Separation Of Powers Flashcards
Separation of powers
The principle of the separation of powers is a basic principle underpinning our parliamentary system. This principle refers to the three separate types of powers in our parliamentary system, and that these powers should be held by separate bodies so that no one body has absolute power or control over the functions of the political and legal systems. The legislative and executive power are combined but the judicial power is kept seperate.
The Constitution makes provision for each of these separate powers to operate at a federal level. These powers are:
• executive power – the power to administer the laws and manage the business of government, which is vested in the governor-general as the Queen’s representative, although in practice it is carried out by the prime minister and senior ministers
• legislative power – the power to make laws, which resides with the parliament
• judicial power – the power given to courts and tribunals to enforce the law and settle disputes, which is vested in the High Court and other federal courts. This power is independent and separate from the legislative and executive powers (at a federal level).
Combination of legislative power and executive power
Definition
Example
Explain powers
Although the legislative power and the executive power are described in the Constitution as separate powers, the duties of the legislature (the law-making bodies) and the executive (the governing body) are combined.
For example the Prime Minister is a member of the legislature as he is a member of parliament and the executive power as he is one of the senior ministers.
The parliament is the Law Making body and they hold the legislative power. The executive power is vested in the Governor General but in practice is carried out by the senior ministers who are also part of the parliament, thus they are part of both the legislative power and the executive power.
Checks and balances of the overlap of executive and legislative powers
There are still checks and balances between these two areas of power. Ministers are subject to the scrutiny of other members of parliament during question time. It is the role of the opposition to examine the policies and Bills of the government and to expose any flaws that may be apparent in proposed laws. At times, the upper house is controlled by the opposition, which provides for greater scrutiny of the government and its legislation.
Why must the legislative and judicial powers be kept separate
Only a court or tribunal has the power to decide if a law (made by parliament) has been contravened. The courts are independent of political influence. In this way, citizens are safeguarded from the misuse of political power or corruption in the resolution of disputes. The impartiality of judges is protected by the fact that federal judges, for example, are appointed until the age of 70 and cannot be removed unless there is proven impropriety and parliament approves their removal.
Reasons for the separation of powers
In Australia, the separation of powers is based on the notion of checks and balances. Each power is separate and independent and creates a check upon the other. The separation of power therefore: GENERAL
• protects the stability of government and the freedom of the people STABILITY
• provides independence between the bodies that make the law (the legislature, that is parliament) and the bodies that enforce the law (the judiciary, that is the courts) INDEPENDENCE
• provides a check on the power of parliament to ensure that it does not go outside its area of power. CHECK
The principle of separation of powers is an essential element of democracy in Australia.’
Explain this statement and give reasons for the separation of powers.
A democracy means rule by the people. In Australia people elect their leaders who make decisions on the people’s behalf. The principle of separation of powers refers to the three separate types of powers in our parliamentary system, and that these powers should be held by separate bodies so that no one body has absolute power or control over the functions of the political and legal systems because if this was the case then one body could be entirely responsible for the decisions made and neglect the people. The governor-general, as the Queen’s representative, is part of the executive power, as well as being part of the structure of parliament or legislative power. Likewise the prime minister and the cabinet are part of the governing body (the executive power) and are also part of parliament (the legislative power). This reflects the principle of responsible government under which government ministers must be members of the parliament and must be accountable to the parliament, and hence to the people through the vote. A democratically elected government must be answerable and accountable to the people for its actions.
