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The responses of the Australian governments, both federal and state, to the COVID-19 pandemic had an overwhelming impact on the enjoyment of our basic human rights. These governments exercised coercive powers over citizens on a scale never previously attempted, not even in wartime when we were faced with a crisis far more serious than the Wuhan virus. All of this was carried out by means of executive measures with minimal parliamentary scrutiny.
Over the last few years Australians have become increasingly cynical about parliament, parliamentarians, and the manner in which the Westminster system operates. Of course, limited government is based on the implementation of the doctrine of separation of powers. However, the Westminster style of government, which our Founders bequeathed to Australia, provides only for a very weak separation of powers, especially between the legislative and executive branches of government. According to Sir Harry Gibbs, one of our former Australian Chief Justices,
‘The fact that the Constitution gave Australians a system of government on the British model provided a sufficient indication of an intention to reject altogether the principle of the separation of powers, notwithstanding the close resemblance between the relevant provisions of the Australian Constitution and those of the United States Constitution’.[1]
The primary characteristic of the doctrine of separation of powers is its assertion of a division of the agencies of government into three categories: the legislature, the executive, and the judiciary. This doctrine is regarded as an essential element in a legal-institutional framework which ensures that abuse of power is avoided internally by the elimination of the ability of a single group to dominate the government.
This is basically the understanding that the branches of government should be composed of separate and distinct groups of people with no overlapping membership. It is possible for agencies of government to exercise separate functions but be controlled by the same people. The strict doctrine of separation of powers requires, however, that the mere separation of agencies is insufficient to secure good government. These functions must be strictly separated in distinct hands if liberty is to be assured.
If each branch of government is properly placed in distinct hands, then there will be a check on the potential exercise of arbitrary power, because attempts by one branch to exercise any undue degree of power will be restrained by those who exercise any of the other branches of government. This doctrine may then be labelled the strict doctrine of separation of power, which can be achieved by setting up divisions within the government to prevent the concentration of such power in the hands of a single group of individuals. A strict doctrine of the separation of powers has been formulated in the following way:
It is essential for the establishment and maintenance of political liberty that the government be divided into three branches or departments, the legislature, the executive, and the judiciary. To each of these three branches there is a corresponding identifiable function of government, legislative, executive, or judicial. Each branch of the government must be confined to the exercise of its own function and not allowed to encroach upon the functions of the other branches. Furthermore, the persons who compose these three agencies of government must be kept separate and distinct, no individual being allowed to be at the same time a member of more than one branch. In this way each of the branches will be a check to the others and no single group of people will be able to control de machinery of the State.[2]
The idea of strict separation of powers rests on the basic assumption that whenever power is concentrated in the hands of a few, then the risk of arbitrariness naturally increases. This is a problem of unchecked power, and here we are also reminded of Lord Acton’s famous warning that, ‘Power tends to corrupt and absolute power corrupts absolutely’.[3]
As Sir Ivor Jennings once pointed out, ‘all power is likely to be abused unless it is adequately checked’. And since nobody can be trusted with too much power, the separation of powers requires that branches or agencies of government shall be kept strictly separate from each other and be exercised by a distinct individual or group of individuals. Professor Brian Z Tamanaha explains the rationale for constitutionally imposing this strict separation of powers:
Freedom is enhanced when the powers of the government are divided into separate compartments — typically legislative, executive, and judicial (horizontal division), and sometimes municipal, state or regional, and national (vertical division) … This division of powers promotes liberty by preventing the accumulation of total power in any single institution, setting up a form of competitive interdependence within the government.[4]
Of course, it was Charles-Louis de Secondat, Baron de La Brède et de Montesquieu, who provided the most popular conceptualisation of the doctrine. Inspired by the teachings of Locke and Aristotle, in The Spirit of the Laws (1748) he proposes a rigid separation of the legislative, executive and judicial branches as a protection against tyranny. According to Montesquieu, ‘the legislative body being composed of two parts, one checks the other, by the mutual privilege of refusing’. And since these are both to be checked by the executive power, as the executive is by the legislative, every bill passed by Parliament should be capable of being vetoed or rejected by an independent executive government. His statement of the reasons for such a separation of powers contains the following elements of truth:
When the legislative and executive powers are united in the same person, or in the same body of magistracy, there can be then no liberty, because apprehensions may arise, lest the same monarch or senate should enact tyrannical laws, to execute them in a tyrannical manner.[5]
Montesquieu also makes the point that ‘constant experience shows us that every man invested with power is apt to abuse it, and to carry his authority as far as it will go.’[6] By contrast, with the power of the State rigidly divided in three branches of government, if one branch becomes too evil or corrupt, then the other two might be able to remain righteous and check the wayward influence. Relying on this view of corruptibility of human nature, Montesquieu concluded that it is ‘necessary from the disposition of things that power should be check of power.’
Sir William Blackstone (1723–1780) authored what is broadly considered the most influential treatise on the laws of England ever elaborated. Curiously, Blackstone was profoundly impacted by the teachings of Montesquieu. One of the most celebrated statements to be found in Blackstone’s Commentaries (1765) is actually a paraphrase of Montesquieu’s The Spirit of the Laws and it reads as follows:
In all tyrannical governments the … the right both of making and of enforcing the laws, is vested in one and the same man, or one of the same body of men; and wherever these powers are united together there can be no public liberty. The magistrate may enact tyrannical laws, and execute them in a tyrannical manner, since he is possessed, in quality of dispenser of justice, with all the power which he, as legislator, thinks proper to give himself. But where the legislative and executive authority are in distinct hands, the former will take care not to intrust the latter with so large a power as many tend to the subversion of its own independence, and therewith of the liberty of the subject.[7]
In Blackstone’s Commentaries, the English monarchy is described by him as a limited government whereby the King, the Lords spiritual and temporal, and the Commons, comprise a mutual check upon each other. ‘Like three distinct powers in mechanics, they jointly impel the machine of government in a direction different from what either acting by itself would have done but at the same time in a direction partaking of each and formed out of all’, Blackstone wrote.[8]
Unfortunately, this classical view of the British constitution has been overturned by novel ideas that incorporate a myriad of philosophies taking no account of the principles upon which the constitution was originally founded. As a result, the historical appreciation for traditional conceptualisations of the rule of law has gradually disappeared, including the importance of more rigidly separating the branches of government. As Russell Kirk once pointed out, ‘since the closing decades of the nineteenth century the [British] Constitution has lost many of the features that Montesquieu had praised at the middle of the eighteenth century’.[9] These alterations mean that the doctrine of separation of powers is no longer properly applied, which, in effect, makes that nation solely governed, in an unchecked manner, by a small coterie of politicians located in ‘the Cabinet’.
In 1714, the Hanoverian succession to the throne brought about the 123-year union between Great Britain and the German electorate of Hanover. Thanks to the Act of Settlement, the prince of Hanover, George, was the nearest Protestant eligible to take the Crown. George found it a bore to attend cabinet meetings which he could not understand. Sir Robert Walpole then volunteered to act on his behalf, as the King’s principal adviser, or, in effect, his ‘Prime Minister’. Hence, Walpole, who held the office of the First Lord of the Treasury from 1721 to 1742, became the country’s first Prime Minister, the first Member of Parliament (MP) to be appointed the Head of Government.[10] Throughout the 18th century, the Cabinet, now exclusively comprised of members of Parliament, became the primary feature of the Westminster system.
It is in this context that the doctrine of Parliamentary sovereignty acquires paramount importance. As it has been said, ‘sovereignty means … that legislation incompatible with, for example, personal liberty and freedom of expression can be enacted, and, unless insufficiently clear must be enforced by the courts, even if retrospective’.[11] In the White Paper that introduced the UK Human Rights Bill, on 1 October 1997, Parliamentary sovereignty is defined in the following terms: ‘Parliament is competent to make any law on any matter of its choosing and no court may question the validity of any Act that it passes.’[12] According to Lord Beatson, ‘[u]nder the classical model of the UK’s constitution there are thus no legal limits on what Parliament may do by primary legislation, including altering the period between general elections and amending or repealing legislation protecting individual rights’.[13]
In other words, ‘there are under the Constitution of the United Kingdom no rights strictly fundamental, in the sense of entrenched (basic, inalienable), because of the supremacy of Parliament and the absence of a written constitution with entrenched provisions and judicial review of Acts of Parliament’.[14]
Sir Edward Coke did of course famously state in the Dr Bonham’s Case, in 1610, that ‘a statute contrary to common right and reason would be void’.[15] However, this observation has never been entirely accepted, and not even at the time it was proclaimed since it was relied on as one of the main reasons for Coke’s dismissal as Chief Justice of the Court of Common Pleas.[16] As a matter of fact, as stated by the Court of Queen’s Bench in 1872: ‘There is no judicial body in the country by which the validity of an act of parliament could be questioned. An act of the legislature superior in authority to any court of law … and no court could pronounce a judgment as to the validity of an act of parliament’.[17]
The above judicial opinion implies that there is no fundamental human right which the Parliament cannot abrogate. The same view is confirmed by Sir Thomas Bingham KG, PC, FBA, an eminent British jurist who was successively Master of the Rolls, Lord Chief Justice and Senior Law Lord. Bingham, who was also the first Lord Chief Justice of England and Wales, authoritatively stated:
‘Parliament may under our constitution enact any legislation it chooses, and no court has any power to annul or modify such enactment, it necessarily follows that Parliament can legislate so as to abrogate or infringe any human right, no matter how fundamental it may be thought to be.’[18]
This statement basically confirms the considerable absence of constitutional mechanisms for holding Parliament to account, the effect being that the UK government is accountable to no one, except once in five years at general elections.[19] It is no wonder therefore why so many individual rights were violated by that government during the COVID-19 pandemic. The appalling disregard for basic human rights should not come as a surprise for those who more properly know the functioning of the Westminster system. Due to the enormous power accumulated by a government with an overall majority in the House of Commons, the present constitutional framework facilitates what Lord Hailsham described as an ‘elective dictatorship’.[20]
Unfortunately, the Westminster System continues to be adopted in the United Kingdom and former British colonies, including Australia. Under the Westminster System, executive ministers are also members of Parliament (as required under s 64 of the Australian Constitution). It envisages a Prime Minister (or Premier) who heads the government, and a Ministry comprised of members exclusively drawn from the legislative, which exercises executive authority and is theoretically accountable to the legislature. Accordingly, members of Parliament (MPs) are appointed by the Head of State (i.e. the King or his representative) to administer all the laws of the Commonwealth. From the party (or coalition of parties) that achieves a majority of seats in the Lower House, MPs will be appointed as Ministers to form the government and become responsible for the administration of a government department, or a group of civil servants who carry on a section of the government.
Conventions are important here and, for a period, executive ministers were appointed by the Crown and responsibility was enforced by Parliament through impeachment. In these days, however, by convention the Head of State (the King or his representative) appoints Ministers on the recommendation of the leader of the party (or coalition of parties) commanding a majority of members in the Lower House. As such, Executive Ministers are drawn from Parliament and the Ministers who lose the confidence of Parliament have to resign. And yet, such an idea of ‘collective responsibility’ under this parliamentary system is completely illusory. As noted by Professor Suri Ratnapala,
The logic of this view is seriously weakened by the fact that in parliamentary systems, the legislature obeys the executive which is in office precisely because it commands the loyalty of a majority in parliament. In unicameral parliamentary systems the will of parliament is mostly the will of the executive. In bicameral parliamentary systems, upper houses may check executive ambitions from time to time but they have little time or capacity to police the vast amounts of discretionary power accumulated by the executive under permissive legislation. Therefore, parliamentary democracies rely heavily on judicial oversight of executive action. Courts and administrative review tribunals remedy individual grievances but cannot address the general problem of the systematic arbitrariness of government.[21]
Accountability, which is central to representative government, is not achievable when power becomes concentrated in the hands of a few. However, under contemporary conditions of Australia’s parliamentary government, ‘there is a tendency for both executive and legislative power to be concentrated effectively in a very small group of senior ministers, dominated by the prime minister or premier.’[22] This unfortunate situation allows Parliament to delegate power to make legislation to the executive branch.[23] The executive branch ends up accumulating an extraordinary amount of power to determine policy outside Parliament, and to create uncontrolled delegated legislation. As a consequence, members of Parliament who are part of the executive government acquire a vast amount of power to administer all the Departments of State and other governmental agencies, as well as the power to perform police functions, military power and foreign affairs.
One of the powers the Governor-General theoretically exercises under s 59 of the Constitution is that of disallowing legislation. However, such power has been made redundant at least since the 1926 Dominion Conference, which determined that this power to disallow legislation should never be used by the Head of State. The power of disallowance is now a dead letter. This section is among the inoperative sections of the Constitution.[24] Of course, s 60 allows the Governor-General to reserve a Bill passed in Parliament for a decision on assent directly by the King. This would be a possibility only with respect to abolishing appeals to the Privy Council under s 74. However, and subsequent to the enactment of the Privy Council (Appeals from the High Court) Act 1975 (Cth), which was assented to by the Queen following reservation, such appeals are now possible only through certificate issued by the High Court, which the Court itself has made very clear it will no longer issue.[25]
The Governor-General apparently can still dismiss a Prime Minister if he/she no longer has the confidence of the House but refuses to resign and persists in the action. The chances of this happening are rare because the Governor-General is appointed by the King on the Prime Minister’s advice. This dismissal has occurred only twice in history. In 1932, the Governor of New South Wales dismissed Premier Jack Lang when his government unilaterally suspended payments of moneys owed by the State to the Commonwealth. At federal level, Prime Minister Gough Whitlam was dismissed by the decision of the Governor-General, Sir John Kerr, in 1975.
Finally, it is important to consider that the application of Parliamentary sovereignty ensures that legislation in Australia always prevails over case law. Of course, the existence of various legislatures makes the full implementation of Parliamentary sovereignty simply not possible when it comes to the distribution of legislative power between federal and state Parliaments. Nevertheless, each Parliament in Australia, when it acts intra vires and within constitutional limits, is deemed absolutely sovereign within its own sphere of power. To the extent that Parliament can vary or repeal any part of the existing law or a rule of equity, an Act of Parliament is deemed a superior source of law and prevails over precedent or judge-made law.
The rule of law requires that laws must be governed by general rules which are made in advance. Unfortunately, ‘the overriding nature of Parliamentary sovereignty means that the principle of legal certainty cannot apply directly to primary legislation.’[26] Without certainty, citizens cannot ‘have reasonable security in their expectations of the conduct of others, and in particular, of those holding official positions under law’.[27] As a consequence, governments are continually passing legislation which virtually permits it ‘to make new laws as they go along’.[28] This, according to Lord Beatson, represents a shift by stealth in the balance of constitutional power towards the executive at the expense of the legislature. It also increases uncertainty and creates a potential conflict with rule of law values because it allows primary legislation to be skeletal, containing virtually nothing of substance beyond what has been described as a vague mission statement.[29]
Knowledge of, and compliance with, laws is facilitated by stability of laws. By contrast, constant changes to law make it extremely hard, if not impossible, to plan our lives according to fixed rules. This, however, happened during the COVID-19 pandemic when regulations constantly changed and made it difficult for people to comply with these rules.[30] According to Lord Beatson,
While government must be entitled to react swiftly to emergencies, in order effectively to let people know what they can and they cannot do, restrictions which interfere with family and private life and the ability to earn one’s livelihood should not come into effect before or very shortly after the legal instrument is published.[31]
The Role of the Executive as a Lawmaker in Australia
Under the usual type of parliamentary delegation of legislative power to the executive, a regulation must be consistent with the empowering Act and other Acts. By contrast, a Henry VIII clause authorises the amendment of a statute by regulation.[32] By enacting a Henry VIII clause, Parliament ‘delegate[s] the power of amendment or repeal’.[33] Such clauses give ministers power to amend or repeal Acts of Parliament by delegated legislation with little or no parliamentary scrutiny. These clauses were named after King Henry VIII due to his autocratic reputation as a monarch who obtained parliamentary authority giving the force of law to his proclamations. Henry VIII was ‘regarded popularly as the impersonation of executive autocracy and his preference was to legislate by proclamations made under the Statute of Proclamations 1539 rather than through Parliament’.[34]
Unfortunately, the High Court has not considered the constitutional validity of Henry VIII clauses since the Dignan case in 1931.[35] In the Dignan case, the provision allowed the amendment of other Acts but not the empowering Act. There the Court upheld broad delegations of legislative power to the executive in the form of the power to make regulations. As such, the conferral of legislative power upon the Parliament does not prevent that body from delegating part of its power to the executive.[36] A leading commentator on the federal Constitution cites this case for the proposition that ‘the Executive through a Henry VIII clause can override Acts of Parliament itself’.[37]
In more recent years, the Australian federal Parliament has enacted numerous Henry VIII provisions in a variety of statutes. Some of these provisions authorise amendment of the parent Act by regulation. Other provisions authorise amendment of another specific Act or Acts.[38] Unfortunately, there is no sign that the Australian governments, both federal and state, will ever attempt to revisit the wide use of framework legislation and Henry VIII clauses. On the contrary, ‘the pressures of putting in place legal structures for dealing with the Covid-19 pandemic have led to a significant increase in their use with very real dangers for the operation of the rule of law’.[39]
Unfortunately, under our present system of government, not only governments accumulate an enormous power to arbitrarily determine policy outside parliament but also politicians are not bound by any constitutional right and common law principles.[40] Professor Suri Ratnapala reminds us that ‘the rule against the delegation of wide law-making power to the executive is a major component of the classical doctrine of ‘separation of powers’. He argues that ‘When officials can both legislate and execute their legislation, they have the potential to place themselves above the law, for the ‘law’ is what they command’.[41]
Professor Ratnapala then laments the fact that the courts in Australia have deliberately chosen to not draw a clear line in the sand against excessive delegation of power to the executive, despite parliamentary democracies actually needing to rely on judicial oversight of executive action.[42] On the contrary, these courts have constantly accepted that the executive’s capacity to legislate can be ‘exercised in disregard of other existing statutes, the provisions of which concerning the same subject matter may be overridden’.[43] In Victorian Stevedoring and General Contracting Co Pty Ltd and Meakes v Dignan (1931), the High Court actually held that, within the limits of delegated legislation, the power of the executive to legislate is “unregulated” and its discretion is “unguided”.
This indicates that the executive government is endowed with a function that is essentially legislative in nature.[44] This obviously makes political accountability incredibly difficult to achieve. Despite having full judicial power, the High Court, wrote Sir Harry Gibbs, ‘has declined to impose on Parliament any significant constraint on its competence to delegate its legislative power to the executive’.[45] As also noted by Gibbs, ‘the Court has paid no more than lip service to that principle when it has come to consider the separation between legislative and executive power’.[46]
Gibbs thus informs us that the Australian courts have accorded to Parliament ‘a virtually unfettered power to delegate to the executive the power to make laws’. [47] As he correctly points out, ‘the courts have held that such a delegation will be valid even though the Parliament does not prescribe any principles or standards to govern the exercise of the powers’.[48] Insofar as the idea of separation of powers is concerned, under contemporary conditions of parliamentary government in Australia, Gibbs concluded:
There is no constitutional impediment to the exercise by one branch of government of the powers of another. No statute can be held invalid because it confers powers of one kind on an instrumentality of another kind … The executive and the legislature are closely connected; one the one hand, ministers retain office only so long as they have the confidence of a majority of the House …, while on the other hand the cabinet will normally control the workings of the legislature by means of the majority which it commands.[49]
As can be seen, the weakness with which the doctrine of separation of powers is applied in Australia has the practical effect of substantially removing any obstacle to the legislative growth of the executive government.[50] This includes any legal disputes that are entrusted to executive tribunals even when the exercise of such power is entirely judicial in nature.[51] These delegations of judicial power to the executive are often expressed in the widest possible terms, confiding to the latter a subordinate power that is not necessarily controlled by any principle or standard laid down by the legislature.[52]
The Westminster System may have served us well in the past, but it is now sorely in need of a comprehensive overhaul. This is because such system makes it too easy for politicians to acquire a vast concentration of power. Since there is no legal-institutional mechanism for holding the parliamentary government to account, the effect is that such a government is accountable to no one, except once in a few years at general elections for parliament.
It is therefore no wonder why so many of our basic rights can be ignored and violated. The current legal-institutional design operating in Australia can be fairly described as an ‘elective dictatorship’ because of the enormous power acquired by a government with an overall majority in the House of Representatives. It is time to revisit a system that provides so much concentration of power and no proper checks and balances, and, therefore, thus facilitating arbitrary government and its correlating undermining of fundamental rights and freedoms.
Augusto Zimmermann is Professor and Head of Law at Sheridan Institute of Higher Education. He is also a former commissioner with the Law Reform Commission of Western Australia and the lead author of ‘Foundations of the Australian Legal System: History, Theory and Practice’ (LexisNexis, 2023)
[1] Sir Harry Gibbs, ‘The Separation of Powers – A Comparison’ (1987) 17 Federal Law Review 151, 154.
[2] M.J.C. Vile, Constitutionalism and the Separation of Powers (2nd ed., Liberty Fund, 1998) 14.
[3] Patrick O’Brien, ‘The Real Politics of the West Australian Constitution and the Executive State’, in: Patrick O’Brien and Martyn Webb, The Executive State: WA Inc & The Constitution (Constitutional Press, 1991) 2.
[4] Brian Z Tamanaha, On The Rule of Law: History, Politics, Theory (Cambridge University Press, 2004) 35.
[5] Charles Louis de Secóndat, Baron de Montesquieu, The Spirit of the Laws [1748] (Prometheus Books, 2002) 151-152
[6] Ibid, Bk XI, Ch V.
[7] Sir William Blackstone, Commentaries on the Laws of England [1765] (21st ed, London) 146–7
[8] Ibid.
[9] Russell Kirk, Rights and Duties: Reflections on Our Conservative Revolution (Spence Publishing Co, 1997) 8.
[10] Sir Ivor Jennings, The Queen’s Government (Penguin Books, 1954) 98.
[11] Jack Beatson, The Rule of Law and Separation of Powers (Hart Publishing, 2021) 26.
[12] United Kingdom, ‘Rights Brought Home: The Human Rights Bill’ (Cm 3782, 1997) para 2.13. Quoted from Tom Bingham, The Rule of Law (Penguin Books, 2010) 165.
[13] Beatson (n 11) 6-7.
[14] O. Hood Phillips and Paul Jackson, O Hood Phillips’ Constitutional and Administrative Law (Sweet & Maxwell, 7th ed, 1987) 423.
[15] (1610) 8 Co Rep 113 b, 118a; 77 ER 646, 652.
[16] Bingham (n 12) 163.
[17] Ex parte Canon Seluryn (1872) 36 JP 54 (Cockburn CJ and Blackburn J).
[18] Bingham (n 12) 162.
[19] Jonathan Sumption, Law in a Time of Crisis (Profile Books, 2021) 220.
[20] Q. Hogg, A Sparrow’s Flight (HarperCollins, 1990) 318.
[21] Suri Ratnapala, ‘Separation of Powers: The Cornerstone of Liberty under Law’ in Suri Ratnapala and Gabriël A Moens, Jurisprudence of Liberty (LexisNexis, 2nd ed, 2011) 55.
[22] Nicholas Aroney, ‘Bicameralism and Representations of Democracy’ in Nicholas Aroney, Scott Presser, and JR Nethercote (eds), Restraining Elective Dictatorship (University of Western Australia Press, 2008) 29.
[23] Ibid.
[24] Gabriël A Moens and John Trone, The Constitution of the Commonwealth of Australia Annotated (LexisNexis, 8th ed, 2012) 252.
[25] Kirmani v Captain Cook Cruises Pty Ltd (No 2) (1985) 159 CLR 461.
[26] Beatson (n 11) 57.
[27] Neil MacCormick, Rhetoric and the Rule of Law: A Theory of Legal Reasoning (Oxford University Press, 2005) 16.
[28] Lord Rippon of Hexham, ‘Henry VIII Clauses’ (1989) 10 Statue Law Review 205, 206.
[29] Beatson (n 11) para 53.
[30] Ibid 31.
[31] Ibid 31.
[32] Oakley Inc v Animal Ltd [2005] RPC 3o (p 713), para. 79: [2005] EWHC 210 (Ch)
[33] Thoburn v Sunderland City Council [2003] QB 151, para. 13; [2002] EWHC 195.
[34] Beatson (n 11) 69.
[35] Gabriël A Moens and John Trone, ‘The Validity of Henry VIII Clauses in Australian Federal Legislation’ (2012) 24 Giornale di Storia Costituzionale 133, 135.
[36] Victorian Stevedoring & General Contracting Co Ltd v Dignan (1931) 46 CLR 73, 83-86; Attorney-General (Cth) v R: Ex parte Boilermakers’ Society of Australia (1957) 95 CLR 529, 545; Radio Corporation Pty Ltd v Commonwealth (1938) 59 CLR 170, 179, 186, 193; Plaintiff S157/2022 v Commonwealth (2003) 211 CLR [102].
[37] PH Lane, ‘Lane’s Commentary on the Australian Constitution (2nd ed., LBC Information Services, 1987) 429.
[38] Ibid 133.
[39] Beatson (n 11) 25.
[40] See: Jeffrey Goldsworthy, The Sovereignty of Parliament: History and Philosophy (Clarendon Press, 1999) 1.
[41] Suri Ratnapala, ‘Sri Lanka at the Constitutional Crossroads: Gaullist Presidentialism, Westminster Democracy or Tripartite Separation of Powers’ (2003/2004) LAWASIA Journal 33, 49.
[42] Ibid.
[43] (1931) 467 CLR 73.
[44] Gibbs (n 1) 155.
[45] Suri Ratnapala, ‘Sri Lanka at the Constitutional Crossroads: Gaullist Presidentialism, Westminster Democracy or Tripartite Separation of Powers’ (2003/2004) LAWASIA Journal 33, 55.
[46] Gibbs (n 1) 154.
[47] Ibid 155.
[48] Ibid.
[49] Ibid, 152.
[50] Ibid, 161.
[51] Ibid, 153.
[52] Ibid, 156.
Thank you for a fascinating exposition on this topic. Given that part of the problem seems to be too much legislation, inadequately reviewed, would a requirement for a two-thirds majority in the lower house be useful? It would usually force the executive to negotiate with the opposition in order to pass a bill, as often happens in the USA. Although on reflection It is unlikely to have changed the martial law enacted in 2020 and 2021. An oversight body which tabulates and comments on new infringements on liberty or changes to police powers around Australia would be very welcome, especially if a traditionalist lawyer was part of the commentariat. The printed form could make a must-have stocking filler!
Assuming the English system worked, it appears to be fundamentally linked to its time and place. The Constitution writers in Australia blundered in failing to recognise this, just as they blundered in granting the Federal government control over immigration, or in external affairs that are now strangely internal.
And the politicians won’t or perhaps can’t change it because its too complex; the only hope is more democratic participation and education. Unfortunately that is a long way off.
This seems to be a very long winded way of arguing that a mechanism is required that will always prevent a government from implementing lockdowns again. The Right in the UK has now adopted the dogma of the Anti-Lockdown Brigade as its conventional wisdom.
Surely the best starting point for such a debate would be an international comparison of pandemic measures taken – NPIs, vaccines, anti-virals etc – and the outcomes. From such a comparison a benchmark of performance can be established and reasons for shortfalls determined. If that were done it would be found that Australia’s outcomes were among the best in the world by any measure, health or economic, although no country is wholly independent of others.
In terms of the organisation of government Australia, unlike the UK, it instituted an oversight committee in the Senate reviewing government action. It and the government decided there is no need for an enquiry in Australia because the system worked – that may change however as the Right in Australia becomes increasingly anti-lockdown, in my view on specious grounds.
It was always promised in both the UK and in Australia that freedoms and liberties curtailed would be restored. They were. But the scaremongering about freedoms and liberties being taken away and lost forever and the economy trashed or destroyed continues – more in the UK than in Australia. Neither is true so why follow the Anti-Lockdown Brigade in the UK and bring it into Australia?
Australia outperformed the UK by a country mile on every outcome measure. If it ain’t broke don’t fix it.
Australia is an entire continent, bathed in sunshine, with abundant natural and human resources. Britain is a damp, demoralised, criminally overcrowded island. We jolly well should outperform the mother country. But by what metric? Safety first, cowardly considerations held sway over essential questions of freedom both immediate and future. People under forty, especially women, were barely affected as was well known from early on. Most well people under seventy were also pretty safe. With a bit more ‘Keep calm and carry on’ we might have avoided both sending half the country mad as well as putting ourselves at the mercy of whomever it is who owns our massive new national debt. The whole thing stank to high heaven. Get the WHO out of this country and out of our laws or we stand to lose the last vestiges of freedom next time.
My second comment on this article – in which there is much sleight of hand – is simply to point out two fundamental differences between UK and Australia. UK has a first past the post voting system, Australia has a proprtional system so there is in Australia a greater diversity of opinion and broader representation of the electorate in Australian parliaments than in the UK. For example a party like UKIP or Reform has no chance of being elected in the UK despite Nigel Farage’s enormous political influence on a narrow range of issues. In Australia UKIP and now Reform would almost certainly be represented in Parliament.
Less important, I think, is another difference: voting is compulsory in Australia, not in the UK. but the other key difference is the status of ‘The sovereign in Parliament’, established in 1689 along with the Bill Of Rights – Yes the UK does have a written constitution, if only partly. The Supreme Court in UK ruled against Boris Johnson’s prorogation of Parliament – done because Parliament refused to implement the will of the voters as expressed in the referendum on leaving the EU (something that would not be permitted under the Australian constitution). The High Court had ruled that the question is not justiciable since the sovereign is in Parliament and it is therefore exclusive parliamentary business, ie, parliament is sovereign amongst the institutions of the state. The judgment of the Supreme Court under Lady Spider, first removed the sovereign from parliament, where he or she had sat perfectly happily for nearly three centuries, in order to mount the premise that the prorogation was done to Parliament and not in Parliament, thus making the question justiciable. The judgment was widely criticised for many reasons including the Court’s insistence on wrongly applying the American model of the separation of powers to England, misapplying various precedents and many other errors.
Whether that rukling has flowed down to the position of the Governor General in relation to the Australian Federal Parliament remains to be seen but in the UK it seems the sovereign is no longer in Parliament so why King Charles will give the King’s Speech in Parliament I am not sure. Could a position for him be found in Canberra? Move over General Hurley?
Apologies, not two but three fundamental differences. Third is the EU. I find that few Australians understand that EU law, which can only be initiated by the wholly unelected EU Commission, is supreme over national law in areas of legislation (called competencies) reserved by the EU to itself. All national laws including in non-EU competencies must be compliant with and consistent with EU law. This means that before Brexit, questions on the sovereignty of parliament and the separation of powers wee largely irrelevant as all were subordinate to the EU. That is the EU in which its own Parliament cannot initiate legislation and cannot even reject the Commission’s laws. It can ask for amendments and if the argument persists resolution is decided by the European Council which is comprised entirely and exclusively of – yes, you’ve guessed it – the executives of the member states plus the EU Commission where discussions and decisions are made in private with no public record apart from the members actual votes.
My gut feeling is that no Australian would accept such a system.
Oh Gosh, sorry, a fourth fundamental difference between UK and Australia. Apologies again. The two UK houses of parliament are unequal, whereas in Australia they are equal. The Commons, the lower house, has legal powers to over-rule opposition from the upper house, the House of Lords, in certain circumstances. Correct me if I am wrong but I think that is not the case in Australia. And of course the House of Lords is wholly unelected and nowadays mostly appointed by the personal patronage of prime ministers, particularly on leaving office so as to obstruct the incoming elected government of their former opposition. At least the Australian Senate is elected. Be thankful for that.
I say again, especially following The Voice referendum – referenda sensibly made binding in Australia, not in the UK – if it ain’t broke, don’t fix it.
I don’t know enough about the subject to comment appropriately to this article on its merits, but it seems to me that all systems of the rule of law are vulnerable to those whose allegiance is not to the state but to ideology.
Here in the US, followers of Montesquieu in theory, the system is being held hostage by the political parties that Washington warned us of. A party led by the President, who constantly speaks of his “legislative agenda” as though it was his right to legislate, and who promises to abrogate the Supreme Court by frivolous appointments of loyal party apparatchiks, is the de facto elected despotism you talk about. Add in manipulations of the electoral system and you have the perfect electoral oligarchy, democratic in name only.
The Marxists and their many variations of followers make a fun game out of gaming the system, using propaganda and back-door deals. Corruption also plays into this, allowing those who don’t fully agree with Marxist goals to be bought out. All systems of the rule of law have this weakness,
It is hard to glean an optimistic outlook from this, but one advantage accrues to those who do revere the rule of law – the true ideologues are a tiny minority. They gain power only by lying. Expose the truth and the lies scatter. Sadly, they now control the education system, so truth has a large hill to climb. But truth has a way of winning even when the odds are long. Truth is true, after all. Proverbs 8.
“A party led by the President, … who promises to abrogate the Supreme Court by frivolous appointments of loyal party apparatchiks, is the de facto elected despotism you talk about. ”
This parallels Lady Spider’s (real name Hale but her broach said it all) Supreme Court’s ruling against the prorogation of parliament by Boris Johnson. The court invented law for political reasons and had reached its verdict before it had even sat. It saw ts task as making up law to support its pre-conceived verdict and did so with alacrity, overriding the constitutoin of the UK. There is no appeal. Were the Conservative Party in the UK not so monumentally ineffectual and useless, it would have legisted to prevent such an occurrence ever being repeated. Among the Court’s errors was the inappropriate application of the American model of separation of powers to UK.
It turned out that Lady Spider was an activist for the politicisation of the British judiciary after the American model. She couldn’t wait.
Parliament had refused to enact the will of the people expressed in the result of the EU referendum and thought it had won a great victory that September 2019 thanks to Lady Spider. But all those MPs got their come uppance only three months later in December when the lot were thrown out in the subsequent general election. The voters sided with Boris Johnson against that rogue parliament and against the Supreme Court.
Parliaments should never forget they are not absolutely supreme but supreme only among institutions of the state and are liable to make the most awful mistakes. They get their power only by the authority of the people. That is why Britain voted to leave the EU – its parliament, along with its courts and its ‘executive’, had become accountable not to the people but to the EU.
There is a lot going on in this space. Firstly, all governments hold on power has been diminishing throughout the world. Lots of reasons for this but mainly education communication and the pluralisation of the polity.
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Much of the public, particularly in this country holds the political class in low regard.This alone weakens its power. Of course effective power is wielded by the executive and the sole legal restriction on its use of its powers is the judiciary. But the judiciary’s independence has been weakening as a result of the contempt that the political class has for it. I recall forty years ago A-G’s would sound out the judiciary and the bar for prospective appointments to the supreme courts, and to a lesser extent the high court. Now they they sound out the unions, and the advisors to the parties, to find some one sympathetic to their policies. The supreme courts of all states are a shadow of what they were 40 years ago. The high court is not much better. There is no way for instance that the victorian supreme court would have rejected Pell’s appeal 40 years ago.
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But the big changes are going to come from technology. The government is doing everything in its power to prevent online voting, because once that occurs then the potential for the polity to be involved in government becomes unlimited. But remember the public generally wanted the lock downs, and very little can save you from the great unwashed.
It should not be the purpose of the machinery of government to save legislators, executive government and their agencies from the great unwashed. These institutions have only one source of authority and that is the great unwashed. That is what government by consent of the governed. Lose that consent and they do not deserve to remain in place. Saving them from the great unwashed would destroy democracy.
My point was that the covid lockdowns were as much the creature of the masses and their fears as it was the inexorable result of executive planning. That after all was Socrates big complaint of democracy ie rule by the mob. I ain’t against it, but no system is perfect.
An excellent article going to the heart of some of the problems with how we are being governed. I would like to see a follow up article that lists and evaluates possible solutions. One comment above mooted needing a 2/3 majority in the lower house to pass a law. Is a more forthright attempt to curtail government power and protect individual rights a la the American constitution another? This is an area into which I have never read, but it seems so fundamental to the lives being lived by us all.
Thank you Quadrant for this article … it is a discussion we should have!
If you want to reform representative government in Australia then start by introducing the same type of democracy used for the Referendum – compulsory, SECRET, voting in the Houses of Parliament.
The Parties will not support it because THEY will lose control over OUR REPRESENTATIVES. Herein is the cause of declining democracy in our Country. Absolute and corrupting Power … it is an ‘elected’ dictatorship! Another thing … Sir John Kerr did not sack Prime Minister Whitlam but withdrew his ability to advise the Governor General. The Australian People sacked the Whitlam Government at a subsequent election. Sir John Kerr paid dearly for his action and knew in advance what might happen. Australians live in the very best Democracy in the World!
Thank you, Augusto, for this depressing but accurate and well documented article on the lack of our fundamental rights under the maloperation (I say) of the Westminster system.
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Such is the debasement of the system, which ought to be protecting our fundamental rights that Justice Gaudron in Kruger v The Commonwealth (1997) appeared to find that even genocide could be lawfully legislated under our Constitution.
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However, notwithstanding the views of Gaudron J. and others that constitutional powers are not to be read down I stand on my metaphorical hind legs to say that does not extend to fundamental rights. I note that our constitutions both Federal and State are statutes and must be interpreted in accordance with statute law which is as stated in Potter v. Minahan [1908]:
“in the last degree (it is) improbable that the legislature would overthrow fundamental principles, infringe rights, or depart from the general system of law, without expressing its intention with irresistible clearness; and to give any such effect to general words, simply because they have that meaning in their widest, or usual, or natural sense, would be to give them a meaning in which they were not really used”
I take comfort from noting that even Gaudron J., with others, has endorsed that statement in Bropho v. Western Australia [1990].
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I take further comfort in the words of Toohey J. in a speech delivered in Darwin in October 1992, which expanded on this reasoning: J Toohey, ‘A Government of Laws, and Not of Men’ (1993) 4 PLR 158, 170 (Public Law Review) by saying:
“Where the people of Australia, in adopting a constitution, conferred power [on the] Commonwealth Parliament, it is to be presumed that they did not intend that those grants of power extend to invasion of fundamental common law liberties – a presumption only rebuttable by express authorisation in the constitutional document.”
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The proceedings of the Australasian Federation Conference Tuesday, 8th. February, 1898 starting at page 688 support the view of Toohey J. At that conference it was debated whether to include in the Constitution a protection against laws that would “deprive citizens of life, liberty, or property without due process of law”. Mr. Kingston and Sir John Forrest spoke against the proposition on the basis that it was unnecessary. The amendment was not carried, Sir John Forrest had suggested in the debate that even if such a bill was passed by Parliament that Royal Assent would be refused.
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As to the possibility of the Royal Assent being refused, whilst some say Assent is just a formality now-a-days, I disagree. Our Constitution deliberately framed (as mentioned above) states that the Legislative Power consists of a Parliament which includes the Queen (as it then was). The Monarch is bound by the Declaration (Bill) of Rights and cannot therefore legally assent to any law which is contrary to those rights.
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I also note that the House of Lords in Oppenheimer v Cattermole [1976] AC 249 found with respect to an abominable Nazi law that; “…… a law of this sort constitutes so grave an infringement of human rights that the courts of this country ought to refuse to recognise it as a law at all”. Thus determining, contrary to the opinion of Gaudron J. in contemplating the possibility of a valid law authorising genocide, that some laws are such an infringement of human rights that they cannot possibly be within the power of a parliament to make.
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So contrary to the current debasement of the System, we do have protections, in theory at least. The problem is that our courts have been too timid in protecting us from the abuses of the Legislature and Executive. If as some say, that could lead to too much power in the hands of unelected judges, I say that we also have in our Constitution the ability to change it by referendum to correct any judge made law. However, my prediction is that the Australian people having agreed to a Constitution which as Toohey J. has opined was never created to permit an “invasion of fundamental common law liberties” they would vote NO to any such referendum.
Arguably the views in this article contradict one lesson from Peter West’s article. Perhaps a stronger separation and delineation of the judiciary might save us from COVID lockdowns (though I doubt it – courts don’t like to interfere with emergency powers of the executive) but such empowered courts would give Aboriginal activists even more power to circumvent the people, which as Peter West notes, is exactly what they want. Once the power of courts is ‘supreme’ you can’t wish them to enforce just the rights you prefer. They reflect the elite that is appointed to them. At least the ballot box has some mechanism for correction, even if inadequate.
Montesquieu is most famous for his claim that there are 3 forms of govt for 3 forms of people: republics for idealists, monarchy for the honorable and tyranny for cowards.
Constitutional Monarchy covers both idealists and the honorable, but hits a problem when the majority of the population are cowards – the mob who bite the hand that feeds them, but licks the boot that crushes them.
And that is our current problem.