Checks and Balances

At its most basic level, the rule of law is the concept that both the government and citizens know the law and obey it.  It operates as a safeguard from untrammelled discretionary power to ensure the law is supreme and those in power are subject to the law.

A common way to check and restrain power is to divide power between the judiciary, legislature and executive arms ie the separation of powers.

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.

Under the separation of powers, each arm is independent of each other with separate powers and responsibilities, so that power is balanced and no person or group of people has absolute power. Each arm is also interdependent, with some form of veto and checks to keep the other arms from exceeding their powers.

What is the difference between checks and balances?

John Adams, one of the framers of the United States of America Constitution,  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.

Balances

As outlined in the Australian Constitution, power is balanced between the three arms of government (the Legislature, Executive, and Judiciary) with each arm having its own separate functions and responsibilities. 

When the power is balanced, no arm has complete authority nor has so much power that the checks are able to be overridden.

Checks

Checks are mechanisms that limit or stop one person or arm of government from becoming too powerful and able to exceed their specific powers. Checks enable each arm of Government to review, criticise or override the actions of the other two arms. The community, through the media and the active and ongoing participation of citizens is also another check on power.

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 and to judge whether the law applies in individual cases.  When sworn into office, judges make the following oath:

to do right to all manner of people according to law, without fear or favour, affection or ill will

Firstly, the Judiciary administers justices to all manner of people and ensures everyone is treated equally under the law, regardless of their status or rank. They administer justice fairly and openly. The Courts are impartial. They make decisions according to the law, rather than external political pressures, personal, moral, or political views.   As outlined by former Australian High Court Justice Heydon the Judiciary is:

an independent arbiter not affected by self-interest or partisan duty, applying a set of principles, rules and procedures having objective existence and operating in paramountcy to any other organ of state and to any other source of power, and possessing a measure of independence from the wrath of disgruntled governments or other groups  

The Courts are independent from the Executive and Legislature.  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 any individual, not matter their status or rank, to challenge the decisions of the Government.

The Australian Constitution provides a check on the power of the Executive and protects the independence of the Judiciary from political interference by outlining the tenure and remuneration of the Judiciary. This ensures a judge cannot be sacked (or pay reduced) if they make a decision that Government or those in power dislikes.

To ensure the judiciary does not exceed it powers, there is a process of appeal to higher courts. The High Court of Australia has the power to overrule the decisions of all lower Courts.

The Legislature can override a courts interpretation of any ordinary law by passing or amending the law.  This is an important check on the powers of the Judiciary by ensuring the power to make laws is held by elected representatives in Parliament (the Legislature).

 

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.

As the Executive has power to carry out and enforce the law it has the greatest potential of all arms of government for corruption and for exceeding their power. Checks therefore must ensure the Executive acts in accordance with the law and is responsible to Parliament for their actions.

The Judiciary is a critical check on the overuse and misuse of power by the Executive. The Executive is the singly most frequent party in Court proceedings and the Judiciary has the power to determine whether the actions of the Executive are lawful.

Another important 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.

 

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 check on the Legislature is the parliamentary rules and procedures for the passing of laws. For example public readings of the bills and making bills 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’ slows down over-hasty legislation and enables 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.

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.

Education Resources

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

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