The responses of the Australian government to the COVID-19 pandemic had an overwhelming impact on the enjoyment of fundamental legal rights in this country. However, such disdain for fundamental rights does not come as a surprise to those who know how our Westminster System is presently applied in Australia.
Since there is no proper legal-institutional mechanism for holding our governments to account, the result is that Australian governments are objectively accountable to no one, except once in a few years at parliamentary elections.
The Westminster System is a parliamentary system of government originally developed in the United Kingdom. The term comes from the Palace of Westminster, the seat of the British Parliament. This system continues to be adopted in the United Kingdom and former British colonies such as Australia.
The Westminster System has resulted in an Australian prime minister (or premier) who heads the government, and a ministry comprised of members exclusively drawn from Parliament, which exercises executive authority and is theoretically accountable to the legislative branch.
This parliamentary system can be contrasted with the presidential system originated in the United States of America, where there is a more rigid separation of powers between the executive and legislative branches of government.
Because parliamentary conventions related to the Westminster System are not subject to judicial review, the judiciary does not entertain any dispute regarding their non-observance.
No Rigid Separation of Powers
The Governor-General of Australia is appointed by the King on the advice of the prime minister.One of the powers that the Governor-General theoretically exercises under section 59 of the Constitution, is that of disallowing legislation.
However, as Emeritus Prof. Gabriël A. Moens explains, “the power of disallowance is now a dead letter. This section is among the inoperative sections of the Constitution.”
In our Westminster System, Members of Parliament (MPs) are appointed by the Governor-General to administer all the laws of the Commonwealth.
Accordingly, there is no rigid separation of powers between the legislative and executive branches of government under Australia’s constitutional system.
Because no power can be trusted with absolute authority, it has long been held that the doctrine of separation of powers comprises “a critical aspect of every system of government which hopes to combine efficiency and the greatest possible exercise of personal freedom.”
In his book, “The Spirit of Laws” (1748), Montesquieu explained that a more rigid separation between the executive and legislative branches of government is a fundamental protection against political tyranny. According to him,
“When the legislative and executive powers are united in the same person, or in the same body of magistracy, there can be then no liberty, because apprehensions may arise, lest the same monarch or senate should enact tyrannical laws, to execute them in a tyrannical manner.”
According to Thomas Jefferson, the main drafter of the American Declaration of Independence, “concentrating [executive and legislative] powers in the same hands is precisely the definition of despotic government.”
However, under Australia’s parliamentary system, executive ministers are drawn from Parliament and the executive arm of government, once endowed with legislative authority provided by the legislative, may set aside even the most fundamental rights of the subject.
Consequence of Concentration of Powers in Australia
Unfortunately, here in Australia, Emeritus Prof. Suri Ratnapala comments that it is “one of the great ironies of political history, the growth of Parliament’s legal power to remove a government from office” has actually reduced its political power to hold a government to account.Since under the nation’s parliamentary system, the executive has considerable control over legislation passed in Parliament, few are the laws in Australia that politicians cannot voluntarily change.
According to Nicholas Aroney, an Australian constitutional law professor, “under contemporary conditions of parliamentary government, there is a tendency [in Australia] for both executive and legislative power to be concentrated effectively in a very small group of senior ministers, dominated by the prime minister or premier.”
This is why Australians are not entirely free from the threat of political tyranny, and quite to the contrary.
Indeed, the design and operation of our parliamentary system is not about distributing powers but rather concentrating them, which makes accountability and protection of fundamental legal rights more difficult to achieve.
To make it worse, in Australia, writes Ratnapala, “the High Court, despite having full judicial power, has declined to impose on Parliament any significant constraint on its competence to delegate its legislative power to the executive.”
According to the late Sir Harry Gibbs, former Australian Chief Justice:
“There is no constitutional impediment to the exercise by one branch of government of the powers of another. No statute can be held invalid because it confers powers of one kind on an instrumentality of another kind ... The executive and the legislature are closely connected.”
This means that any Parliament in Australia may repose in the executive a function that is essentially legislative in nature
“It is indeed difficult to reconcile these decisions with an acceptance of the principle of the separation of powers,” Gibbs concluded.
In fact, the present legal-institutional design operating in this country appears very much to facilitate what Lord Hailsham famously described in his 1976 Dimbleby Lecture as an “elective dictatorship.”
Therefore, it is really no wonder why so many basic rights of the citizen can be so easily ignored and violated in Australia.
Sadly, ongoing facts in this country have worked as a testament to Lord Acton’s epigram that “power corrupts and absolute powers corrupt absolutely.”
