the separation of powers Flashcards
explain the separation of powers
- The Australian Constitution establishes three separate types of powers in the parliamentary system.
- At a federal level, these three powers must operate independently of each other.
- This separation of powers ensures no single body has absolute control over political and legal functions.
- The separation of powers is a core principle of the rule of law.
define separation of powers
a doctrine established by the Australian Constitution that
ensures the three powers of our parliamentary system
(i.e. executive power, legislative power and judicial power) remain separate
the three powers are…
- executive power
- legislative power
- judicial power.
explain executive power
- The Australian Constitution requires the separation of powers at a federal level, but this also exists at a state level.
- Executive power is the authority to administer laws and manage government business.
- At the Commonwealth level, executive power is vested in the Governor-General under Chapter II of the Australian Constitution.
- At the state level, executive power is vested in the Governor as the King’s representative.
- Section 61 of the Australian Constitution states that the executive power of the Commonwealth is vested in ‘the Queen’ (now taken to be the King) and exercisable by the Governor-General.
- In practice, executive power is carried out by the prime minister (or premier at a state level), senior ministers, and government departments.
define executive power
the power to administer the laws and manage the business of government, which is vested in the GovernorGeneral as the King’s representative
define legislative power
the power to make laws, which resides with the parliament
define judicial power
the power given to courts and tribunals to enforce the law and settle disputes
The Australian Constitution – section 61
Executive power
The executive power of the Commonwealth is vested in the Queen and is exercisable by the Governor-General as the Queen’s representative, and extends to the execution and maintenance of this Constitution, and of the laws of the Commonwealth.
explain legislative power
- Legislative power is the authority to make laws.
- This power resides with the parliament under Chapter I of the Australian Constitution.
- Section 1 of the Australian Constitution states that the legislative power of the Commonwealth is vested in the federal parliament.
- At a state level, legislative power is vested in each of the state parliaments.
- In Australia, legislative power and executive power are combined.
- In practice, the power to administer laws and carry out government business (executive power) is placed in the hands of the Cabinet, not the executive.
- The Cabinet consists of the prime minister and senior ministers (or the premier and ministers at a state level).
- The Cabinet’s main role is to decide on general government policy and formulate proposed laws to be introduced to parliament.
- The head of the executive, in practice, is the prime minister, not the monarch or the monarch’s representative.
- Executive power and legislative power are closely linked:
- Laws passed by parliament must receive royal assent from the King’s representative to become law.
- Many Acts of Parliament give the Executive Council the right to make regulations, but parliament retains the right to disallow or reject these regulations.
define Cabinet
the group of senior ministers in a government made up of the prime minister (or the premier at a state level) and senior government ministers who are in charge of a range of portfolios. Cabinet decides which bills or legislation should be introduced into parliament
explain judicial power
- Judicial power is the authority given to courts and tribunals to enforce the law and settle disputes.
- At the federal level, judicial power is provided for under Chapter III of the Australian Constitution.
- Judicial power is vested in the High Court and other federal courts, as well as courts with federal jurisdiction.
- Section 71 states that the judicial power of the Commonwealth shall be vested in the courts.
- Legislative power and judicial power must be kept separate.
- Only a court or tribunal can decide if a law made by parliament has been contravened.
- The High Court decides disputes on issues involving the Constitution and has the power to make law.
- State and federal governments appoint judges, but courts are independent of political influence.
- This independence safeguards citizens against misuse of political power or corruption in dispute resolution.
- Federal judges are appointed until the age of 70 and can only be removed for proven bad conduct with parliamentary approval.
- This protection of judicial impartiality includes judges appointed to the High Court.
The Australian Constitution – section 71
Judicial power and Courts
The judicial power of the Commonwealth shall be vested in a Federal Supreme Court, to be called the High Court of Australia, and in such other federal courts as the Parliament creates, and in such other courts as it invests with federal jurisdiction. The High Court shall consist of a Chief Justice, and so many other Justices, not less than two, as the Parliament prescribes.
reasons for the seperation of powers
- The principle of separation of powers prevents power from being concentrated in one set of hands.
- This principle protects individual rights by providing checks and balances on the power of the parliament.
- No single body can make law, administer law, and rule on its legality.
- The government and parliament must collaborate to pass laws.
- The independence of the judiciary must be preserved to ensure fairness and justice.
- For instance, a person who believes a law breaches the Constitution or basic human rights can challenge it in court.
- Such challenges would be ineffective if courts were not independent of the government and parliament.
- The judiciary has the power to judge criminal guilt and punish lawbreakers.
- It would be inappropriate for parliament, which makes the laws, to also prosecute and adjudicate on those laws.
- To maintain judicial independence, judges cannot take a seat in parliament where laws are made.
define judiciary
a legal term used to describe the courts (as well as judicial officers such as judges), which have the power to apply and interpret the law
strengths
- Parliament’s Law-making Power: While the parliament is the supreme law-making body, the judiciary can invalidate statutes passed by parliament if they exceed its law-making power.
- Judiciary Independence: The judiciary is independent of the legislature and executive, ensuring decisions are made without fear of electoral backlash or political influence, crucial when the Commonwealth is a party in a case.
- Executive-Legislative Separation: Measures exist to ensure the executive’s independence from the legislature, such as barring certain Commonwealth government employees from being members of parliament, preventing executive overreach in law-making.
- Constitutional Separation of Powers: The separation of powers is enshrined in the Australian Constitution and cannot be abolished without a referendum.
