May 13, 2022Updated: May 13, 2022
Australia’s recent developments makes one deeply sceptical as to the current political system’s ability to promote accountability. Moreover, one wonders how much accountability is in evidence now that a former “Vaccine Commander” and a former “Chief Health Adviser” are appointed the governors of Western Australia and Queensland, respectively.
It is no wonder why so many Australians are becoming increasingly cynical about parliament, parliamentarians, and the manner in which the Westminster system operates. This is a crisis of considerable significance because the picture we see is of a vast concentration of powers in the hands of a few with respect to legislation and administration.
The present parliamentary system may have served us well in the past, but it is now sorely in need of reworking.
Not only is it no longer working, but it’s making it far too easy for a few politicians to acquire a vast amount of power and control over society.
Therefore, an important question facing Australia is whether the existing system of parliamentary supremacy should be retained, or a better and more democratic model be created that most likely embodies greater accountability and legitimacy.
For example, according to Campbell Sharman, a respected political-science professor from the University of Western Australia,
“Australia has a Head of State which is low in political legitimacy, but has all the powers bequeathed to it by the British monarchical tradition. The low legitimacy is in part a result of the lack of popular involvement in the choice of the Governor-General.”
There is little doubt that the ongoing decline of freedom in Australia is partly due to a lack of separation of powers.
To this effect, Washington University law professor Brian Tamanaha comments on the rationale for more rigidly separating the powers of the state:
“Freedom is enhanced when the powers of the government are divided into separate compartments—typically legislative, executive, and judicial … This division of powers promotes liberty by preventing the accumulation of total power in any single institution, setting up a form of competitive interdependence within the government.”
The Westminster system is a system of government originally developed in the United Kingdom. It is used, or was once used, in the local legislatures of most former British Empire colonies, Australia included.
This system is often contrasted with the presidential model originated in the United States, where there is at least a more rigid or proper separation of powers between the executive and legislative arms of government.
It is certainly inconsistent with the classic features of separation of powers for legislators to be entrusted large executive powers. However, under the system adopted in Australia there is no real separation of powers the executive is now entirely controlled by Members of Parliament (MPs)—especially the prime minister and his ministers in cabinet.
These MPs acquire a vast amount of powers to administer the Departments of State and other governmental agencies, as well as the power to perform police functions, military power, and foreign affairs.
Of course, the Queen is still the head of state and she appoints a governor-general to act as her “representative.” In reality, such appointment of our de facto head of state is the only power the Queen exercises personally, although by convention this is always done on the advice of the prime minister.
Being an appointment at pleasure, the governor-general can be dismissed at any time by the Queen on the advice of the prime minister, and, by convention, she would have to comply to that advice.
The conventions developed compel the governor-general to exercise his vast executive powers on the advice of the prime minister. This includes the powers to summon, to prorogue and dissolve parliament, to recommend money bills to parliament, to order a double dissolution and convene a joint sitting, to assent to legislation, to appoint members of Executive Council, to serve as Commander-in-Chief of the armed forces, and to submit constitutional amendments to a referendum.
The same model is followed in each Australian state. The Queen is Head of the Executive but her powers are exercised by a governor who is ultimately chosen (and controlled) by the premier.
Of course, one of the powers the governor-general (and the state governors) could in theory exercise independently of advice is that of disallowing legislation. However, this power has been made redundant at least since 1926, when a convention established that the power to veto any bill should never be used.
As noted by Gabriël Moens, one of Australia’s leading constitutional law professors, “the power of disallowance is now a dead letter. This section is among the inoperative sections of the Constitution.”
Democracy is a form of government based upon the principle of popular sovereignty, in which all power is exercised by the people or by persons chosen by them. And since the Australian Constitution was originally approved by the people, and can be amended only via a popular referendum, the nation is already founded upon the principle of popular sovereignty.
According to Sir Anthony Mason, a former Australian Chief Justice, in our constitutional system “ultimate sovereignty resides in the Australia people.”
In this sense, we could well do with a reform consolidating popular sovereignty by vesting the executive powers to a democratically elected head of state.
Curiously, the election of this head of state would be perfectly consistent with the Old English Constitution. In Anglo-Saxon times, as legal academic A.A. Preece correctly points out, “there was an elective element in succession to the throne, and there are still traces of this in the coronation ceremony.”
However, nothing will happen unless the citizens of this great nation start to press for genuine reform. Unfortunately, the durability of our system of parliamentary supremacy has made many of my fellow Australians uncaring of the excessive dangers of giving too much power of the grander kind to political oligarchs.
According to Andrew Murray, a former Senator for Western Australia from 1996 to 2008, “the worship of authoritarian leadership has a long and ignoble history in human affairs is strong in Australia. It accounts for those who knowingly vote for measures that increase the power of government and its leaders.”
One plausible explanation for this authoritarian culture, writes Martyn Webb, who was an emeritus professor at the University of Western Australia, “is that the continuance of Australia’s colonial past, rooted as it was in the foundations laid by its London-appointed autocratic governors helped create an authoritarian constitutional culture in which democracy is merely the means to secure and to exercise in the same autocratic way the powers of long-dead governors. There can be little doubt that having exchange one governing class for another, the new class is holding on to its powers, patronage, and privileges with just as much tenacity as did the old moneyed class.” (pdf)
At its best, the election of Australian Heads of State would represent the triumph of the common people over those who hold them in contempt, and over those who want to rule them by fear, manipulation and unchecked power. This reform would have as its foundation stone the principle of popular sovereignty and the truth manifested in the Charter of Bakery Hill, proclaimed at Ballarat in 1854: ‘The people are the only legitimate source of all political power.”
Views expressed in this article are the opinions of the author and do not necessarily reflect the views of The Epoch Times.
Augusto Zimmermann is professor and head of law at Sheridan Institute of Higher Education in Perth. He is also president of the Western Australian (WA) Legal Theory Association and served as a member of WA’s law reform commission from 2012 to 2017. Zimmermann is an adjunct professor of the University of Notre Dame Australia, and has co-authored several books including COVID-19 Restrictions & Mandatory Vaccination—A Rule-of-Law Perspective (Connor Court).