separation of powers Flashcards
(9 cards)
separation of powers
the detachment of the three branches of our parliamentary system so that they work independently
the constitution establishes three separate types off powers in our parliamentary system
- they are to be independent of each other
its purpose is to establish that no one body has absolute power or control over the function of the political and legal systems
3 powers
- executive power
- legislative power
- judicial power
aus constitution - executive power
the power to administer laws and manage the business of government
commonwealth level: invested in the governor general
state level: invested in the governor
section 61 of the constitution: the executive power of the commonwealth is vested in the queen and exercisable by the GG
in practice, the executive power is carried out by the prime, senior ministers and government departments
1. governor general
2. PM and senior ministers
3. government departments
legislative power
the power to make laws
this power resides under chapter 1 of the constitution
specifically, section 1 states that the legislative power of the commonwealth shall be vested in the federal parliament
at the state level, vested in the state parliament
1. house of reps
2. senate
in practice, legislative and executive power are combined
the adminsitratio of law and carry out the business of government is executed by the cabinet rather than the exeutive
their role is ot decide on general government policy and formulate propsed laws
HEAD OF EXECUTIVE IS IN EFFECT THE PM, NOT THE MONARCH
judicial power
the power given to courts and tribunals to enforce the law and settle disputes
at a federal level, provided for under chapter III of the constitution
- vested in the high court and other federal courts
- section 71 states that the judicial power of the commonwealth shall be vested in the courts
THE JUDICIAL LEGISLATIVE POWERS MUST BE KEPT SEPARATE
only a court or tribunal has the power to decide if a law (passed by parliament) has been contravened
- the role of the high court to decide disputes involving the constitution
- courts also have the power to make common law
although state and federal government appoint judges, the courts are independent of political influence
- this safeguards citizens against misuse of political power of corruption in the resolution of disputes
- impartiality of judges is protected by the fact that federal judges are appointed until 70 years old and cant be removed unless they prove bad conduct
reasons for the separation of powers
- prevents power from being concentrated in one set of hands
- helps protect individual rights by providing checks and balances on the pwoer of parliament
- no on e body can make law, administer law and rule on its legality
example
- if a person feels a parliament has passed a law that breaches the constitution of basic human rights, they can take the matter to court
- such challenges would be futile if courts were not independent of the government or parliament
strengths
- while parliament is the supreme law-making body, the judiciary have the power to invalidate, strike down or declare void a statue that has been passed by parliament beyond its law-making power
- the separation of powers is specifically provided for in the australian constitution, therefore cannot be abolished without a referendum
weaknesses
the ability of the judiciary to act as a check on parliament is dependent on people’s willingness to challenge laws. That is, the courts can only act as a check on parliament when there is a case before them, and that requires someone willing and able to initiate such a case
- judges are appointed by the executive. This may result in the perception that the executive seeks to influence judicial benches. The government can choose which judges they want to serve on the Court and some people believe that these choices are influenced by their progressive or conservative views
