Research report

Independence of Parliament

01 May 2017
CREATORS
This paper provides some background to the importance of the separation of the legislature, executive and judiciary, and examines how modern parliaments in the Westminster system, including the Victorian Parliament, are faring in their attempt at preserving and maintaining a degree of independence from the executive.
DOI
10.4225/50/596040bfb3406

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Description

Much of the discussion on the 'independence of parliament' has focused on the importance of the separation of the legislature, executive and judiciary. This is in order to limit the arbitrary excesses of executive power to protect democratic systems. Where did this notion come from and why has it been so well-guarded and staunchly preserved within our Westminster system over the past few hundred years? What motivated the founders of the United States of America in the 1700's to enshrine similar checks and balances into their newly created democracy to clearly separate their legislature from the executive and the judiciary?

To answer these questions, one must gain some understanding of the essential meaning of democracy and the importance of good governance and the balance of powers which underpin democratic systems. This paper provides some background in this area and examines how modern parliaments in the Westminster system, including the Victorian Parliament, are faring in their attempt at preserving and maintaining a degree of independence from the executive.

This paper starts by looking at where these democratic principles came from and examines some of the key political theories surrounding the separation of powers: the independence of the executive; legislature and judiciary in Westminster systems; Latimer House Principles; and parliament's fundamental role of holding the executive to account.

Judicial independence and the importance it plays in strengthening democracy through retaining independence from both the legislature and executive are outlined in Part 2 of the paper, along with a brief discussion on court funding and whether this should be controlled by the executive.

A deeper examination of the level of independence that the Victorian Parliament has from the Executive, has led the authors to assess where Victoria's Independent Officers of Parliament are placed in this area. Part 3 of the paper examines Victoria's five Independent Officers and the important roles they perform to assist Parliament in strengthening democracy. Their role is to keep a check on the Government and report back to Parliament; however, the paper raises concerns about their ability to operate independently, free from executive control, whilst being funded and appointed by the Government. The paper suggests a review of these Officers and their relationship with Parliament and the Executive should be undertaken in order to strengthen their capacity to enhance the independence of Parliament.

Part 4 of the paper reviews some of the key literature and reports published over the past twenty years in relation to parliamentary independence. It focuses mostly on Victoria and Australia, but also includes references to research overseas, such as the Commonwealth Parliamentary Association's (CPA) discussions on parliamentary corporate bodies (PCBs), including the Latimer House Principles. Much of the focus has been on parliamentary funding and the need for more independence and control by parliaments over their appropriation. The literature suggests that the executive has perhaps encroached too far in this area, resulting over time in what could be described as executive creep—leading to a weakening of parliamentary independence, as we have documented has occurred in Victoria.

Part 5 of the paper provides a jurisdictional comparison of how Australian parliaments are faring, specifically in the area of parliamentary funding. It provides a detailed discussion of the Victorian Parliament and briefly examines the Commonwealth, state and territory parliaments. The ACT Parliament is of particular interest as it has instituted a PCB which provides its Parliament with greater financial independence from the Executive. The Victorian analysis also raises important issues regarding the current purchaser-provider funding regime, the Financial Management Compliance Framework (FMCF) and the Office of the Opposition.

The Victorian Parliament has made several attempts over the past 25 years to address the issue of financial independence, yet little progress has been made. Two Joint Select Committee reports (1991 and 1992) and the Russell Review (1991) sought to strengthen parliamentary independence from the executive, yet the only result was a separate Parliamentary Appropriation Bill, which has not led to any significant strengthening of Parliament's financial independence. What is interesting to note is that out of all the Westminster parliaments which have opted to institute a PCB, none of these have found the need for a separate Parliamentary Appropriation Bill.

Part 6 of the paper examines parliaments in the United Kingdom, Canada, Ontario and New Zealand, specifically in the area of parliamentary funding and the functions of their PCBs. These models of parliamentary funding are successful and provide useful models for the Parliament of Victoria to consider. They are the House of Commons Commission, the Scottish Parliamentary Corporate Body (SPCB), both Canada and Ontario's Board of Internal Economy and New Zealand's Appropriations Review Committee. These are all models of best practice in Westminster parliaments and the Victorian Parliament should assess them if it wants to achieve greater financial independence from the executive.

The paper concludes with a summation of where the Parliament of Victoria is positioned in relation to its independence from the Government. The paper takes the view that independence from the executive is a good thing for Parliament, as this leads to a more robust democracy. The paper finishes by making three suggestions for the Victorian Parliament and, importantly, the Victorian Government to consider in order to strengthen parliamentary independence and democracy in this state.

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PUBLICATION DETAILS

Resource Type: 
Identifiers: 
ISSN
2204- 4752
DOI
10.4225/50/596040bfb3406
APO URI: http://apo.org.au/node/90326
DOI: 
10.4225/50/596040bfb3406
Publication Place: 
Melbourne
Series Title: 
Research paper
Series Volume/No.: 
No. 3, May 2017
Language: 
License Type: 
CC BY-NC-ND
Peer Reviewed: 
Yes