The Governor-General and Governor-Magistrate

How do you enforce checks and balances in a parliamentary system?

Separating Powers in a Parliamentary System

The separation of powers is a mess in the parliamentary system. Because the executive cabinet can be drawn from both upper and lower houses (in the states that have both), then there is no clean constitutional check on the executive cabinet by the Senate. Not withstanding party discipline muddying the waters further.

So a simple delineation would be to make Senators ineligible for positions on the Executive Cabinet or Executive Council. Senators would then be Senators and purely legislative rather than a mix of Executive/Legislative.

But what of the rise of a-constitutionality that has been appearing. One of the problems is that the founding document of any government is its constitution. In the case of parliaments like the federal parliament and many of the states, such as NSW, Victoria and Queensland; the constitution is a singular document that determines the authority and sovereignty of not only parliament, but also the three branches of government - the executive, the legislative and judicial.

Supposedly the judicial interprets constitutional limits on legislative law-making and executive implementation of those laws. But they require challenges to be brought to them first. They are passive. In the meantime legislation that is unconstitutional or of dubious constitutional stature is implemented anyway.

A good example of this is the Workchoices legislation. There is nothing in the federal constitution which gives the federal parliament authority over industrial relations. It relies on the tenuous interpretation of the corporations power. The constitutionality of the legislation is being challenged by NSW, Western Australia and Tasmania. Yet the legislation has become law in the meantime.

A similar issue arises with rights. This is a basic principle of Republican governance that there are individual political rights. These are basic precepts that cannot be legislated over, nor ignored when executing law.

Governor-General

Since the Governor-General is a pretty candy on a stick, it makes sense to give the Governor-General something to do in terms of a political role. This would need to be an area of modern government that is not being done and needs attention.

Since the Governor-General is the final arbiter of all things executive, it makes sense that the Governor-General should veto legislation that contravenes a Bill of Rights and the Constitution.

It will need to be made plain that the Governor-General cannot veto legislation because the bill costs too much, has too much debt in it, or creates nationalises Randwick Rugby Club. The Governor-General can only veto legislation that is unconstitutional.

Any legislation that the Governor-General veto is sent back down to the Senate (who now doesn't have any executive members in it at all) who can override the Governor-General with a 75% super-majority. This will stop a repugnant Governor-General thwarting genuine legislation.

The Senate will also be able to start criminal proceedings into the Governor-General after achieving a super-majority. This will have to be ratified by the House of Representatives who would also need a super-majority. This will stop factional retribution against the Governor-General.

That covers the check and balance between legislative and executive in relation to unconstitutional legislation being created.

There may also need to be a clause in the constitution where the Governor-General, instead of veto-ing the legislation can pass it immediately to the High-court to judge on its constitutionality.

Again this could be over-ridden by a Senate super-majority. This would stop repugnant legislation being passed and then being decided five years later that it is unconstitutional and no longer valid.

Governor-Magistrate

The other problem is when the Executive acts, rather than legislates, in a manner that is repugnant to the constitution, to political rights , to liberty or even just to common law (ie corruption or delinquence of duty).

This is another check and balance that is needed in the system. The Governor_Magistrate is a mix of Chief Magistrate and Vice-President. The Governor-Magistrate is the head of the Senate and can cast a vote when the Senate is tied.

The Governor-Magistrate can also initiate commissions into the Executive. These have to pass the Senate with a majority. This is the proactive check and balance on how the Cabinet is executing laws.

Run-down

I would prefer if the candidates for Governor-General and Governor-Magistrate didn't run on the same ticket, nor that it be party political, but it will be. I don't think this is a bad thing, just non-ideal.
Permalink, The Governor-General and Governor-Magistrate, Apr 2006, cam
adam: Referee-General: I\'ve also been thinking about the G-G in the context of NaCoWriMo. Something I\'m weighing up is giving the G-G not a veto but a delay.

If the Governor-General is presented with a piece of legislation they consider unconstitutional, or of dubious constitutionality, they may refer it to the High Court directly. The High Court then rules on the legislation before it becomes law.

I\'m also thinking of specifying a mandatory delay of at least one month between the referral and the decision of the High Court. This is to defuse any false sense of urgency or constitutional crisis behind the veto.

Following the analogy where the G-G is referee to the scrapping teams of government, this is like penalised league players fronting up to the tribunal during the following week.
cam: This is kind of what I intended the: Governor-Magistrate to be, but I wandered. I wanted the Governor-Magistrate to represent the check and balance where legislative, executive and judicial collide. So the Governor-Magistrate would be the pro-active component referring to the judicial. ie commissions and tests of constitutionality of laws.

Veto is harsh, but political rights are inalienable or otherwise liberal democracy ceases to exist. With the Senate over-ride it gives the chance for a repugnant GG to be walked over.

But like you stated, the problem is getting unconstitutional law to the judicial for review before it becomes law and is challenged later. I think this is a necessary pro-active step from a meta-executive, which the Governor-General and a Governor-Magistrate would be.

cam
dlatimer: Quoting from McGarvie\'s Book \'Democracy\': [Under the current system, the] right of a Governor-General or Governor to counsel Ministers upon the performance of the powers and functions is unlimited. Although possessing that wide right, today they usually confine themselves to counselling to secure the integrity and effectiveness of operation of the constitutional and governmental system. Their counselling seeks to ensure that Ministers exercise their powers and functions consistently with the Constitution and the basic constitutional principles, and with the practices of good government. It also seeks to ensure that governmental powers are effectively exercised to achieve their purpose.

Except when relevant to the attainment of those objectives it is not common practice in Australia to counsel on issues of policy or discretion. Broadly, by electing the government majority, the electorate authorises the Government and Ministers to decide those issues. Ministers are responsible through Parliament to the community for decisions of policy or discretion. Ordinarily, it is for public opinion, citizens generally, Parliament and the electorate, but not the Governor-General or Governor, to have an influence in these areas. Occasionally Ministers\' attention is drawn to consequences of proposed actions which may have been overlooked.

Modern government, ever more complex, is under strain as it seeks, in the information age, with scarce financial and human resources, to cope with its task and with the continuing changes of our time. Important traditional checks on executive government are less effective than they once were. Through the party system a Government now usually controls Parliament, or at least its Lower House, instead of the other way round. Ministers increasingly rely on political ministerial advisers instead of the Public Service. Public servants\' employment and tenure conditions do not encourage them to give advice Ministers would not want to hear. Among the checks which now complement the traditional ones are administrative tribunals, ombudsmen and parliamentary committees. The scrutiny and counselling performed by the operative head of state is another. Because counselling is confidential, there is little public awareness that it occurs. Not much is written on the way it is carried out. As Governor of Victoria, counselling was a vital part of my role.

In Victoria [where McGarvie was governor], most counselling relates to the exercise of powers as Governor in Council. Since the earliest colonial times the practice in Australia has been to delegate to the Governor in Council the exercise of many more powers than those exercised in the United Kingdom by the monarch on the advice of the Privy Council.

http://www.mup.unimelb.edu.au/democracy/065.html
http://www.mup.unimelb.edu.au/democracy/066.html
adam: Mandate: I suspect Governors and Governors-General hold back from giving advice these days because of their extraordinarily weak mandate. This is also the ultimate reason the Queen refrains from any role as umpire or cooler, non-partisan head.
dlatimer: Does it happen: McGarvie writes that he undertook the councilling role seriously and we do not have any information from other recent governors. We cannot suspect either that it does or does not happen, because the governors do not tell. Perhaps the less public they are, the more effective their councilling.

McGarvie emphasises that this oversight is about constitutional process and not about policy decisions. In the book, I believe there is the example of confirming that minister X has consulted minister Y, on a matter which overlaps portfolios.

 
adam: My mistake: today they usually confine themselves to counselling to secure the integrity and effectiveness of operation of the constitutional and governmental system

I interpreted that to mean Governors consult less now than in McGarvie\'s day. However checking wikipedia it appears McGarvie\'s day was a mere 10 years ago and conventions are unlikely to have shifted radically since then :)

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