Mid-term Voter Check and Balance on the Executive

America was in the grips of civic excitement last night; televisions, websites, phones – all running hot. A friend of mine who runs a prominent political website spent his day watching the loads on the webservers increase as the east coast Americans left work, and the west coast Americans began to start slowing down the workday in the expectation of voting or going home.

Because of the inter-connected nature of the world with the reach of the internet, much of the world got caught up in it too. The Australian blogs being a good example. America watching is not only fun but wise, as the wealthiest and most powerful nation on the planet everyone is always keen to try and predict where the elephant in the room will choose to sit. It makes prudent sense.

The US mid-terms are a function of a Federal Presidential system. Australia does not have anything like it as we are a Federal Parliamentary system. Australia does not separate the executive and legislative branches of government.

In the United States the President is the Executive and is responsible for executing the laws that the Legislative (Congress – Senate and House of Representatives) make. Separating those two branches of government, the third is the judicial, is called separation of powers.

Australians do not vote directly for the Executive in Australian Government as the Executive position is messy. There are four executive authorities in the Australian Constitution; the Queen, the Governor-General, the Governor-General in Council and the Federal Executive Council. The constitution delegates the monarch’s executive powers to the Governor-General. But the Governor-General is a Jekyll and Hyde constitutional position who can act independently as the Governor-General, or under the Federal Executive Council’s advice as the Governor-General in Council.

Consequently, in the Australian Constitution, the Governor-General can dismiss an Executive Council, but the Executive Council can recommend the dismissal of the Governor-General in Council who must take that advice. That is not a check and balance; it is similar to what software developers call a race condition and an indication of poor design.

The Federal Executive Council is drawn from the Legislative body which in Australia is Parliament. The Executive Council can draw its members from the Senate and House of Representatives, totally breaking any form of separation of powers between Executive and Legislative in Australian government between those two branches.

The fear from systems that collapse different branches of government into the same body is that it will produce illiberal and arbitrary outcomes. For instance, dictatorship is a political position that places the executive, legislative and judicial responsibilities into one person. The success of the Westminster system in Britain was to route away the absolute executive power the monarch had in their political system into parliament which slowly became more and more representative and democratic. The innovation of the American system was to make real and functional the complete separation of powers.

However, as we have seen in both systems, party discipline can over-ride structural designs for checks and balances and leave the Executive unencumbered by parliamentary or congressional scrutiny. Both countries saw limited oversight of the Executive’s execution of laws while the Australian Parliament and American Congress both used party majorities to ram through legislation without sufficient internal or public reflection.

The US mid-term elections were as much about returning a check and balance to the Washington system of governance as anything else and it is through the design of the system that it is possible. The US house of Representatives comes up for re-election every two years while a third of the US Senate is up for election with each House election. The President’s position is every four years. So there is a staggering of the election cycles between the Executive and Legislative.

This means that in the middle of a Presidential term American voters can place a party machine check and balance in the Legislative by having the opportunity to vote for House and Senate elections. Australian voters do not have the same opportunity other than an occasional bi-election to show their satisfaction or dissatisfaction. There have been more than a few Australian Executive Councils who could have done with a re-ordering of Parliament to place a check and balance on their executive behaviour and arrogance but since the Parliament is both Executive and Legislative that is impossible in the Australian system.

Am I arguing for a separate executive and a Presidential system for the Australian Federal government? Yes. The argument against Presidential systems is that they are less stable than Parliamentary ones, this is mainly because the Parliament collapses two branches into one giving the Prime Minister greater power than a President has. Pseudo-tyrants and one-party states can exist in a Parliamentary system, they cannot in a Presidential one.

Australia is a mature nation who has shown a strong commitment to liberal democracy and political stability. Even our most turbulent times such as the dismissal of Jack Lang and Gough Whitlam have been pretty tame by world standards. Through our commitment we have even made the clunky old archaic Westminster operate with some appearance of efficiency while dumping the absolute absurdities present in it. But that doesn’t overcome the lack of separation of powers or missing checks and balances inherent in the Westminster system and Constitutional Monarchy.

Australia can easily handle a Presidential system. It is the logical iteration of democratic improvement from a constitutional monarchy that will simplify our constitutional system. Not only that, Australia can improve the constitutional form of a separate executive and bicameral legislative, so the nation after us that chooses a Presidential system will use the Australian Constitution as its template.

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Nicholas Gruen
Admin
15 years ago

Cameron,

You’ve advocated a change ostensibly to tame party discipline, but haven’t demonstrated how your proposals do that. Further, party discipline isn’t all bad – it can lead to stronger government, and sometimes you want a government to be able to make unpopular decisions and then return to the electorate a few years later with something to show for it. America is well known for the extent to which it’s political system is gridlocked between interests and this is generated in substantial part by a lower level of party discipline than Westminster typically produces – or at least than we’ve produced with Westminster.

Ken Parish
Admin
15 years ago

“But the Governor-General is a Jekyll and Hyde constitutional position who can act independently as the Governor-General, or under the Federal Executive Council’s advice as the Governor-General in Council.

Consequently, in the Australian Constitution, the Governor-General can dismiss an Executive Council, but the Executive Council can recommend the dismissal of the Governor-General in Council who must take that advice.”

Cam, this passage is a bit confused. First it ignores the role of conventions as to constitutional conduct in a Westminster system. As a matter of convention the G-G can only act independently of EC advice in relation to a small number of his/her powers and functions, and even then only in a very limited number of circumstances: serious illegality in governance that can’t effectively be dealt with by the courts; loss of confidence of House of Reps; prolonged inability to obtain supply (the Whitlam November 1975 situation).

Now, one may reasonably criticise this structure for being based on convention rather than any legally enforceable mechanism, but in fact it would work very well if the person who was envisaged as the Head of State (i.e. the Queen) was an Australian and taking part in constitutional processes as envisaged. The problem in 1975 was that Kerr apparently decided to keep the Queen out of the picture for whatever reason (whether nationalism, hubris or a misguided desire not to embroil her in political controversy). If our system had an Australian occupying the Queen’s circuit-breaker role in relation to dismissal of the G-G, then the G-G could viably discharge his/her government-dismissing role without fear of pre-emptive dismissal.

What your above passage misstates/misunderstands is the proposition that “the Executive Council can recommend the dismissal of the Governor-General in Council who must take that advice.” In fact the Prime Minister can recommend the G-G’s dismissal to the Queen, who must ultimately take that advice but who is also expected to insist on being fully informed of the circumstances and may take the time to advise and warn the PM about the consequences of his/her action if she disagrees. Thus, in a 1975 situation but with a local Head of State who everyone accepted as having a legitimate and central role in such a situation:

(a) Kerr would have consulted the HoS before acting;
(b) the HoS would certainly have directed/advised Kerr to warn Whitlam in advance that he faced sacking if he didn’t get supply by a nominated time;
(c) if Whitlam had then tried to advise the HoS to pre-emptively sack Kerr, the he/she (assuming his/her agreement that the basis for Kerr’s proposed action and his manner of carrying out his constitutional function had been proper) would no doubt have taken sufficient time in advising, warning and insisting on being fully informed as to give Kerr the time to discharge his dismissal function.

Thus, with a local HoS (independent dismissal arbiter) sitting above/alongside the G-G/President, this aspect of Australian constitutional design would in fact be a genuine and extremely functional check and balance, not a “race condition and an indication of poor design”. It is our failure to completely break free of the Imperial apron strings, coupled with treating the monarch as if he/she had no real role in the system (in order to maintain the bizarre Tory pretence that we should maintain the monarchy because the Queen doesn’t actually do anything except provide filler for the Women’s Weekly), that turns it into a poor design feature. In fact, with a local HoS/independent dismissal arbiter alongside the G-G/President, Australia’s constitutional system would have a much superior executive government dismissal system to the hopelessly politicised US Presidential impeachment mechanism.

Ken Parish
Admin
15 years ago

You also say that Australian voters don’t have the same opportunity to place checks on the executive government as US voters. But our system requires full House of Reps elections every 3 years compared with the US system’s every 2 years. Moreover, we can effectively completely remove and replace the executive government every 3 years, whereas US voters can only do that every 4 years. In the meantime, a “lame duck” President with a hostile Congress has little less power than one whose party has the numbers in both House and Senate. Despite Rumsfeld falling on his sword today, it’s by no means clear that Bush will act substantially differently in his prosecution of the Iraq war than he would have done had the GOP retained the numbers in both Houses. No doubt many GOP politicians will be pressuring him to pull some rabbit out of a hat to save their skins in 2008, but whether Bush takes any notice is unknown. And even if he did, there don’t appear to be any policy options that don’t lead to chaos.

I’m not saying that mid-term US elections are irrelevant, just that one can overstate their effectiveness as democratic checks on executive power, and that they aren’t decisively superior to the Australian system where the entire government can be removed and replaced every 3 years.

cam
cam
15 years ago

Nicholas, You’ve advocated a change ostensibly to tame party discipline

It is mainly because the Executive is split across four constitutional personas; five if you include the Prime Minister who is not mentioned in the Australian Constitution.

cam
cam
15 years ago

Ken, First it ignores the role of conventions as to constitutional conduct in a Westminster system.

Yes but we now mention parties explicitly in the Australian Constitution because the convention of appointing a Senator of the same party was broken in the run-up to the dismissal.

In the meantime, a “lame duck”

Ken Parish
Admin
15 years ago

“It is mainly because the Executive is split across four constitutional personas”

Yes, but compare that with the functional structure of the US system. Executive and legislature are separated, but the function of dismissing the executive government is vested in the legislature, and both executive and legislature are mostly hopelessly politicised/corrupted by the party political system and the influence of big money and the perks of power. There is quite a lot to be said in favour of a system like Australia’s, which effectively accepts that the political arms of government (executive and legislature) are unavoidably and inextricably interwoven by party politics and the realities of power, and which therefore vests the executive government dismissal function in a person who is essentially outside day to day politics, and then vests the dismissal of that person in turn in another person who is also outside day to day politics. Exactly how both those “outside politics” officeholders are selected is another question and a hotly contested one, but that doesn’t affect my overarching argument that vesting the power of dismissing the executive government in a body or person outside day to day politics is an excellent design feature, and superior to the US system.

cam
cam
15 years ago

Ken, which therefore vests the executive government dismissal function in a person who is essentially outside day to day politics

I am not arguing for the process of impeachment. I am also not romanticising the US system of governance, but it does have constitutional aspects which I believe we should innovate upon. Most of the things we have adopted outside of the Westminster tradition have been taken directly from the Washington System. If we have a citizen’s council or some other non-political means to dismiss/impeach a separate executive – fine – whatever works best.

I don’t think we have to accept that the Executive and Legislative are one and the same due to the political organisation of parties. The way Australia has structured itself electorally is far superior to the US, so if we adopted the US system verbatim I reckon we would get superior outcomes to the US. But the US has its own independent bodies, GAO being a good example, the AEC and NSW’s ICAC play important roles outside of the political partisan theatre. ICAC has actually liked an informal term-limits act, removing Greiner and indirectly Carr.

There is a roll for that. I think, however, a separate executive is a weaker executive because of the legislative’s independence. In the Australian Washminster mutation I expect we would see improved outcomes immediately if we the Senate was excluded entirely from the Executive Cabinet.

Ken Parish
Admin
15 years ago

Cam

I certainly think a constitutional amendment that:

(a) strengthens the role of the Senate by vesting in it (say) functions of ratifying treaties and federal judicial appointments; and
(b) prohibits Senators from holding ministerial/executive office;

would be well worth considering. In fact that would achieve a complete separation of half of the legislature from executive government. If we then also expanded the Senate’s size (which either means deleting the nexus provisions or also increasing the size of the Reps), thereby decreasing the quota for election as a Senator in an ordinary half-Senate election, we would also probably get greater representation of Independents and minor parties in the Senate. That should also assist in developing further a political culture where the Senate exercises a real independent oversight function in relation to the executive government. Many observers already argue that Australia’s Senate committee system worked far better than the US system, at least until Howard got his majority last year and started tinkering with it.

I don’t see any persuasive functional/constitutional design reason to dismantle the Westminster responsible government system so far as it relates to the House of Reps, although it might be worth considering emulating the South African Constitution in this respect and allowing for a minority of Ministers to be drawn from outside parliamentary ranks (to enahnce the talent pool).

cam
cam
15 years ago

Ken, In fact that would achieve a complete separation of half of the legislature from executive government.

If we do stick with the Westminster we still need an overhaul of the constitution anyway so that we make the Senate the formal ‘Legislative’ and the House a party dominated Executive with Question Time. Another one that immediately springs to mind is Senate confirmation of judicial appointments.

although it might be worth considering emulating the South African Constitution in this respect and allowing for a minority of Ministers to be drawn from outside parliamentary ranks (to enahnce the talent pool).

The Imagining Australia folks suggested this too, but again, if we are going to go to these contortionist lengths to make the Westminster system like a Washington system, why not separate the Executive out, get full separation of powers and make three powerful (political and media) figures in the Executive, Senate and House Majority Leader. The House will still have exclusive dominance over money bills, which incidentally I think is the main leverage the US Democrats will have over the US President.

The Westminster has served us well, but only because we are committed to liberal democracy, not because we are committed to the Westminster system itself. We could probably make dictatorship work. If Australia had despotism it would probably be pretty polite and benevolent – might even have the Department of Lawn Mowing.

The Westminster is a historical hack to neuter the executive power of the monarch. It was never really intended to be that way, it happened because British politicians couldn’t divorce the developing British nation or the church of England from the King. Its success is a spaghetti code of convention, statutory plug-ins, constitutional grafting and liberalist good manners.

wmmbb
15 years ago

It seems to me that significance of the US Senate vote is that the executive control of the legislature, which was apparent prior to the election, has now been broken. Whereas, perhaps party alignment in that chamber may have still have effect, it will not influence legislative oversight of the executive which is exercised primarily through the various committees. For example, Senator Luger, who has expertise in foreign affairs and who was returned comfortably for six years by the voters of Indiana, will not be beholden to the Bush Administration.

Stephen Bounds
15 years ago

Cam: I think Australia is extraordinarily lucky to have stumbled across the political system that it has. We have:

– one of the best methods of determining an electorate’s preferred candidate (full preferential voting)
– one of the best ways to promote minority party representation in the Senate (a quota system)
– executive government that must answer to the people on their performance via elections

As you can probably guess, I am against the separation of the executive from the legislature. The reason is simple: if an executive member of government can be voted out, they will tend to act in accordance with the wishes of their constituency. Even Ministers in safe seats have to be careful because they will have a support base and Cabinet Colleages in other seats that may not be safe. By extension, Ministers tend to act broadly in line with the wishes of the community.

I suppose the drawback to this system is that this produces a tendency towards focusing on the short-term rather than the long-term.

 
Ken: I would argue that Ministerial advisors mostly fill the requirement for non-elected expertise in the Ministries.

Also, I think that there really isn’t a need for excluding the Senate from the Ministry since minor parties can wield a big stick with only 17% of the vote. Dedicating a whole chamber to being a “house of review” is only really necessary when there is no feasible way to elect independent candidates.

In reality, I would have thought that our current majority control in the Senate is an anomaly and unlikely to continue once a new party steps in to fill the void left by the Democrats.

Nicholas Gruen
Admin
15 years ago

Of course we should allow an executive to form with ministers from outside parliament. What’s the problem? Hawkie suggested this too in his Boyer Lectures (I think), but they were cobbled together in a few weeks to sound impressive. He had no commitment to it when in government that I noticed. When you’re there you’re so busy paying off people who matter to your votes in Caucus and parliament that the urge to appoint on merit from outside rather wanes :(

Patrick
Patrick
15 years ago

I guess I can see a lot of merit in a lot of possible changes to our system, but I am very impressed by our system’s success – we have one of the world’s four or five best democracies by a margin, and so I would tinker slowly and with great caution. I think enhancing the Senate’s independence might be a good thing, for example, but then again much of our present health and wealth owes itself to compliant Senates – would we have even half as much reform if their was half-a-dozen greens in a Senate of 200 rubbing shoulders with a dozen Aust Dems?

cam
cam
15 years ago

Stephen, All those methods you mentioned are electoral level technologies and innovations. Australia is extremely innovative in that area and a world leader in the implementation of those technologies but in the area of constitutionalism we are hopeless laggards. America has it all over us in that arena at the federal and state level. Every American state has some constitutional innovation.

Queensland recently formalised their constitution into one document. Prior to that it was spread over multiple acts in the typical spaghetti code westminster style. Western Australia, South Australia and Tasmania still do not have formal constitutions, their enabling acts IIRC are old British ones that mainly mention electoral boundaries.

I would also argue that the Democrats are a modern aberration. The multi-member preference system existed in the Senate since 1949, and it wasn’t until 1980 that the Democrats established themselves in the Senate as a third party broker. All the tinkering that has been done with electoral techniques and enfranchisement have been self-serving to the incumbent. They have nearly all back-fired too.

The classic one is Chifley changing the Senate from a FPTP party-block to preferential. Labor hasn’t had a Senate majority since. The only altruistic change in that area I know of was when Steele Hall abolished mal-apportionment in South Australia with the knowledge that it would cost him his government.

Stephen Bounds
15 years ago

Nicholas:

Well, the problem is in a representative democracy, the people making the decisions should be ones chosen by the people to represent them. If someone can be part of the Executive without being elected, that breaks that principle.

Another problem with having a technocrat Executive is that those in charge think they are always right. And that sometimes makes you blind to good advice from others (cf. Donald Rumsfeld).

Cam:

I suppose I don’t understand why we need innovation in constitutional areas given that what we have works pretty well at the moment. Why is re-electing Congress and 1/3 of the Senate every two years while leaving the Executive intact for four years inherently more democratic than re-electing the entire legislature and executive every three years? For that matter, why do we want a single person in charge of our affairs at all?

BTW, you say:

Am I arguing for a separate executive and a Presidential system for the Australian Federal government? Yes. The argument against Presidential systems is that they are less stable than Parliamentary ones, this is mainly because the Parliament collapses two branches into one giving the Prime Minister greater power than a President has. Pseudo-tyrants and one-party states can exist in a Parliamentary system, they cannot in a Presidential one.

I’ve read this many times, and I still can’t make it make sense. Parliamentary systems are more stable because the PM has more power? Have you switched nouns somewhere accidentally?

cam
cam
15 years ago

Stephen, Parliaments give the appearance of greater stability because the executive is rarely challenged from the legislative. But that is just another description for expanded executive power. Think Malcolm Turnball who was proposing independent tax policies, he has since been silenced by being given an executive secretary position and consequently coming under executive discipline. An independent policy maker has been homogenised into the executive borg. That is why parliaments appear more politically stable because there is less (read little to none) tension between executive and legislative and consequently no conflict between the branches over power.

cam
cam
15 years ago

Another issue is, when has a Prime Minister ever vetoed a law that they created? That is supposed to be an executive check and balance on bad or unconstitutional legislation but in Australia the majority of legislation comes from the executive cabinet.

Stephen Bounds
15 years ago

I suppose it’s a question of perspective. I see the checks and balances of the American system as creating an overly conservative approach towards change. There are just too many places where legislation can get shot down — the Congress, the Senate, while in review in Committees from either House, and finally the Presidential veto.

Why is it good if a proposal gets endlessly debated, amended and passed back and forth between Houses for months, and then finally it gets vetoed by a single person at the top?

On the Parliamentary ‘borg’ — I consider that a consequence of our rigid two-party system rather than a necessary consequence of a Parliamentary constitution. In any case, policy discussion and decision-making gets subsumed into the party room discussions rather than the Parliament — it doesn’t mean that Turnbull has no influence on policy whatsoever.

cam
cam
15 years ago

Stephen, There are just too many places where legislation can get shot down —

Stephen Bounds
Stephen Bounds
15 years ago

Cam, I don’t think that addresses my core arguments though. When was the last time someone got voted out for blocking legislation, even if it was badly needed? Public apathy is rife in political life, and there aren’t many newsworthy stories generated by “no change” happening.

As for transparent public debate — that is the role which should be filled by the minor parties, independents and particularly the opposition. I’m not sure why government MPs should be expected to publically debate against each other.