Constitution as a Check on Commonwealth Parliament - Separation of Powers

Question 1

Three components of the separation of powers (SOP)

Answer 1

• The legislative
• The executive
• The judiciary

Question 2

Purposes of the SOP

Answer 2

• Prevent abuse of power through restricting concentration of power
• Protect individual rights through checks on government power
• Uphold judiciary ability to interpret/apply law and resolve disputes without political influence
• Ensure government and parliament work together to pass laws

Question 3

Who makes up the legislative?

Answer 3

• Created through s. 1
• Any member of Commonwealth parliament
  
  • Both HoR and the Senate

Question 4

Who makes up the executive?

Answer 4

• Created through s. 61
• Technically vested in Crown and Governor-General
• Usually exercised by the PM, Cabinet and government departments

Question 5

Who makes up the judiciary?

Answer 5

• Created through s. 71
• Courts and tribunals exercise this power

Question 6

Where can crossover occur?

Answer 6

• The PM and Cabinet are part of the executive, but are also sitting elected representatives in the Parliament, overlapping into the legislative

Question 7

Strengths of SOP as a check

Answer 7

• Minimises abuse of power because they ensue a check on parliamentary power
• Independence of judges from political pressure and re-election ensures they are legally independent
• Legislative can check the power of the executive, such as scrutinising bills introduced by the Cabinet or PM (Senate esp.)
• Judiciary has the power to declare some laws ultra vires if government is outside their jurisdiction, limiting Cth power
• Constitutionally guaranteed, meaning the SOP cannot be changed without a referendum

Question 8

Weaknesses of SOP as a check

Answer 8

• Overlap between the executive and the legislative could indicate a concentration of power and failure to act as a check
• The requirement of a case means that the ability of the judiciary to act as a check can be limited if none is brought
• Composition of the legislature can impact its ability to check the executive, such as if both houses are majority government-controlled