Foundations of Governance

Last updated: 20 Jun 2013

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Chapter 1: Constitutional, legal and Government framework

Australia is a constitutional monarchy. The Head of State is the Queen of Australia, represented in Australia by the Governor-General who acts on the advice of the Federal Executive Council (established under the Australian Constitution).

1.1 The Constitution

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Australia has a federal system of government, with powers distributed between the national, state and territory governments.

Chapters I, II and III of the Constitution confer the legislative, executive and judicial powers of the Commonwealth of Australia on three different branches of government established by the Constitution as follows:

  • The Commonwealth Parliament, which consists of the Senate and the House of Representatives. The Queen is also formally part of the Parliament.
  • The federal Executive. While the Queen does not play a day to day role in Australian government, executive power is formally vested in the Queen. The power is exercisable by the Governor-General as the Queen’s representative. The Federal Executive Council advises the Governor-General in the government of the Commonwealth of Australia.
  • The federal Judicature. Federal judicial power is vested in the High Court of Australia, various federal courts created by the Commonwealth Parliament, and those state and territory courts that have been invested with federal jurisdiction.

Legislative power is the power to make laws. Executive power is the power to administer laws and carry out the business of government through bodies such as Government departments, statutory authorities and the defence forces. Judicial power is the power exercised by courts in interpreting and applying the law.

The Constitutional Policy Unit of the Attorney-General’s Department provides assistance and advice on matters of constitutional policy development and litigation.

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In Australia, the law consists of:

  • Acts passed by the Federal Parliament acting within the scope of its powers under the Australian Constitution, and delegated or subordinate legislation made under those Acts.
  • Ordinances made for the Territories, and delegated or subordinate legislation made under those Ordinances.
  • Acts passed by state Parliaments and the Legislative Assemblies of the Northern Territory, the Australian Capital Territory and Norfolk Island, and delegated or subordinate legislation made under those Acts.
  • The Australian common law, which developed from the English common law and is interpreted and modified by the courts.
  • Any statute law of England that was received into Australian law and which remains unchanged.

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1.3 Legislative power

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Before a proposed law (a Bill) becomes an Act of Parliament it must be passed in the same form by both the House of Representatives and the Senate. The Bill becomes an Act of Parliament when it receives assent by the Governor-General.

The Constitution sets out the subjects on which the Federal Parliament can make laws. These include matters such as defence, external affairs, interstate and international trade and commerce, taxation, immigration and social security.

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1.4 Executive power

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Executive power is in some cases exercised by the Governor-General, most often acting with the advice of the Federal Executive Council. The Constitution provides that all Ministers of State are Executive Councillors. Since March 2000, parliamentary secretaries have also been appointed as Ministers of State for the purposes of the Constitution, and so are Executive Councillors.

Commonwealth Ministers and parliamentary secretaries must sit in Parliament, as Senators or Members of the House of Representatives, and are appointed by the Governor-General on the recommendation of the Prime Minister. Ministers and parliamentary secretaries are sworn to administer the Department(s) of State in the portfolio to which they have been appointed. Each portfolio may contain one or more agencies. The composition of portfolios may change over time as Governments review their policy priorities.

Very broadly, the executive power of the Commonwealth can be seen to fall into three categories:

  • power can be conferred by statute
  • the power exercised by the Australian Government is a legal person (it can, through its officials, do many of the things an ordinary person can do such as enter into contracts)
  • the powers that historically were vested in the Crown (for example, in relation to entering treaties).

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Chapter III of the Constitution establishes the federal Judicature. The role of the courts is to interpret the law and apply it. The High Court is Australia’s court of final appeal. Its functions are to interpret and apply the law of Australia, to decide cases of special significance including challenges to the constitutional validity of laws and to hear appeals, by special leave, from Federal, state and territory courts. The other federal courts are the Federal Court of Australia, the Family Court of Australia and the Federal Magistrates Court of Australia.

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1.6 Rule of law

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The rule of law is basic to Australia’s system of Government. The rule of law requires that individuals are not subject to any arbitrary or capricious exercise of power by Government officials. Government officials cannot act contrary to Acts and Regulations, nor can Government officials exercise coercive powers against an individual without statutory authority.

An individual whose rights or interests are affected by a decision made by a Government official may seek to have the decision reviewed.

An Australian Government official may be subject to both common law rules and legislative rules when undertaking any given action.

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1.6.1 Common law

Common law, or judge-made law, is a body of law that has been formulated, developed and administered by courts, over time. Examples include the duty of care in giving advice, misfeasance in public office and the implied duties of employers and employees under the common law contract of employment. Principles developed under the common law can be displaced, amended or codified by legislative action.

1.6.2 Commonwealth, state and territory laws

A Government official may be subject to both Commonwealth law and state or territory laws when undertaking any given action. An example of the interplay between Commonwealth and state or territory law can be seen in the area of anti-discrimination legislation in which both Commonwealth and state or territory laws may have application. The relationship between Commonwealth laws and the laws of the states and territories is a complex issue and legal advice should be obtained when specific issues are raised in this area.

Similarly, the operation of Commonwealth immunities is a complex issue on which legal advice should be sought. There is a presumption against the Crown being bound by statutes but sometimes a statute expressly provides that the Crown is bound. For more information, see: Hogg & Monahan, Liability of the Crown (3rd edition, 2000).

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1.6.3 Criminal law

A Government official may be subject to the criminal law when undertaking any given action. Provisions of particular relevance to Australian Government employees include:

  • section 14 of the Financial Management and Accountability Act 1997, which makes it a criminal offence for a Commonwealth official or Minister to misapply, or improperly dispose of or use, public money
  • key sections in the Crimes Act 1914 such as section 70 which relates to the disclosure of information by Commonwealth officers and section 79 which relates to official secrets
  • the Criminal Code Act 1995 (incorporating the Criminal Code) which establishes a range of offences, including theft, fraud, abuse of public office, bribery and unauthorised access to, or modification of, restricted data.

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