Separation of Powers in Australia

Summary

  • Entrenched in the Constitution (Chapters 1, 2, 3).
    • Legislative power is vested in the Parliament, made up of the Queen, HoR and Senate ( s 1)
      • Parliament may delegate legislation to other bodies, including the executive

 

  • Executive power is vested in the Queen (s 61)
    • Ministers must be part of the legislature (s 64)

 

  • Judicial power is vested in the High Court (s 71)
    • Only courts established under Chapter 3 can exercise judicial power (NSW v C’th 1915 – wheat case; Lane v. Morrison 2009).

Separation of powers does not fully exist between Exec and Leg (Westminster model). However,

  • GG may act independently of legislature (reserve powers)
  • Gov’t departments must be apolitical and give frank and fearless advice
  • Holders of ‘office of profit under the Crown’ may not sit in the legislature (s 44, Sykes v Cleary 1992)
  • Impractical to separate the two (Victorian Stevedoring v Dignan 1931)

Main separation between judiciary and exec/leg is enforced (William Blackstone model; see Montesquieu quote)

Brief History

  • Sir Henry Parkes, ‘Father of Federation’ gives the Tenterfield Oration in 1889
  • 1891 – A Constitutional Convention was held to discuss the possibility of federating. Sir Samuel Griffith drafted a Constitution
  • 1897-98 added to the draft, added some conventions of responsible gov’t
  • Conventions were made up of people appointed by colonial parliaments, mostly politicians.
  • Passed by the British Parliament in 1900, came in effect Jan 1 1901.

Chapters of the Constitution

I – The Parliament

Prescribes Parliament, the legislative body of the government

Parts I, II, III, IV and V talk about General, the Senate, the HoR, Both, and Powers

II – the Executive Government

III – the Judicature

IV – Finance and Trade

Prescribes how money is controlled by the government

V – the States

Prescribes the division of powers between the States and the C’th

VI – New States

VII – Miscellaneous

VIII – Alteration of the Constitution

Powers of the Head of State

  • The head of State is the Sovereign of the UK, currently Elizabeth II
  • Queen may appoint a representative in Australia to act on her behalf.
  • GG is currently Peter Cosgrove, governors represent R in each state

 

Express powers; the GG exercises the following powers only under advice of the PM and Ministers

  • GG is chosen by the PM, Queen acts on PM’s advice (s 2)
  • PM is the leader of the majority party in the HoR
  • Prorogue or dissolve Parliament, calling elections (s 5, 28)
  • Appoint a Federal Executive Council (GG-in-council) – s 62
  • Commander in chief of the naval and military forces (s 68)
  • Appoint HC judges ( s 72), ambassadors etc.
  • Assent to Bills passed by Parliament (s 58)

 

Reserve powers; the GG may exercise these without and contrary to the advice of the PM

  • Dismiss ministers ( s 64), including PM
  • Refuse Royal Assent (last happened in 1858, Victoria concerning Duration of Parliament)
  • Dissolve parliament, or refuse to
  • Grant pardons (that is, commute sentences. Conviction still stands)

Powers of the Judicature

  • s. 71 vests judicial power of the gov’t in the High Court
  • The HC may hear appeals from any State Supreme Court or lower Federal Court (s 73)
  • ss 75 and 76 establish the original jurisdiction
    • Between States, individuals and the C’th
    • International treaties
    • (76) Issues arising from the interpretation Constitution
    • Issues arising from Federal legislation
    • Maritime law
  • May make laws (common law) – if no statue law exists. Also, may interpret statute law.
Checks and Balances:
  • They are allowed to exercise judicial review (but only if a case is brought before them), and strike down legislation if unconstitutional
  • The legislature may override any decision made by the HC by introducing legislation except when it concerns the Constitution.

Powers of the Legislature

  • s. 51 – to make laws for the peace, order and good government of the C’th
  • s. 1 vests legislative power in the Parliament, made up of R, the HoR and the Senate.
  • Able to pass laws that do not contradict the Constitution
Checks and balances:
  • Parliamentary sovereignty – able to override any non-Constitutional court decision
  • The ability to dismiss a gov’t and hold the executive to account by
    • Withholding SupplySee 1975 Constitutional crisis. By convention, Whitlam should have resigned.
    • Passing no confidence motions – Malcolm Fraser had a no confidence motion passed against him after he was appointed PM by Kerr. It had no effect, since Parliament was already dissolved.
    • Passing censure motions – most recently against Fiona Nash in the Senate over alleged misconduct of her chief of staff
  • Able to launch inquiries, especially concerning the conduct of government departments (i.e. the executive) and ministers. Especially effective in the Senate.
  • Can pass bills of attainder

Powers of the Executive

  • s 61 vests executive power in the Queen and GG, ‘execution and maintenance of Constitution and laws’
  • Ability to enforce laws by the Leg. and applications by the Jud.
  • Is made up of the PM, Ministers, FEC, GG and public servants
  • GG is advised by Ministers (s 62)
  • Able to pass regulations, make treaties, without the consent of the Leg.
  • May issue Letters Patent, declare war, make peace, confer honours, pardon people (thus overriding the Jud.)
  • The Cabinet is known as the ‘engine room’ of gov’t, setting policies that the Leg. usually follows.
Checks and balances:
  • Can set up inquiries and commissions, which are not legally binding
  • GG able to use reserve powers

Conventions

  • Has unwritten conventions, (Constitutional conventions and Westminster Conventions)
  • See notes on conventions.
  • They are uncodified and not legally binding.
  • They only prescribe how a power should be used, or transferring the power to other people
  • Some conventions have been codified e.g. Casual vacancies replaced by senator from the same party

Constitutional Crises

  • 1975 – Not really constitutional crisis, but conflict of conventions
  • Many conventions broken, forcing GG to use reserve powers
  • Elections ultimately resolved the crisis
  • See notes on 1975 crisis

Constitutional Change

  • s 128
  • Passed by both Houses, or one twice, and Royal Assent
  • Double majority

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