«Outline of Thesis Proposal Constitutional Checks and Balances on the Commonwealth Executive Aims of Thesis • To identify the extent of the need for ...»
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Outline of Thesis Proposal
"Constitutional Checks and Balances on the Commonwealth Executive"
Aims of Thesis
• To identify the extent of the need for checks and balances on the exercise of executive power
within the modern Australian system of representative government.
• To identify and critically evaluate the checks and balances currently operating in contemporary Australian constitutional law and practice in relation to the exercise of executive power by institutions of the executive government.
• To make suggestions for clarification of the operation of such checks and balances where necessary. Further, to suggest extensions and / or modifications to current checks and balances where they may not be operating in an effective manner to control the powers of the executive.
• To suggest practical ways in which certain suggested checks and balances might be incorporated into Australian constitutional practice without necessarily relying on formal amendment of the Commonwealth Constitution under the section 128 mechanism.
Reasons for the Inquiry The need for different categories of powers to be exercised by separate institutions of government has been recognised consistently in democratic political systems the world over. The argument for this has been that over-centralisation of power can lead to corrupt government 1. Thus, most modern democratic systems of government are constructed in a way that separates different classes of governmental power and vests each class of power in the control of a different organ of government. Under a political system which incorporates such a "separation of powers" doctrine, executive, legislative and judicial powers are vested in separate arms of government 2.
Additionally, it has been noted that under a federal system, central and state powers are vested in separate levels of government 3. This type of separation of powers between different levels of government may also be seen as a mechanism to prevent the concentration of too much power in the hands of one centralised level of government 4.
See, for example, Wood, D., Hunter, R. and Ingleby, R., "Themes in Liberal Legal and Constitutional Theory" in Hunter, R., ingleby, R. and Johnstone, R., (eds), Thinking About Law: Perspectives on the History, Philosophy and Sociology of Law (1995) Allen & Unwin: New South Wales, 53-55; Hamer, D., "Can Responsible Government Survive in Australia?" in Papers on Parliament No. 26: Republicanism, Responsible Government and Human Rights (August 1995) Department of the Senate: Canberra, 43-4;
Booker, K., Glass, A. and Watt, R., Federal Constitutional Law: An Introduction (1994) Butterworths:
For example, it has been held that there is a separation of powers doctrine implied into the text of the Australian Commonwealth Constitution, particularly in relation to the structure of the Constitution and the drafting of sections 1, 61 and 71 which vest legislative, executive and judicial power respectively in separate arms of the Commonwealth government (R v Kirby; Ex parte Boilermakers' Society of Australia ("The Boilermakers' case") (1956) 94 CLR 254, 274).
This is the case in federations such as Australia, the United States and Canada.
See, Hunter et al (above).
Despite the protections afforded to a democratic system by the separation of powers doctrine, most democracies have developed other checks and balances on the exercise of various classes of powers. The rationale for such checks and balances is to create additional protections for democracy by preventing any class of power from being exercised in an uncontrolled or undesirable manner by a particular institution of government.
One category of power that may be of particular concern if it is exercised in an unchecked manner is executive power. At its most basic level, executive power is the power to "execute" or administer the laws made by the legislature 5. This entails the day to day carrying out of government programs that have been established within various legislative frameworks. However, in practice, in many modern representative democracies it is the executive arm of government that makes the significant governmental decisions and drafts new governmental programs as bills which are presented to the legislature for consideration. Where a party political system is in operation, and the members of the executive government are drawn from the party with a majority in the legislature (or, in many cases, in the lower chamber of a bicameral legislature), the executive will generally have the power to initiate and carry out any governmental scheme, using the parliament that it controls to enact its desired programs into law.
This is arguably the case in Australia where the members of the executive government are drawn from the party with the majority in the House of Representatives 6. Many commentators on the Australian system of government have emphasised the difficulties inherent in such a system in terms of the concentration of power in the executive government 7. Hamer, for instance, has spoken out against the
perceived over-concentration of power in the Commonwealth executive government:
[The Commonwealth Parliament] is totally useless as a legislature, merely acting as a rubber stamp for the bills produced by the governmental party. As an example of its performance, during the twelve years from 1976 to 1987, under two different governments, when nearly 2,000 bills were passed, not a single opposition amendment to any of them was accepted - with the exception of two bills which were handled by an experimental procedure, an experiment that was soon stopped by government. 8 Hamer's concern, which has been recognised by others 9, is that notwithstanding that the Commonwealth Constitution embodies a separation of powers doctrine in theory, the practical reality is that the executive, not the parliament, controls the operation of Commonwealth legislative power.
See, for example, the definition of "executive" in Bird, R., (ed), Osborn's Concise Law Dictionary (7 ed) (1983) Sweet & Maxwell: London, 140; see also, Booker, K., Glass, A. and Watt, R., Federal Constitutional Law: An Introduction (1994) Butterworths: Australia, 124.
By comparison, in the United States there is a more strict separation of powers under which the elected President heads the executive government, the major officeholders of which are appointed by him / her, whereas the Congress (the United States legislature) is separately elected by the citizens.
See, for example, Ratnapala, S., "Westminster Democracy and the Separation of Powers: Can they Co-exist?" in Department of the Senate, Papers on Parliament No. 26. Republicanism, Responsible Government and Human Rights (August 1995) Department of the Senate: Canberra, 87.
Hamer (above), 41.
See, for example, Ratnapala, S. (above); Thompson, E., "The `Washminster' Mutation" in Weller, P. and Jaensch, D. (eds), Responsible Government in Australia (1980) Drummond: Victoria, 36;
Sharman, C., "Australia as a Compound Republic" (1990) 25(1) Politics 1, 3.
Thus, there may be an over-concentration of governmental power (of a mixed legislative and executive character) in the one arm of government, the executive 10.
Other practical realities within the Australian system of government suggest that this may be the case.
One example may be the fact that the executive arm of government has often been granted very broad regulation-making powers under various pieces of legislation, obviously at the instigation of the executive government itself. The High Court has held this practice to be unobjectionable, despite the separation of powers doctrines 11.
From these observations, several points can be made about the effectiveness of the separation of powers doctrine as a protection against the over-concentration of government functions in the executive in Australia. The first point is that there is not a strict separation of powers between the executive and legislative arms of government at the Commonwealth level in Australia 12. The members of the executive are drawn from the legislature 13 and, in the modern party political system, the executive represents the party with the majority in the lower house and exercises effective control over both executive and legislative power in the usual case' 14. Secondly, the High Court seems unwilling, at least in some instances, to act as a check on the executive in terms of its exercise of significant amounts of legislative power 15.
Obviously, as Australian constitutional law and practice have developed, the separation of powers doctrine has been first identified and then applied in a flexible way to the question of the separation of legislative and executive power. However, alongside these developments has been the development of other checks and balances on executive and legislative power which have been primarily aimed at preventing the concentration of too much power in the same group of people. Sometimes these checks and balances have been directed specifically at the executive, and other times at the parliament, particularly the House of Representatives as the chamber predominantly controlled by the executive government of the day.
The object of this thesis will be to identify some of these checks and balances that exist within modern Australian constitutional law and political practice. An attempt will then be made to evaluate critically the operation of these mechanisms as effective checks on the overuse of power by one group of people, particularly in situations where power may be exercised in a manner which could be regarded as undemocratic. Suggestions will then be made as to areas in which the operation of some of these mechanisms could be clarified or extended / modified to better achieve the aims for which they have developed over time. Finally, consideration will be given to the best method for incorporation of these suggested changes into Australian constitutional practice. It will be suggested that informal codification of some of these ideas, perhaps in the form of a "Code of Practice" for the executive, may be preferable Similar comments may be made in respect of the United Kingdom system of government from which much of the Australian system of government has been derived.
Victorian Stevedoring and General Contracting Co Pty Ltd v Dignan (1931) 46 CLR 73.
This has been recognised by many commentators in Australia. See, for example, Booker et al (above), chapter 7; Zines, L., The High Court and the Constitution (3 ed) (1992) Butterworths: Australia, 136Hanks, P.J., Constitutional Law in Australia (1991) Butterworths: Australia, 393-397.
See section 64 of the Commonwealth Constitution which states that all government ministers shall, within three months of their appointment, hold a seat in the House of Representatives or the Senate.
There may be instances in which the executive government does not reflect the majority party in parliament. For example, in the situation where no particular political party gains a clear majority in an election, a minority government may be formed. In such cases, parliament may serve as a more effective check on the executive government than in the usual "majority party" situation.
See, for example, Dignan's case (above).
in some instances to relying on the section 128 amendment mechanism in the Constitution to effect formal change. Advantages and disadvantages of such a Code of Practice will be dealt with in the final section of the thesis.
Issues for Discussion The following describes the types of issues likely to be discussed in the thesis.
The types of checks and balances proposed to be analysed in the thesis may include:
• temporal restraints on the accumulation of legislative and / or executive powers; for example, fixed term appointments for parliamentarians;
• the operation of the doctrine of responsible government in modern Australian representative democracy;
• judicial review of executive decisions;
• judicial review of the legislative process;
• judicial identification of implied rights in the Commonwealth Constitution which may impact on the way in which certain political practices are conducted (for instance, conduct of federal elections);
• the potential for a Head of State to act as check on executive and / or legislative power; and
• the Senate's power to function as a House of Review and sometimes as a more significant check on activities of the House of Representatives and, effectively, the executive government of the day.
Having evaluated the constitutional laws and practices that have developed since federation in relation to the above, it should be possible to identify where there is room for improvement in this area.
Suggestions would then be made for ways in which the checks and balances which have developed in the system might operate more effectively. Further, recommendations would be made for the establishment of additional checks and balances.
Such recommendations for the future would include consideration of the following 16 :
1. The reworking of the position of the Australian Head of State. This may be of particular relevance in the lead up to the centenary of federation while there is still significant debate over the issue of whether Australia should become a republic 17. If the office of Head of State were reconsidered, it would be appropriate to consider issues relating to the levels of accountability owed to the Head of State by the executive government and the House of Representatives.
This issue should be considered in conjunction with item 2 below. It would necessitate a consideration of possible constitutional amendment in this area. Some suggestions for such amendment have been made recently by several commentators in the area 18.
A number of the following issues are interconnected and account would need to be taken of this in the structure of the thesis.