UNPACKING THE RULE OF LAW, ACCOUNTABILITY AND THE PUBLIC TRUST
8. SEPARATION OF POWERS
The Separation of Powers is a vital support for both the Rule of Law and Accountability. The ideal arose from Montesquieu’s[i] famous misunderstanding of the 18th century British constitution as involving a three-way separation of legislative, executive and judicial powers with no person or institution having more than one of those powers. This distribution of power means nobody has total power and that each form of power depends on the others. The legislature can pass a law but it needs the executive to put it into effect and it needs the judiciary ultimately to enforce it. A judge can enforce the law but can only enforce the laws in force at the time. The executive can only implement the laws made by the legislature and is likewise dependent on the judiciary for enforcement of its actions and whether its actions were within its power.
The separation is not, and cannot be, complete. Each institution needs incidental powers of the kind they do not theoretically enjoy. Courts legislate rules for the conduct of court proceedings and administer their courts;[ii] legislatures have powers of contempt and generally administer their buildings; and the executive makes subordinate legislation. However, the separation of judicial and other forms of power is absolutely central to the Rule of Law.
The separation between executive and legislature is different. They are formally quite separate in both US and Australian constitutions. However, the Australian constitution follows long time British practice of having strong links between the legislature and the executive through the requirement that ministers are members of the legislature and subject to scrutiny and instant dismissal should they lose a motion of confidence in the House or Representatives. This creates a risk of an over-mighty combination of powers but it also provides our core accountability mechanism lacking in US-style presidential systems. In such systems, the separation of powers is seen as giving the president a great deal of autonomous power which courts and legislatures are called on to respect.
The separation of powers is complicated by the necessary rise of integrity agencies such as ombudsmen, Auditors general, Information commissioners and integrity commissions. Some see them as part of the executive and subject to executive control. Others see them as independent officers of the Parliament (most explicitly under the Victorian Constitution). Others see them a ‘fourth arm’ of government. In most modern democratic constitutions they are given separate recognition. However they are characterized, they are an essential part of an effective National Integrity System.
Two fundamental drivers of increased trust are perceptions about performance and fairness. Performance is important where it matters to the individual and where it has improved or exceeded expectations. Fairness relates to matters of process and includes access to services, transparency, integrity and compliance.
Trust can link members of the public with a sense of collective identity, values and norms. The fundamental role trust plays in the well-being of the community is highlighted by community acceptance or otherwise of the stringent measures introduced in response to Covid-19.
To be meaningful, the trust needs to be based on reliable information and analyses. Trust can be misplaced if it is based on misleading or false information and may be greatly weakened where it later becomes known that this were the case.
[i] Montesquieu, The Spirit of the Laws (New York: Cambridge University Press, 1748/1989).
[ii] This varies from jurisdiction to jurisdiction with Federal courts having more control over their administration