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21 Cards in this Set
- Front
- Back
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Separation of Powers
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The principle of separation of powers refers to the three arms of power: the legislative function (those that make the law), the executive function (administer the law) and the judicial function (interpret the law). The powers of each arm are kept separate to each other and carried out by a separate body, to ensure that no one body or arm has complete authority and each are independent from the other. This enables each power to act as checks and balances on each other and ensures a system of democracy.
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Role of the Senate in Law-Making
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The Senate acts as the ‘states’ house’ in the law-making process. As it is made up of Senators from every state and territory, their role is to represent their own state in determining whether or not to pass a Bill. Usually, as most Bills are introduced in the House of Representatives, the Senate is seen as the ‘house of review’, as it reviews and votes on those Bills before they are given Royal Assent. Often the Senate can act as a ‘rubber stamp’ for Bills if the government holds majority in the Senate. These days, however, the Senate is made up of various parties, including smaller parties and independents, which means that the government usually does not have a majority of votes in the Senate and Senators can use their combined voting power to reject or amend legislation introduced by the party in government.
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1983 Tasmanian Dams Case - Environment
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In the 1983 Tasmanian Dams Case, the Commonwealth successfully challenged the Tasmanian government’s decision to dam the Franklin River on the grounds that Section 51 (xxix) of the Constitution which gives the Commonwealth the power to legislate in matters where Australia is signatory to an international treaty.
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1920 Engineers Case - Industrial
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The 1920 Engineers Case saw the introduction of a new broader interpretation of Section 51 of the Constitution in relation to conciliation and arbitration. In this case the High Court effectively negated the principles of “implied immunities” and “reserved State powers” to give the Commonwealth pre-eminence over the States.
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1942 Uniform Tax Case
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The 1942 Uniform Tax Case the High Court’s decision gave the Commonwealth the exclusive right to impose and collect income tax. One of the difficulties arising from this case was the immense economic imbalance that followed. It was from this point onwards that the States became more dependent upon the Commonwealth for finances.
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Section 96 of the Constitution
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State governments have become heavily reliant on tied grants which are permissible in Section 96 of the Constitution which states ‘during a period of ten years after the establishment of the Commonwealth and thereafter until the Parliament otherwise provides, the Parliament may grant financial assistance to any State on such terms and conditions as the Parliament thinks fit.’
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Section 109 of the Constitution
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Conflict and inconsistencies can occasionally arise in the area of concurrent power in which the establishment of Section 109 is able to provide a mechanism to resolve such an issue, and allows for the Commonwealth government to gain more power over the States. Section 109 states ‘when a law of a State is inconsistent with a law of the Commonwealth, the latter shall prevail, and the former shall, to the extent of the inconsistency, be invalid.’
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Residual Power
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Residual powers are not stated in the Constitution and unlike exclusive powers rest solely with the States as they often affect each of them in different ways. Some of those include: law enforcement, environment, public transportation, education and healthcare.
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Why have the powers shifted from State to Commonwealth?
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The powers have shifted to the Commonwealth due to the constant evolution of the Australian federal system. Additionally, the balance of power between Commonwealth and the States, and their way of interacting, has transformed due to High Court interpretations and also the financial ascendency of the Federal government.
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Suggestions for the reform of Federalism
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The most common recommendations for reform include, reallocation and clarification of powers between the Commonwealth and the States, the reform of the Commonwealth-State financial relations and the abolishing of the States.
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Exclusive Powers
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Exclusive powers are a subset of specific powers and are established under Sections 51 and 52 of the Constitution. These powers are only exercisable by the Commonwealth Parliament as they are issues that affect the entire nation, they comprise of: the coining of money, defence and foreign affairs.
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Concurrent Powers
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Concurrent powers are law-making powers that are also stated in Section 51 over which both the Commonwealth Parliament and the State Parliaments share jurisdiction. These comprise of areas of contention such as healthcare and education in which the division of power lacks clarity.
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Responsible Government
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Responsible government refers to the concept that ministers and their leaders are answerable to the Parliament, and therefore the people, for their actions. The government is chosen by having the support of the lower house of parliament; if the government loses the confidence of parliament and the people it must resign. The government must act fairly and responsibly in their decision making and law-making.
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Representative Government
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Democracy creates a government that is run for the people, by the people. Government is made up of elected representatives elected to represent the views of people within its electorate and act on their behalf. This is achieved through regular elections. If the elected members are not representing the views of the people, they will be removed from office at the next election. This is referred to as the principle of representative government.
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Role of the Constitution
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• Facilitate the division of law-making powers
• Provides a legal framework for the creation of the Commonwealth Parliament and outline the structure of the Commonwealth Parliament • Provide for direct election • Give the High Court the power to interpret the Constitution |
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Statute Law
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An act of Parliament that then becomes legislation
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Three Law-Making Bodies
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1) Parliament
2) Subordinate Authorities 3) Courts |
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Reasons for the Separation of Powers
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1) Protects the stability of government and the freedom of the people
2) Provides independence between the bodies 3) Provides a system of checks and balances on the power of parliament to ensure it does not exceed it jurisdiction |
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What is a Private Members Bill?
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A bill that is presented to the Parliament by a private member of Parliament who does not represent the government.
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Types of Bills
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1) Private Member
2) Government 3) Money/Appropriation |
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What is a Parliamentary Counsel?
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A lawyer who has responsibility for framing legislation and who is given instructions from Cabinet about purpose and the extent of proposed laws.
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