Government of Australia - Wikipedia
The system of government in Western Australia is that of a branches of government: namely the legislature; executive; and judiciary. Each branch checked. The Australian government is divided into three arms: legislature, executive and of Representatives, membership of the Senate is divided evenly between the. The Government of the Commonwealth of Australia is divided into three branches : the executive branch, composed of the Federal Executive Council, presided.
In such a case the dissolution of the Parliament would necessarily entail that its subordinate parts cease to exist. Under the Australian Constitution, however, the three parts of the Parliament are constituted independently of each other by separate parts of the Constitution and a Parliament is formed from these basic constituents on the initiation of the Governor-General under section 5.
In so far as prorogation prevents the Parliament as whole from operating it has the effect of temporarily suspending those powers and functions of the Parliament that require the coordinate actions of its constituent parts. A dissolution of the House of Representatives means that, for a period of time, one of the components of the Parliament ceases to exist and thus the Parliament cannot perform those functions for which all three parts are required, principally the enactment of legislation.
There is no constitutional provision or doctrine, however, which would prevent the Senate from meeting for non-legislative purposes. Similarly, should an election for half the Senate be held when the House of Representatives is still in session there is no reason why the House could not meet. In the absence of one of the Houses, or of the Governor-General, the remaining parts of the Parliament may continue to exercise those powers and perform those functions which do not require the coordinate action of the other parts.
In support of this view, it is to be noted that it has been held that the Governor-General may exercise legislative powers after a prorogation. On 1 December the Governor-General assented to bills which had been passed prior to a prorogation on 29 November In an opinion dated 9 October see below the Solicitor-General stated: I do incline to the view that the Constitution does not require that the Royal assent to Bills passed by both Houses be declared and given before the Parliament is prorogued, or the House of Representatives dissolved.
Certainly this is not specifically required by section Moreover, section 60, which provides for a proposed law reserved pursuant to section 58 for the Queen's pleasure, clearly embraces the situation that the Queen's assent may be furnished after the end of the session at which the proposed law is passed.
The requirement that the Queen's assent be made known within two years is inconsistent with any inference that assent may be given only during a session of the Parliament. Among the powers which the Senate may exercise and the functions which it may perform during recess or following a dissolution of the House are those of debating public affairs, inquiring principally through its committees into matters of concern, the presentation, publication and consideration of documents, and the disallowance of statutory instruments.
In the absence of a House of Representatives to receive any bills initiated and passed by the Senate, the Senate could originate legislation for subsequent consideration and could consider and vote on legislation already passed by the House of Representatives. An important argument in support of the Senate's powers in relation to meeting during recess and following a dissolution of the House of Representatives is that concerning the continuing nature of the Senate.
The six-year terms of senators and the retirement of half the Senate every three years means that the Senate is a continuing body except on those occasions when it is dissolved simultaneously with the House of Representatives under section 57 of the Constitution.
The continuing nature of the Senate is reflected in the standing orders and other orders of continuing effect. Senate standing committees are appointed at the commencement of each Parliament and continue in existence until the eve of the opening of a new Parliament. The Senate has not asserted its right to meet after a prorogation, but has regularly authorised its committees to do so and they have met accordingly.
The Senate has asserted that it and its committees may meet after a dissolution of the House of Representatives. Prorogation As mentioned in Chapter 7, the generally accepted view is that a prorogation, as well as terminating a session, prevents the Houses of Parliament meeting until they are summoned to meet by the Governor-General under section 5 of the Constitution, or they meet in accordance with the proclamation of prorogation.
Relations Between the Parliament and the Executive
According to this view, orders and resolutions which are not of continuing effect cease to have force and all business on the Notice Paper lapses and must be recommenced in the new session. Standing order provides that bills which have lapsed as result of a prorogation may be revived in the following session provided that a periodical election for the Senate or general election for either House has not taken place between the two sessions. The standing orders empower most standing committees of the Senate to meet during recess and some of the relevant provisions refer explicitly to the period of a dissolution of the House of Representatives.
The Senate has asserted since the right to empower committees to meet during the recess which follows a prorogation. On 6 June 18 the standing orders of the South Australian House of Assembly were adopted by the Senate on a temporary basis until it had drafted its own.
The standing orders continued to grant these committees, and certain others, power to act during recess. Upon its establishment in the Standing Committee on Regulations and Ordinances was also given this power. The power of the Senate to authorise committees to meet during recess may be regarded as deriving from section 49 of the Constitution, which provides that the powers, privileges and immunities each House, its members and committees shall, until Parliament declares otherwise, be those of the House of Commons in This and related opinions are further considered below.
Opinion is divided as to whether this section also empowers the Senate to authorise committees to sit during recess. See, for example, the opinion by Professor Colin Howard, dated Marchand that of the Solicitor-General, dated 9 Octoberreferred to below.
In the Joint Committee on Constitutional Review, at the request of the Senate, was given power to sit during recess. The minister observed that while committees of the House of Commons ceased to exist following prorogation, the situation in Australia required a different approach: Although we follow quite regularly the rulings and practices of the House of Commons where they appear to accord with the needs of our situation in Australia, each Parliament, of course, has its own way to make and its own problems to resolve.
We live in a practical and swiftly moving world, and although the prorogation may legally bring to an end a session of the Parliament, it is assumed that if we are to have a session annually the Parliament will go on and resume in a new session shortly after the New Year according to the kind of program that I outlined last week.
Senate committees have since then regularly met during prorogations, for private meetings and public hearings. That certainty has also been reinforced by later House of Commons practice which demonstrates that the House does not regard prorogation as having any legal effect in a growing number of situations. While the traditional view was that prorogation brought all business to a halt, 23 it was always the case that orders of the House of Commons had a life beyond the session if they so provided.
For example, new committee standing orders agreed to on 1 December were to have effect until the end of the next session of Parliament; orders for the production of documents were also recognised as having a continuing character, whether explicitly or implicitly. Thus Blackmore's drafting of standing orders authorising committees to meet during recess following a prorogation, based on South Australian practice and necessity, was no mistake but a reflection of contemporary House of Commons thinking.
The empowering provisions for some committees explicitly refer to the period of a dissolution of the House.
This positive assertion by the Senate of the right to have its committees meet during the period of a dissolution of the House reflected a need for the newly-expanded committee system of the Senate to continue to function in an election period. In the s the standing committees frequently held meetings, including public hearings, after the dissolution of the House of Representatives. On 19 October Senator Tate, the Chairman of the Senate Select Committee on Allegations Concerning a Judge, tabled papers relating to the power of the Senate or its committees to meet after a dissolution of the House of Representatives or a prorogation of the Parliament, and the publication of a committee report when the Senate is not sitting.
Griffith, dated 9 October Opinion dated 9 October of the Solicitor-General: This opinion concludes that — the Senate may not meet after a prorogation, which has the effect of terminating a session and preventing Parliament, as an organic whole, from functioning; the Senate likewise may not meet after a dissolution of the House of Representatives, which also has the effect of preventing the Parliament from functioning; but concludes that — the Senate has the power to authorise its committees to meet after a prorogation or dissolution of the House of Representatives, because this is one of the powers of the House of Commons adhering to the Senate by virtue of section 49 of the Constitution.
This paper concludes that — it is wrong to equate a dissolution of the House of Representatives with a prorogation, and the Senate and its committees may meet after a such dissolution; in any case, the Senate and its committees may meet after a prorogation; it is not tenable to maintain that the Senate committees may meet during a period during which it is claimed that the Senate may not meet: Each of these documents supported the conclusion that the publication of the report of the Select Committee on Allegations Concerning a Judge in accordance with the resolution appointing the committee would be absolutely privileged.
The report was subsequently published and there was no challenge of any sort to its absolutely privileged nature. Following the tabling of the papers, Senator Georges requested the tabling by the President of any further opinions received on this matter, either by the President or by any other committee of the Senate.
Opinion concludes that Senate committees cannot lawfully continue to meet and transact business during the period from a dissolution of the House of Representatives to the re-assembly of Parliament in the next session. Also clear, in the Attorney's view, that the Senate itself cannot sit during that period. Ellicott, when Commonwealth Solicitor-General. Opinion concludes that, on dissolution by proclamation of the House of Representatives, neither the Senate nor its committees have power to meet until Parliament is called together following the general election.
General conclusion that the Senate and its committees may sit and function during the period from a dissolution of the House of Representatives to the meeting of Parliament in the next session and during periods of prorogation of Parliament. That the Senate declares that where the Senate, or a committee of the Senate which is empowered to do so, meets following a dissolution of the House of Representatives and prior to the next meeting of that House, the powers, privileges and immunities of the Senate, of its members and of its committees, as provided by section 49 of the Constitution, are in force in respect of such meeting and all proceedings thereof.
Since that time the Senate has not met after a dissolution of the House, but Senate committees have regularly done so for the purposes of private meetings and public hearings. The Senate and the ministry Section 1 of the Constitution provides that the Parliament consists of the monarch, the Senate and the House of Representatives. The titular head of the executive government is therefore also part of the legislature and joins in the exercise of the legislative power.
CHAPTER 19 | Relations with the executive government – Parliament of Australia
The monarch's powers and functions are in effect delegated to the Governor-General s. This latter requirement is the only reference in the Constitution to the practice of responsible or cabinet government, under which the ministry holds office so long as it retains the confidence of the House of Representatives. In practice this means that the prime minister is the leader of the party or coalition of parties which holds a majority in that House, and the other ministers are members of that party or coalition nominated by the prime minister or selected by the party or coalition.
Through its party majority, the ministry controls the House of Representatives. Ministers individually and the ministry collectively, however, are required by the Senate to be accountable to the Senate for their policies and their conduct of the executive government. This accountability to the Senate is provided for in the procedures of the Senate, and is imposed through questioning of ministers, examination of government legislative proposals, and inquiries into government activities.
Ministers in the Senate The Constitution vests the executive power of the Commonwealth in the Governor-General as the monarch's representative s. In practice the Governor General acts only on the advice of the government, which is formally tendered through the Executive Council, of which all ministers are members. Parliamentary secretaries see below are also appointed to the Council. Ministers are appointed by the Governor-General on the advice of the Prime Minister.
The number of ministers and the maximum amount of funds that can be appropriated to cover their salaries is prescribed, under sections 65 and 66 of the Constitution, by the Ministers of State Act as amended. When Senator John Gorton became Prime Minister consequent upon his election to the position of leader of the Liberal Party on 10 January he sought to become a member of the House of Representatives as soon as practicable.
Although there are no constitutional or statutory requirements that any ministers be members of the Senate, all governments since federation have appointed senators to the ministry. In recent decades senators have usually comprised approximately one quarter to one third of the ministry. From time to time the proposition has been advanced that there should be no ministers in the Senate, the argument being that the Senate is not the House which determines the composition of the government, the Senate's role should be one of review and the presence of ministers inhibits that role.
For example, on 22 February Senator Hamer moved: That, in the opinion of the Senate — Senators should no longer hold office as Ministers of State, with the exception of any Senator holding the office of Leader of the Government in the Senate, who, in order adequately to represent Government priorities to the Senate, should remain a member of the Cabinet; and Chairmen of the Senate's Legislative and General Purpose Standing Committees should be granted allowances, staffs and other entitlements similar to those currently granted to Ministers other than Ministers in the Cabinet.
This motion was debated but not resolved. It remained on the Notice Paper until 16 December but it was not moved and not debated. Unless the major parties agree not to appoint ministers in the Senate, which is unlikely, the change could come about only by a constitutional amendment.
On the other hand, the presence of ministers in the Senate provides a direct line of accountability by the executive to the Senate. In the chamber, ministers occupy front seats on the right of the President. The standing orders provide that ministers may: Ministers may be asked questions relating to public affairs at question time. Conversely, Senate ministers are represented in the House of Representatives by a minister who is a member of that House.
These representational arrangements are determined by the government. Parliamentary secretaries or assistant ministers Some members of the Senate are appointed by the government to assist ministers in their work. Designated by statute as parliamentary secretaries, persons who perform similar functions have been known by a variety of designations, including parliamentary under-secretary and assistant minister.
Parliamentary secretaries are now appointed under an amendment made in to the Ministers of State Actwhich prescribes the number of ministers under section 65 of the Constitution. The statutory provision provides for them to be appointed as ministers, but without that title or status.
The purpose of this paradoxical provision is to allow them to be paid salary for the office without incurring disqualification under section 44 iv. Sincewhen the practice of appointing parliamentary secretaries was resumed, at least one senator has always been included in their number. In Septemberthe title of assistant minister was revived under a new Prime Minister, although those holding the office were sworn in as parliamentary secretaries under the Ministers of State Act.
As assistant minister, Senator Russell answered questions without notice and upon noticelaid papers on the table, initiated and controlled the passage through the Senate of legislation, moved other motions, and generally did all those things which a minister representing another minister in the other House does in the Senate.
No special resolution or changes in the standing orders were made to enable Senator Russell to discharge the functions of a minister. The legal status of parliamentary secretaries and the extent of their powers was the subject of debate on a number of occasions in the past; for further details see the report of the Senate's Standing Committee on Constitutional and Legal Affairs on The Constitutional Qualifications of Members of Parliament. The history of this order is as follows.
Separation of powers in Australia - Wikipedia
The Parliamentary Secretaries Act did not define the powers or duties of a parliamentary secretary and thus did not settle the question of the extent to which senators appointed to such offices could exercise the powers and functions conferred upon ministers by the procedures of the Senate. In a statement to the Senate on this matter in JunePresident Sibraa gave consideration to the question of whether secretaries could answer questions without notice on behalf of ministers and whether they could represent ministers at estimates committees.
That any Senator appointed a parliamentary secretary under the Parliamentary Secretaries Act may exercise the powers and perform the functions conferred upon ministers by the procedures of the Senate, but may not be asked or answer questions which may be put to ministers under standing order 72 1.
On 6 May the Senate adopted a sessional order which contained, in addition to the provisions included in the order quoted above, a prohibition on parliamentary secretaries representing ministers before committees considering estimates. Questions to ministers At the time specified in the routine of business, questions without notice may be put to ministers relating to public affairs.
Questions to chairs of committees and other senators who are not ministers were abolished in Time limits are imposed on questions and answers at question time. Standing order 72 3 provides that: The Constitution does, moreover, provide for one form of physical separation of executive and legislature. Section 44, concerning the disqualifications applying to membership of Parliament, excludes from Parliament government employees who hold "an office of profit under the crown" iv along with people in certain contractual arrangements with the Commonwealth.
Cleary, on leave without pay from the Victorian Education Department at the time of his election, was held in Sykes v Cleary to be holding an office of profit under the Crown and disqualified. The Court noted that that Section 44's intention was to separate executive influence from the legislature. The Federal Parliament itself has the rarely used privilege of being able to act as a court in some circumstances, primarily where it may regard a non-member as acting "in contempt" of parliament.
The reasoning in the Wheat Case was taken further in Waterside Workers' Federation of Australia v J W Alexander Ltd where a decisive distinction between judicial and arbitral functions was drawn.
The normal propensity of the High Court is to recognise that separation of powers requires not only that the "political branches" should not interfere with judicial activity, but also that the judiciary should leave politicians and administrators alone. In administrative law this means that the courts cannot substitute an original decision of the executive, but can only decide on its correctness.
State courts, unlike their federal counterparts, are therefore capable of exercising non-judicial functions. Nevertheless, a degree of judicial independence is maintained at State level by convention.
The federal separation of powers also has implications for State courts, due to the fact that State courts may be invested with federal judicial power under section 71 of the Commonwealth Constitution. On this basis it was held in Kable v Director of Public Prosecutions NSW that a State court could not be given a function inconsistent with its status as a potential repository of federal judicial power.
Even though the functions of the Magistrates' Court under the Act are purely a matter of South Australian law, the fact that the Court is also capable of exercising federal jurisdiction was held to require that it maintain certain standards of independence and impartiality so that it retain the character of a court.
Parliamentary scrutiny of the executive and, in particular, by the New South Wales Legislative Councilwas tested in the s when Treasurer Michael Eganon behalf of Cabinetrefused to table documents in the Legislative Council of which he was a member.
The Council, determined to exercise its scrutiny of the executive, pressed the issues and eventually adjudged the Treasurer in contempt, suspending him from the house twice. The results upheld that principle that the Legislative Council does have the power to order the production of documents by a member of the House, including a minister, and can counter obstruction.
In the High Court held that all matters falling within section 75 and section 76 of the Constitution formed part of the judicial power of the Commonwealth, including a dispute between the residents of different States. It followed that the federal separation of powers meant that a State tribunal was unable to determine a dispute between residents of different States.
In it had been held that the separation of powers precluded the exercise of judicial power by the Inter-State Commissionprovided for at section in Chapter IV Finance and Trade.