I like the idea of the executive cabinet coming from elected parliamentarians. This allows the people to keep the truly repugnant out of, not only parliament, but also cabinet. Yet in these days of ever-increasing social democracy an officious administrator is needed over a politician to keep the reigns on all the spending and ensure that the intended outcomes are met. Neither of these issues addresses the problem of how to structure the executive so that there is strong separation of powers between the arms of government.

Executive Cabinet

A simple innovation in the current parliamentary systems practised in Australia at the federal and state levels would be limiting the Executive Cabinet to drawing its members from either the House of Representatives or Assembly. This would at least give the upper houses, such as the Senate or Legislative Councils, some focus in acting as a check and balance on the combined power of the Executive and Legislative which is present in the lower house.

Currently the Executive Cabinet can be composed of members from both houses. This is not true of Queensland, the Northern Territory or the ACT, who have unicameral systems and lack an upper house. Between factions who can enforce party discipline and the mixing of the houses in the Executive, there is little stopping Executive over-reach.

In the federal system the Executive Council is composed of the Governor-General and the Executive Cabinet. The cabinet is headed by the Prime Minister and is composed of the government's senior ministers. The federal constitution makes no mention of the Prime Minister at all, which is the position of most power in the federal government. The Governor-General is also a ceremonial position and constitutionally must take the advice of the government of the day in how the Governor-General will act.

This is a throw-back to the Australian government's Westminster origins. In the United Kingdom the parliamentarians wanted to keep the King as the ceremonial head of the nation for political, religious and nationalist purposes; but strip the King of any political power in parliament. As a consequence, after King George lost the America's, and parliament became stronger and stronger in defying the King's interventions in politics, the convention became that the Prime Minister would advise the King.

Australia adopted a similar system in 1901 despite the monarch having no power left in the British system. Basically Australia adopted a system that is predicated on a hack to route power away from the monarch and neuter the King's ability to interfere in the process of government.

Executive Function

The goal of separating the Executive from the Legislative is so that one branch of government makes laws (the legislative) and the other implements or executes those laws (the executive). This is to stop one person, or one body of government, making a repugnant law, funding that repugnant law and then enforcing that repugnant law. It is a barrier to tyranny.

With the ever increasing legislation and growth in government function and responsibility the executive cabinet, and its portfolios have grown. In the United States the secretaries to the President are appointed, through Senate agreeance. These have also grown in number since the days when the American republic was first founded. Despite the stronger separation of powers in the US system, there has been no inhibition on the growth of government, nor any increase in ministerial or secretarial accountability. Factions have successfully managed to dampen those effects.

So should Australia adopt a separate executive?

Purity of principle would require it and strong separation of powers remains the best way to deal with the inevitable negative passions of those that seek power. Yet the parliamentary system is relatively stable, and seemingly no more, or less prone to tyranny than a Presidential one. A separate Executive poses the problems of elected vs appointed officials. In the United States some counties and states try to address this by having elections for the Attorney-General and Sheriffs.

Does separating the executive and legislative functions give more positive outcomes? This must be answered yes. The checks and balances which are enabled by separating the two branches of government increase oversight and limit the room for a branch to fall into extremism. There is limited possibility for this in a parliamentary system where the Prime Minister dominates - and coupled with parliamentary discipline, a majority in both houses can mean that a government will guillotine legislation and bills through.

So Parliamentary or Presidential systems both suffer at the hands of factionalism.

Governor-General

The Governor-General is a political eunuch in the Australian system. Because of the inherent weakness in our constitution and its separation of powers, electing a Governor-General will probably force a showdown between the Prime Minister and Governor-General over executive powers. Both will claim mandates from the people to see their policies implemented and enforced.

One way is to get around this is to make the Governor-General represent the constitution and a bill of rights. The Governor-General would be constitutionally required to veto any bill that contravenes the constitution or the bill of rights. This would give the Governor-General a small area of executive and constitutional responsibility that is separate to the executive power of the Prime Minister so they don't try to steal each others executive authority.

This would also be a strong check on tyranny, as candidates for the Governor-General position would compete over who can protect the constitution and the rights of those under the government the best. But veto is a check on legislative power rather then executive power. This would not stop a Prime Minister passing a benign law and then enforcing it in a repugnant manner. The sedition laws are probably a good example of where this could be open to abuse.

The check on executive implementation of laws under a strong separation of powers and checks and balances is by the legislative. Committees and other legislative functions are intended to bring the executives conduct under focus. But again, partisanship and factionalism can destroy that check and balance.

Do we need a Governor-Magistrate? One who can actively institute commissions on the executive branch of government with legislative oversight? Basically the Governor-Magistrate heading a form of ICAC which does not answer to a minister, but is a sub-arm of the executive in the same way that the judicial is.

Best Protection

The best protection from factionalism and government over-reach remains the people. Sheer numbers of people can statistically dampen out the concentrations of factions in government. This should be leveraged to interact with government directly. We have such technologies in use already, for instance a jury is the people deciding on points of law. The jurors are chosen by sortition. This same technology can be used to have large numbers of the population vote or participate in government directly - from bill to bill, audit to audit, or even sit directly in parliament.

Mid-term elections as a check and balance on the Executive are impossible in Australia due to the Feds and States being Westminster systems. This means the Executive is embedded in the Legislative as the Prime Minister or Premier led Executive Cabinet, not to mention the Executive functions of the Governor-General/Governors and Monarch. Would Australia benefit by having a Presidential system at the federal level? We are certainly mature enough and there have been some Australian governments that could have done with a party-machine based check and balance on their behaviour in parliament.

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.

x-posted at clubtroppo

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.