Posted: March 23rd, 2023
The separation of powers doctrine is a key characteristic of many legal systems that dictate the functions of the government arms in the country. The doctrine facilitates checks and balances on the concentration of power in a few individuals leading the country. The noticeable demonstrations of this doctrine are vested in the Australian constitution, where the powers of the government arms are divided accordingly. The paper will discuss the role, functions, and interrelationship of the arms of the state as well as the importance of the state in the study and practice of industrial relations in Australia
The parliament of Australia is at the heart of the national government. It is made up of the Queen (represented by the Governor-General), the Senate (Upper House), and the House of Representatives (Lower House) (Lee & Campbell 2013, p. 85). The Lower House has 150 members representing electorates of an equal number of voters. In the parliamentary system of Westminster, the government is drawn from the parties that control the House of Representatives. The government in Australia will hold an office on the assumption that they retain the confidence and support of the House of Representatives (Lesley 2010). Minority groups in the country are represented in the Senate since the voting for senatorial seats observes proportional voting. In essence, the three elements of the Australian Parliament exhibit a parliamentary democracy and constitutional monarchy (Gareth 2006). According to the Parliament of Australia (2014b), the parliament is charged with crucial functions that give it the mandate to serve the people, as listed below.
It is worth noting that both Houses must pass the proposed laws, which must receive assent from the Governor-General before becoming Acts of Parliament (Parliament of Australia 2014a). Any proposed law can be introduced in either of the Houses. However, laws relating to taxation and revenue must be tabled in the House of Representatives. The change of the constitution is an action of the people and the Parliament. In fact, both Houses must reach a consensus on the change of the proposed amendments or constitution. However, if an agreement is being reached, the Governor-General’s proposal is presented to the people to be voted for. Indeed, for a proposal to succeed, the majority of the voters must support its overall and in the majority of states (Parliament of Australia 2014b).
Governor-General appoints the Prime Minister, who, by the agreement under the Constitution, appoints the party leader with the majority seats in the House of Representatives (Parliament of Australia 2014b). The majority party, therefore, becomes the government and consequently appoints the ministers who must be members of the Parliament. The Governor-General presides over the ministers referred to by the Constitution as the Federal Executive Councils. The council’s main function is to receive ministerial advice and consequent approval and sign official documents such as regulations, statutory appointments, proclamations, and ordinances (Parliament of Australia 2014). In essence, Australia functions under a Cabinet system of governance. Although the Cabinet is not discussed in the constitution, it is the key decision-making body of the government, which consists of senior Government Ministers. More importantly, the decisions made by the Cabinet become legally binding after the Federal Executive Council ratifies them formally (Gelev 2011).
Keeping the system under control is imperative, especially when legislative bodies instigate and pass a law. In fact, laws are broad in outline; hence, regulations to provide the specifics of implementation are necessary. Therefore, the executive branch is responsible for drafting regulations because the expertise is integrally within the ministries and administrative agencies (Kincaid, Saunders, & Leroy 2006). In fact, to understand the concept, a hypothetical case concerning a law on foreign investment can be considered. Fundamentally, the legislature will make policy choices regarding the drafting a particular law. The legislature may seek to encourage foreign investors to buy their raw materials within the country. However, locally supplied quality may not consistently exhibit the required high quality. Therefore, when drafting the law, the legislature may provide a clause on tax incentives to investors who decide to buy from local suppliers.
In essence, the executive, as the tax authority, will consider the pertinent information required by the foreign investors for them to be eligible for a tax exemption. In addition, the executive must also put in place measures that will dictate how often such information is submitted (Kincaid, Saunders & Leroy, 2006). Still, the executive should initiate oversight to curb information falsification and highlight the consequences of failing to provide the required information. The executive branch in Australia can issue an order and decrees to guide the operations of the ministries or executive branch agencies in case of a national emergency such as war (Warhurst 2008). In this context, if Australia went to war with another country, an executive decree may be issued to prohibit any investment from that country. However, the judiciary reviews such decrees in case there is an incompatibility with another law or constitutional violation (Kincaid, Saunders & Leroy, 2006).
Judiciary refers to the system of courts that dispense and administer justice. The High Court of Australia is at the top of the Australian judicature and the final court of appeal (Museum of Australian Democracy 2014). The role of the court is to apply and interpret the law. In fact, the whole process of judiciary entails interpretation of the constitution and resolving the arising legal dispute between the parliament and executive. The judiciary also decides cases of federal significance, which include hearing appeals and deciding the constitutional validity of the laws (Lee & Campbell 2013). For instance, the judiciary protects the common law from overriding an Act of Parliament. Still, it ensures that an Act of Parliament can override the common law in case the determination of such provision is required.
The judiciary’s role is unique among other government branches because it is not directly answerable to the demands of the popular will. In fact, judges are appointed for a lengthy period of service. In that context, the judiciary is uniquely devised to protect the rights of the minority from the influence of the majority. It is the function of the judiciary to examine the legality of legislative and executive actions by reviewing laws and the conduct of ministries and executive agencies (Lee & Campbell, 2013). The judiciary is significantly qualified to determine whether the action agency or a particular law is consistent with other laws or the constitution. It is worth noting that despite these powers, the judiciary does not have the authority to determine or pass on the wisdom of such laws.
According to Lee and Campbell (2013, p. 75), the courts developed the doctrine of separation of powers. The clause sustains judicial independence. However, the doctrine cannot protect the independence of the judiciary. In fact, what protects the judiciary’s independence is the community’s consensus and belief that the judiciary protects its rights without experiencing domination by the parliament or the executive.
There are limitations as to the extent of separation of powers in Australia. French philosopher Montesquieu (1689-1755) is associated with establishing the doctrine (Lee and Campbell 2013, p. 50). In essence, the doctrine requires the separation of all three arms of the government. However, it is not possible for all functions to separate because some functions overlap between the executive and legislative arms (Thomas 2009). The Australian constitution provides a formal relationship between the parliament and the executive. In fact, there must be a responsible government (executive) and a reliable institution of representation (parliament) (Job 2005). In this context, the Constitution requires that all the Ministers of the Government must first be members of the Parliament.
The Constitution also separates the judicial arm of the government from other arms of the government. The doctrine was demonstrated during Boilermakers’ case (1956) HCA (Lee and Campbell 2013, p. 57). The ruling by the High Court indicated that the Commonwealth’s judicial powers could only be exercised by courts defined in the Constitution (s 71) (Lee and Campbell 2013, p. 58). In addition, those courts established in s 71 could not exercise non-judicial powers.
Another aspect that demonstrates the interrelationship of the arms of the government is in the instances and the process of determination of judicial and non-judicial power. Judicial powers are exercised through a process that encompasses hearing of a disputed matter between the parties and the consequent declaration of the pre-existing rights of those parties as stipulated in the law. In that process, the judiciary can enforce a particular order and commit contempt of the same order (Sawer, Abjorensen & Larkin, 2009).
On the other hand, non-judicial power just like judicial power is an arbitral power that involves a hearing of a disputed matter between two parties. However, the process requires an award or decision that will dictate the outcome of the future rights of the parties involved. In addition, judicial power should be distinguished from administrative power, which involves the creation of new rights and obligations. Hence, it requires considering policy matters as in the case of Precision Data Holdings Ltd v Wills (1991) HCA (Kelemen 2004). Sometimes it is hard to define judicial power because many aspects of administrative and judicial power tend to overlap. Therefore, the functions are classified as administrative or judicial according to the way they are exercised. Lastly, the federation’s legislative power remains with Congress, and the executive power is bestowed on the presidency. In addition, the judicial power lies in the Supreme Court (Gareth, 2006).
In the study and practice of industrial relations in Australia, it is imperative to understand the role of the state. In fact, the state has a powerful impact on industries and nations, the efficiency of enterprises, and the welfare and equity of employees. Understanding the state’s role is demonstrated by going beyond the ‘commonsense perception’ of the industrial relation. In this case, the perception only emphasizes the sensational conflict conditions between employers and trade unions (Bray, Waring & Cooper, 2014). Therefore, it is necessary to go from the ‘commonsense perception’ to a more theoretically informed explanation of the industrial relations, which defines it as the study of the employment relationship.
The role and function of the state in modern economies cannot be ignored, whether through macroeconomic policy, legislation, or its role as an employer (Bell & Head 1994). The role of the state is pervasive, and Australia has developed an Industrial Relation System where the state plays an active role. Therefore, it is imperative to understand the state’s role in the study and practice of industrial relations in Australia. The state plays various roles in initiating the institutional framework for the bilateral relationship between employers and their representatives and workers and their trade unions. According to Spigelman (2004), the Australian government is involved in collective bargaining, demonstrated in a centralized system.
The state provides the institutional framework for the bilateral relationship between the workers and their trade unions and employers and representatives. Creighton & Stewart (2005) aver that the framework regulates the relationship between the labor and the management at all levels (enterprises, regions, and the entire economy). In addition, the balance is attained after adjusting the legal environment.
Through the state’s role, we understand the importance of the Collective Bargaining System. In this context, the state provides a mechanism for settling the employment terms in the industry by non-political means (Cooper 2005). The legal framework entails substantive provisions for minimum standards accepted universally, including minimum wage, occupational health and safety provisions, vacations, minimum wage, protection against dismissal, and anti-discrimination regulations. Therefore, the state provides an efficient system that supports collective bargaining.
The state provides ways to avoid and limit industrial conflicts. In Australia, the right to strike is guaranteed by law. At the same time,, the state takes actions to curb unofficial and official strikes and lockouts to safeguard the citizens from real and imagined consequences. In fact, the Australian government is responsible for conflict resolutions in the public and private sectors by providing procedural rules for conciliation, mediation, and compulsory or even voluntary arbitration (Wailes 2002).
The Australian government has a role in participating in Public Sector Labor relations. Indeed, the public authorities and the state are the direct employers of most citizens in the labor force, as indicated by Wailes (2002). Therefore, the study and practice of industrial relations must be understood so that the state’s role can be appreciated. Therefore, the state exerts significant influence on the sectors involved and participates in developing industrial relations systems.
Australian Government 2012, Department of Foreign Affairs, and Trade: Legal Systems, [Online] Available at: <http://www.dfat.gov.au/facts/legal_system.html>
Bell, S. & Head, B. 1994, ‘Australia’s political economy: Critical themes and issues’, in State, Economy and Public Policy in Australia, eds B. Head & S. Bell, Oxford University Press, Melbourne, pp. 1–21.
Bray, M, Waring, P & Cooper, R 2014, Employment Relations: Theory and practice, 3rd edn, McGraw-Hill, Sydney.
Cooper, R 2005, ‘Deregulation and Australian unionism’, in Deregulation and the Australian Labour Market, eds K. Hancock, J. Isaac & R. Lansbury, The Federation Press, Annandale, forthcoming.
Creighton, B. & Stewart, A 2005, Labour Law, The Federation Press, Annandale.
Gareth, G 2006, “Parliament and Accountability” Australasian Parliamentary Review, Vol 21(1), pp. 7-47.
Gelev, F 2011, Checks and balances of risk management: precautionary logic and the judiciary. Review of International Studies, 37(05), p.2237-2252.
Job, J 2005, How is trust in government created? It begins at home, but ends in the parliament. Australian Review of Public Affairs, 6, p.1-23.
Kelemen, R, D 2004, The Rules of Federalism Institutions and Regulatory Politics in the EU and beyond. Cambridge, Mass, Harvard University Press.
Kincaid, J., Saunders, C., & Leroy, K 2006, Legislative, Executive, and Judicial Governance in Federal Countries. Montréal, Published for Forum of Federations, McGill-Queen’s University Press.
Lee, H. P., & Campbell, E. M 2013, The Australian judiciary. Cambridge, Cambridge University Press.
Lesley, F 2010, ‘Parliament’s Watchdogs – NZ’s Officers of Parliament’ Australasian Parliamentary Review, Vol 25 (2), pp. 133-145.
Museum of Australian Democracy 2014, Australian democracy: an overview, [Online] Available at: <http://moadoph.gov.au/democracy/australian-democracy/>
Parliament of Australia 2014a, House of Representatives, [Online] Available at: <http://www.aph.gov.au/About_Parliament/House_of_Representatives>
Parliament of Australia 2014b, ‘Parliament and Government’ Commonwealth of Australia [Online] Available at: <http://www.aph.gov.au/About_Parliament/Work_of_the_Parliament/Forming_and_Governing_a_Nation/parl#execgov>
Sawer, M., Abjorensen, N., & Larkin, P. 2009, Australia: the state of democracy. Annandale, N.S.W., Federation Press.
Spigelman, A 2004, ‘The Integrity Branch of Government’, AIAL National Lecture Series on Administrative Law, Sydney, 29 April 2004, 2.
Thomas, P 2009, Parliament scrutiny of government performance in Australia. Australian Journal of Public Administration, 68(4), p.373-398.
Wailes, N 2002, ‘Globalisation and national patterns of industrial relations: The case of Australia’, in The Impact of Globalisation on Employment Relations, eds R. Lansbury & Y. P. Park, special issue of Bulletin of Labour Relations, vol. 45, pp. 33–58.
Warhurst, J., 2008. Conscience voting in the Australian federal parliament.Australian Journal of Politics and History, 54(4), p.579-596.
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