The powers are separating in the ACT.
Remember John Bjelke-Petersen, the former Queensland Premier, faltering under cross-examination in the Fitzgerald inquiry. He did not have the faintest idea what the doctrine of separation of powers is.
“”You, you, you tell me,” demanded the former Premier, head of Executive Government, leader of the majority party which dominated the single House legislature and which had made every judicial appointment for the past 10 years and which had passed laws limiting judicial discretion for a decade.
He did not know, and that he did not know highlights the dangers of majority government in single-House Parliament especially in a state whose voters have a natural tendency to always vote for one party _ in Queensland’s case the National Party at that time; in the ACT’s case the Labor Party.
A majority government (of either complexion) in a single-House Parliament gets arrogant, does what it likes, passes what laws it likes, loses any sense of separation of powers and if there long enough, becomes corrupt.
Fortunately, the ACT is not going down that path, and will not go down that path provided independents hold the balance of power or that there are reasonably frequent changes of government.
(The first Assembly was an aberrant three-party European concoction caused by unusual circumstances, and should be ignored in this analysis.)
With the independents holding the balance of power we are seeing some examples of separation of power of almost American dimensions and goes beyond what we have seen even in the Federal sphere or in NSW, the two Executive Governments most hampered by independents and minority parties combining with the Opposition in the Legislature.
Like the Federal Government, the ACT Government has had to bend on its budgetary proposals, when the independents reversed an education cut. Like the NSW Government, the ACT Government has lost a Minister either in or under threat of a no-confidence motion. Like the NSW and the Federal Governments, the ACT Government has had its legislative program amended or blocked from time to time. And like the NSW Government, the ACT Government will not gets its way on electoral matters (which is more fundamental than other legislation).
The ACT legislature has gone further. It applied the doctrine of ministerial responsibility very strictly. Wayne Berry went down (according to the key independents) through omission rather than commission because he failed to tell the Assembly for four weeks about Victoria’s decision on the TAB, and through reckless rather than deliberate misleading.
And it is about to go further still. In the same sitting that Wayne Berry went down, it approved in principle, over government objections, the Statutory Appointments Bill.
Basically, the Bill provides that all appointments to statutory offices (for example the Milk, TAB, Canberra Theatre, Bruce Stadium, Tourism, Electricity and Water boards and trusts) will have to be referred to an Assembly committee (presumably, with a preferred candidate and maybe, unless there are good reasons, some alternatives). The Minister must take account of any committee recommendation.
And then there is the sting. All appointments are “”disallowable instruments” which means the floor of the Assembly can veto the appointment. This is a severe in-road indeed into Executive power. No more jobs for the boys.
The Liberal Party, in agreeing to the Bill, cited several Government appointments of Labor Party members to board positions which carry very attractive sitting fees.
The Attorney-General, Terry Connolly, said the NSW Liberal Government would not thank the ACT Liberals for this precedent.
Connolly argued against the Bill saying it would lead to American-style witch-hunts through committee confirmation hearings.
The ACT has not gone completely for the US system. The Assembly will not have control over appointment of ministers and their staff, nor over the appointment of judges and magistrates.
Independent Michael Moore would like judicial appointments included, but cannot get Liberal support, at least not yet. Nor will it cover the head of ACT Administration because the Chief Minister is given power to appoint him or her under Commonwealth law (the ACT Self-Government Act).
(Incidentally, the ACT Assembly elects the Chief Minister, formalising the Legislative control over the Executive.)
More is to come. A plan for some form of citizen’s initiative, citizen’s veto or citizen’s entrenchment has majority Assembly support. This, however, does not go to the separation of the three Westminster powers, but adds a fourth power _ the people _ directly into the process.
These inhibitors of Executive power are detested by Governments. However, “”mates” will not get put up for jobs if they have to run the gauntlet of Assembly approval. Ministers will not mislead through omission if they know they will get the chop. Governments will be less likely to propose legislation that gives too much ministerial discretion or has other flaws if they know it will not get through. In short, Governments will be saved from themselves, and the people can only benefit.