LLB 100 Lecture Notes - Lecture 4: Section 51(Xxvi) Of The Australian Constitution, National Native Title Tribunal, Racial Discrimination Act 1975
Week 4 – The Constitutional Framework
The Separation of Powers
Purpose – to prevent the despotic or arbitrary exercise of power
Concern to preserve the liberty of the individual from encroachment by the state
The doctrine of the Separation of Powers assumes:
• Three different functions of government – legislative, executive and the judicial
• Three separate institutions through which these functions are respectively
performed
• No overlap between the personnel assigned to carry out each function or between
the functions assigned to the different personnel
No express reference in the Constitution to the separation of powers ad it doest aord to
the classic doctrine because:
1. The Westminster tradition of responsible government is characterised by an overlap
between the legislative and executive arm
2. The three traditional functions of government are not conceptually or logically
distinct
It does identify three powers and locates their institutional exercise:
Chapter 1 – The Parliament
Part 1 – General
S 1 – the legislative power of the Commonwealth shall be vested in a Federal Parliament,
which shall consist of the Queen, a Senate and a House of Representatives, and which is
hereinafter called The Parliament, or The Parliament of the Commonwealth
Chapter 2 – The Executive Government
S 61 – the Executive power of the Government is vested in the Queen and is exercisable by
the Governor-Geeral as the Quees represetatie, ad eteds to the eeutio ad
maintenance of this Constitution, and of the laws of the Commonwealth
Chapter 3 – The Judicature
S 71 – The judicial power of the Commonwealth shall be vested in a Federal Supreme Court,
to be called the High Court of Australia, and in such other federal courts as the Parliament
creates, and in such other courts as it invests with federal jurisdiction. The High Court shall
consist of a Chief Justice, and so many other Justices, not less than two, as the Parliament
prescribes
Judicial branch = courts to interpret laws
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Responsible Government and the Executive Arm
• Responsible government means the accountability of the executive arm to the
Parliament, which is in turn representative of and accountable to the people
• Federal Ministers of State must be members of the Senate or House of
Representatives
• Ministers are the political heads of government departments which administer the
laws of the State. Also part of the executive arm
• Parliament is the legislative arm
• Courts are the judicial bodies
• The executive is comprised of a range of offices and agencies
• S 61 – vests the executive power of the Commonwealth in the Queen, exercisable on
her behalf by the Governor General
• S 62 – provides for a Federal Executive Council to advise the Governor General
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