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

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

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

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.

'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.

.

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.

When I read, "Greg Barns is a former senior advisor to the Howard Government. After being disendorsed as Liberal candidate for the Tasmanian seat of Denison he joined the Democrats" I had almost read enough to know he is just another arsehole masquerading as a politician, if that is the correct way to phrase it.

Perhaps we may have forgotten that the incumbent Liberals hold a Senate 'majority' - this in itself is a powerful tool with which to legislate, (all too often without a proper 'debate' as such).

In the dead of night bills get their second readings, get the nod and pass on into law, meanwhile human rights (with monotonous regularity) are shelved, negated and disregarded in the process.

With the lamented loss of an effective 'opposition' we see the forgone conclusions enacted on a daily basis.

Remembering Ben Franklins famous words: "Those who would give up essential liberty to gain a little temporary safety, deserve neither liberty nor safety."

The greatest lie is the one of Australian 'democracy', perpetuated, fostered, and touted since Federation. We are a Monarchic - autocratic society, the senate majority exercised by Howard's Fascists is living testament to it.

Wake Up Australia - Land of the Anal Ostriches. Heads firmly planted in our fundamental orifices - oblivious to all but Murdoch, Packer and Fox realpolitik. Swallowing the mac Donald's line of political correctness, a craft devoid of helmsmen, a ship about to broach upon the reef of regional appeasement.

Well may we say "god save the queens", because the lavender mafia, feminazis and assorted buffoons have not come up with plausible answers thus far, and God help us when the day of reckoning is knocking at the door. Your politically myopic, single view perspectives are our greatest undoing.

Emigrate and give it all back to the kangaroos I say!

rossco, the irony of Cooper's incompetent answer to Quentin Dempster's question on the separation of the powers was that it came less than 12 months after Joh's similar blunder in the Fitzgerald enquiry http://www.ozpolitics.info/rules/sep.htm This demonstrated that in the wake of Fitzgerald the Queensland Nats, like the Bourbons, "had learnt nothing and forgotten nothing".

Plerdsus, I have seen it argued that our Constitution, being a very sketchy document, was designed as an open framework to allow maximum flexibility for politicians and judiciary. It is not an argument I agree with, but whenever any article on this forum suggests a bill of rights (or other similar codification of constitutional rights) the idea is always howled down as being a recipe for a "lawyers picnic". Seems you can't please everyone. And please, what exactly is the point of railing against American "judicial activism"? How is it relevant to Australia?

I can only presume that the reference to commonwealth control over aviation is a plea for States rights. If so, who cares? Aside from State politicians (for whom it is a meal ticket), you could hold a States Rights Conference in a phone box.

The sacred document, the revered scroll, the omnipotent scribble called the Australian Constitution - does not enshrine the most basic right - the 'right to life'. What good is it if even this is not proscribed?

Anachronistic arsehole fodder - nothing more!

Democracy - what a wank!

Refering to the doctrine of seperation of power it states that the three government instituitions are suppose to be seperated from each other that is Executive, Legislative and Judicial body which means that each body has equal power prescribe in the Constitution.

Aim for seperating the power is to prevent abuse of power in any of the government institution. However, there are arguements that High Court exercise too much power. I doubt that High Court does exercise too much power.

What do you think ?

Hang on,gang.

We don't have separation of powers in Australia. Not in its classical sense. We have a Westminster system of "Responsible Government" based on a fundamental abrogation of the separation of powers. The seniormost executive agency (the cabinet) must be drawn from the legislature (Constitution, s.64). Thus by definition the Prime Minister controls both the executive, and the lower house.

Under responsible government, the legislature is supposed to hold the government to account (hence "responsible") because the legislature can toss the government out at will, by voting no confidence or by defeating a budget measure.

Naturally, these days that does not happen because of our over-disciplined party system. In the US or UK, "crossing the floor" barely raises an eyebrow. It's institutionalised in the UK with the system of one, two and three line whips, and in the US the majority party regularly relies on support from the minority party to offset leakage from its own side. Not so in Australia, where most backbenchers do little more than make up the numbers.

This is why Barns is onto something, although he argues it clumsily. It's not about separation of powers, it's about responsible government. By putting government majorities and government chairs in charge of all committees, the government has effectively removed the last real avenue by which the legislature held the executive accountable. Responsible government becomes utterly compromised when the legislature lacks such tools.

So now we have unresonsible government. From there, of course, it is but a tiny step to irresponsible government.

The obvious answer to this is that the people can toss out the government. Two problems there. First, that would be an elective dictatorship, where we elect a government for three years and then are completely unable to control it. Second, last week the government used its numbers in the Senate to fundamentally change the laws for elections in a way which, surprise surprise, helped the Liberal Party and hindered the Labor Party. When a party abuses its control of the legislature to tilt the electoral system in its own favour ... Bjelke anybody?

Anth

I would have thought such a serious action of threatening the separation of power would require some legislation and not pursuing simply what is already “legislation”.

Of course, when labor had the upper hand and “the unions ran the country” (to quote Greg Combey), good old Greg Barnes had no such reservations, unless he was being paid by the liberals at that time.

From his previous articles, Barnes is a malcontent of the lowest order, happy to be paid by anyone to say anything. If he were female and there was a pole handy, I am sure you could even get him to dance, at a price - but please, a full brazilian first. (which is possibly an even worse mental image than the apt one contained in citizen’s post).

Albie Manton in Darwin, your posts come across pretty strident and cynical, and display a worrying fixation with the anal region.

But, to one of your points - why should the cosntitution enshrine the 'right to life'? In what circumstances should such rights apply?

Activist courts in Australia, now that is a bizarre notion obviously peddled by those who don't have a clue what is really going on

In Australia - we are the only country on the planet to ever legislate for lifetime detention for people who have never committed a crime but simply have no country to go "home" to. The High Court held 4-3 that is OK even though they also admitted that there is no offence being in Australia without the visa people have applied for. Some activism. I would suggest people read Al Kateb in the High Court.

The only nation on earth that legislated to lock up children for the whole of their lives if necessary because of the above law. In Al Kateb there were 9 Palestinian children facing such a fate living in Baxter.

The only nation on earth that says refugee children have no rights at all even though the refugee convention and the rights of the child have both been signed by Australia and both guarantee we won't lock up kids except as a last resort.

Most of our pollies are so dumb they think the rule of law means obeying the law when it is about the separation of powers and means that only courts can impose detention or punishments.

Anyone can obey the law, but the government has thrown away the rule of law.

JohnJ,

The relevance of quoting an american example of judicial activism is simply to show how ridiculous the whole process can get.

My comments about aviation were not a plea for states rights, it was simply an example of an instance where judges have amended the Constitution against the expressed disapproval of the people in a referendum. Another such instance was in 1973, when the people rejected a referendum proposal for the Commonwealth government to have power to control prices. After the rejection, we had a so-called "Prices Justification Tribunal" for many years. There are many other examples where the judges of the High Court have effectively amended the Constitution by interpretation despite the provision of section 128 that the constitution shall not be altered except as provided in that section.

Another enormous area of unconstitutional action relates to the abuse of the external affairs power. Any rational individual would agree that an external affairs power would relate only to actions outside Australia, but this has been perverted to enable the Commonwealth to legislate in many areas undreamed of in 1901. The Constitution has no reference to the United Nations and assigns no powers to it because it did not exist then. Neither does it authorise the Commonwealth government to delegate any such powers to it.

Is it any wonder that people who would like the Commonwealth government to remain the second-class, second-grade sovereignty of limited and strictly enumerated powers that was provided for in the Constitution, seize the opportunity, whenever a referendum question is put to the people, to vote "NO".

We should be thankful that we are permitted referendums at all, as I believe that Switzerland is the only other country that has this method amending their federal constitution. Usually the politicians can do it alone.

Possibly one day we will achieve popular intitative referendums, where the people can enact provisions into law in the teeth of the combined opposition of the political, legal and media fraternities.

This would be a process called democracy. The first such referendum would be on the question of bringing back hanging.

Plerdsus, I don't want to rain on your parade, but this 2005 poll http://www.roymorgan.com/news/polls/2005/3947/ shows only 27% of Australians in favour of the death penalty for murder, compared to 66% opposed to it. This result was probably influenced by the Van Nguyen controversy. Even so, the chance of a referendum getting up nationwide and in a majority of the states would seem pretty remote.

I agree with you on the the dubious use of the external affairs powers, but we don't need to go that far back. A bit more contemporary is The Rodent's use of corporations power to control industrial relations. This seems (to me) far beyond the original purpose of the section and has been argued as unconstitutional in the High Court http://www.aph.gov.au/library/intguide/law/workchoicesbill.htm#highcourt . But I guess that if the High Court knocks the Workplace Relations Act down, you'd see that as "judicial activism"?

While I believe that many government powers could (and should) be handed back to individuals, it won't happen because,
a) The average punter doesn't care unless it directly affects them (and likes to be able to blame someone else when it does) and
b) Politicians hate giving power away- witness the endless arguments about states rights.

Anth hit the nail on the head, pointing out that the legislature and executive are (by definition) not separated in Australia. Thus the judiciary is the only body with separated powers in our system and some politicians seem to hate that.

I think you're trying to have it both ways. After all the PJT was instituted by the Fed Govt and any court challenge that threw it out would have been "judicial activism".

Constitution is a difficlut word to type PK, but let's not denigrate one another by actually reading your full 122 posts to OLO either.

I may not agree with you PK, but I will however defend to the death your 'right' to say it. Those who do not know their rights - do not have any.

To clarify - our elected government is Walkering the same dangerous path as the Bush administration - regional appeasement (the Indonesians) to the detriment of human rights. A continuation of the status quo and the old White Australia Policy by proxy.

(The WAP was based very literally upon the Sth African Natal Act) which became the manifesto of the Apartheid regime(s). From this we had the establishment of 'concentration camps' See: Boer War. The lateral expansion was then taken to its zenith by the Nazi party during the 1930's.

To answer your question: We need to:

(1) Write a new 'Constitution'. Hmm where to start on that one? A Bill of Frights maybe? A 'Statement of Liberties' perhaps.

(2) Indict John Winston Howard as a serial human rights abuser and War criminal.

(2) Elect the judiciary members who sit on state/territory/federal benches - (Repeal all the various Judiciary 'acts' for starters).

(3) Sack, burn & bury this insidious 'two party abused system' of voting.

(4) Go to a 'two tiered system of governance' e.g. local law and Federal law. Get rid of this cumbersome '3 tiered system' and have all state/territory jurisdictions aligned i.e road rules, insurance laws etc etc. I have no qualms with the historic identities of the states but the legal system is in a mess. Oh a massed squealing from the legal fraternity ensues.

Proscribed 'rights' will always be a subject of great contention,it is up to the people under those governments to uphold the rights contained, as it is similarly our duty to be informed of our rights and then insist our government abides and upholds them.

Google my OLO handle if you must (it is my name - I do not hide behind nom de plumes), unlike some.

Thanks, Albie Manton. I know where you are coming from now. (Sheesh!). Not sure that I want to engage with it, though. Good luck with your 'agenda'.

Two judiciaries are fighting back against the despots that pretend to be running their countries as democracies.

In the US the supreme court has finally ruled that Bush has no right to order military commissions without procedural fairness and the British have decided that control orders against people who are not suspected of or have any information of or have been deemed to have done anything are illegal.

What a pity our own high court has deemed that it is legal for our government to do what ever they want with anyone deemed to be an "alien" under our migration act.

Now we come to another problem - breaching under the welfare to work rules.

Where is the constitutional right of an executive to inflict a punishment such as deprivation of financial support simply because the person doesn't turn up for a job interview or take a job? There is no requirement to take a job in Australia's constitution that there is a requirement that every person has the right to welfare support..

So this needs to be tested in the High court before we have an executive prepared to force Australian's to be homeless beggars on the street.

After all - it could be construed as attempted murder to deprive people any ability to get essential food and clothing and shelter which are rights under the constitution, and they don't know who can help them.

What if their English is poor for example, or they are mentally ill and just don't know?

Johnj,

I don't think our positions on judicial activism are really that far apart. As far as opinion polls on capital punishment are concerned, I don't think you are raining on my parade, as experience has shown that there is a great difference between what people say in a poll and what they put on a ballot paper in the privacy of a polling booth. Think for a minute about the polls in favour of a republic and how the vote actually went.

I don't see there would be any need for a federal referendum on the subject of hanging, as a state one would be sufficient. Considering, however how the courts are invalidating any attempt by the states to pass attainder laws, when there is nothing in either the state or federal constitutions prohibiting them, you never know what the judges might come up with. As this an academic discussion, it is interesting how this might be administered in the face of the opposition of the whole legal profession. It would be necessary to restrict the Royal perogative of Mercy, and it may be necessary to follow the american method of having the verdict decided by the jury, not the judge, as well as having severe sanctions on all these officials if they failed to carry out their duty. The main reason I find the subject interesting is that it is one where most people hold strong views either way, which are usually held for emotional reasons. It must be the anarchist in me, but I would love to see a situation where an offence was punishable by hanging in one state and strongly approved of in another, with people racing for the Queensland border, etc. Remenber that if an offence is not a crime in both states there is no extradition.

As far as industrial relations are concerned, considering that the states have referred their corporations powers to Canberra I would be surprised if the new laws were struck down by the High Court. It wouldn't say much for Howard's judgement on judicial appointments.

Hi Plerdsus.

The double edged sword thrust at us in the last Republic attempt was very much the: "Damned if we do" - (Directly elected) vs "Damned if we do" - (Constitutionally elected).

These very craftily put together scenarios were not that far apart when carefully unpacked. The problem was lack of real consultation with the voting public at large, along with a lack of education about the current Constitution [Act]. 'Dubblya' (Jay W) being an ex lawyer is well versed in the doublespeak, smoke and mirrors.

The continuing Crown policy (almost a 'dogma' it seems to me)
of 'divide and conquer' is as alive today as it was when Guv Arty Phillip dropped anchor in Sydney Cove.

Education is the key, and as Marilyn Shepherd alludes to frequently, we Australians (black, white or brindle) are not being taught about our responsibilities as 'citizens' (more correctly: subjects of the Crown) in this country, the region or in the greater world. There is a reason our masters don't want that to happen.

Daily, weekly, year by year, we see attacks on our freedoms, and our human rights eroded by the termites who feast upon the beams in the house of (formerly) great common law traditions.

We don't in this country, have a Constitutionally protected "right to life" - let alone a right for anything else that derives from it.

Any poster who can show me irrefutable proof we truly are a 'robust democracy' in the truest sense, will have my admiration (for what it's worth).

Anth - 'responsible government' is perhaps the classic of classics oxy moron.

Bring back the 'ostrakos vote' in a modernised version of its ancient Greek concept. This might for a change - "...keep the bastards honest."

Given the type of people we have in parliament today (so-called elected representatives of the electorate) I am quite glad judges are appointed rather than elected. Unless you want Tony Abbot deciding your family law cases, or Kylie Manogue sitting in the High Court, I suggest the judicial system remains moderately as is in that sense. The public simply are not able nor adequate to assess the credentials of a judicial member.

The real issue with separation of powers is not that judges are out of touch with society, but rather, that judges are only really in-touch with the government. We are only now seeing the product of Howards reign in the High Court, with decisions becoming increasingly predictable and almost never anti-liberal (i mean it in the political part sense!).

albie martin,

the best proof that I can think of to demonstrate that we live in a robust democracy would be the result of the two conscription referendums in 1916 and 1917. That was a few years ago, but I don't think basic attitudes have changed that much since then.