17.6 Extra-Constitutional Limitations On Government Power
From The Role Of A Constitution by LJM Cooray (1996)

There are three major extra-constitutional limitations on government power:

  1. elections and political institutions conferring power on electors
  2. the rule of law and
  3. the existence of independent institutions.

The rule of law is analysed in section 18. The analysis to follow focuses consequently on (i) and (iii).

The Role Of The Electors
The political sovereign (the electorate) is expected to operate as a restraint on government power. See also section 4.4. Where the area of executive and legislative power has not grown to the proportions it has reached today, a government would be bound to implement its program through the legislature (Parliament or Congress). The legislature is elected by the people on a mandate. The legislature could be held to its mandate, if it were not for:

  1. the breakdown of the constitutional limitations on the powers of the legislature;
  2. the wide powers of initiation of legislation possessed by the executive;
  3. the wide and relatively unfettered powers of the executive including the executive power of enacting delegated legislation and
  4. the rise of the corporativist state.

The safeguards in liberal constitutions and constitutional theory have been undermined in various ways some of which surface in sections 16 to 18.

The Existence Of Independent Institutions
The existence of a multitude of independent institutions is one of the most characteristic features of western civilization, reaching back to ancient times. This feature reached its height during the middle ages and is still important today, although in a truncated form. It was the formative framework for many of the values, conventions and institutional processes which are taken for granted today, setting the civilised tone of western society. The notions of law and legal rights, of personal liberty, of free endeavour and freedom of thought, of authority and the concept of jurisdiction, of the freedom to stand out, the idea that justice is better than compromise or arbitration and that right is superior to expediency and conformity, the Western value of independence and the responsible individual all these can be traced to this principle of independent institutions for their institutional and cultural establishment.

These characteristics of institutions can be traced at two levels. The first level is the independence from state and from one another, of the various kinds or categories of institutions, such as church, state, university, professions, trade and mercantile, cultural and sporting associations. The second level is the independence and diversity within each of these main categories. For example, the diversity of denominations within the church and of orders, localities, institutional structures and charitable organisations within the various denominations. Within and associated with the state, there are various independent and semi-independent spheres of power and association, such as the branches of the armed services and their civilian associations (such as the RSL), the civil service, the judiciary, the legislature and its several Houses, the executive government, state and federal governments and free cities. Similar patterns apply for the other groups, and it is only necessary to add that there is considerable overlap and interaction between all of the various groups and institutions which go to make up the cultural activity, unity and, at the same time, diversity of society.

The existence of independent institutions is important for two reasons. It is

  1. conducive to cultural freedom and
  2. essential for cultural vitality.

Independent Institutions Conducive To Personal Freedom
The existence of a multiplicity of independent institutions is conducive to personal freedom. In a society characterised by such an interdependent structure, the individual has the option of entering into, or giving his allegiance to, any one (or perhaps more than one) of these institutions. Furthermore, he has the option of leaving one in which he is engaged and transferring his allegiance to another. This affords him a measure of direct protection from abuse at the hands of any one of, or even a collusion of, the various groups and institutions. The man who is persecuted in one denomination may join another. The man who is persecuted in the civil services may go into business.

Further, this primary measure of protection gives rise to a secondary measure of protection by means of the principle of competition. The existence of a range of alternative independent institutions not only provides a remedy for the dissatisfied man; it also provides an incentive for his associates to promote his satisfaction if they wish to retain his association.

There is a further aspect of this system as it relates to personal freedom. This is the possibility of neutrality. It may be that the individual does not care to associate with a particular institution which wishes to foist itself upon him. Indeed, he may not care to associate with any institution at all.

Independent Institutions Essential For Cultural Vitality
The existence of a multiplicity of independent institutions is essential to the cultural vitality of society. Such a system avoids the sterility of a system where every aspect of human life and activity is directed by a single power (totalitarianism).

The sterility of totalitarianism is the result of the monopolistic direction of all the varied affairs of human activity by persons whose expertise is confined to one area (usually political survival skills) in conformity to the precepts of a totalitarian ideology and the censorship of all activity which is not in conformity with the precepts, and conducive to the goals, of that ideology.

On the contrary, a system of independent institutions allows for the free and direct expression, in various activities, of those differences of emphasis and opinion which are born out of differences in education, training, scholarship, experience, purpose and natural taste. By allowing for these factors, a free society is much more likely to attain to the highest and truest virtues in the various fields of its cultural activity, unencumbered by any ideological straight-jacket.

Furthermore, the personal freedom in such a society allows the individual who is not aligned to any great institution to make his own contribution. This is an essential part of cultural vitality because, so often, it is the individual of genius, who dares to be different, who is the instigator of cultural advancement. One man can achieve more than a committee. Many individuals have been influential in the fields of science, philosophy, religion, art and music, law, trade, government and so on. Such men can have only very limited opportunity in a system where all power is centralised. They will have only such opportunity as the central power chooses to afford them.

The Advantages Of Independent Institutions Being Undermined
The advantages that institutional independence give our society are personal freedom and cultural vitality. Such a system is not inherently divisive or destructive. Some institutions and individuals compete, react to each other, debate, argue, co-operate, make exchanges, advise each other and persuade each other. In so doing, they are interdependent from a basis of independence. The result, on the whole, is a society which is cohesive and healthy rather than divided by firmness of incommensurability. But even where there is division, that is far healthier than an artificial unity which consumes all originality, efficiency, vitality and life itself.

To repeat Lord Acton's aphorism: "Power corrupts: absolute power corrupts absolutely". Just as within the state a division of powers, a system of checks and balances, makes for a well-regulated state, so a healthy society is characterised by a very wide distribution of institutional power. Such a distribution has gone into the formation of the west in general and Australia in particular. In that distribution, the state had its place and did not trespass into other jurisdictions. The modern state, however, has overleapt its boundaries. It is fast consuming the jurisdictions of once independent institutions and reducing them to shells or to instrumentalities of the state. Many have come to depend upon state patronage either through state monopolisation of cultural markets or simply by accepting state funding and spending to an extent which makes them reliant on the continuation of such funding. Modern Australia has received the legacy of a free society. It remains to be seen whether that legacy will be preserved.