Separation of Powers Flashcards
What is the Separation of Powers?
The Separation of Powers describes the way in which the law gives power to
the arms of government in Australia.
It ensures government remains fair and
accountable by creating checks and balances on the use of power.
It is essential under the rule of law that the use of power is lawful, and can
be challenged.
How is power balanced?
Power is balanced between the Judiciary, Legislature and Executive, so each
can act as a check on the power of the other.
Balances
Power is balanced between the three arms of
Government, so checks can operate. If power
was not balanced and one arm was too powerful,
checks on that arm would not be effective. This
means that each arm should only use power
according to the Australian Constitution.
Checks
Checks are mechanisms which allow each arm
of Government to review or override the actions
of the other two arms.
There are many different checks on power
within Australian Government. They all aim to
ensure accountability, which means that legal
decisions can be challenged and that all arms
of Government act according to the law.
Checks are essential in
maintaining the
rule of law.
The Judiciary 1.1
The Judiciary includes judges and the courts
which exist to interpret the law when there is a
legal dispute.
Judges must make decisions based on the law a
provide reasons for their decisions. Judges have the power to make various orders to give effect to their decisions.
The Judiciary 1.2
The Judiciary can strike down laws made by the Legislature, and declare actions of the Executive unlawful. This is one of the most important checks on the power of Government because it provides a legal process in the courts for individuals to challenge the decisions of the Government.
The Judicial Oath
When sworn in to office, judges make the following oath to ‘...do right to all manner of people according to law without fear or favour, affection or illwill’ (be fair and impartial)
The High Court
The High Court of Australia provides one the most important checks on the power of Government in Australia.
It is an independent and impartial decision making body
which has the power to overrule the decisions of all
lower courts and to declare laws invalid and actions of
the Executive unlawful.
How are the Justices of the High Court appointed?
Justices of the High Court are appointed by the
Governor-General on the recommendation of the
Prime Minister.
The Executive
Ministers appointed by the Governor - General and use powers granted by the law to run the country
They have the power to apply laws passed by the Parliament and are in charge of Government Agencies and Departments. They have powers, defined by law, to deal with social, economic or environmental issues as they arise. They must only use power in the way set out by law
The Governor-General
The GG has ultimate power over the Commonwealth of Australia. This power is usually exercised on the advice of the Executive Council and its Ministers. The GG gives royal assent to laws passed by the Legislature, and has ‘reserve powers’, one of which is to dismiss the Prime Minister, which are only used in exceptional circumstances.
The Federal Executive Council
Members of the Legislature are appointed as Ministers to the Federal Executive Council. They have the power to implement laws passed by the Parliament and are in charge of Government Agencies and Departments. They have powers, defined by law, to deal with social, economic or environmental issues as they arise. They must only use power in the way set out by law.
The Shadow Cabinet and ‘The Opposition’
The Shadow Cabinet are not part of the Executive and have no official status other than being members of the Parliament. They ‘shadow’ relevant Government Ministers and question the actions of the Executive in Parliament. The Opposition is another check on the power of the Executive. They are frequently critical of Government policy and legislation.
The Legislature 1.1
The Legislature, which includes the Houses of Parliament and the representatives who are elected to them, is responsible for drafting, debating and voting on new laws, and amendments to existing laws. In Australia there is not a “true” separation between the Legislature and Executive, because those appointed to the Executive are also members of Parliament.
The Legislature 1.2
The Legislature acts as a check on the Judiciary because it can pass laws which override the decisions of the courts. However, laws should not be retrospective, which means the legislature cannot reverse the decision of a court, only change the law from the time it is proclaimed.
