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  • Peter Francis Fenwick

Separation of Powers

Last week, in response to a suggestion that an independent body be established to evaluate infrastructure projects, the Treasurer, Joe Hockey said, “ The thing I’m always wary of is setting up a new independent body…where you just give them money and they determine where the money goes, because ultimately, as a person elected by the people of Australia, I’m accountable for that.”

“ If you set up a body that has no accountability – none – no shareholders, no elections, no nothing – and they are spending billions and billions of dollars of taxpayers’ money, I instinctively don’t like that.”

Well I beg to disagree. I think it is essential that regulations should be administered by a separate professional authority not by members of the parliament who made the laws; that final decisions should definitely not be made by the Minister and that administrative decisions should be subject to judicial review.

The principle of the separation of powers has been acknowledged for a long time. Here is what William Paley wrote in 1785:

The first maxim of a free state is that the laws be made by one set of men, and administered by another; in other words; that the legislative and judicial characters be kept separate. When these offices are united in the same person or assembly, particular laws are made for particular causes, springing oftentimes from partial motives, and directed at private ends: whilst they are kept separate, general laws are made by one body of men, without foreseeing whom they may affect; and when made , must be applied by the other, let them affect whom they will.

The provision of infrastructure is an engineering discipline. The assessment of requirements involves skilled and complex mathematical modelling, taking into account what exists at the moment and the range of possible changes to usage caused by social preferences, population growth and prosperity. The delivery requires engineering skills to build for the future while maintaining current services. Planning has to be coordinated and have a generational timeframe.

Decisions on the provision of sewerage, water supply, energy, telecommunications, and road and rail networks are best made by professional bodies led by engineers and mathematicians. Having infrastructure and urban planning decisions dominated by the political process means that choices are made for short-term electoral advantage, producing sub-optimal results and piecemeal projects. A better framework is to have these services delivered by private organisations or by well-funded and empowered statutory authorities.

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