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┬áPres 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.

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