended to bring the executives conduct under focus. But again, partisanship and factionalism can destroy that check and balance.

Do we need a Governor-Magistrate? One who can actively institute commissions on the executive branch of government with legislative oversight? Basically the Governor-Magistrate heading a form of ICAC which does not answer to a minister, but is a sub-arm of the executive in the same way that the judicial is.

Best Protection

The best protection from factionalism and government over-reach remains the people. Sheer numbers of people can statistically dampen out the concentrations of factions in government. This should be leveraged to interact with government directly. We have such technologies in use already, for instance a jury is the people deciding on points of law. The jurors are chosen by sortition. This same technology can be used to have large numbers of the population vote or participate in government directly - from bill to bill, audit to audit, or even sit directly in parliament.

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

• Governor-General is elected
• Governor-Magistrate is elected
• Governor-General cannot pass legislation that is repugnant to the constitution (including bill of rights)
• Senate can over-ride the Governor-General's veto
• Senate can bring criminal proceedings against the Governor-General which must get a super-majority in the house to proceed
• Governor-Magistrate is head of the Senate and has deciding vote in a tie
• Governor-Magistrate can initiate commissions into the conduct of the Executive Cabinet
• Senate must pass any commission before it can proceed

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.

A common cry is that the judicial, rather than interpreting the constitution, is activist and making judgements that are more legislative than juridical. The judicial is treated as a specialist position and given tenure to hide it away from political or populist influence. Unfortunately the judicial often takes matters into its own interpretive hands and expands the power of those that appoint them.

There is very little check and balance on the Australian Judicial branch. Since 1986 the High Court of Australia has been the highest court in the country, displacing the Privy Council in the United Kingdom as the highest court of appeal. Since 1968 the High Court of Australia had been the highest court of appeal on constitutional and federal issues.

In Australia the Prime Minister or Premier appoint Justices without oversight beyond the Executive Cabinet. This is in contrast to the stronger checks and balances in the US system where the Executive recommends a judge/justice to the Legislative who must then approve it.

This is a simple check on Executive stupidity and political appointments . In the Australian form of Westminster separation of powers demands that at the least the upper-houses (Senate and Councils) have no members of the Executive Cabinet in them, making them purely Legislative.

The Executive Cabinet would be required to recommend judicial appointments to the Senate/Councils where they would need to be approved by majority after public debate on the appointment.

Lionel Murphy changed Judicial doctrine in the Australian High Court quite drastically, believing that it was up to the High Court to make the Australian Constitution a living breathing document. This is in part because the Australian Constitution is poorly written and almost impossible to change under the referendum requirements.

It is also part of another doctrine that has infected Australian federalism since its inception of entropic and dynamic collapse of all power to Canberra. The Judicial has aided, abetted and accelerated this process.

As adam commented , this has been achieved by seeking obtuse nuance in what is clear constitutional language;

What's insidious about the constitution being changed through common law, eg in the US, is that the relatively clear language of the original document is interpreted to become a term of art. Eventually the succession of rulings can become so distant from the original text that to compare them side by side is an exercise in absurdity or even deconstruction.

The recent US ruling on eminent domain seems the perfect example of this to me. This is also what's behind the US doctrine of originating intent. I'm not sure whether the court is able to heal these rifts itself.

So how do you save the judicial from its own over-reach?

The Constitution represents the limits on Executive, Legislative and Judicial authority, which the Judicial is the final interpreter of; but it contains few limitations on the Judicial ability to act. Australian justices are required to retire at seventy-five, while in the US they just die on the job.

In a federal system, federalist over-reach is supposed to be stopped by the unitary components - the states. The Senate is composed of state membership, but political parties and party discipline have corrupted that check and balance on the federalist system.

Yet constitutional challenges to legislation have often involved a majority, or near majority, of states. For instance the challenge to Workchoices comes from NSW, Western Australia and Tasmania.

Is it possible that a check and balance on poor Judicial performance by a Justice, such as one that is opposed to a strict reading of the constitution, and who brings anti-federalist interpretations can have their position on the High Court challenged by the states.

This could act as a Judicial form of impeachment that would require a majority of states and state parliaments to pass legislation requiring a Justice's removal.

There would be the fear that this would politicise the Judicial arm of federal government but since most of the appointments to the High Court are political rather than based on merit or specialist history, then this is not necessarily something that is not occurring already.

This check and balance would be that tenure can be revoked by the states.

Current parliamentary systems provide legislative and executive capability but do not strike a perfect balance of representing the will of the people, while providing effective and efficient government.

Introduction

There has been an ebb and flow for generations in opinion about the forms and benefits of legislative bicameralism and the balance of power between the legislative and executive branches of government.

A parliamentary system should:

• Represent the will of the people by providing a forum in which the various views of the electorate can be presented with appropriate weight;
• Provide reasonable legislative review that resists arbitrary change and limits any tyranny;
• Deliver an effective Executive.

A solution has never been implemented that appropriately balances these interlocking requirements, here is a suggestion.

Legislative Review

A bicameral parliament is the only demonstrated mechanism that provides sufficient legislative review within a democracy. The composition, size and responsibilities of the two houses needs to be determined.

The Will of the People

The will of the people should be manifested through a legislative assembly that best represents the different and complex viewpoints of the electorate. To achieve this representation, the legislative assembly should be constructed utilising proportional representation and preferential balloting.

It is clear from Senate elections in Australia that 12 representatives in an electoral district is too few to overcome the inertia of the major parties, and from Knesset elections in Israel that 120 is far too many. A balance needs to be struck that permits minority viewpoints to be heard without paralysing the legislative process.

The Role of Women in the Political Process

Although universal suffrage swept most of the democratic world early last century, essentially every aspect of political process from pre-selection through election to the operation of parliament has been designed and developed by men competing with other men. When women run for public office they do not share a level playing field in this mans game, and the female public by and large only have the opportunity to vote for which male should represent them.

To fully enfranchise women I propose (a) that the legislative assembly consist of equal numbers of men and women; and (b) that election should be gender-specific - men should vote for men and women for women.

Executive Power

There is a valid line of logic that a government needs a mandate, and pretty much any mandate is better than no mandate at all. To achieve this, systems for electing executive positions typically disavow proportional representation and electorates have one member and may not provide preferential balloting.

If the legislative assembly inherently represents the will of the people through proportional representation, then executive power - the role of government (including opposition) - should be vested in the Senate, with an electoral system that ensures that at any given time it should be dominated by one of the major parties.

The Composition of the Legislative Assembly

The total electorate should be divided into five regions of equal population, divided as much as possible between dissimilar interests, such as urban versus rural and regional Australia; and haves versus have nots. The regions need not be physically contiguous.

Each electoral region should elect 30 representatives, 15 men and 15 women, for a total of 150. Voting should be by preferential balloting, providing the opportunity for minority viewpoints to be heard where they represent more than 6% of generally held opinion.

A Legislative Bill should obviously require a majority of votes to pass, however a discussion would be worthwhile to analyse if an absolute majority or a 60%-or-so super-majority would be an improvement over the more usual relative majority.

The Composition of the Senate

Each state and territory should divide their total electorate by the number of allocated Senate seats to elect one representative in each region. Preferential balloting should be utilised to allow for gradual change in the balance of power between several major parties.

To maximise effectiveness a Senate Bill would require a relative majority of 50% to pass.

Conclusion

This proposed political structure incorporates only a small number of subtle changes to the current Australian system, with significant potential benefits. Attempting to implement them at a federal level would require a constitutional amendment to be proposed by a Government and then accepted by the people through a referendum. With no established precedent that is virtually impossible.

State and territory legislatures offer a more suitable proving ground since, within some limits, changes can be instituted through legislation alone and have far less reaching effects.

I have been enjoying Barnaby Joyce simply because he carries his inner-debate between representing his conscience, his state, his party and the coalition government so publicly. Joyce had predominantly voted with the coalition and has been notable more for the few times he has dissented, however, he delivered a very independent minded speech last month to the Law Institute of Victoria; Crossing the floor: Political Hero or Renegade? The sensationalist title aside, it contains a good insight into Joyce's view of what democracy should be.

Due to the preferential multi-member nature of the Senate the last twenty-five years has seen the Australian Democrats be elected as the independent minded representatives in the Senate. Acting as a check and balance on executive largess since we have such poor separation of powers between the executive and legislative in the Australian parliamentary system.

The Australian Democrats branch structure is currently struggling, and this is being reflected in the difficulty they are having being elected and re-elected. Consequently the integrity of the Australian system may become ever more dependent on independent minded Senators and House Parliamentarians. Hopefully Joyce and Georgiou are the beginning of this style of movement.

I don't hold out much hope for an independent parliament or Senate though.

The Labor Party were a disruptive political technology in the 1890s. Their two innovations of the pledge and a local branch structure revolutionised Australian politics, and not necessarily for the better. The pledge effectively makes Labor block voting permanent in parliament. The only negotiating room for Labor parliamentarians is with the National Executive to influence their decision.

The branch structure has not been destructive, the modern Liberal Party restructured itself along those lines under Menzies to make a more permanent party than the United Australia Party was capable of. The Greens and Australian Democrats have also benefited in stability from adopting a branch structure.

Joyce's Speech

In the speech Joyce aligns himself as a legislative check and balance on the Executive. This is the correct philosophical position and stance for a Senator in a parliamentary system. Joyce says;

In the world where selling political parties is now like selling brands of bottled water, the contents are indistinct but the packaging is colourful, there has been a democratic devolution that has been exploited by the executive.

When the executive calls public debate and associated dissention in the Senate Chamber bad manners it stands to reason that we should be discussing the principle of coram populo.

Is a Senator a renegade, a hero or just doing what he or she swore an oath of office that they would do? ...

The so called discussion behind closed doors, as opposed to informed debate in front of the public in the Senate, is no more than a usurping of your democratic right. ...

If it is believed by the executive that a more just form of government is one not subject to open and diligent review then this should be proposed to the public as an alternative to the bicameral system of parliament and taken to an election.

The constant moves for Executive dominance are insidious and persistent. Constitutional systems make usurping the constitution openly a difficult and daunting prospect so Executive dominance and centralisation is often done by less direct and obvious means; party discipline, direction of tax monies, or emergency powers.

I consider the Executive the most dangerous component in a liberal democracy. Unfortunately in a parliamentary system the predisposition toward Executive avarice is a weakness that can only be maintained by strict constitutionalism and a vigilant legislative.

Both those actions require, in my opinion, an overhaul of the present Australian constitution to give the legislative and judicature the correct constitutional tools to maintain their independence against executive usurpation and as well as act as an explicit check and balance against each other and the executive.

Joyce suggests that Senators are failing to perform their constitutional duty, and this in part to the mixing of legislative with the executive as well as the party structures;

The demise of the Senator's roll has come with the inclusion of the executive in the Senate. How can you be an ardent and forensic arbiter of the person who sits in front of you in the chamber of review and beside you at every other lunch? What is even more peculiar is how the Senators who are in the executive can be the directors of an informed debate to flesh out the contrarian views of their own decisions. This would have to be thought of as slightly schizophrenic at best but more likely insincere.

The preselection process of a Senator is failing to catch the imagination and capture new Senators who will fight for more for democracy than for their personal political future. The Damoclesian issue of disendorsement and the laurels of a ministry, committee chair or general bonhomie in the party room override what should be a deeper obligation to our nation, i.e., that you are a Senator not a Member.

The party system is currently corrupted or, at the least, ill informed because the basis of its selection criteria for a Senator is those who are the least likely to fulfill their constitutional role to their fellow Australians. How the preferred candidate is then hidden is that they stand as Mr or Mrs Liberal, or Mr or Mrs Labor, or Mr or Mrs Green. They are made to feel beholden by sections in that party, that their responsibilities to that party are greater than their responsibilities to the Senate and the proper operation of review.

Simple changes that probably only need to be conventionalised, rather the constitutionally ratified, though it would give them greater authority to be constitutional, would be the prohibition of Senators from being in the Executive Cabinet or Executive Secretaries.

Other changes which would be positive would be simple checks and balances changes such as the Senate having to ratify treaties and endorse executive appointments.

Making the Senate a purely legislative body, while the House remains an unhealthy mix of executive and legislative, may give the Senate more prestige and encourage more independent minded Senators. I don't know how much this would have an effect on Joyce's complaint of parties restricting the constitutional duty of a Senator.

I think it is a mistake to call the Australian Democrats a post-materialist party. They were structurally formed to plug the hole of parliamentary failure. They were an emergent response to the pitfalls of poor separation of powers, lacking checks and balances, as well as independent parliamentary action.

For instance, in the Australian Democrats constitution, an elected representative can conscience vote against the national executive. Something that is denied Labor representatives. The Australian Democrats platform also focuses heavily on parliamentary procedure which found its jingoistic expression in "Keep the Bastards Honest".

Strategy and Predictability

Joyce also comments on the predictability of the Senate voting in blocks giving him a tactical advantage;

Currently in the Senate there is a position of leverage that is given by the fact that I can rely, almost totally, on other Senators voting as directed.

Absolute party discipline has been an Australian innovation, though not necessarily a positive one. Joyce's speech is well worth reading the whole way through.

cam