The Australian Federal Government has broken its constitutional bounds and is actively coveting the States responsibilities. The recent election campaign put the states on notice that the Liberal Government was going to take over education while the Labor health policy took health funding and administration from the States.

The basis for a Federation is that the power resides in the States with the small area of common interest being ceded to a Federal Government. These are normally nothing more than defence, international trade, inter-state trade, border control and immigration. In the 21st Century, the Australian Federal Government has crashed through these limited responsibilities.

The Federal Government has done this through taxing for the states and consequently controlling their funding. Coupled with that has been the meekness of the States and the inherent structural flaw in the Westminster in its inability to combat entropy of power to the centre.

Dissolve The States

The anti-federalist meme has sufficiently implanted itself into the polity that most major parties openly talk about removing the states as regional government and having all state responsibilities transferred to Canberra. The Democrats and Greens both have this as a stated policy goal on their websites.

John Howard in an interview in 2003 mentioned that if Australia was done again, then it wouldn't include the states. Currently all state governments are Labor, rather than his Liberal government, it may have been politics talking but Howard's education policy in the 2004 election allowed Parent and Teacher Organizations to bypass the States and appeal directly to Canberra for funding.

The Labor Party was no better, their health policy having won the acceptance of the states for the federal government's take over of that responsibility ;

Federal Labor has won endorsement from all state and territory governments for the takeover, which is likely to be seen as a trial run for a total takeover of health by the Commonwealth.

This notion has gone beyond the political parties and been accepted by the general population. A post-election letter to the editor in the Sydney Morning Herald contained these words;

The best reform both major parties could now work towards is the abolition of state governments. The efficiencies generated could massively improve all the hospitals, schools, water supply and public transport infrastructure where the current state administrations have long proved themselves spectacular failures.

William S Lloyd, Denistone, October 10.

The Federal Government has effectively coveted and controlled the States and their funding sufficiently for this "dissolve the states" meme to have been planted firmly in the population.

Taxatious Government

Previous to the John Curtin government in World War II, the States used to have income tax rolls and raise their revenue as they need through that. Part of the battle between the federal Lyons government and NSW Lang government was over the income tax rolls which Lang had hidden from the federal government.

With World War II the Curtin government created legislation that gave the federal government the first bite of the income tax pie. The constitutionality of this legislation was challenged by South Australia and Western Australia, but the High Court upheld Curtin's grab. This meant the federal government could become the primary recipient of income tax, making it politically impossible for the states to tax income.

This led to the federal government taxing for the states, an abominable thought in government. A government is only supposed to tax to maintain itself, it is not supposed to tax so much that it hands out the extra tax to the six states and two territories. This is completely anti-federalist.

GST

The Howard Government changed the system from government grants to the States from the federal governments income tax gathering to the GST. This is a nation wide 10% levy on all goods and services. The 2003 federal budget actually bragged how the Liberal Government had brought in more tax money that ever for the States. Once again, a government is only supposed to tax for "just" what it needs and no more. After that, it becomes theft from the individuals.

One of the main issues with the federal government granting money or collecting money for the states is the number of strings that it comes attached with. The Federal Government through its control of the purse and the flow of revenue can quietly manipulate where the money is to go to, punishing the states and programs that disagree with it.

The collecting of revenue for the states also helps in making them see superfluous and insignificant. If the federal government is "propping" them up by handing them tax money, then they can be construed as a drain on the federal government, rather than the federal government making naked power grabs for the states responsibilies.

Under Australia's current anti-federalist system, the federal government is open in its power plays for the states responsibilities with the obvious (and stated goal) being to centre all legislative power in the federal government. If this was part of a Swiss like Canton system it may be acceptable, but it is more like the English system where there is one big massive honking federal government in London and nothing else as a barrier to the overt centrism of the British system.

The Weakness of the Westminster System

The Westminster system is a political hack, it is a patch to a monarchical system that centres absolute power in the monarch. To get around this political reality of British heritage, the British politicians of the 1700's began to route power around the monarch through an Executive embedded in the Legislative arm of government.

While this was an improvement over the absolute power of a monarch dominated parliamentary system, it left a lot to be desired in the very necessary separation of powers (that even Joh Bjelke-Peterson failed to understand). The Washington system which was developed in the late part of the 18thC contained a far better understanding and constitutionally mandated separation of powers, placing the Executive outside of the legislative and under the revue of the legislative.

The British system contains London, and more recently the Scottish parliament, but below that national government is the local councils. Britain has no notion of federalism as it pertains to colonies, states or provinces allowing a small subset of their powers and responsibilities to be maintained by a federal government. The Westminster system was created in this environment.

By contrast the Washington system was created with the reality that the power lay with the States, and ratifying the confederation of the then colonies in the United States was not an easy manner. Many smaller and southern states opposed such a union as they saw their power and authority being subject to the potential tyranny of a federal government.

Even with the grafting of a popularly elected Senate on the Westminster system by the "Bearded Men" in 1901, the Australian Wash-minster system is more Westminster than Washington and contains all the problems of no separation of power between the Executive and Legislative. This leads to an increased rate of entropy and pressure placed on the conventions by the ongoing stress placed on the systems by governments seeking absolute power.

The Westminster is not strong enough a system to stop this rot and consequently the States it seems will eventually be consumed by the federal desire for the states responsibilities.

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.

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.

In a crikey article Charles Richardson puzzles at the success of American democracy. Bit silly really, considering that the Washington System is a more modern and fully functional representative democracy than the Westminster form despite the US federating in 1787 and Australia in 1901. Our little mutation grafted as much of the Washington system on as we could to give the clunky old Westminster system some perception of modernity.

Charles Richardson writes;

Ultimately, this is probably the secret for the otherwise puzzling success of American democracy. The system may work not in spite of but because of its dysfunctionality: politicians who in other countries might be spending their time enacting policies and therefore screwing things up, in the US are always out running for re-election.

Pretty dumb statement considering all the modern democracies run in permanent election mode, Australia is no different. John Howard has been noted for the short term focus of his policies which rarely peer beyond the next election cycle.

The success of the American democratic system is that Americans have a commitment to it. American voters are largely reasonable people and recognize poor governance when they see it. They also understand that the party machine that is in opposition to the party of the President can be an effective check and balance on executive largess and arrogance.

Australia has no such system in place. The best we have managed is the Australian Democrats holding the balance of power in the Senate to act as a check and balance on the Executive Cabinet. In unicameral parliaments such Queensland, Tasmania, the ACT and NT, there is no such upper house to act as a barrier to the Executive which is entwined with the Legislative.

The American system works because it is designed to tease out and make transparent all the bad actions and policies of each branch of government. The strong separation of powers makes the actions of the Executive, Legislative and Judicial obvious, and where it is opaque, a competing branch has the ability to peer into the operations of that branch and make it public.

I get a laugh out of Australians claiming that our form of democracy is so superior, so reasonable and so stable. One of the claims is that we came to self-government without a revolution, but Australia's advance to a nation-state came at the cost of much violence against minorities. The United States largest minority - the South - was powerful enough to challenge the government. Australia's largest state in 1932, NSW, came within an angel's breath of civil war with the Federal government.

The American system is designed for constant and vigourous accountability; whether it is representatives facing election every two years to keep them closely accountable to voters and public opinion, or senate confirmations on judicial appointments, the Executive vetoing bills, or committees scrutinising the Executive's expenditures of their money bills. It is designed to force public accountability.

If a democratic system is running too neatly, too cutely, too smoothly and without much going in the public eye; it is because one branch of government, usually the executive, has too much power, or because one party controls the majority or all branches of government.

An editorial argues that constitution reform for the Cayman Islands is way overdue. From the article:

Without a doubt, the development of a new constitution for these Islands is long overdue. It is of utmost necessity that we therefore create a document that can take this country forward, and the sooner the debate on the constitutional review issue begins, the better.

Meanwhile, it is rather surprising that the current administration and the Opposition seem hesitant to define what they would like to see emerge as future governance for the Islands

The Cayman's are a Carribean nation with a population of about 45,000. Originally it was administered by Jamaica, but the Cayman's became independent in the 1950s. As would be expected from a former British colony, it follows a Westminster style of governance with a ceremonial Governor, unicameral legislature. Apparently there are fifteen elected members and three appointed in the Assembly.

This is the webpage for the Cayman's Constitution. It appears that the Cayman Islands are doing the same as what Queensland did in 2001, and modernising their constitution from a collection of statutory acts from the UK, into a single constitutional document.

An interesting article in the Independent titled: Brown may bring in written constitution . Britain's constitution is a non-written one, unlike America's and Australia's. Britain has non-contiguous acts which make up what would be called a constitution, but they are not in one entrenched or statutory act. A written constitution would bring Britain into line with modern constitutional practice.

A common aspect of modernising Westminster systems has been creating a unitary constitutional document. Australia went along that path with federalisation, creating an entrenched constitution. New South Wales and Victoria also have single constitution, but not with all part entrenched. Queensland and Canada have both been recent Westminster system which updated their constitutions to the Washington style (it should be noted some Greek city-states from antiquity had written constitutions, so it wasn't an American invention).

However, the Australian states of Tasmania, Western Australia and South Australia all have unwritten constitutions - as does New Zealand. In fact, IIRC, Tasmania and Western Australia share a founding British Act as their first constitutional legislation.

The biggest and best known Westminster system is the British Parliament. When the British Empire decided having an agrarian empire was too costly, it started exporting responsible government to its colonies. Centralised control of America led to revolution, but local self-government, rather than colonial Naval Governorships, aided the political growth of colonies such as Australia, Canada and New Zealand.

Unwritten constitutions are largely based on convention and precedent, which means their institutions do not change much. For instance a House of Lords still appears in the British system, and due to its non-democratic nature proves to be a constant temptation for corruption - witness Blair's peerage scandal. Unwritten constitutions also build up bizarre absurdities as conventions arise organically rather than constitutional or statutory law. A good example of this is Taking The Chiltern Hundreds .

From the article:

The Chancellor, who will launch his campaign for the Labour leadership today, will promise to make constitutional reform a priority. He wants to bring in a "new politics" as he tries to repair the damage after Mr Blair was accused of taking Britain to war in Iraq on a false prospectus.

A written constitution could spell out the respective powers of the Government and Parliament, boosting the ability of the Commons to hold ministers to account and, for example, being guaranteed a vote before military action. The blueprint could also outline the rights and responsibilities of individual citizens.

Will the constitutional rigour of a single document lead to Britain having a Bill of Rights? Really; no modern constitution and and no political system that operates as a market-state is complete without one. Australia's reason for not having one is executive selfishness, the Westminster system gives way too much power to the executive and a bill of rights is negative and restrictive to government action.

Anthony Barnett asked the six candidates for deputy leadership of the British Labour Party their opinion on a written constitution. He got full replies on open democracy. The questions are excellent and the replies, for the most part, are straight forward.

Hazel Blears comes off worst in the answers. She argues against a written constitution as it gives too much power to judges, who come from a 'narrow strata' of society. This is false. Judges are given tenure as specialists based on merit in a republican system.

Britain's constitution is part written in statutes and partly maintained through custom and convention. The judicial plays exactly the same role as in a written system, just that the constitution is harder to amend in a written one.

Activist judges are a problem, but they are exposed as activists because of the clarity a written constitution provides.

There is still the issue of constitutional law and practise being developed outside of the written constitution itself, and ended up an aggregate of constitutional allowances, but in most cases, such as Income Tax and Workchoices, it is Parliament that is taking advantage of that activism and not relinquishing their new judicially won powers.

It is as much a failure of Parliament as the High Court. An unwritten constitution will not change that, and if anything, an unwritten constitution is far easier to change statutorially and by breaking convention - especially in an emergency - which is usually when constitutional bounds are expanded.

Blears also states that she is 'at heart a unicameralist'. A parliament with one body is probably the worst of all structures. Great for the executive in a Westminster system, but bad for governance. The unicameralist parliament in Australia managed to produce the unchecked excesses of Joh Bjelke-Peterson.

One of the purposes of a written constitution is to restrict government through clear law, that is higher than statute, meaning government cannot amend it without a referendum or public will (though NSW has only parts of its constitution entrenched).

The constitutional law and organisation structures are design to expose tyranny quickly, and to recover from a tyrannical government or action with haste. Unicameralism is very weak in this area.

The answers by the other candidates on the purpose of a written constitution did not touch this issue. Most of the answers were that the written constitution handed power to individuals and the community. For instance Peter Hain:

Yes - as a way of handing more power down to individuals and local communities, and entrenching democratic rights and accountability.

Presumably his view of a constitution is one that Parliament cannot amend at whim, which means the entire document will be entrenched and only modified by referendum.

From the comment Hain sees a written constitution as being synonymous with a Bill of Rights. This is a very modern republican view of a constitution - which in republican doctrine is incomplete without constitutional liberties that the legislative and executive cannot intrude into.

The third aspect of his statement is that he appears to see the written constitution as a chance for organisational renewal. The House of Lords is an undemocratic body in British system. He answers in another question:

I am in favour of replacing the House of Lords with a fully, democratically elected Senate, with powers to revise but not block legislation so that the primacy of the House of Commons is not undermined.

Hain's does not mention how the Monarchy fits into his comment, in what is a very republican statement. Others answered on the House of Lords that it should not be able to amend bills or veto a bill from the House of Commons.

Anthony Barnett is to be congratulated for asking good questions, and the candidates for their replies. Very interesting.

Via Westminster Wisdom, Vino discusses assymetrical devolution of the British political system.

Australia uses the technology of federalism and a written constitution to separate the political responsibilities between the national government and the states.

The British constitution is a mix of practice, convention and statutes over time but until recently there has not been a growing layer of government outside the national parliament in London and the local councils.

The devolution and establishment of Scottish parliament, the Welsh Assembly and Northern Ireland parliament, without the clear cut separations of federalism or confederacy have raised some issues.

Vino argues that asymmetrical devolution is natural in national systems and can be accounted for politically without too much disorder.

Secondly, looking abroad asymmetrical devolution does exist in a number of cases abroad. In Spain, Catalonia and the Basque country have more autonomy than other provinces of Spain. The Spanish Constitution enshrines the right of provinces to ask for and negotiate autonomy with the Centre - if they wish.

Due to their history and to the existence of indigenous nationalist movements, Catalonia and the Basque country have done so. Other provinces have not felt the need to do so.

Also, although it is mostly a uniform federal system, the US does have forms of asymmetrical devolution too. Washington DC does not have the autonomy a state does. It is under a form of direct rule by the federal government.

Such is a case of asymmetrical devolution, as powers are vested in states which are not vested in the local government of Washington DC.

It is interesting to note that the Australian Territories have been evolving into the federalist structure with self-government, and presumably becoming states in the future. The Northern Territory has already posed the question of becoming a state.

Washington DC by comparison has its budget approved by a committee in Congress. It has a delegate in Congress but like delegates from Puerto Rico, American Samoa and Guam, the representative is a non-voting position who can take part in floor debates.

There is a great deal of resentment in Washington DC that they do not have full Congressional enfranchisement in the House and Senate. The number plates on cars for Washington DC have "Taxation Without Representation" emblazoned on them.

Vino argues that asymmetry is often a needed political compromise:

The Spanish case, to me, is a case where asymmetrical devolution has been designed to reach a much-needed compromise between the nationalist aspirations of local nationalists and the desire of the bulk of the people and of the country as a whole to maintain a degree of national unity.

Autonomy which leaves local nationalists of a community satisfied can stop short of outright independence. Such autonomy enables a compromise between the nationalist aspirations of Catalan nationalism and the desire of Spanish nationalism to keep Spain united.

Gracchi however does see a need for an English Parliament. This would make the UK more akin to a Federalist system as currently the national parliament is doubling as the English parliament.

The issue at the moment in the UK is that there are various asymmetrical devolution settlements - there is not just one problem - but Parliaments in Wales, Scotland and Northern Ireland all have different powers and in England there is no body with those powers.

All other decisions are taken at a national level - hence whilst a Scottish MP at Westminster can vote on English health matters he can't vote on Scottish health matters.

This produces the situation like in England recently where a measure passed charging English students for their university stay, because Scottish MPs voted for it, when Scottish students receive free university education. There is here a manifest injustice.

Gracchi also argues that this form of political structure is incompatible with representation and leads to unjust democratic outcomes where "votes mean different things in different places".

Fascinating discussion. Both links are well worth the read.

In a republican context term limits on the executive and legislative is usually framed from the perspective of liberty. Relatively frequent changes of position stop politicians remaining too long and becoming entrenched in the position and estranged from their electorate and popular will. The balance is to make the changes frequent enough to protect liberty, but infrequent enough to enable competence.

The Killfile argued today for term limits from the perspective of good executive governance. His argument is that leaders who stay too long in parliamentary systems destroy the electoral capability of an opposing party. Maybe we could call it the Menzies effect.

From the Killfile:

Still, I think there is an argument to be made for a fixed limit in the top job. The premiers all gave it about ten years before handing over the reigns, which probably means that ten years is too long. Something a little less might be more appropriate.

If NSW is a good example with the Independent Commission Against Corruption [ICAC] both Greiner and Carr were being investigated before the eight year mark, so approximately six to eight years is the optimum for a party leader to provide good governance before the temptations of power catch up with them. As adam noted in the past; term limits save politicians from themselves.

Killfile leans to eight years with four year election cycles, similar to what NSW has:

If we accept that Howard has achieved anything, then he probably would have achieved it all in eight years, if he knew that was all he had.

Importantly, though, he would know that he came with a used-by date, and toward the end of that second term he would have been actively auditioning for a replacement.

There had to be a transition (to a new head of the party, rather than necessarily to a new Prime Minister, as that would be up to the electorate), so it likely would have been planned and orderly.

Interested parties could have used the time to express their interest, and start making the electorate aware of what they stood for (does anyone seriously know what Peter Costello stands for, even now?).

I think three years is the optimum, the two years of the American Congress is too short, and the four years of NSW parliament is too long. Three years is a good balance. Six years in the top executive position is enough for a leader to make their mark and I agree with Killfile that orderly transition from that period would improve governance.

It would stop the fiasco of Keating taking power where an obvious talent was backbenched, it would also alleviate the Costello situation where a Prime Minister has refused to loose the reigns even when they appear to be in a hopeless position. It is a bit more difficult with Howard however; as until recently he was electorally competitive.

I prefer term limits from the republican point of view and protecting liberty while keeping representatives close to their electorate. It is easier to term limit a separate executive IMO. Harder to do with a parliamentary executive which is more informal than a separate one. For instance the PM is not mentioned in the Australian Constitution at all.

I like the idea of limited the Prime Minister and Premier to two terms or six years. I also like limiting legislators to twenty-five years of service. It is a generation in length and if they haven't achieved anything by then the system should kick them out.