I like the idea of the executive cabinet coming from elected parliamentarians. This allows the people to keep the truly repugnant out of, not only parliament, but also cabinet. Yet in these days of ever-increasing social democracy an officious administrator is needed over a politician to keep the reigns on all the spending and ensure that the intended outcomes are met. Neither of these issues addresses the problem of how to structure the executive so that there is strong separation of powers between the arms of government.
Executive Cabinet
A simple innovation in the current parliamentary systems practised in Australia at the federal and state levels would be limiting the Executive Cabinet to drawing its members from either the House of Representatives or Assembly. This would at least give the upper houses, such as the Senate or Legislative Councils, some focus in acting as a check and balance on the combined power of the Executive and Legislative which is present in the lower house.
Currently the Executive Cabinet can be composed of members from both houses. This is not true of Queensland, the Northern Territory or the ACT, who have unicameral systems and lack an upper house. Between factions who can enforce party discipline and the mixing of the houses in the Executive, there is little stopping Executive over-reach.
In the federal system the Executive Council is composed of the Governor-General and the Executive Cabinet. The cabinet is headed by the Prime Minister and is composed of the government's senior ministers. The federal constitution makes no mention of the Prime Minister at all, which is the position of most power in the federal government. The Governor-General is also a ceremonial position and constitutionally must take the advice of the government of the day in how the Governor-General will act.
This is a throw-back to the Australian government's Westminster origins. In the United Kingdom the parliamentarians wanted to keep the King as the ceremonial head of the nation for political, religious and nationalist purposes; but strip the King of any political power in parliament. As a consequence, after King George lost the America's, and parliament became stronger and stronger in defying the King's interventions in politics, the convention became that the Prime Minister would advise the King.
Australia adopted a similar system in 1901 despite the monarch having no power left in the British system. Basically Australia adopted a system that is predicated on a hack to route power away from the monarch and neuter the King's ability to interfere in the process of government.
Executive Function
The goal of separating the Executive from the Legislative is so that one branch of government makes laws (the legislative) and the other implements or executes those laws (the executive). This is to stop one person, or one body of government, making a repugnant law, funding that repugnant law and then enforcing that repugnant law. It is a barrier to tyranny.
With the ever increasing legislation and growth in government function and responsibility the executive cabinet, and its portfolios have grown. In the United States the secretaries to the President are appointed, through Senate agreeance. These have also grown in number since the days when the American republic was first founded. Despite the stronger separation of powers in the US system, there has been no inhibition on the growth of government, nor any increase in ministerial or secretarial accountability. Factions have successfully managed to dampen those effects.
So should Australia adopt a separate executive?
Purity of principle would require it and strong separation of powers remains the best way to deal with the inevitable negative passions of those that seek power. Yet the parliamentary system is relatively stable, and seemingly no more, or less prone to tyranny than a Presidential one. A separate Executive poses the problems of elected vs appointed officials. In the United States some counties and states try to address this by having elections for the Attorney-General and Sheriffs.
Does separating the executive and legislative functions give more positive outcomes? This must be answered yes. The checks and balances which are enabled by separating the two branches of government increase oversight and limit the room for a branch to fall into extremism. There is limited possibility for this in a parliamentary system where the Prime Minister dominates - and coupled with parliamentary discipline, a majority in both houses can mean that a government will guillotine legislation and bills through.
So Parliamentary or Presidential systems both suffer at the hands of factionalism.
Governor-General
The Governor-General is a political eunuch in the Australian system. Because of the inherent weakness in our constitution and its separation of powers, electing a Governor-General will probably force a showdown between the Prime Minister and Governor-General over executive powers. Both will claim mandates from the people to see their policies implemented and enforced.
One way is to get around this is to make the Governor-General represent the constitution and a bill of rights. The Governor-General would be constitutionally required to veto any bill that contravenes the constitution or the bill of rights. This would give the Governor-General a small area of executive and constitutional responsibility that is separate to the executive power of the Prime Minister so they don't try to steal each others executive authority.
This would also be a strong check on tyranny, as candidates for the Governor-General position would compete over who can protect the constitution and the rights of those under the government the best. But veto is a check on legislative power rather then executive power. This would not stop a Prime Minister passing a benign law and then enforcing it in a repugnant manner. The sedition laws are probably a good example of where this could be open to abuse.
The check on executive implementation of laws under a strong separation of powers and checks and balances is by the legislative. Committees and other legislative functions are intended to bring the executives conduct under focus. But again, partisanship and factionalism can destroy that check and balance.
Do we need a Governor-Magistrate? One who can actively institute commissions on the executive branch of government with legislative oversight? Basically the Governor-Magistrate heading a form of ICAC which does not answer to a minister, but is a sub-arm of the executive in the same way that the judicial is.
Best Protection
The best protection from factionalism and government over-reach remains the people. Sheer numbers of people can statistically dampen out the concentrations of factions in government. This should be leveraged to interact with government directly. We have such technologies in use already, for instance a jury is the people deciding on points of law. The jurors are chosen by sortition. This same technology can be used to have large numbers of the population vote or participate in government directly - from bill to bill, audit to audit, or even sit directly in parliament.
