Essay: Separation of Power in Australian Federalism

Abstract

This is a brief separation of Power in Australia essay, which can provide you detailed information about the topic.

Australia had adopted the The Commonwealth of Australia Constitution Act (1900) and came into existence as a Commonwealth independent nation. It had adopted many sections from both the American and British Constitution and amalgamated them together to form a hybrid government in Australia. In this paper, a process of how the legislative power had been transferred and shaped between the Commonwealth and the States during these years, is discussed. Some cases and sections have been discussed in this paper to provide an evidence for how the Federation of Australia has gone through some significant changes.

Separation of Power in Australia

An Overview of Separation of Power in Australia
cshow - Essay: Separation of Power in Australian Federalism
Australia generally follows the constitution of the Commonwealth, which was adopted by the American constitution and came into existence in the year 1901. The Commonwealth of Australia Constitution Act (1900) has separated the powers between the legislative power through the section 1, executive power through section 61, and finally, judicial power through section 71. The Australian constitution act (1900) was being followed by the act of the Constitution of the United States of America (1788), which was responsible for the separation of powers within the different branches of the constitution. The Amercian constitution sets out the power in following format: —  

  1. According to the Article I, section 1, the legislative power of America is bestowed in Congress i.e. the Parliament.
  2. According to the Article II, section 1, the executive power bestows on the President.
  3. Finally, according to the Article III, section 1, the judicial power is bestowed in the Supreme Court of Justice.

This power of separation in the constitution of US had been taken as the prima facie in the Australian constitution and the Australian Commonwealth Constitution set out the separation of power in the following format: —

  1. According to the Chapter I, section 1, the legislative power is bestowed in the Federal Parliament.
  2. According to the Chapter II, section 61, the executive power is bestowed on the Queen and is exercisable by the Governor General.
  3. According to the Chapter III, section 71, the judicial power is bestowed in a Federal Supreme Court, including the High Court and other Federal Courts.

 After the independence of Australia in the year 1788, the founding fathers of Australia were in a dilemma whether to choose the American or British constitution. They had to choose from the two major concepts of separation of power: First concept was the derivation of the American Constitution and the Federalist (Hamilton, Madison, & Jay, 1982); while the other choice was from the British Constitution and the Blackstone (1765) (Patapan, 1999). There was really a confusion whether to adopt the American or the British concept of separation of powers. So, the founding fathers of Australia have found a middle path and amalgamated the American federalism with the British form of responsible government, and the result was in the form of a hybrid government (Emy, 1978; Galligan, 1995).  Since the Australian Constitution was the mere amalgamation of these two major constitutions, many revelations of ambiguity had been discovered after the initialization.

The High Court took up the responsibility to minimize the ambiguities of the Australian constitution and defined the separation of powers in the Australian Constitution as a separation of judicial power from other powers (Alexander’s Case, 1918). This influenced on the overall development of the constitution of Australia, until the court recently admitted that it is not only responsible to govern the laws, but also to make the laws, in the year 1990 (Mason, 1990). This statement by the High Court was being criticized by many lobbyists, Politicians, and Judges and they raised many questions regarding the lawmaking judiciary and the creed of separation of powers. This theoretical imbroglio created immediate political insinuations for the separation of powers creed in Australia. The governing committee of Australia thought of having a new role for the Attorney-General, and it required to create some new mediating institutions. In the year 1995, the Attorney-General Williams criticized that there is no longer any reason to treat the High Court as an institution, which is separate institution other than policy making bodies (Williams, 1995).

The Westminster System


cshow - Essay: Separation of Power in Australian Federalism
 It has been already clarified in the earlier section that the Australian Constitution was the amalgamation of American and British Constitution, so it follows the Westminster system, which was actually adopted from the British Constitution. In this context, Australia can be considered as a federation, a parliamentary democracy, and a constitutional monarchy. We can also say that Australia:

  1. Has been governed by the Queen, who resides in the UK and is represented in Australia by the Governor-General.
  2. Has a government having a ministry, which is headed by the Prime Minister.
  3. Has a 2-chamber Parliament of Commonwealth to make laws.
  4. Has a government, led by the PM (Prime Minister) that must represent the majority of seats in the House of Representatives.
  5. Finally, has a State and Territory Parliaments.

This type of model of government is often considered as the Westminster System, since it was being derived by the UK Parliament at Westminster. In this system, Australia has a federation of 6 states. Each of these 6 states were a British Colony until the declaration of the Australia Constitution Act (1900). The states are – New South Wales, Queensland, Victoria, South Australia, Western Australia, and Tasmania. All these states have their own governments, which resembles the federal government. Each state has its own Governor, who works as the head of the government. All the 6 states, excepting the Queensland has a 2 chambered Parliament. Excluding this, there are also 2 self governing territories called ‘Australian Capital Territory’ and ‘The Northern Territory.’ The federal government is not allowed to override the decisions made by the State governments, but only in the accordance with the federal constitution (static.moadoph.gov.au, 2000).

Although Australia is an independent nation, but it shares a monarchy with the UK and other countries like New Zealand and Canada. The Queen is the Head of the Commonwealth of Australia and the Governor-General is responsible for the delegation of Queen’s power by the constitution. However, the Governor-General is responsible to act only in accordance with the elected government. The monarchy of the Australian constitution has also been responsible for the separation of power. In the early years of inception of the Australian Federation, usually the Governor-General was appointed by the British government and was generally a Bristish peer. Then the circumstances changed in the early 1930, when the Australian government asserted the right to appoint the Governor-General, so Sir Isaac Isaacs became the first Australian to be appointed as the Governor-General of Australia, and all the Governor-General have been Australian since 1965.

The Australian Constitution defines the Parliament of Australia as the Queen, the House of Representatives, and the Senate. Actually, Parliament is the foundation of Australia’s responsible government. It is the Parliament, which is responsible for the making of laws. Parliament is also responsible to hold ministers and the concerning government, responsible for answering questions about their portfolios, asked by other members of the Parliament. The other part of the Australian Constitution is the Senate, which is considered as an ‘upper house’ and responsible for representing the 6 states of Australia, and other 2 self-governing territories. All the 6 states elect around 12 senators and the territory elects 2. So, there are around 76 senators in total count. Senators generally work for a 6 year term, and then new senators have been re-elected by election.

Finally, another most integral part of the Australian Constitution is the House of Representatives. Australia is divided into around 150 single member electorates. Each electorate represents about 80-90 thousand voters and each has a Member of the House of Representatives. Each state has an equal amount of electorates in the ratio to that of the total population of that state. For example, the largest state of Australia; New South Wales has around 49 electorates. On the other hand, Tasmania has only 5, which is the smallest state.

Separation of Legislative and Executive Power in Australia

Although the Westminster system was an effective system and was properly adopted by the Australian Constitution, but it actually hazed the separation between the Parliament personnel and the Executives. Westminster system forces the personnel to hold dual roles at the same time, which sometimes becomes daunting to control. According to the section 64 of the Commonwealth Constitution, the Governor-General is responsible to appoint ministers or officers for the administration of the departments of the State of Commonwealth (Carney, 1993). This section also indicates that the ministers are responsible to sit in the Parliament, and he or she shall not hold the office for more than 3 month period, unless he or she is appointed as a Senator or a member of the House of Representatives. This practice has been in use for the Ministerial appointments, which have been made from the existing member of the Parliaments (Lumb, 1995). However, the PM comes from the House of Representatives by convention.

The Executive had also permitted for the delegation of lawmaking power: Victorian Stevedoring and General Contracting Company Pvt Ltd. Vs Dignan (Dignan’s Case) (1931) (46) CLR 73. The High Court interfered in the delegation of this power to the Executive and it upheld wide delegations of power to the Governor-General or a Minister. One of the most significant example of this was the Dignan’s Case (1931), where the High Court permitted the power to make regulations in accordance with the employment of transport workers. The High Court had also permitted the power to prohibit any import of goods to Australia (Radio Corporation Pvt Ltd vs Commonwealth (1938)). The decision in favor of Dignan was responsible to overturn the rule against the delegation of lawmaking power. This very phenomenon still lies in the foundation of modern constitutionalism of Australia (Ratnapala, 1990).

In Dignan’s Case (1931), the High Court had clearly stated that the delegation of wide lawmaking power was in accordance with the Bristish constitutional practice. Ratnapala (1990) claims that the Court was clearly mistaken in speculating that the British constitutional practice had forgotten the rule against delegation of legislative power. During the next year, i.e. 1932, the Committee on Ministers’ Powers had been appointed to investigate in this issue of delegated powers. The Committee found no such practice and thus the issue was resolved. The Committee declared that the British Parliament rarely delegated any such power to the Executive for the legislation in matters of principle. The Committee also announced that the British Parliament did not delegate power to legislate without any limitations or to impose any kind of taxes (the British Parliamentary Committee on Ministers’ Power (Donoughmore Committee)).

The Financial Dominance of Commonwealth

Another most significant changes in the Australian federalism were due to the failure of the finance clause (Chapter IV) of the Constitution, which was imposed to avoid the increasing centralization of financial power. Over the few years of inception of the Federation, the Commonwealth was finding the financial arrangements quite irritating. The Commonwealth has had to provide large expenses on its own in some areas like social services, public welfare, and defense. So it then initializes to undermine the financial guarantees by the government. The states were almost powerless to resist at that time. In the early 1902, the Attorney-General of the Commonwealth, Alfred Deakin claimed that the states were although legally free, but are financially bound to the principles of the Commonwealth. And then, by the end of the first decade, section 87 (payment of excise and customs to the state) and section 94 (distribution of surplus funds to the state) had been allowed. The imposition of these sections created a pattern of the financial dominance of the Commonwealth, thereby a relative state indigence had been established. So, this has been running at the center of the Commonwealth state relations ever since the imposition of the two sections (Grewal, 2003).

Works Cited

Carney, G., 1993. The Separation of Powers in Westminster System. In Queensland Chapter of the Australasian Study of Parliament Group. Brisbane, 1993.

Grewal, B.&.S.P., 2003. The Evolution of Constitutional Federalism in Australia: An Incomplete Contracts Approach. [Online] Centre for Strategic Economic Studies Victoria University of Technology Available at: http://vuir.vu.edu.au/57/1/wp22_2003_grewal_sheehan.PDF [Accessed 6 January 2016].

Lumb, R.D.&.M.G.A., 1995. The Constitution of Commonwealth of Australia Annotated. Sydney.

Mason, A., 1990. Judicial Independence and Separation of Powers: Some Problems Old and New. University of New South Wales Law Journal, 13, p.172.

Patapan, H., 1999. Separation of Powers in Australia. Australian Journal of Political Science, 34(3)(March 1999), pp.391-407.

Ratnapala, S., 1990. Welfare State or Constitutional State? The Centre for Independent Studies Policy Monographs.

static.moadoph.gov.au, 2000. Prime Facts: Australian Prime Minister’s Centre. [Online] Available at: http://static.moadoph.gov.au/ophgovau/media/images/apmc/docs/61-System-of-government.pdf [Accessed 6 January 2016].

Williams, D., 1995. Who Speaks for the Court? Proceedings of the Australian Institute of Judicial Administration Confrence on Courts in a Representative Democracy.

 

 

 

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One Comment

  1. Edward_Rak said:

    While separation of powers is key to the workings of American government, no democratic system exists with an absolute separation of powers or an absolute
    By the way! The best essay writing service –

    December 13, 2018
    Reply

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