Separation of Powers Essay

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Pages: 23

Politics and Law Study Notes
Constitution
Constitution: a written document outlining the process, principles and procedures of government
Federal constitution: a written document that defines the official powers and regulations involving state and central governments

Key Features (generally) * Codification: USA = codified (written in a single document), Saudi Arabia = un-codified (fully written, multiple documents), UK = un-codified (some unwritten conventions) * Entrenchment: if entrenched, cannot be altered by normal legislation e.g. Aust. , UK is not entrenched * Distribution of Sovereignty: Unitary state where sovereignty rests with the State itself. A federal state is where sovereignty is divided between central and regional bodies. A confederal State is similar to federal but the central government has limited power, sovereignty is with the regions * Separation of powers: idea first established by Montesquieu, divided power between three branches of government (legislature, executive, judiciary) * Line of Accountability: In Aust. (parliamentary system) cabinet ministers are accountable to parliament, parliament is accountable to the public

Democratic Principles * Representation: ideally mirror representation, although doesn’t have to be exact, as long as each group has a voice. E.g. 24% of HOR are women, 38% of Senate are women, Neville Bonner, Ken Wyatt and Aden Ridgeway are the only Aboriginal/Torres Trait islanders elected to the Australian federal parliament when they make up 2.5% of the pop in 2006 * Popular participation: ability to participate in political process, petitions, compulsory voting, input to committees, pressure groups
“It is not the function of our government to keep the citizen from falling into error; it is the function of the citizen to keep the government from falling into error” Robert Jackson US judge (1941-1954) * Rule of law: everyone is equal before the law. The Schedule attached to the Constitution require all offices to take an oath to the queen and the upholding of the Australian law and constitution * Judicial independence: separation of powers, not being influenced by political agendas, not being influenced by other judges * Natural justice: transparent process, open to scrutiny, providing reasons for actions and allowing a free media to report issues/incidents * Exercising of power: must be accountable to the people who have given the mandate/power

Australian Constitution
‘Wash minster’ model: Combination of the British bi-cameral parliament and the American two tired/federal state systems. Term first used by Elaine Thompson in 1980 * 2 authorities (Queen of England and people of Aust.) must agree and sign, technically making it an act of British parliament * Important to be an original state (s. 121) allows the original states to determine the conditions of the joining state. E.g. the NT is seeking to become the 7th State and has a vote on the issue planned for 2013 * “in one indissoluble” means the constitution cannot be broken, e.g. 1933 WA voted to leave the federation but was denied by England

The Federal Parliament
S.1 define the federal parliament as having a Queen, Senate and House of representatives

Senate: chosen by the people, with equal representation from each State s.7 e.g. 12 members from each State, 2 from each territory, currently 150/76 members
S.15 senate casual vacancies to be filled by a person from the same party (convention codified in 1977 referendum)
S.16 qualification for a Senator as the same as for a HOR
s.24: nexus clause – the HOR to have double the amount in the Senate (150/76)
s.34, 38, 43, 44 – disqualifications e.g. over 21 yrs., 3 yrs. residency, national born or 5 yr. citizenship, position becomes vacant if not present for over 2 months, can’t have alliance with foreign country (passport), can’t be a member of both houses.
S.53 Senate can only accept/reject money…