The Separation of Powers

SIR: The article by I.D.F. Callinan in the April issue deals mainly with the shift of power within the executive branch of the governance, but it also raises some general concepts which have troubled me ever since the Fitzgerald Inquiry in 1988. A description of my voyage of discovery, with the original French text and other references, can be obtained by a request to my e-mail address below. What follows touches on some of the central points.

As quoted by Justice Callinan, the question put to the quondam Premier of Queensland, Sir Johannes Bjelke-Petersen, by the Counsel, Michael Forde, was: “What do you understand by the doctrine of separation of powers under the Westminster system?”

The expression “Separation of Powers” (la separation des pouvoirs) can be traced back to an inept section heading in a book, Principles of Laws (L’esprit des Lois), published by Charles-Louis de Secondat, Baron de Montesquieu in 1748. This expression does not appear anywhere in the text; a great deal of misconception in the Australian legal profession would have been avoided by an alternative section heading “Independent control of the three branches of governance”, which does justice to the central point of his so-called doctrine and avoids misinterpretation.

It has been well known since the days of Aristotle that the governance of a country consists of three branches: (1) executive, managing all government activities; (2) legislature, making laws; (3) judicature, adjudicating in criminal cases and disputes.

Montesquieu’s contribution and novel point is: in order to safeguard the freedom of citizens, “the same person or the same group of persons should not have effective control of several branches of governance”. In other words, effective control of each branch, executive, legislature and judicature, should be held by separate and independent parties. Montesquieu’s doctrine is not related to the demarcation or scope of work performed by the judiciary or any other branch of governance.

Montesquieu’s “doctrine” was advanced in the context of the European monarchies ruling at that time, and has little relevance to modern Western democracies. Our liberty and freedoms are safeguarded by all-embracing checks and balances: regular and fair general elections, with a choice of viable candidates and parties. The different degrees of freedom, brought about by such options as proportional representation and one or two legislative chambers, seem to be of secondary importance.

It is almost unbelievable that— only in Australia—the legal profession, including the Attorney- General’s Department and also academe, has been led astray by a simplistic and illogical reasoning along the following lines: the Australian Constitution lays down the responsibilities for each of the three branches of governance, each having its own legal authority or power to perform its specific task. Ergo, since there are three separate powers, we have a “Separation of Powers”! It appears that Australian lawyers have not read the text of Montesquieu’s book.

It is nonsensical to associate the Westminster system of governance with any doctrine whatsoever. It is a prime example of a steady pragmatic evolution, with its basic structure set after the “Glorious Revolution”. In 1693 the Earl of Sunderland recommended to William III the advisability of selecting a ministry from the political party which enjoyed a majority in the House of Commons. As expressed by Quick and Garran: “the fusion in practice of the legislative and executive functions … is the latent essence and effectual secret of the English Constitution.”

In Australia, the prime minister, as the leader of the governing party, in addition also appoints the justices of the High Court (when a vacancy occurs), and effectively appoints or dismisses the governor-general at any time.

No doctrine and no “separation of powers” at Westminster, Canberra and Brisbane!

Whatever Bagehot said in the middle of the nineteenth century about “responsible government”, has no relevance to current governance in Australia. In recent years, one or the other party has had a clear majority in the House of Representatives. It is inconceivable that the governing party, in control of the Representatives, would pass a motion of no confidence against its own cabinet.

Equally pointless is the argumentation on a power shift from legislature to executive—both are in the hands of the governing party.

We are just about to embark on intensive and passionate debates on a republic. The central question is, as before: should the president be elected directly by the people? What, if any, executive powers should he/she have, leading to some separation of powers, with a radical departure from the Westminster system of governance? To ensure “good governance” in the future, it is essential for the voters in the inevitable referendum to understand the long-term implications of the options available. At present, even constitutional lawyers and academics are confused. Andrejs Bicevskis ([email protected]), Ashgrove, Qld.

SIR: In his thought-provoking article, I.D.F. Callinan made some interesting and insightful comments about our political structures, their development, and how they might inform the republican debate currently being rekindled. His article, as I read it, is pregnant with the proposition that what is important is the structure of the government system that we adopt or develop, not the rubric we give it. I agree entirely.

However, Mr Callinan was somewhat critical of journalists who (in the late 1980s) “regarded the police force as functionally and constitutionally divorced from, rather than as part of, the executive”. It has been a matter of some interest to me that as late as the early nineteenth century, in England, the idea of a standing police force was regarded as “contrary to the principles of the Constitution”.

In his fascinating book Hue and Cry, Patrick Pringle asserts: “When Pitt tried to create a metropolitan police force in 1785, the Mayor and Alderman of the City begged him to ‘relieve them from the dread of being reduced under scourge of such a system’ and used their considerable political power to make him abandon the attempt.” He argues that there was opposition from all classes of society and most vehemently from those who had most property to protect.

His analysis of why that should have been so is a fascinating read. He points out that Cromwell tried in 1655 to introduce a standing police force. After eighteen months, he had to abandon the attempt in the face of widespread opposition and return to the parish-constable system.

Mr Pringle records that it was not until 1753 that Henry Fielding (the famous playwright and novelist), as a “trading justice” (an office that gave rise to much corruption and disorder until Mr Fielding assumed it) was instrumental, with the Duke of Newcastle, in establishing a force of a handful of “policemen” who became known as the Bow Street Runners. But they were paid out of a “secret service fund”! It was feared that the very idea of a paid police force would incite something close to revolution.

As late as 1968, the Master of the Rolls, Lord Denning, was able to say, speaking of the office of Commissioner of Police for the Metropolis:

But I have no hesitation in holding that, like every constable in the land, he should be, and is, independent of the Executive … But in all these things, he is not the servant of anyone, save of the law itself. No minister of the Crown can tell him that he must, or must not, keep observation on this place or that; or that he must, or must not, prosecute this man or that one. Nor can any police authority tell him so. The responsibility of law enforcement lies on him. He is answerable to the law and to the law alone.

His Lordship cited as authority for that proposition a case decided by the Privy Council on appeal from the High Court of Australia in 1955.

There can be little doubt, I think, that today, in New South Wales at least, and in other states I believe, the police service is unambiguously an arm of the executive government (see s.8 of the Police Act 1990). But the idea that a police force independent of political interference is essential to our way of life apparently still has life in it. Late last year, in response to an article alleging, in effect, that the Police Commissioner in New South Wales was a “captive” of his minister, the Reverend J.M. McPherson wrote to the Sydney Morning Herald to say: “When the police force becomes an arm of the State, be afraid. Be very afraid.”

At a later point in his article, Mr Callinan observes: “Some statutory creatures have truly come to have the power and authority that counsel and others erroneously attached to the Police Commissioner and the police force in the enquiry in Queensland in 1986, as being beyond executive, and parliamentary, and therefore public, control.” But, as is demonstrated by the very case in which Lord Denning spoke (Ex parte Blackburn in 1968), the notion of being independent of the executive does not equiparate with being beyond the control of the courts which, by a variety of public law (at least) processes can supervise the proper performance by the police of their public duty to enforce the law; and as Commissioner Lewis found to his chagrin none of us is above the (in his case criminal) law.

Thus, one should not be too critical of the journalists to whom Mr Callinan referred—their (apparent) view of things has a basis in history, or at least Mr Pringle and Lord Denning would have thought so. John Maconachie, Dawes Point, NSW.