The Australian parliamentary system is based heavily on the
British Westminster model and as such has only a theoretical notion of the
separation of powers. Despite the separation explicitly asserted in the
Constitution the Australian political system is not a good example of the
separation of powers as there is clear links between the executive and
legislative arms (Lucy 1993, p. 322). These arms are essentially fused with
prominent members of the parliament, including the prime minister and senior
ministers, forming both part of the legislative law-passing branch of
government and also the executive law-creating branch of government. It is because of this fusion that the
executive is able to dominate the parliament (Singleton et. al 2009, p. 180).
The executive is able to control both
government policy and the passage of legislation.
The passage of legislation and the power of the executive over
the legislature is ensured by the idea of party discipline. Singleton et. al
(2009) describes party discipline as a necessity for the effectiveness of a
political party and method by which parliamentary members are kept in line (p.
322). But as Costar and Rodan (cited in Singleton et. al 2009, p. 143) argue,
Australian political parties have become “inordinately and dysfunctionally
disciplined” to the point that there is no opposition to the executive at all
in the lower house. The Australian Labor Party has even gone so far as to
require all parliamentary members to vote in Parliament as the majority of
Caucus determines (Lucy 1993, p. 32), and as Caucus rarely disagrees with the
determination of Cabinet, the power of the executive branch is reaffirmed. The
threat of expulsion of members for breaking party discipline, and the
impression of disunity that it gives also helps the executive control the
legislature to the point where the House of Representative, the lower house of
the legislature, becomes an irrelevant formality as far as the passage of laws
is concerned (Lucy 1993, p. 175).
The executive arm of government is also able to exert some
form of control and influence over the other arm of government, the judiciary. The
governor-general makes appointments to the highest court in Australia, The High
Court, in council with the prime minister and cabinet (Singleton et. al 2009,
p. 70). In practice this this equates to the prime minister advising the
governor general on whom the government wishes to appoint to the High Court
bench. The government of the day attempts to appoint judges whose ideological
standing most closely identifies with their own party’s (Singleton et. al 2009,
p. 70). This suits the executive, as it not only potentially helps them while
it is in power with any appeals made to the High Court over laws they have
passed, but it also provides a challenge for successive governments of
different political persuasions in trying to deal with a court composed of
justices with opposing viewpoints.
The judiciary is also restricted in the power it can exert. Unlike
the executive and legislative branches of government, which are proactive in
exercising the power invested in them, the judicial arm of government is
reactive in that it can only adjudicate and interpret laws already passed by
the parliament. Furthermore the High
Court of Australia, which adjudicates on the government’s exercise of power in
accordance with the Constitution, can only make judgements provided there is a legal
challenge. An example of this restriction is the Snowy Mountains Scheme.
The Snowy Mountains Scheme is a hydroelectric and irrigation
complex based in the Snowy Mountain region of the Great Dividing Range. The
Scheme consisted of the construction of sixteen dams, seven power stations,
over two hundred kilometres of tunnels as well as the diversion of water flow
of the Snowy River away from it’s normal flow and back across the Great
Dividing Range into central News South Wales and Victoria (Ghassemi & White
2007, p. 93-94). This Scheme was enabled by the creation and implementation of
the Snowy Mountains Hydro-electric Power Act 1949. The creators of this piece
of legislation, Prime Minister Ben Chifley and his Minister for Public Works
and Housing Nelson Lemmon, have been described as some of Australia’s most
visionary and courageous politicians (Ghassemi & White 2007, p. 92). One of
the reasons that they have been described as courageous was the fact that by
trying to implement the Snowy Mountains Scheme they may have been exceeding the
powers prescribed to the Federal government under the Constitution.
To try to limit the chances of a judicial review of the
Snowy Mountains Hydro-electric Power Act, the Chifley Government introduced the
legislation by using the defence powers defined under Section 51 of the
Australian Constitution (Ghassemi & White 2007, p. 92). This was in
reference to the strong opposition to the proposed legislation from both the
News South Wales Government and the Federal Opposition. The NSW government was
concerned that any federal legislation to divert water directly interfered with
the state’s right to manage its resources (Ghassemi & White 2007, p. 95).
While the Federal Opposition leader, Robert Menzies said the Scheme “brushed
the states on one side” with legislation “tainted with serious illegality”
(Wigmore, cited in Ghassemi & White 2007, p. 96). The decision by the
executive to introduce the legislation under its defence powers was an attempt
to strengthen its legal standing and head off any High Court challenge. As
Wigmore points out (cited in Ghassemi & White 2007, p. 96) even though
Snowy Mountains Hydro-electric Power Act was introduced as a piece of defence
legislation, any High Court challenge presented the real possibility of the
legislation being deemed unconstitutional. And with the change of government
coming just six months after the commencement of the Scheme it was a
possibility. But it was the public support of the scheme, and not the legality
of it that enabled the Scheme to be built, an example of the power of the
executive trumping the checks of judicial review.
The judiciary is also the reason for the increase in the
powers of the executive. Despite the Constitution clearly checking the power of
the Federal Government from encroaching on powers held by the states and other
entities, the power of the Commonwealth has increased through judicial review
without any formal amendment to the constitution (Summers, Woodward &
Parkin 1990, p. 77). Lucy (1993) states that this increase in power comes down
to the use of two powers enabled by the Constitution, the defence powers and
Section 96 (p. 296). As a result High Courts broad interpretation of defence
powers there is no formidable limit to its scope, and Section 96, which gives
the Commonwealth the power to ‘grant financial assistance to any State on such
terms and conditions as the Parliament thinks fit’ (cited in Lucy 1993, p. 296)
has enabled the Commonwealth to become involved in areas traditionally in the
domain of the states, such as roads and education. Due to the High Courts
interpretation of law there is no guarantee the states will retain any residual
legislative powers, with much of that power now residing with the Commonwealth
(Lucy 1993 p.295). And as has been shown earlier, as a result of ideas such as
party discipline, the executive arm of government controls much of that power.
The best example of the power the executive now holds was
the final term of the John Howard’s prime ministership. Following the 2004
federal election, the Liberal-National coalition gained control of both houses
of Parliament; the first time the government had held both houses since 1981
(Australian Electoral Commission 2013). This control removed even the slightest
impression of the separation between the powers of the legislative and
executive arms of government. It also allowed the Howard Government to make and
pass laws incredibly quickly due to the changes he was able to make to the
parliamentary committee system and the lack of any real opposition (Aulich
& Wettenhall 2008, p. 6). In 2004, the last year before the coalition
assumed control of both houses, the opposition successful in making amendments
to 130 of the 161 contested pieces of legislation in the Senate. In 2006, the
first full year in which the coalition controlled both houses, the opposition
were able to make amendments to only 2 of the 299 pieces of contested
legislation (Aulich & Wettenhall 2008, p. 77). This shows not only the
reduction in opposition but also the power of the executive through the massive
increase in the amount of legislation passing through parliament.
Singleton et.al (2009) state that the executive arm of
government has become the dominant power in parliament (p. 180), and through
the actions and interpretations of laws by the High Court, the executive has
assumed powers beyond what was originally prescribed by the Constitution. As
evidenced by the Snowy River Scheme, the judiciary, the main limit to executive
power, is itself restricted in what it can do, as it can only overturn
legislation as a result of a legal challenge. The executive is therefore
clearly the most powerful of the three branches of government, and that power
can be used almost without reference to the others, as shown by Howard’s final
term. But what is important to remember is that the term in which Howard’s
executive held the most power was also Howard’s last as the choices he made
with that power became unpalatable to the group that gave him that power. The
group that has the most power in a parliamentary democracy, the people.
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