LAW 1504 Lecture Notes - Lecture 2: Montesquieu, Legal Separation, Responsible Government
23 May 2018
School
Department
Course
Professor
Separation of Powers
Theoretical Foundation
o L and E power united in a single person or in a
single body= no liberty. Fear that the same
monarch or senate that makes tyrannical laws
will executive them tyrannically. (Charles-Louis
de Secondat, Baron de Montesquieu, The Spirit
of the Laws (1748))
o Checks and balances
Separation of Powers in the Australian Constitution:
Chapter I – The Parliament
Chapter II – The Executive Government
Chapter III – The Judicature
Legislative Power under Constitution
Vesting: Australian Constitution s 1.
L power of Cth vested in Federal Parliament.
consists of the Queen, a Senate, and a House of
Representatives- The Parliament
Nature: power to make laws for the peace, order,
and good government of the Commonwealth with
respect to:
- Australian Constitution s 51.
- s 52 – exclusive powers.
Exercise: House of Representatives, Senate
o Senate= most effective check on the govt.’s
plans for passing legislation.
o Senators elected for longer terms and are under
a proportional representation system- less likely
to be controlled by govt- more likely to
challenge
Executive Power
Vesting : Australian Constitution s 61.
The executive power of the Commonwealth is
vested in the Queen and is exercisable by the
Governor-General as the Queen’s representative,
and extends to the execution and maintenance of this
Constitution, and of the laws of the Commonwealth.
Nature and Exercise
o Queen (represented by the Governor-General):
s 61
o The Governor General
• Federal Executive Council advises GG s 62.
• GG in Council- acts with the advice of the
Federal Executive Council’: s 63.
• May appoint officers to administer
departments of State of the Commonwealth
as the GG in Council may establish.
i. officers hold office during the
pleasure of the GG. Are members of
the Federal Executive Council, and
shall be the Queen’s Ministers of
State for the Commonwealth’: s 64.
• GG reserve powers: appointment of a PM/
dismissal of a PM/ refusal to dissolve
parliament
o Cabinet controlled by Prime Minister
• Confidentiality, Solidarity
o Executive other than Ministers: Departments –
public servants (includes defence)/ APS/
Agencies/ police/ tribunals
Relationship between L and E
Lines are blurred
Responsible Government:
o Minister of State cant hold office for more than
three months unless he is or becomes a senator
or a member of the House of Representatives’:
s 64.
• executive (ministers) accountable to
legislature (parliament) and members of it
Delegation of Legislative Power (Regulations):
o Tabled in parliament (oversight), power retains
its source from the legislature although it is
enacted through executive.
o Delegation of L power to E allowed. Victorian
Stevedoring and General Contracting Co Pty
Ltd v Dignan (1931)
Judicial Power
Vesting Australian Constitution 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.
Particular courts only: HCA, other federal courts,
state courts which parliament can invest with federal
jurisdiction.
Chapter III Courts
s 72 Tenure: judges (i) Appointed by GG in
Council; (ii) shall not be removed except by the GG
in Council, on an address from both Houses of the
Parliament in the same session. removal only for
misbehaviour or incapacity (iii) remuneration fixed
by Parliament cannot be diminished during their
continuance in office.
Exercise
High Court of Australia:
o 7 justices: full court constitutional appeals: 5
common law appeals. Majority of
commonwealth jurisdiction not exercised by
HCA- performed by the other federal courts.
Federal Courts created by Parliament (made in the
1970s)
• Federal Court of Australia
• Federal Circuit Court of Australia (formerly
magistrates)
• Family Court of Australia
o State Courts invested with federal jurisdiction
by Parliament under s 77(iii) (supreme courts-
criminal convictions under Cth law heard here)
find more resources at oneclass.com
find more resources at oneclass.com
Document Summary
Theoretical foundation: l and e power united in a single person or in a single body= no liberty. Fear that the same monarch or senate that makes tyrannical laws will executive them tyrannically. (charles-louis de secondat, baron de montesquieu, the spirit of the laws (1748): checks and balances. L power of cth vested in federal parliament. consists of the queen, a senate, and a house of. Nature: power to make laws for the peace, order, and good government of the commonwealth with respect to: Australian constitution s 51. s 52 exclusive powers. The executive power of the commonwealth is vested in the queen and is exercisable by the. Governor-general as the queen"s representative, and extends to the execution and maintenance of this. Constitution, and of the laws of the commonwealth. Nature and exercise: queen (represented by the governor-general): s 61, the governor general, federal executive council advises gg s 62, gg in council- acts with the advice of the.
