Parliament and the citizen

Donald Trump demonstrates why the separation of powers is important

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Unit 3 AOS 1: Parliament and the Citizen

Principles of the Australian parliamentary system: the separation of powers

Australia is a fairly young democracy, so when our constitution was drafted in the 1890s, the drafting committee had the advantage of choosing from models of government that operated successfully in other nations. One key principle of the Australian parliamentary system is the separation of powers, adopted and adapted from the United Kingdom and the United States.

Power tends to corrupt, and absolute power corrupts absolutely.

acton

Lord Acton, historian and moralist, 1887

The separation of powers is about how government is organised. The main functions of government are divided into three areas: legislative, executive and judicial.  Each area of government must be operated by different bodies. The principle is to avoid the abuse of any one power by a particular body. The three branches of government act to check the use of power by the others, and ensure that they do not exceed or abuse their power.

sop

Australia’s system does not observe as strict a separation of powers as the United States. In Australia, Government is formed by the party which has the most seats in the House of Representatives. The Prime Minister is the leader elected by that party, and they are sworn into office by the Governor General, who delegates the functions of Executive government to them.

Members of the executive arm of government, the Prime Minister and Cabinet Ministers, are drawn from the elected members of the Legislature, so they have overlapping functions in two branches of Government.

In the United States, the President is directly elected by the people. He and his administration are not elected members of the legislature, or Congress. However, the President is answerable to Congress which has the power to impeach a president for misconduct in office.

President Trump and Executive Orders

The US President has the power to sign executive orders. These are a form of delegated power. They allow the president to manage the operation of federal government without requiring specific legislation to be passed by Congress on every issue or policy change. In his first week of office, President Donald Trump has signed several Executive Orders, concerning the construction of a wall on the Mexican border, the withdrawal of funding for abortions by overseas aid agencies, and to restrict immigration of citizens from seven middle eastern countries to the United States.

executive-order

Donald Trump signs the anti-abortion executive order.  Kamala Harris

One function of the separation of powers is to ensure that no branch of government exceeds its authority in exercising power. Executive orders in the US must be based on legislation passed by Congress that delegates authority to the President to make such an order. It is up to the courts to review executive orders if there are concerns that they exceed their power, and judges may strike down executive orders if they consider that they go beyond any delegation authority contained in relevant statutes.

President Trump’s Executive Order restricting entry to the United States by citizens of seven predominantly Muslim countries has already been challenged in four court cases. The first judgment decided that individuals could not be detained or deported if they had been approved for entry to the US before the Executive Order was signed. This judgment prevents the Trump Administration from denying entry to all citizens from particular countries for 120 days.

Is this a Muslim ban? Trump’s executive order explained: The Guardian, 31 January 2017

Trump’s immigration ban: which cases are in play and what happens next: The Guardian, 31 January 2017

Reports that the Trump Administration is ignoring the orders of Federal Court judges in relation to the immigration raise alarming concerns for the observance of the separation of powers.

Will legal challenges to Trump’s visa ban succeed? The World Today, ABC News 31 January 2017

Updated:

Of additional interest Is the treatment of the now ex-acting attorney general, Sally Yates. While in Australia statutory office bearers are appointed by the executive, the US system provides additional safeguards for the separation of powers by providing for direct election of statutory officers, or endorsement by vote of Congress. When Ms Yates reached the view, as attorney-general, that the immigration executive order was not legal, she directed her staff at the Department of Justice not to defend court challenges. President Trump then summarily dismissed her claiming that as an Obama appointee, her performance was compromised. Presumably Trump appointees will not suffer such professional handicaps.

Donald Trump sacks acting Attorney-General Sally Yates over travel ban remarks – ABC News (Australian Broadcasting Corporation) 31 January 2017

Will legal challenges to Trump’s visa ban succeed? The World Today, ABC News 31 January 2017

The issuing of executive orders is not a custom that has been developed in Australian government. Do you think they could be an efficient way for the executive arm of government to implement policy and get things done more efficiently?

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