How Legislative Reforms in Western Australia Consolidate an Elected Dictatorship

November 22, 2021 Updated: November 22, 2021

Commentary

Despite repeated claims during the Western Australian (WA) election campaign, Premier Mark McGowan has swiftly used his parliamentary majority to overhaul the state electoral laws.

The passage of the Constitutional and Electoral Legislation Amendment (Electoral Equality) Bill through Parliament introduces a single state-wide electorate for the Upper House.

The six Legislative Council regions, with each electing six representatives, will be replaced by a monolithic electorate comprising the whole territory of WA.

Why is strong regional representation in the WA Parliament so important?

It has long been held that accountable government requires an effective separation of legislative, executive, and judicial powers.

Accountability is central to the democratic government, but this is not possible if power is concentrated in the hands of a few.

However, the design and operation of our current parliamentary system is not dispersing institutional powers, making accountability difficult to achieve.

In WA, the Crown no longer has any power to intervene in the political process, “dormant” or otherwise. However, the governor is constitutionally bound by the Australia Act to act on the premier’s commands.

In the words of Sir Ivor Jennings, “All power is likely to be abused unless it is adequately checked.” This is, it must be stressed, a problem of unchecked power.

Here we are reminded of Lord Acton’s warning that, “Power tends to corrupt and absolute power corrupts absolutely.”

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A general view of the Parliament of Western Australia in Perth, Australia, on Dec. 2, 2020. (AAP Image/Richard Wainwright)

Charles-Louis de Secondat, Baron de La Brède et de Montesquieu, generally referred to as simply Montesquieu, was a French judge, historian, and political philosopher.

To restrain the abuse of power, Montesquieu argued: “It is necessary from the disposition of things that power should be a check to power.” He also argued that there would be no protection against tyranny if the legislative power is not separate from the executive.

“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,” he said.

But it might be correctly stated that in the Westminster systems, there is no proper separation of executive and legislative powers.

Law professor Nicholas Aroney writes in the book Restraining Elective Dictatorship, “Under contemporary conditions of parliamentary government, there is a tendency for both executive and legislative power to be concentrated effectively in a very small group of senior ministers, dominated by the prime minister or premier.”

In this context, bicameralism, or the existence of a strong and independent Upper House, is an important means of checking executive government.

A thoughtfully constructed bicameral parliament can offer an opportunity for broader deliberation and avenues for scrutiny, thus providing more likely conditions for restraining the executive.

There is, therefore, a compelling reason for a strong Upper House, which, according to Aroney and co-authors Scott Prasser and J.R. Nethercote, “is about ensuring that the legislative power itself is dispersed rather than concentrated in a single house of a legislature which is liable to capture by a single party or small group.”

Having this in mind, the American founders turned their Upper House into a house of regional representation.

George Washington and Thomas Jefferson made a symbolic allusion to the moderating influence of this second legislative chamber: the Upper House is like the saucer that cools the coffee from the cup, the latter of which is an analogy of the Lower House.

Unfortunately, bicameralism has an unsettled place in Australian parliamentary traditions.

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A general view of the Perth City skyline with two native Black Swans on January 8, 2021, in Perth, Australia. (Matt Jelonek/Getty Images)

The Legislative Council has survived in all states apart from Queensland but is frequently in face of opposition from the Labor Party.

Accordingly, over the years, the very existence of the Upper House has been criticised because it was a bastion for privilege and wealth.

Of course, with the introduction of universal franchise, and more recently, regional representation via several districts, such arguments are false and misleading.

Patrick O’Brien, a former political science professor at the University of Western Australia (UWA), wrote in the book The Executive State: WA Inc. & the Constitution that the WA Legislative Council became the more popularly elected of the two houses of Parliament due to more independents and representatives of minor parties taking places in the council.

Devoid of regional representation; however, the Upper House would be less able to reject or amend any bill introduced by the executive.

The WA government has now acquired enough power to stifle democratic accountability.

This government has already acquired the power to muzzle the right of parliamentarians to inquire into the activities of the state government by appointing and dictating the terms of official inquiries.

As a consequence, McGowan has virtually unchecked power; or, in the words of Lord Hailsham, he has been presiding over what can be effectively described as an “elected dictatorship.”

The passage of the new Bill ultimately resulted in further concentration of power in the hands of a few. Moreover, it effectively diminishes local representation in Parliament. As a result, parliamentary checks and balances could be made functionally irrelevant to the democratic process.

The rise to dominance of the authoritarian leader in WA is also confirmation of the massive shift of power away from Parliament, or the legislative arm of government, to the executive or cabinet.

This process not only effectively allows the premier and his cabinet to decide on legislative measures arbitrarily but also to intervene in almost every single aspect of our lives.

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Health staff leave their uniforms in protest over Western Australia’s vaccine mandates outside of Dumas House, the residence of WA Premier Mark McGowan, in Perth, Australia, on Nov. 1, 2021. (The Epoch Times)

The Westminster system of executive Parliament lies at the very heart of Australia’s present constitutional crisis at all levels of government. As noted by Martyn Webb, who was an emeritus professor of geography at UWA, “this is a system of government which, by giving far too much power to the executive, corrupts democracy, reducing it to little more than a period right to vote.”

The effectiveness in WA of the Legislative Council as a check on the government-dominated Legislative Assembly has at the bottom line been seriously undermined.

The only checks to an increasingly authoritarian government in the state lie in civil society, but even there, the fundamental rights and freedoms of the people are constantly being undermined by a combination of legislation, executive decrees, and the proliferation of administrative bodies unconstrained by the rules of evidence and principles of natural justice.

Given the above, what the people of WA need is the establishment of a new constitution.

Our people will never be truly free until the nexus between the executive and legislative branches of government is finally broken and the people’s rights to govern themselves as sovereign in their own land be enshrined in a new constitution.

Unless new constitutional provisions limiting the power of the executive government are created, the ability of a small cabal within and around the WA premier to control parliamentary processes in a manner that is akin to an elected dictatorship inevitably will persist.

In sum, until constitutional reforms are finally adopted, nothing can be done to prevent the state from becoming an elected dictatorship.

Views expressed in this article are the opinions of the author and do not necessarily reflect the views of The Epoch Times.

Dr. Augusto Zimmermann is professor and head of law at Sheridan Institute of Higher Education in Perth. He is also president of the Western Australian Legal Theory Association, editor-in-chief of the Western Australian Jurist law journal, and a former law reform commissioner in Western Australia.