In this session we highlight how the first 3 chapters of the Constitution define institutional structures—the Parliament, the Executive and the Judiciary.

Resources related to this episode:

The Australian Constitution can be found at https://www.pmc.gov.au/sites/default/files/foi-logs/foi-2021-017.pdf

For a general explanation of Separation of Powers see Parliamentary Education Office

In this session we highlight how the first 3 chapters of the Constitution define institutional structures—the Parliament, the Executive and the Judiciary.

The structure of the separate chapters emphasises the principle of separate branches of government and the importance of separating the powers.
Legislative power – Chapter 1 – The Parliament section 1
Executive Power – Chapter 2 – The Executive Government section 61
Judicial Power – Chapter 3 – The Judicature section 71

In talking about the separate chapters of the Constitution we also digress (!) to discussing the Miscellaneous Chapter VII– which references the seat of Parliament – section 125 –

Section 125 is an example of women not being present at framing of Constitution referred to by Kim over 20 years ago in this Opinion piece: https://www.theage.com.au/national/equal-voices-20020609-gdua7j.html

Legislative power
There are also accountability protections (to protect against improper exercise of power) within Parliament including:
Parliamentary oversight through Senate
Parliamentary committees
And the disallowance process https://www.aph.gov.au/About_Parliament/Senate/Powers_practice_n_procedures/Brief_Guides_to_Senate_Procedure/No_19

Executive power
In Australia, unlike the US, Executive power is not completely separate because the Australian Constitution also incorporates principles of Responsible Government Principles of responsible government can be seen in the Constitution as well as through conventions or the practise that the Governor General acts on the advice of the Ministers.

Section 64 – requires Ministers to be members of Parliament, hence they need to be re-elected to be available to be a Minister. This is different to the US system – where Ministers of State are not part of the Congress.

Judicial Power
In addition to section 71 vesting Judicial Power in the High Court of Australia, there is also an important section 75 which gives the High Court original jurisdiction to review decisions of ‘officers of the Commonwealth’.
This is foundational to the concept of the rule of law being embedded into our Constitutional system – both by having a constitution itself with judges determining whether legislation is constitutionally valid, but also in the way that decision makers exercise power.
This is known as the administrative law system that sits under our Constitutional structure – it enables citizens to be sure that judges can review the decisions of elected representatives, and their delegates in the executive branch, to ensure they act lawfully.
This should guide all decision makers in government. https://www.ag.gov.au/legal-system/publications/australian-administrative-law-policy-guide

For questions about the information discussed, contact: Kim.Rubenstein@canberra.edu.au