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The Forum > Article Comments > Separation of powers? Is that a trick question? > Comments

Separation of powers? Is that a trick question? : Comments

By Greg Barns, published 28/6/2006

Our democratic tradition is being undermined by the Howard Government.

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The “separation of powers concept” as long as the three arms of government have roughly the same direction and/or aims is splendid. In a well managed democracy the system can and does work well. However, if the “powers” decide to pull in opposite directions, so as to nullify and obstruct each other that is a recipe for chaos.
Supposing one of the powers decides to exercise hegemony over the other two. Or suppose one of the powers loses public confidence.

The people can in theory sack either the executive or legislative bodies at the ballot box. In Australia the judiciary is immune from that check
Posted by anti-green, Wednesday, 28 June 2006 11:45:14 AM
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Not quite true AG. Most commentators are under the mistaken belief that the Prime Minister and the Cabinet hold executive power. Nothing could be further from the truth

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.

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 Councillors, and shall hold office during his pleasure.
--Constitution of Australia
Posted by Narcissist, Wednesday, 28 June 2006 12:33:25 PM
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Your kidding when was the last time either the Libs or Labour members of the Rep bucked the Executive I think you may find never,Howard is has turned Parliment in a bigger rubber stamp that Keating ever did.
The soon this little crook is removed or more independants are elected so no party can control both houses the better
Posted by j5o6hn, Wednesday, 28 June 2006 12:59:33 PM
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I find the defence of judicial activism completely unacceptable. We can elect (and throw out) governments, but we cannot get rid of difficult judges. What is the point of voting "no" at a referendum when judges can discover implied powers that give governments powers that have been denied them by the people. If you think that's theoretical, just look at the referendum back in the 1930's (not approved by the people) to give the Commonwealth Government powers over Civil Aviation. They have been exercising them ever since.

Of course if you are at the left-wing extreme in politics, and are fully aware that very few of the things you want to bring about will ever be approved by the people, you become a great advocate of activism. I was surprised that Keating did not ask his High Court judges to rule that the provisions of the Constitution relating to the Queen were temporary provisions and there were implied provisions providing for a President elected by a two-thirds majority of Parliament. It could have been his best way to establish a republic.

If one looks at the United States, where judicial activism has been rampant for decades, some of the judgements make hysterical reading. The one I love best was made in 1965, when a Connecticut law banning contraceptives was being challenged. The judges of the Supreme Court decided that the law was unconstitutional, as it violated the third amendment, which prohibited the billeting of soldiers in private homes. What that had to do with contraceptives was never made clear, but it didn't matter as they were the final court of appeal.

I consider that the Howard government is not changing the separation of powers in any meaningful way. Every government since federation has had the opportunity to shape High Court apppointments to suit itself.

Thank heavens we only have to endure three more years of Justice Michael Kirby.
Posted by plerdsus, Wednesday, 28 June 2006 1:15:01 PM
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'The senate and its committees are the only check on laws and policies proposed by the government because in Australia, unlike for example the UK, the US and Canada, the lower house (the House of Representatives) is simply a rubber stamp for the government.'

Anything written after this astonishing statement just has to be read with askance.

One just has to ask, why do we hold elections every three years at Federal level? I've always thought it is the voter who determines the appropriateness of Policy and is the ultimate judge of Government behaviour. That should not occur in a forum made up of what Paul Keating described as an 'unrepresentative swill'.

I think Paul would applaud the proposals of John Howard in relation to the senate.

With regard to the Judiciary it is tradition for The Courts to intrepret the legislation passed by the Parliament. That is a great check and balance in itself. I've always believed there is no place in a Democracy for an unelected body to decide what is best for the majority. The Courts should not write laws. Of course the Government can always override any such action if it decides.

.
Posted by keith, Wednesday, 28 June 2006 1:58:14 PM
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I seem to recall it was Joh who had difficulty with understanding the concept of separation of powers. That would have preceded anything Russell Cooper might have said on the subject.

I don't think it is confined to Queensland Premiers. All political leaders who have been in office some time start to believe that the world revolves around them and they deserve to have absolute power so will do anything they can get away with.
Posted by rossco, Wednesday, 28 June 2006 4:31:08 PM
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