Bruce Schneier 's ideas have been commented about on SSR in the past in relation to security. However in this article titled; Unchecked presidential power he has a look at separation of powers and the aggrandization of the executive branch in times of war.

Schneier argues the greater danger in the recent revelation, even confession, that the Bush Administration instructed the NSA to eavesdrop on American citizens without bothering to go through a FISA issued warrant is in the breaking of separation of powers.

This isn't about the spying, although that's a major issue in itself. This is about the Fourth Amendment protections against illegal search. This is about circumventing a teeny tiny check by the judicial branch, placed there by the legislative branch, placed there 27 years ago -- on the last occasion that the executive branch abused its power so broadly.

Schneier addresses Yoo's justification for the circumventing of judicial approval by the claim that the US is at war with terrorism, and in a time of duress on national security the Executive should be able to do everything they can to ensure the security of the state. Firstly, no war has been declared. Something which the US Constitution is explicit about. The American Founding Fathers required that declaring war be the sole authority of the Legislature, as war itself often only bolsters power to the Executive.

The result is that the president's wartime powers, with its armies, battles, victories, and congressional declarations, now extend to the rhetorical "War on Terror": a war with no fronts, no boundaries, no opposing army, and -- most ominously -- no knowable "victory." Investigations, arrests and trials are not tools of war. But according to the Yoo memo, the president can define war however he chooses, and remain "at war" for as long as he chooses.

This is indefinite dictatorial power. And I don't use that term lightly; the very definition of a dictatorship is a system that puts a ruler above the law. In the weeks after 9/11, while America and the world were grieving, Bush built a legal rationale for a dictatorship. Then he immediately started using it to avoid the law.

Schneier finishes with a warning that separation of powers is a fundamental tenet of liberal democracy;

Laws are what give us security against the actions of the majority and the powerful. If we discard our constitutional protections against tyranny in an attempt to protect us from terrorism, we're all less safe as a result.

The United States has greater separation of powers between the Executive, Legislature and Judicial than Australia's Westminster system does. In the US the Executive is the President and his Executive Cabinet of appointed secretaries, such as the secretary of defence, secretary of state etc. The legislature is the Senate and House of Representatives, also known collectively as Congress. The Judicial is the federal court system which the President nominates candidates for and the Senate approves or rejects.

In summary the Legislature makes laws, the Executive executes those laws, and the Judicial interprets those laws. One of the issues is that Bush made up his own laws when he made an executive order that contravened a law from the legislature, and without judicial oversight. With that executive order he became Executive, Legislature and Judicial all in one person. This is commonly what the old Kings were.

In the Westminster system the Executive is split between the Governor-General [GG] and the Prime Minister [PM]. The Governor-General is the formal Executive but the Constitution limits the GG's power by demanding that the GG only take advice from the Prime Minister.

The Prime Minister is the informal Executive, and the PM's senior ministers make up the Executive Cabinet. For instance the Treasurer, the Foreign Minister, the Health Minister etc. The Legislature is the Senate and House of Representatives which are collectively known as Parliament. The Judicial is the commonwealth court system. Appointments to the Judicial arm are made by the Prime Minister.

One of the problems in the Westminster system is that the power of the Executive is embedded in the Legislature. The Prime Minister not only makes laws, but also executes them. As a consequence the separation of powers is weak in the Westminster system, especially when the one check on the Executive, the Senate, is controlled by the same party as the Prime Minister's.

Separation of powers is supposed to put the tensions between each branch of government in balance, ensuring that one arm cannot crowd out the others and claim all authority to themselves. It is a barrier to tyranny. One that is inherently weak in Australia, and it appears being eroded in the US under the auspices of the national security state.

More information;

• Separation of Powers or Executive Authority?
• Joh Bjelke-Petersen and Unicameral Parliament
• Separation of Powers and Parliamentary Systems

A common cry is that the judicial, rather than interpreting the constitution, is activist and making judgements that are more legislative than juridical. The judicial is treated as a specialist position and given tenure to hide it away from political or populist influence. Unfortunately the judicial often takes matters into its own interpretive hands and expands the power of those that appoint them.

There is very little check and balance on the Australian Judicial branch. Since 1986 the High Court of Australia has been the highest court in the country, displacing the Privy Council in the United Kingdom as the highest court of appeal. Since 1968 the High Court of Australia had been the highest court of appeal on constitutional and federal issues.

In Australia the Prime Minister or Premier appoint Justices without oversight beyond the Executive Cabinet. This is in contrast to the stronger checks and balances in the US system where the Executive recommends a judge/justice to the Legislative who must then approve it.

This is a simple check on Executive stupidity and political appointments . In the Australian form of Westminster separation of powers demands that at the least the upper-houses (Senate and Councils) have no members of the Executive Cabinet in them, making them purely Legislative.

The Executive Cabinet would be required to recommend judicial appointments to the Senate/Councils where they would need to be approved by majority after public debate on the appointment.

Lionel Murphy changed Judicial doctrine in the Australian High Court quite drastically, believing that it was up to the High Court to make the Australian Constitution a living breathing document. This is in part because the Australian Constitution is poorly written and almost impossible to change under the referendum requirements.

It is also part of another doctrine that has infected Australian federalism since its inception of entropic and dynamic collapse of all power to Canberra. The Judicial has aided, abetted and accelerated this process.

As adam commented , this has been achieved by seeking obtuse nuance in what is clear constitutional language;

What's insidious about the constitution being changed through common law, eg in the US, is that the relatively clear language of the original document is interpreted to become a term of art. Eventually the succession of rulings can become so distant from the original text that to compare them side by side is an exercise in absurdity or even deconstruction.

The recent US ruling on eminent domain seems the perfect example of this to me. This is also what's behind the US doctrine of originating intent. I'm not sure whether the court is able to heal these rifts itself.

So how do you save the judicial from its own over-reach?

The Constitution represents the limits on Executive, Legislative and Judicial authority, which the Judicial is the final interpreter of; but it contains few limitations on the Judicial ability to act. Australian justices are required to retire at seventy-five, while in the US they just die on the job.

In a federal system, federalist over-reach is supposed to be stopped by the unitary components - the states. The Senate is composed of state membership, but political parties and party discipline have corrupted that check and balance on the federalist system.

Yet constitutional challenges to legislation have often involved a majority, or near majority, of states. For instance the challenge to Workchoices comes from NSW, Western Australia and Tasmania.

Is it possible that a check and balance on poor Judicial performance by a Justice, such as one that is opposed to a strict reading of the constitution, and who brings anti-federalist interpretations can have their position on the High Court challenged by the states.

This could act as a Judicial form of impeachment that would require a majority of states and state parliaments to pass legislation requiring a Justice's removal.

There would be the fear that this would politicise the Judicial arm of federal government but since most of the appointments to the High Court are political rather than based on merit or specialist history, then this is not necessarily something that is not occurring already.

This check and balance would be that tenure can be revoked by the states.

Bryan Palmer has an article on ozpolitics that what is deemed constitutional is ultimately in the hands of the Judicial and not legislative fiat. The High Court under the doctrine of separation of powers is the highest authority to interpret the Australian constitution. But our Westminster style of constitutional law makes government complex and unknowable from the citizen's point of view. It is a fair expectation, in my opinion, that a constitutional system can be read explicitly by a citizen to understand the limits of their government.

Overreach

I recently made a quick comment on Polemica about the report from the Department of Education on establishing an Australian Certificate of Education. In that comment I pointed out that Part V of the Australian Constitution contains no explicit language on education.

While I think an Australian Certificate of Education is a good example of rampant anti-federalism; demanding compliance from the states, without explicit authority, and most likely without funding; there is warning in there for the constitution to move so far from its concrete bounds that it isn't easily understandable.

The constitution acts as the citizens contract with government. It places distinct limits on the actions of the executive, legislative, judicial and government. If the weight of legislation that has been judged by the high court is sufficiently outside of an explicit reading of the constitution it becomes not readily knowable to the citizenry.

Government evolves into an arcane area of complexity and specialisation beyond the general understanding of the citizenry. Since government is drawn from the people, this is a barrier to civic participation and understanding.

In analogy to the principle of make enough laws and everyone is a criminal; a poorly written constitution that is not explicit, will ultimately result in nearly everything being constitutional.

If a citizen is trying to understand whether education is a valid area of federal authority, then they will look to the constitution for that word. I think it is fair that they would expect to find it.

Judicial Doctrines

It does not help that differing doctrines have been followed by the Australian High Court since its inception. From Samuel Griffiths' highly states' rights denial of the constitution he helped write, to Lionel Murphy's doctrine of the constitution being a living and breathing document that the judicature can breath life into - if the referendum process cannot.

We give the Judicial branch tenure with the goal of making them non-political positions, presumably populated by specialists. Yet most of the appointments are highly political and judges are more likely to be drawn from the political ranks than the heights of legal achievement.

This structure provides an entropy of growth that is incapable of contracting. The only possible outcomes are the stasis or expansion of constitutional law- not contraction.

Conclusion

Australia does have a Westminster tradition where constitutional law can be embodied across many acts and court decisions. This is an ineffective way to reign in expansive central government; a particular problem in federal systems where the central government will vie for tax and policy authority with the states.

Possible solutions;

• A tight and inflexible constitution at the federal level
• An energetic executive arm that can force bills to be tested by the judicial for constitutionality before they are signed into law (Think workchoices, if it is over-turned it will cause problems for employers having to return to the state systems. If there was doubt, it should have been tested before becoming law)
• A bicameral judicature with a lower jury chosen from the citizenry to actively review executive actions and legislative bills. (I know of one CFC entry being written with a highly innovative approach to the judicature!)
• Periodically rejuvenate the constitution to collapse it to a single bill/document (Canada and Queensland recently did this)

With globalisation moving activity from small arcane groups of the elite to the wider citizenry, the tight industrial structures are starting to collapse and fray under the pressure.

Westminster government is an industrial structure. It will have to introduce ratification, sortitionist and spontaneous citizen involvement in government itself. This is necessary just to remain relevant, let alone strengthening the civic, social, cultural and economic health of Australia.

One of the best examples of group wisdom is the economy. It is a highly decentralised structure. Mutual funds, index funds and spyders are examples of trader simplifying the system for citizens. Like any good market, the mountain came to Muhammad, and not the opposite.

Australian constitutional government will have to do the same, and come to its citizens.