FOUNDATION FOR NATIONAL RENEWAL

Crafting a Model Constitution

TASK ELEVEN - THE EXECUTIVE

1. The task for this month deals with the question of the Executive of the National Parliament. The options on this question range from one in which a Prime Minister or President has executive power and can not be a member of the legislature (as in the USA), to the other extreme where the whole of the parliament is also the executive. Between these two extremes there are a range of ideas extant in various nations around the world.

2. At the heart of this question is a well-established 'theory of government' that there ought to be a separation of powers between the legislature, the executive and the judiciary. One objective of this theory is to prevent too much power being concentrated in any one person or body. Another is that liberty and good government are better served if there are checks and balances in the system. One way of achieving these checks and balances is by:

a. defining the powers and responsibilities of each arm of government;

b. by establishing rules that ensure each branch is confined to the exercise of its own function; and

c. by ensuring that each branch is empowered to review the activities of one or both other arms of government.

Australia

3. The Australian Constitution does not specify a clear separation of powers. Furthermore, in many instances, the practice often bears little resemblance to the words of the Constitution. (These differences between what is proclaimed by the Constitution and what is done in practice are a primary reason why the Constitution is so difficult to understand. These discrepancies also indicate the urgent need for an update, or a rewrite, of our Constitution.)

4. Excluding those sections spent or redundant, the relevant sections of the Australian Constitution dealing with the executive are reproduced here in full.

Section 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.

Section 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 Councilors, and shall hold office during his pleasure.

Section 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.

Section 64. The Governor-General may appoint officers to administer such departments of State of the Commonwealth as the Governor-General in Council may establish.
Such officers shall hold office during the pleasure of the Governor-General. They shall be members of the Federal Executive Council, and shall be the Queen's Ministers of State for the Commonwealth.
After the first general election no Minister of State shall hold office for a longer period than three months unless he is or becomes a senator or a member of the House of Representatives.

Section 67. Until the Parliament otherwise provides, the appointment and removal of all other officers of the Executive Government of the Commonwealth shall be vested in the Governor-General in Council, unless the appointment is delegated by the Governor-General in Council or by a law of the Commonwealth to some other authority.

Section 68. The command in chief of the naval and military forces of the Commonwealth is vested in the Governor-General as the Queen's representative.

5. If you find this a little difficult to relate to what you see in practice, don't worry; you are not alone. For the purposes of this Task, it is only necessary to understand that, to all intents and purposes, the executive consists of the Governor-General and the Ministers of State (who must be members of the parliament). Of course, in practice, the Prime Minister is also in there. In fact, it is the Prime Minister who selects the Ministers. And it is the Prime Minister who selects the Governor-General and can initiate his removal (even though the GG is formerly appointed and removed by the Queen). And it is the Prime Minister who presides over the Cabinet (whom he also selects and appoints). The Public Service is accountable to the Ministers who are in turn accountable to the Parliament. But of course, the Parliament is dominated by the Prime Minister and his Political Party.

6. You will immediately see that the principle of the separation of powers is already compromised - most of the executive arm are also members of the legislative arm. And enormous power is concentrated in the hands of one person, the Prime Minister, with almost no checks or balances to this power. (There is in fact, no mention of a Prime Minister in our Constitution). Furthermore, although the Parliament consists of elected 'representatives', voting is almost invariably conducted under instruction from the political parties. And, although the Governor-General is required to sign Parliamentary Bills into law, he does so under instruction of the Federal Executive Council, which is in fact the same people who initiate the Bills in the first place. And although we have seen a Governor-General sack a Government (in 1975) using the 'reserve powers', there is much controversy over whether this action was in fact, legitimate. However, Government legislation is subject to review by the High Court but only on constitutional grounds and on a case by case basis. Furthermore, Section 72 of our Constitution provides that judges are appointed by the Governor-General in Council. This means that, in effect, High Court judges are appointed by the Executive Government even though, since the 1978 High Court of Australia Act, the Federal Executive is required to consult with State Attorneys-General.

7. It can be seen from the above that the system of government in Australia is very deficient both in theoretical terms and in practice. (We are dealing here only with the Federal Government but the situation in the State Governments is even worse in terms of lack of separation of powers.)

USA

8. The system of government in the USA makes a better fist of the separation of powers. The US President and the Administration he selects and appoints, is the executive. The checks and balances are provided by the following:

a. the Senate is required to ratify cabinet appointments;

b. the Administration is subject to judicial review; and

c. the President can be impeached and removed by the Congress. Further checks and balances are evident throughout the US system. The Congress of elected representatives has the power to make laws however these laws can be subject to a Presidential veto and to review by the Supreme Court. Furthermore, the Presidential veto can be overturned by the Congress if enough members vote to do so. The Supreme Court, on the other hand, is appointed by the President (but subject to ratification by the Senate); has judicial power including judicial review of legislative and executive activity; but can be impeached by Congress.

9. However, many would argue that the system of government in the USA is not a model we should follow in Australia.

Switzerland

10. In Switzerland, the Federal Parliament elects a Federal Government (the executive) of seven members from the general citizenry. (They are not members of the Parliament). Each year, the Federal Parliament also elects one of the members of the Government as the President of the Confederation and he chairs the Government for one year only. The Government must submit drafts of its legislation to the Federal Parliament and the Members of Parliament are required to vote 'without instructions' (that is all votes are what we call 'votes of conscience') and must reveal their links with interest groups. The 'Secretary' of the Government is the Federal Chancellor. He is the head of the permanent public service (the Federal Administration). The Federal Supreme Court is responsible for its own administration but the organisation and procedures are regulated by statute.

11. Legislation enacted by the Parliament or the Government is not subject to review by the Supreme Court but the Parliament is charged with 'high supervision' of the Government, the Judiciary and the Public Service. Furthermore, the Swiss citizenry have the power to initiate referenda that can overturn legislation considered inappropriate. So, it can be seen that, in Switzerland, there is a clear separation of powers and some well-considered and effective checks and balances. However, the Swiss system is also not regarded as perfect in theory or in practice.

The Problem

12. What we have to do in this task is devise a transparent system of selecting and appointing an Executive that will maintain a separation of powers, that will best perform the task of an executive, that will be accountable, and that incorporates checks and balances.

13. The first step must be to decide exactly what it is we want the Executive to do. It seems to me that the primary task of the Executive is to implement the laws passed by the Parliament. For example, when the Parliament decides to pass a Bill to entitle certain categories of citizens to welfare payments, it is the task of the executive to implement that legislation.

22. However, such a system provides no separation of the powers of the legislative and executive arms of government. The executive would be subject to wholesale disruption every three years when there was a National election and it would be extremely difficult to enforce collective responsibility, or achieve accountability. The ultimate sanction of requiring the resignation or sacking of the whole of the Parliament or even just the H of Reps is considered to be impractical.

General

The Executive

The Judiciary

Summary

33. The Heads of Government Departments have been selected as the major element of the Executive because they are the people considered best qualified to fulfil that function. They are also considered best placed to assume responsibility for the efficient implementation of government policy and with that responsibility goes clear, unambiguous accountability. And, of course, with permanent public servants, there is the probability of more continuity in those responsible and accountable than there is in our current system.

34. It is envisaged that, because of the increased responsibility and accountability, there would be higher remuneration for the chief executives than is now the case. This in turn would attract more high-calibre people. If candidates of a sufficiently high standard are not available in the public service, the Governor-General has the power to appoint executives from outside the public sector. And of course, the heads of departments would be subject to sacking by the Governor-General, on advice from the Parliament, for any failure to perform as required.

The Task

35. What you are being asked to do here is to examine the proposal and to decide whether, in your opinion, this proposal would provide for efficient execution of government policy and the efficient delivery of government services. It might be appropriate to restate here that the 'Model Constitution' we are crafting is seeking the best possible system of government without regard to what we have now or what might be possible in the short term.

36. In considering this proposition, members may wish to give particular consideration to;

a. the increased power of the Parliament (particularly the Opposition and all those 'Back Benchers' who are now completely dominated by the Ministry.)

b. the increased ability of all MPs to service their constituencies.

c. the decrease in the power of political parties.

d. visualizing the interplay between the Parliament and the Executive and the power relationship that would develop.

e. the checks and balances that this separation of powers would create, and

f. the increased accountability that would ensue by concentrating

(i) knowledge and experience,
(ii) the power to implement, and
(iii) responsibility for outcomes,
in the one set of hands.

37. The proposition is only in broad outline but please advise any refinements you consider necessary.

38. If you don't like the proposal, please advise why and what alternative you would prefer.

39. Although there are not many days remaining, your response as soon after the end of March as possible would be appreciated.