Separation of powers – Legislature

Introduction Parliament is the key institution within the legislative arm. Parliament’s primary role is to make laws, called Acts or Statutes, which outline the standards of behavior expected of members of the community. Parliament is able to make laws because the Australian Constitution has vested supreme law-making power in an elected Commonwealth Parliament. All laws are designed to protect human rights and to foster the achievement of social cohesion. All other federal institutions of government are sourced from parliament, as an enabling Act must be passed to create them.

Executive Arm The primary institution in the executive arm is the government, however the government’s functions are assisted by the mass of government departments and agencies. These bodies have been vested with executive powers to enforce and administer the laws made by parliament (e. g. The Police Department, via police officers, investigates breaches of criminal law. The police identify and arrest offenders, and offenders are then prosecuted in a criminal court, with the intention that they will be convicted and punished for their offence[s]). Judicial Arm

Just as the government is the principal institution in the executive arm, the courts fill this role in the judicial arm. The courts are vested with judicial power to administer justice to solve disputes. Judges preside in courts in the criminal and civil jurisdictions, to determine whether legal entities have broken a law, and if they have, to impose a legal consequence. An important part of the judicial arm, is that judges can actually make law, when no statute law exists, and when they give meaning to statutes to resolve legal disputes. This law is known as ?

Case Law’. Doctrine of the division of (legislative) powers The doctrine of the division of powers (Doctrine of DOP) is the allocation of legislative powers between the Commonwealth and the states. The doctrine is not specifically mentioned in the constitution, neither are all of the powers exercised by the federal partners. The doctrine attempts to summarise how the legislative powers are shared and protected, and how the can be changed. The division of powers doctrine alludes to five categories of legislative powers, that the federal partners can exercise.

These powers allow either the Commonwealth, and/or the state parliaments to debate and pass specific legislation. When a parliament validly exercises a legislative power to enact a statute, it has acted intra vires (inside the powers of the constitution). When it passes a law outside of its power’s, it has acted uultra vires (outside the powers of the constitution). Commonwealth’s Powers Specific Powers – legislative powers which are expressly written, or enumerated, in the 128 sections of the Australian Constitution.

The majority of these powers are listed in section 51, such as taxation, trade, foreign affairs, marriage and divorce. Exclusive Powers – Powers that only the Commonwealth can exercise. They are of federal nature, and requite a national approach to law-making such as; national defence, the external tarrif and printing money. Concurrent Powers – Specific powers belonging to the Commonwealth, however the states can also legislate under these powers. The arrangement is logical, as state laws had to continue after federation in 1901 until the Commonwealth Parliament was established and able to use its specific powers to make legislation.

Areas of shared power include; corporations, trade and taxation. States’ Powers Residual Powers – These are powers which the states kept for themselves at federation. These powers are not enumerated in the Australian Constitution. They include the majority of subject areas, such as; education, health, transport, civil and criminal law. They are a complete contrast to the Commonwealth’s specific powers, as they are alike in nature. Prohibited Powers – The constitution also makes provision for prohibited powers. These are the powers the Commonwealth and/or the states cannot exercise.

– Commonwealth’s Prohibited Powers o Areas the Commonwealth cannot make laws in, such as religion. – General Prohibited Powers o Areas neither federal partner can make laws in, such as impeding free trade between states. – States’ Prohibited Powers o Areas the states cannot make laws in such as defence and currency. It is important to have the Doctrine of the Division of Powers, because with-out it, trade would most probably be quite expensive coming from state to state and there would be no effective defence system.