Agree you were the first to raise the issue of a US style poll mobilization tactic. I see William has given you credit for this now.

Sorry, I must confess I hadn’t read your previous comment.

Much apologies.

But I’m glad to see this “conspiracy theory” has generated so much debate.

I wonder if blogs like these are influencing the political process in any way?

By this I mean, by openly debating the possible political machinations behind such moves, perhaps, just perhaps we are alerting the public to the possible ramifications?

Has anyone seen this issue picked up in the mainstream press yet?

Long live free speech.

As well as this, on the other side of politics the Liberals, NDP and Greens (although the Greens really don’t have much influence) all have different appearances in different provinces. In BC and Quebec the Liberal Party is actually the conservative party, and their voters (and indeed politicians) would usually support the Conservatives on a national level. The leader of the Parti Liberal in Quebec is a former cabinet minister in the last PC government. Indeed he became the PC leader when they were wiped out in 1993.

In British Columbia, rather than having a centre-right Conservative party, a centre Liberal Party and a left-wing NDP, they have a centre-right Liberal Party and a centre-left NDP, both of whom are more conservative than their national counterparts.

You also find substantial differences in policy between Green parties.

In comparison to Australia, we don’t find anywhere near as much separation, which I guess means there’s something to fall back on when you lose federal power. The ALP in 1996 still had a substantial presence on a state level, whereas in Canada provincial politicians generally don’t have any moral or political expectation to support their federal party.

196
Joshua Saunders Says:
August 10th, 2007 at 5:58 pm
J-D…

1. I’ve looked for the source, and not been able to find it. I think I read it in the 2002 version of Blackshield and Williams, but I don’t have a copy at hand. As George Williams sometimes posts here, I stand to be corrected. I was not able to corroborate this today using other sources.

3. I don’t think that’s quite what I said. Legislation can in fact prevent such review (subject to certain limitations and one obvious constitutional protection – s 75(v)). However, the court’s approach to determining what is justiciable (including consideration of whether privative clauses limit or deny the court’s jurisdiction) is an example of the operation of the principle of the separation of powers. Which is a round about way of saying there are certainly issues that could arise under the constitution that would not be justiciable before the High Court, as one of the consequences of the doctrine of separations of powers (and notwithstanding s 76(i)). Issues concerning actions of the Queen or GG would be clear examples.

However, there is no question that we have separation of powers under the Westminster system. It is implicit within our system of government.

4. The fact that the constitution doesn’t say what it is, doesn’t mean it doesn’t exist. Again, the convention of the queen/king appointing a minister (prime minister) to advise her/him on affairs of state, comes from the Westminster system, and is implicit within our system of government. Thus, Parliament makes laws, which are administered by the Crown (GG) on the advice of ministers under the Crown. Ministers are appointed under the Crown (which actually does make it into the Constitution – s 64).

1. I don’t know the book you’re referring to, but I’ll try to find it when I get a chance. Failing that, I might think about asking George Williams directly.

3. It may not have been what you said, but it was what somebody else said earlier. Which I think illustrates my point. Here’s you saying that ‘the separation of powers’ means the the High Court can’t direct the Governor-General and here’s somebody else saying that it means that the High Court can direct the Governor-General. To me, this means that there is no clear shared understanding of what ‘the separation of powers’ means, and in that case statements about it are not false but in the strict logical sense meaningless. I notice that you haven’t offered your definition of what you think it means, although you’ve talked around it a bit.

4. Again, what is the definition of ‘the executive power’? You’ve talked around this, but you haven’t given a direct answer to the question.

At the time of the dismissal, the Labor party sought orders in the High Court against the appointment of Fraser by Kerr as caretaker prime minister in circumstances where Fraser did not have the confidence of the lower house.

I’m not sure that’s right either. Like you, I can’t locate the source at the moment, but I’m sure I have a transcript of an interview with the then Solicitor-General, Sir Maurice Byers, where he says that he thought the Government (ie Whitlam et al) should have briefed him to go to the High Court and argue that Kerr’s actions were ultra vires and should be set aside.

d

1. I’ve looked for the source, and not been able to find it. I think I read it in the 2002 version of Blackshield and Williams, but I don’t have a copy at hand. As George Williams sometimes posts here, I stand to be corrected. I was not able to corroborate this today using other sources.

3. I don’t think that’s quite what I said. Legislation can in fact prevent such review (subject to certain limitations and one obvious constitutional protection – s 75(v)). However, the court’s approach to determining what is justiciable (including consideration of whether privative clauses limit or deny the court’s jurisdiction) is an example of the operation of the principle of the separation of powers. Which is a round about way of saying there are certainly issues that could arise under the constitution that would not be justiciable before the High Court, as one of the consequences of the doctrine of separations of powers (and notwithstanding s 76(i)). Issues concerning actions of the Queen or GG would be clear examples.

However, there is no question that we have separation of powers under the Westminster system. It is implicit within our system of government.

4. The fact that the constitution doesn’t say what it is, doesn’t mean it doesn’t exist. Again, the convention of the queen/king appointing a minister (prime minister) to advise her/him on affairs of state, comes from the Westminster system, and is implicit within our system of government. Thus, Parliament makes laws, which are administered by the Crown (GG) on the advice of ministers under the Crown. Ministers are appointed under the Crown (which actually does make it into the Constitution – s 64).

However, I also don’t think it is good news, electorally speaking, for Kerry Nettle. While there was a possibility Andren would beat her, the more likely scenario was that he would drop out early. If he had preferenced her (and I think this was likely) it would have given her chances a significant boost.

190
Joshua Saunders Says:
August 10th, 2007 at 1:47 pm
A few things:

1. On the power of the High Court to restrain the GG or force the GG to do something, the exercise by the GG of his constitutional powers (including the reserve powers) is not justiciable. At the time of the dismissal, the Labor party sought orders in the High Court against the appointment of Fraser by Kerr as caretaker prime minister in circumstances where Fraser did not have the confidence of the lower house. The High Court refused to consider the case. Whatever you think of Barwick’s advice to Kerr, there is little doubt that the judges got this bit right.

2. The GG is not an officer of the Commonwealth. Nor (obviously) is the Queen.

3. The separation of powers (particularly the independence of the judiciary) is not really embodied in the constitution per se (but see s 71 and s 72(ii)), rather it is a series of conventions in the Westminster system, that can be seen to operate in cases such as Boilermakers and attempts to legislate privative or ouster clauses (essentially legislative clauses that try to prevent judicial review of decisions made by the executive).

4. We do have an “executive branch” of government under the constitution – see Chapter 2.

5. Howard can resign the prime-ministership but keep his seat until the next general election. If the coalition retains government but has less than 77 seats, this is a realistic possibility.

1. Are you sure that the Labor Party actually sought such orders? Somehow that doesn’t ring true to me. Can you cite your source?

2. That’s what I would have thought.

3. I’m not sure why a principle (assuming for the sake of argument that there is one) that legislation cannot prevent judicial review of executive action should be called ’separation of powers’. But in any case, you are obviously not claiming that ’separation of powers’, whatever it means, has the consequences earlier asserted for it.

4. Chapter 2 does indeed say that the executive power is vested in the Governor-General. But it doesn’t define what the ‘executive power’ _is_.

5. Good point. I hadn’t thought of that.