Page 785 - Week 02 - Thursday, 23 February 2012
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The central tenet of the doctrine is that a system of government which disperses rather than concentrates power will militate against despotism. The modern formulation of the separation of powers doctrine entails the establishment of separate executive, legislative and judicial functions, each exercising distinct and discrete powers and each of which provides a check and balance on the others.
Of course, under the Westminster system of parliamentary democracy the distinction between the legislative and the executive can at times be somewhat blurry. This arises from the fact that the executive is drawn from the legislative branch, rather than being completely separate from it, as occurs in a system such as that which operates in the United States. In our system of government, members of the executive are also members of the legislature.
This brings with it a number of benefits in terms of responsible government, but also presents challenges in terms of clearly defining the demarcation of the separation and determining the legitimate exercise of legislative and executive powers. The effective constitution of the Australian Capital Territory—the Australian Capital Territory (Self-Government) Act 1988—recognises and gives effect to the separation of powers doctrine by establishing a democratic polity within the ACT. Through parts IV, V and VA of the self-government act, the three separate branches of government, each with their own specific functions and powers, are established.
Given that the legislature relies so heavily on the advice and support given by the parliamentary support agency it is only appropriate that a legislative framework, which codifies its functions and asserts its independence from executive interference, is appropriate. To date, this has not occurred. This bill seeks to remedy that situation.
The bill abolishes the Legislative Assembly Secretariat and establishes a new office, the Office of the Legislative Assembly. The new name better reflects the character of the organisation and its broad function—also provided for—to “provide impartial advice and support to the Legislative Assembly and committees and members of the Assembly”. The bill further provides for a range of specific functions to be performed by the new office.
The bill does not create a new stand-alone parliamentary service and employment framework in the manner provided for by the commonwealth’s Parliamentary Service Act 1999. Instead, staff of the office continue to be employed under the existing Public Sector Management Act and remain ACT public servants. However, the bill makes it clear that neither the Clerk nor staff of the office are subject to the direction of the executive or any minister in the exercise of their functions.
The bill recognises that there are benefits for the institution of the Assembly, the office and the wider ACT public service in maintaining a single public sector employment framework which allows mobility of staff between the office and other parts of the service. Staff of the office will remain employed under the Public Sector Management Act and be subject to the obligations of employees set out in section 9 of that act.
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