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

Who got makes money bills and who got voted out in the US mid-terms? The one and the same - the Legislative.

From Phillip Coorey's op-ed ;

Howard was quick to disassociate his government from the obvious implications. While Iraq figured large, it was only one factor in the result, he said.

There were the various scandals involving Republican congressmen in the lead-up to the elections and the Bush Administration's financial recklessness. Its running up of massive budget deficits contributed insofar as jaded Republicans chose not to vote, he said. "That is a point of departure and a point of distinction between the Bush Administration and my government."

The Bush Administration is Executive Government, they may ask for budgets to match their policies however it is the Legislative which makes those bills and has to pass them.

The Republican Legislative got voted out as a majority in the US mid-terms and replaced with a Democratic majority. The US Executive cannot pass money bills, even the emergency spending bills had to be passed by the Legislative.

Because Australia collapses the Executive and Legislative into one the executive in Australia can make and pass money bills - especially as by convention the Prime Minister comes from the lower house. It is fundamental difference between the Presidential and Parliamentary forms of government and shouldn't be conflated together.

The Howard Government has been very careful to keep Australia in slight surplus and he is right to point to his government's economic management in this area as a positive for his government, however, it the Legislative makes money bills and the Bush Administration is the US Executive.

Howard could have argued that Bush never vetoed one of those big spending money bills even when there was pressure for him to do so - but then, I have never seen the Australian Executive Cabinet veto a money bill either ... that doesn't happen in Parliamentary systems.

Technical forms of production are very dependent on quality control to minimise the variation in their product from the requirements. This means the customer gets a consistent product or service every time. Consequently in industrial parlance quality means minimum of variation from the requirements or specifications. We can probably start looking at Parliament as having inbuilt quality mechanisms to produce quality legislation where policy substitutes in the role of requirements.

This was provoked by Lynn Allison's comment in a speech where she spoke on the Broadcasting Bill Amendment 2007:

I think it is not unreasonable to say that the government should have sorted out these problems before we had to deal with the bill itself.

Allison is talking about the Senate in quality control terms. I have not thought of parliament in that way, but it makes sense that there be statutorial rigour and mechanisms to ensure that legislation matches the specifications closely.

Unfortunately Australia's use of the Westminster system means that there is poor separation of powers between executive and legislative, so policy and legislation come from executive cabinet.

The committee systems are a relatively new innovation in the Australian federal system and act as an important process in collecting requirements from the end-users (and those ultimately paying for it) in the public.

Committees can also act as post production reviews of the product's (the legislation and policy's) performance. This suggests that the committees are more important than the time they get in the media or the public consciousness from a quality control point of view.

One of the reasons I am in favour of permanent sortitionist body, apart from being useful in unearthing corruption, is that they will be able to empirically review policy outcomes - act as an a non-political and non-partisan quality review board. The sortitionists basically act as customer representatives (they are customers as taxpayers).

Another idea I like is adam's of spontaneous citizen auditors, who can form as an active FOI body. Auditing government for corruption, but also policy outcomes.

The current government has control of the House and Senate through elected majorities, unfortunately, because of the strength of executive discipline in bloc voting, this has led to poor quality control outcomes. Legislation, as Allison is arguing, has not gone through a proper quality control process of review in cabinet or committee before being tabled as legislation in parliament.

It would be wise to view parliament from a quality control point of view, and audit it constantly, and frequently, from that perspective.

Following on from this article : if you didn't know Australia was a parliamentary system, and you read SSR , then you could be excused for thinking we have a presidential one. It is all Keating, Howard, Rudd, Greiner, Carr, Bracks, Kennett etc

Even blogs with a strong constitutional focus cannot avoid talking about politics in a presidential/gubernatorial manner.

We may as well formalise constitutionally what we are all doing anyway and separate the executive out of parliament so that the President/Governor can be directly elected.

What would this mean for an Australian Government?

The executive would be a separate branch to the legislative with the President elected and the cabinet appointed with the consultation of the Senate.

Executive bodies and institutions would be established and maintained by legislation.

The legislative would be represented by parliament as a bicameral (two-houses) body. The Senate would remain of federal character, with representation divided by states, and the House national in character.

The Senate would be prohibited from introducing money bills. That would remain the House's authority. But more importantly the Executive and Cabinet would be prohibited from being representatives in the legislative bodies.

The final important innovation is a Bill of Rights that prohibits parliament from legislating over liberties and denying executive force over those same enumerated liberties.

None of this is new and we are almost there already - other than making the Prime Minister (or Executive) directly elected and a Bill of Rights - we have all the other components existing right now.

Jacob Zuma has been elected leader of South Africa's ruling ANC party at a stormy party conference. Unlike in New Zealand, Australia, Canada or the UK, Zuma doesn't automatically gain a executive post such as Prime Minister for being leader of the ruling party - instead, the incumbent President, Thabo Mbeki, retains his office until the next presidential election is held, which will be at the end of his term, as defined by the South African constitution, in 2009.

This may seem strange to us, but it's within the bounds of South Africa's Washminster system. Back in Walter Bagehot's time, it was easy to point out the differences between the Westminster and Washington systems. However, over the last 150 or so years the Westminster system in some constitutional monarchies has gradually come to be more of a "Washminster" - the chief executive officier, the Prime Minister, has gained the powers of a executive president, while maintaining the petticoat of monarchy. Ironically, other countries following the Westminster system, such as Ireland or Malta, now have a purer Westminster system than New Zealand or Australia because they have ceremonial Presidents with clearly defined powers, and the ability to use then, as Queen Victoria had during Bagehot's time.

One country to formally acknowledge the reality of its Washminster system is South Africa. From the success of a whites-only republic referendum in 1961, the South African Governor-General became the "State President", and retained all the powers of the former Viceroy. In 1983, at a time of increasing international pressure on the white minority apartheid government, a tri-cameral system for different races was established. As a result, the State President became an executive presidentcy, elected by the national assembly - in effect replacing the Prime Minister of South Africa. South Africa wasn't the first country to adopt such a system, its neighbour Botswana did so in 1965 when it gained independence from Britain. With South Africa's post-apartheid constitution in 1996, the office simply became "President".

The election of Zuma now means South Africa has moved further away from the Westminster system. With the Presidency and party leadership now in different hands, the situation is now more like that of the United States. As noted above, if Zuma won the leadership of the ruling party in Britain, he would automatically become Prime Minister, as John Major did in 1990.

It's election year in New Zealand, and the political competition between the left, right and centre has begun in earnest. Some polls are showing a very close election result - primarily because of New Zealand's proportional representation system.

This of course creates great anxiety amongst the politicos - the potential for a hung parliament means an uncertain election outcome, which means instability and all that goes with it.

How should we avoid this uncertainty? Well, I propose dusting off a proposal from the late leader of the New Zealand Greens, Rod Donald. Donald proposed instituting investiture votes once parliament meets following an election. Such a vote would displace the Governor-Generals ability to appoint the Government, thus abolishing another part of the Royal Prerogative.