The rule of law operates as a safeguard from untrammelled discretionary power to preserve liberty for citizens by ensuring they can live free from the direct application of power.
Checks and balances are an essential component to prevent the abuse of power and foster accountability for any power exercised. Central to the system of checks and balances is the doctrine of the separation of powers.
The separation of powers describes how the law gives power to each arm of government in Australia: the legislature, the executive, and the judiciary. Each of these arms has distinctly separate functions and powers from one another to ensure that each may function independently and without undue interference. These three arms of government also act as important checks and balances on each other. The separation of powers is a concept that stems back to French political thinker, Montesquieu in 1748, who believed that the concentration of power in any single person or group of people as a threat to liberty. He said:
Constant experience shows us that every man invested with power is apt to abuse it, and to carry his authority as far as it will go….To prevent this abuse, it is necessary from the very nature of things that power should be a check to power….When the legislative and executive powers are united in the same person, or in the same body of magistrates, there can be no liberty; because apprehensions may arise, lest the same monarch or senate should enact tyrannical laws, to execute them in a tyrannical manner
What is the difference between checks and balances?
Checks are mechanisms that limit or stop one person or group of people from becoming too powerful. Checks enable each arm of Government to review, criticise or override the actions of the other two arms. This mechanism ensures each arm is accountable and acts according to the law.
Power is balanced between the three arms of government (the legislature, executive, and judiciary) so important checks can effectively operate. Each arm has its own separate functions and responsibilities. This ensures neither arm is too powerful and checks are unable to be overridden.
One of the framers of the US Constitution, and influenced by Montesquieu, John Adams, said of checks and balances:
It is by balancing each of these powers against the other two, that the efforts in human nature toward tyranny can alone be checked and restrained, and any degree of freedom preserved in the constitution
What are the specific checks and balances on each arm of government?
1. The Judiciary
The Judiciary includes judges and the courts. The role of the Judiciary is to interpret the law when there is a legal dispute.
The judge must apply the law (rather than their personal, moral, or political views) to make decisions and provide reasons for these decisions. This is an important check on the powers of the Judiciary by ensuring that laws are made by elected representatives in Parliament (the Legislature) and any disputes concerning these laws are decided by an independent, impartial body according to those laws.
Another significant check on the power of the Judiciary is judicial review. This means review by higher courts. The Judiciary has the power to strike down laws made by the Legislature and declare actions of the Executive unlawful. Judicial review ensures the other arms of Government are accountable under the law and are restrained from enacting laws that may be unconstitutional (and therefore invalid and unenforceable) and behaving unlawfully. This is a highly important check on the power of the Government because it provides a legal process in the courts for individuals to challenge the decisions of the Government. It also upholds an important rule of law principle: all individuals are equal and accountable under the law, and no one is above the law, regardless of their status or rank.
Lastly, the Constitution ensures judicial independence from the Executive and Legislature and protection from political interference by protecting the tenure and remuneration of the Judiciary. Therefore, a judge cannot merely be sacked (or pay reduced) if they make a decision that Government in power dislikes.
2. The Executive
The Executive includes ministers and the government departments, agencies, and statutory bodies they are responsible for. The role of the Executive is to propose (but not pass laws) and then implement laws passed by the Legislature into operation. It has the power to oversee Government Agencies and Departments and deal with social, economic, or environmental issues as they arise.
Checks and balances on the Executive ensure their power is used in a way set out by law. As mentioned before, the judiciary is the primary check on the overuse and misuse of power by the Executive.
Another check on the power of the Executive is scrutiny by the Legislature and Parliamentary Committees who have the ability to ask the Executive questions in Parliament and to disallow laws passed by the Executive. The Executive is also held accountable by the Shadow Cabinet and the ‘Opposition’ who are frequently critical of Government policy and legislation.
It is important to note that there is only partial separation of powers between the Executive and Legislature in Australia as members of the Executive are drawn from Parliament. It is also important to note that in the Executive arm lies the greatest potential and practice for power and, therefore, corruption.
3. The Legislature
The Legislature is an assembly of elected representatives, known as the Parliament, who has the legislative power to make laws. According to Tom Bingham, the Legislature, under the Constitution, may enact any legislation it chooses:
the Parliament has no legislative superior. The courts have no inherent powers to invalidate, strike down, superseded or disregard the provision of an ambiguous statute duly enacted by Parliament and indeed, an extremely limited power to enquire whether a statute has been duly enacted…
A further internal check on the legislature is that bills can only be passed according to parliamentary rules and procedures. For example public readings of the bills and the bills being made publicly available on the Parliament website enable scrutiny by the public and the media. The bi-cameral system of Government – one which has an Upper and Lower House of Parliament – is a significant check on the power of the Legislature. The important debate and scrutiny of bills within the ‘party room’ enable members of the Legislature to express the views and concerns of those who they represent. It is an important internal check on the power of the Legislature. The Upper House has been described as:
the most important of the constitutional checks on balances on excessive concentration of power…It is the one place where Government can, of right, be questioned and obliged to answer.
– NSW Legislative Practice Chapter 2
Another important check on the power of the Legislature is the ability of the Governor General to dissolve the Legislature, which is only done in exceptional circumstances. The Governor General also must give royal assent to laws passed by the Legislature.
Further, the Constitution balances the law-making power between Federal and State Governments. The Federal Government has the power to legislate with regard to issues such as defence, taxation and immigration, whilst State Governments can make laws in areas such as roads, hospitals, and schools.
Rule of law principles also guide law making. Laws should not be retrospective. This means that once a court decision is handed down, the Legislature cannot then reverse this decision by introducing laws that illegalise actions that were deemed legal at the time by the courts The laws must consider how they delegate power, and must not include arbitrary, overly discretionary or retrospective provisions, be clear, able to be complied with and relatively stable.
Whilst the judiciary is a check to ensure all legislation is lawful, the Legislature also acts as a check on the Judiciary because it can pass laws that override the decisions of the courts.
4. Citizens and the media
Democracies not only require institutional checks and balances, but they also require scrutiny from the public and media organisations.
This in turn requires freedom of the press, freedom of association and freedom of speech.
In the words of the Late Honarable Asche:
one of the greatest checks and balances of parliamentary democracy lies in the Australian citizen. Our greatest protect against tyranny lies in the fact that we are a nation of sardonic realists
Citizens are a check on the Legislature. Members of Parliament (the legislature) are voted in to power to represent the citizens in their electorate. Citizens hold their representative to account by voting (or not voting) them into parliament. Regular and fair elections enable citizens to hold their representative to account.
Citizens are also a check on the Executive. Through petitions, protests, consultations, submissions and letters to their elected representatives, citizens are a check on the power of those who implement the law.
Checks and Balances and the Rule of Law
A system of checks and balances is necessary to strengthen Australia’s rule of law. With power comes responsibility, and the need for continual review of such power is essential. The concentration of power in a single individual or body is a threat to liberty.
Checks and balances prevents the concentration of power in a single individual or body which would otherwise threaten Australia’s liberty. This important system prevents the abuse of power by fostering accountability of our representatives. Australia’s rule of law is therefore undoubtedly strengthened as checks and balances ensure no one is above the law, regardless of whether they are Government officials or not.
Senate Estimates Surveys
- Senate Estimates Survey No.7, survey
- Senate Estimates Survey of ASIC’s Responses to Questions on Notice, survey
- RoLIA Senate Estimates Survey No.6, survey
- RoLIA Senate Estimates Survey No.5, survey
- RoLIA Senate Estimates Survey No. 4, survey
- RoLIA Senate Estimates Survey No. 3, survey
- Senate Estimates Survey No. 2, media release