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Checks in the power plays

By Scott Prasser, Nicholas Aroney and J.R. Nethercote - posted Wednesday, 11 February 2009


In 1976 Lord Hailsham, a leading British Conservative politician, concluded that in Britain ''we live in an elective dictatorship, absolute in theory, if hitherto thought tolerable in practice''. His complaint, though not new at the time, drew attention to a long-term trend in Western democracies whereby governments though elected, faced limited scrutiny of their actions and few restraints on their excesses once in office.

Hailsham lamented that government controls the parliament and not parliament the government. Contributing factors to this state of affairs, especially in Westminster democracies, have included strict party discipline, centralisation of power in the hands of the prime minister and central agencies, growth in the size of government and legislation overload.

Increasing politicisation of the public service and loss of tenure for senior ranks of the bureaucracy have exacerbated the problem.

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Even in the United States where the separation of powers is more pronounced and party discipline more fluid, the debacles of Vietnam and Watergate and more recently the war in Iraq, highlighted excessive executive government power and secrecy and the limits of congressional oversight.

How can elected, single-party government machines be kept in check?

Political theorists of the past claimed that bicameral legislatures with upper houses acting as houses of review were the answer. However, the performance of some of these upper houses, especially in Westminster democracies, left a lot to be desired.

In some jurisdictions, weak, unelected or electorally compromised upper houses had limited legitimacy to review executive government actions. They were seen as houses for the privileged rather than houses of review. Instead, solutions for improved scrutiny of executive government looked to extra-parliamentary mechanisms such as more powerful auditors-general, anti-corruption bodies as in New South Wales, Queensland and Western Australia, or the occasional royal commission into corruption.

Fairer electoral systems were also introduced in some jurisdictions to improve democratic governance. Wide-ranging government reforms following royal commissions into scandals and corruption was another response. Despite these kinds of measures, a revived bicameral parliamentary system with a vigorous upper house can be more effective in tackling the elective dictatorship issue.

This is so for several reasons. First, many of the new external review mechanisms including anti-corruption bodies, while beginning with high levels of government support, often encountered opposition as their probes caused political embarrassment to the government in office. There was consequent attenuation of some of their powers and several restructurings. After all, executive government controlled their appointments, powers and resources. Even more traditional external watchdogs like auditors-general were not immune from attacks by the executive and suffered a loss of powers in several jurisdictions.

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Second, wholesale government reforms following royal commission inquiries into corruption such as Queensland's Fitzgerald inquiry ran out of momentum. Events in Queensland during the past decade concerning the hospitals' crisis, enforced and rushed amalgamation of local government, limited and manipulated sittings of the state's unicameral legislature and a flawed parliamentary committee system, highlight how limited the opportunities are to bring executive government to account even after Fitzgerald.

Last, but most important, is that as executive dominance derives from within parliaments, the solutions should be sought there. The operations of the Australian Senate as a consequence of proportional representation in acting as a house of review since the 1970s show how bicameralism properly constructed can improve scrutiny of executive government, broaden debate and give voice to minority, but not irrelevant, interests.

The fact that reform of upper houses in some Australian states (South Australia, Victoria) and overseas (Britain, Germany) has occurred or is on the agenda reflects renewed interest in addressing elective dictatorship issues through a more invigorated bicameral parliamentary system.

There remain challenges. Despite ending hereditary peers in the House of Lords, that chamber remains unelected, as does the Canadian Senate. In South Australia, Premier Mike Rann's promise to explore the abolition of the state's Legislative Council, has caused uncertainty about the fate of this extensively reformed chamber. We have yet to assess the reforms of the Victorian upper house, and in Queensland a restored upper house is denounced by both sides of politics.

At a time when a bill of rights is again being proposed there is a need to explore the benefits of a bicameral parliamentary system whose own democratic credentials constitutes a far more substantial accountability hurdle to executive government than any creation of ordinary statue law. Our recent publication Restraining Elective Dictatorships: The Upper House Solution? assesses the capacity of upper houses to tackle executive government dominance. It features 21 contributions from academics, parliament, the judiciary and elected officials, and includes rigorous examinations of
the roles of upper houses in Australia, Britain, Canada and the United States.

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First published in The Canberra Times on February 3, 2009.



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About the Authors

Scott Prasser is Professor of Public Policy and was Executive Director of the Public Policy Institute at the Australian Catholic University. Scott has worked previously in senior policy and research roles in federal and state governments and in several universities in Victoria, NSW and Queensland. Recently, Scott co-edited with Associate Professor Nicholas Aroney and J.R. Nethercote the book Restraining Elective Dictatorship: The Upper House Solution? He has just written with Helen Tracey a report entitled Beyond Gonski: Reviewing the Evidence on Quality Schooling.

Nicholas Aroney is a Fellow of the Centre for Public, International and Comparative Law and Reader in Law at the TC Beirne School of Law, the University of Queensland. He is author of The Constitution of a Federal Commonwealth: The Making and Meaning of the Australian Constitution (Cambridge: Cambridge University Press, 2009) and Freedom of Speech in the Constitution (Sydney: Centre for Independent Studies, 1998).

J R Nethercote editor, Australasian Parliamentary Review, is Resident Research Counsellor, The Menzies Research Centre. A Fellow of the Institute of Public Administration Australia, he has held various appointments in the public and parliamentary services including secretary, National Inquiry into Local Government Finance (1984-85); Acting Assistant Commissioner, Research and Information, Public Service Board (1986-87); convenor, Review of Australian Safeguards Office (1988-89); and secretary, Senate Select Committee on Uranium Mining and Milling (1996-97). He has jointly edited many books including Parliament and Bureaucracy (1982); The Menzies Era (1995); and Business-Government Relations in Australia (1997).

Other articles by these Authors

All articles by Scott Prasser
All articles by Nicholas Aroney
All articles by J.R. Nethercote

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