Australian Legal System Executive
Since the debate on the power of the executive vis-à-vis parliament involves both political and legal issues, this document first provides an overview of the doctrines of good governance and separation of powers. The document briefly deals with the legislative, judicial and executive powers of the Commonwealth as dispersed by the Constitution. It follows the High Court`s interpretation of section 61, beginning with Commonwealth and the Central Wool Committee v Colonial Combing, Spinning and Weaving Company in 1922, to Davis (1988). Finally, it examines the extent to which Parliament might be able to control the exercise of the power conferred by the Treaty by the executive. The 6. In April 1891, Sir John Bray (SA) argued that the Constitution should provide that executive officers of the government “should all be members of parliament and not just that they should be able to be members of parliament.” (12) Mr Wrixon (CIV) suggested that these officials should be both members of the Federal Executive Council and “responsible members of the Crown”. (13) Griffith explained, however, that the term “ministers responsible for the Crown” describes the existing government, but that it is not necessary to include such words in the draft Constitution: the executive power of the Commonwealth belongs to the Queen and may be exercised by the Governor General as the Queen`s representative and extends to the execution and maintenance of this Constitution – and the laws of the Commonwealth. In The Commonwealth v Australian Commonwealth Shipping Board, the 1926 case, the High Court considered the executive`s ability to engage in commercial activities. The Court of Justice has taken a narrow position. Justices Knox CJ, Gavan Duffy, Rich and Starke said Parliament had only the power “expressly or implicitly conferred upon it by the Constitution.” (54) Neither Parliament nor the executive government had the constitutional power to set up a manufacturing company for general commercial purposes. (55) The executive branch of the Commonwealth did not allow the government to engage in an activity that would otherwise be “expressly unjustified by the Constitution”. (56) The legislative, executive and judicial powers are defined separately in Chapters I, II and III of the Constitution.
In Victorian Stevedoring & General Contracting Co Pty Ltd v. Dignan, the High Court of Australia ruled that, in accordance with British tradition, it was impossible to insist on a strict separation between legislative and executive power.  It has been established that legislative power can be delegated to the executive, thus maintaining the validity of delegated legislation. On the other hand, the Supreme Court was less willing to compromise by insisting on a strict separation of the “judiciary”.  In addition, the role of the courts was discussed in Kable v. Director of Public Prosecutions (NSW), an NSW law that was declared invalid because it purported to confer non-judicial functions on the court.   The principle that a state court cannot be given powers inconsistent with its constitutionally protected independence was extended to territorial courts in Ebner v Official Trustee in Bankruptcy (2000).  In his discussion of what amounted to a Commonwealth objective, Barwick CJ noted that the legislative and executive powers of the Commonwealth are limited. Most of its legislative powers are found in articles 51 and 52 of the Constitution, and its executive powers are limited by the terms of article 61. Members of the House of Representatives are elected by majority preference using the system of non-proportional instant ballot from single-member constituencies spread across states and territories. In ordinary legislation, the two chambers have coordinating powers, but any proposal for the use of revenues or the collection of taxes must be submitted to the House of Representatives. Under the current Westminster system, the leader of the political party or coalition of parties that has the support of a majority of members in the House of Representatives is invited to form a government and is appointed Prime Minister.
The Commonwealth Parliament and all state and territory legislators work within the conventions of the Westminster system, with a recognized leader of the opposition, usually the leader of the largest party outside government, and a shadow cabinet of opposition members who “follow” each member of the department and ask questions on matters within the minister`s portfolio. Although the government can usually pass its legislation and control the functioning of the House because of the majority of members of the lower house of the legislature, the opposition can significantly delay the passage of laws and obstruct government business if it so wishes. The commemoration of the bicentenary is first and foremost the issue and concern of the Commonwealth as a national government and, as such, is fairly and directly vested in the executive branch of Confederation. (79) One of the reasons for the uncertain extent of executive power is the desire of the drafters of the Constitution to maintain a certain degree of flexibility. (24) Another is the “uncertain scope and status of the prerogative,” which is part of the executive branch and includes the Powers of the Crown under the common law, such as the right to declare war and enter into contractual agreements. However, citing the authority of the High Court, the following remarks can be made about the scope of executive power: Justices McTiernan and Menzies stated in Barton as part of an executive extradition request that “it may request other states to assist in repatriating offenders to Australia unless the law has deprived the executive branch of some of its inherent power.” unless the law has deprived the executive branch of some of its inherent power. (102) And Mason J. stated that “it is generally accepted that a statute is not intended to abolish a prerogative of the Crown unless it does so by explicit words or by … necessary involvement. (103) As Burmester points out, `the logical consequence of these statements is that prerogatives may be affected by law`. (104) In any event, J.E.
Richardson notes: Arguably, the scope of section 61 remains uncertain – some would say flexible. The debate on whether Parliament could restrict the executive power to enter into contracts is an example of this uncertainty. However, both the judicial authority and the weight of academic opinion suggest that parliament can limit the power of the executive to enter into contracts. At present, there is no constitutional system in Australia in which there is a complete separation of powers.  In the Westminster system, (executive) ministers must sit in (legislative) parliament. This is intended to conform to the concept of responsible government, which is a requirement of Article 64 of the Constitution.  Neither the Prime Minister nor the Cabinet is mentioned in the Constitution – the framers of the Constitution took its existence for granted, as did the various conventions of the Westminster system of government inherited from the United Kingdom. The most senior ministers form an executive committee called the “cabinet.” In Australia, an important role for the cabinet is to determine the policies of the ruling political party as a government and how that policy is put into practice, particularly through the enactment of laws.
What happens in cabinet meetings is secret.  Although the government, by definition, has the support of a majority of members in the House of Representatives, the electoral system used for senatorial elections offers greater opportunities for minority parties and independents, and the government often does not have the support of the majority in the Senate. In the case of the AAP, the nature of the intermediate power (§ 81) and the executive power (§ 61) and the ancillary power [§ 51 (xxxix)] was examined. The Appropriation Act (No. 1) 1974-1975 provided that certain amounts were to be allocated to the Australian Assistance Plan (AAP) to allow grants to the Regional Councils for Social Development. Victoria argued that the Commonwealth did not have the constitutional power to appropriate these sums. With a few exceptions that Barwick J. considered unnecessary, “the executive may do only what has been or could be the subject of applicable law.” (66) It is essentially identical to the procedure adopted in 1897, omitting any reference to the fact that such officials can only sit in Parliament. Good government was therefore clearly envisioned by Convention delegates as a feature of the Australian political system. Section 2 of the Constitution also confers on the Governor General “such powers”.
which Her Majesty is happy to entrust to him. However, for practical purposes, article 61 is the main source of executive power. Although, of course, another important source of day-to-day executive power is that conferred by laws enacted by Parliament from time to time. With parliamentary government, legislative and executive functions overlap, since the members of the executive government – ministers – come from parliament. However, in the Australian system, there are still checks and balances between the executive and legislative branches – ministers are under the control of other members of parliament led by an officially recognised opposition. Moreover, the executive does not necessarily control both houses of parliament (see below). The Australian Constitution establishes the federal government by providing for parliament, executive government and the judiciary (more commonly known as the judiciary) – sometimes referred to as the “three branches of government”. However, some of the central features of the Australian system of government (described as parliamentary or accountable government) are not defined in the Constitution, but are based on customs and conventions.
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