Research assignment (comparison)
By comparing and contrasting the legislative, executive and judicial powers of the Commonwealth Constitution (Australia) with one non-Westminster political and legal system, evaluate the proposition that the Australian system is more effective in ensuring a separation of powers.
- Because Australia is a Westminster system, separation of powers is not fully enforced.
- Constitution assumes separation of powers, does not explicitly state them, but is implied
- Ministers must be members of the legislature
- However, the majority of the Exec is separate (public service, Queen, GG)
- GG and Queen has many reserve powers that allow it to intrude on leg and jud
- Non-binding conventions are the only things stopping GG from exercising them
- Judiciary is chosen by Exec, appointed by Parl
- GG may pardon/make decrees, but does so very rarely because of conventions.
- Thus, it could be argued that conventions are the only thing ensuring separation of powers
- Legislature is becoming little more than a rubber stamp to Cabinet (Exec) decisions
- Becoming more politically motivated (parties)
- Note that in recent years, Senate is becoming more effective in scrutiny because of minor parties
- Exec is non-partisan, except for Minister
- Indonesia, a presidential system, ensures a more enforced separation of powers
- Constitution explicitly states the separation of powers
- The different arms are almost totally separate
- Checks and balances exist, however, in most cases, two arms must work together to hold to account the third arm.
- Pres is has the power to pardon and make decrees, and does so regularly, thus taking over some leg and jud powers. Hence, there is a potential for misuse, since there is nothing stopping them from doing so, in fact, the Constitution allows it.
- Exec may propose new laws and discuss with legislature
- Exec is often made up of members of different political parties or apolitical people, so Exec decisions are non-partisan
Powers of the Executive
- Australia’s GG has reserve powers, allowing them to exercise judicial and legislative power
- These powers are not exercised because of conventions
- Thus, it could be said that conventions are the only thing ensuring SoP, and conventions can be broken
- Indonesia’s Pres has powers allowing them to exercise judicial and legislative power
- These powers are regularly exercised as a check and balance
- According to Moh. Mafud, far too regularly for the purposes of checks and balances
- Thus, it could be said that Indonesia is not as effective in ensuring SoP
- However, executive regulations are subject to immediate review by Parl, so in that sense it is more effective
- Indo’s Pres cannot dissolve parl, but GG can.
- In Aus, Parl can withhold supply to hold Exec to account; in Indo, it’s impossible (previous year’s budget automatically stands)
Parliamentary v Presidential
- Exec in Indonesia is completely separate, as opposed to Australia, where the Exec is part of the legislature
- Indo could be said to be more effective in ensuring SoP
- However, the main gov’t departments in Aus are completely separate
- Also, the main SoP is legislative/executive from judiciary.