LAWF101 Nick-4008369

Australian
Rule of Law

Introduction

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The constitution is the superior law of the country. It dictates all the fundamental rules and
principles upon which the country is based.

Australia being a Federal Government was established in its constitution. Australia practices
a parliamentary or responsible government system of governance. However, some of the
features of Australia's system of government were also based on customs and traditions which
were not described in its constitution.

The Separation of Powers

The Federal Government defines three separate branches of the government. It also describes
all the responsibilities each branch of the government play in the governance of the country.
The three branches of Australian government are the Parliament, the Executive, and the
Judiciary. These three groups are sometimes referred to as "the three arms of the
government." The power to create and manage the federal law is divided between these three
groups. The division of these three groups is based on the doctrine of the "separation of
powers."

Separation of Powers is pillars of rule of law. Liberty of personal freedom and rights exist but
with limitations in accordance to law so that there will be no abuse of powers on other's
liberty. According to Lord Acton, power corrupts and absolute power corrupts absolutely. A
government may be so constituted, as no man shall be compelled to do things to which the
law does not oblige him, nor forced to abstain from things which the law permits. This is the
importance of check and balance.

There are three powers of the government as recognized by the political theoryas shown
below.

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The purpose of the separation of powers is to prevent an abusive and oppressive government.
It also gives authority to perform checks and balances on eachbranch of the government.

Checks and Balances

The idea of Balance and Checks was credited to Montesquieu.

The system of Checks and Balances was built so that no one branch of the government could
be more powerful than the other two branches. The system also promotes cooperation among
the three branches of the government as well as ensures accountability. Through the Checks
and Balance System, each branch of government can "check" the other two branches so that
the power shared between them is balanced.

Balances

The power given to the three branches of the government is balanced. Each branch has its
own set of functions and responsibilities. However, each branch has its limits in order to
prevent it from becoming too powerful.

Checks

These are mechanisms or ways that allow each branch of the government to review or
override the actions of the other two branches of the government.

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The Judiciary
The judiciary branch of the government is composed of judges and the high courts. They are
experts in the interpretation of the laws especially whenever there are legal disputes. These
judges are responsible for making the decisions based on law.

The Judiciary acts as a check on the power of the Legislature by striking down the laws made
by them. It also acts as a check on the Executive by declaring their actions and management
as unlawful or against the constitution. These are important checks in the power of the
Government.

On the other hand, the Legislature acts as a check on the judiciary by passing laws that can
overturn the decisions of the judicial. However, Legislature cannot reverse the decision of the
court; they can only amend the law from the time it is proclaimed.

The High Court of Australia plays an important role in providing one of

the most important checks on the power of the government. The High
Court is an independent and impartial decision making body that can
overrule the decisions of all the lower courts. The High Court can also
declare laws invalid as well as the actions of the Executive unlawful. The
justices belonging in the High Court were recommended by the Prime
Minister and then appointed by the Governor-General.

The Judicial Oath is oath or affirmation that is taken by a judge upon appointment to the
office. Therefore, thejudges of the High Court of Australiahave to take an oath on assuming
office to "do right manner of people according to law without fear or favour, affection or ill-
will." The importance of the judicial independence is highlighted in the judicial oath.

The Executive

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The Australian constitution has giventhe executive power of the Commonwealth to the Queen
and she is represented by the Governor-General to exercise the power. However, the
Constitution alone does spell out all the powers of Australia's Executive Government, some
of the Executive powers are based on custom and convention.

Although the Prime Minister and the administrations Cabinet Ministers are not mentioned in
the constitution of Australia, they are representatives that possess the Executive power. Their
powers are derived from:

the constitution as part of the Federal Executive Council and as "advisers" of the Governor-
General;

elected by the people for the House of Representatives; and

customs and traditions.

The Executive Branch of Australian Government is composed of the Prime Minister, the
Cabinet consisting of Senior Ministers, the Ministers, and the Parliamentary Secretaries.

The Governor-General

The Governor-General is the one leading the functional ceremony for the head of states as
representative of the Queen. The Prime Minister and Ministers are the advisers of the
Governor-General in executing the powers of Executive Government.

As statedin the AustralianConstitution the Governor-General's responsibilities are:

Appointment and dismissal of the Executive Councilors

Appointment and dismissal of the different Ministers of the government

Appointment of judges (but only the Parliament can initiate to dismiss the judges)

Commander-in-chief of the countrys armed forces

Scheduled the meeting of the Parliament

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Responsible for the issuance of writs for the countrys general elections

Recommends proper appropriations of the governments expenditure to the parliament

Responsible for the conversion of theproposed laws to Acts of Parliament

May stop or propose revision to any law passed by the twohouses of the parliament

Under many Acts of Parliament, the Governor-General has other Executive powers such as
the proclamation of the legislation and makes laws, regulations, and delegated legislations.
These are some of the functions of the Governor-General that needed advise from the Prime
Minister and Ministers except when there is an involvement of the reserve powers.

Reserve powersare referred to as the power that the Governor-General can act without the
need of the Prime Ministers or Ministers advise. However, these reserve powers are not
clearly defined in the Australian constitution.

The constitution has given the Governor-General the power to act independently in certain
circumstances. One of the examples of the reserve power of the Governor-General is to
abolish the House of Representatives, or both houses when needed.