Separation of Powers
Chapters I, II and III of the Constitution confer the legislative,
executive, and judicial powers of the Commonwealth on three different
bodies which are established by the Constitution - the Parliament (Chapter
I), the Executive Government (Chapter II), and the Judicature (Chapter
III). Legislative power is the power to make laws. Executive
power is the power to administer laws and carry out the business of
government, through such bodies as government departments, statutory
authorities and the defence forces. Judicial power is the power
to conclusively determine legal disputes, traditionally exercised by
courts in criminal trials and litigation about such things as contracts
and motor accidents.
Despite the structure of the Constitution
there is no strict demarcation between the legislative
and executive powers of the Commonwealth. Only the Parliament
can pass Acts, but these Acts often confer on the
Commonwealth Executive the power to make regulations,
rules and by-laws in relation to matters relevant to the particular
Acts.
For
example, the Parliament may enact in the Customs Act
that no person may bring a 'prohibited
import' into Australia and then leave it to the Executive to
specify in the Customs Regulations what is a 'prohibited import'. This
delegation of legislative power is not as extreme
as it may appear, however, as both Houses of Parliament
usually retain the power to 'disallow' (that
is, reject), within a specified time, any regulation
which has been made by the Executive.
The distinction between
the Parliament and the Executive Government is further
blurred by the fact that the Prime Minister and the other Ministers
must be members of Parliament. This reflects the principle of responsible government
(discussed below) under which Government Ministers must be members
of, and accountable to, the Parliament.
By contrast, the separation between the Judicature on the one hand and the Parliament and the Executive Government on the other is strict. Only a court may exercise the judicial power of the Commonwealth, so that, for example, the question whether a person has contravened a law of the Commonwealth Parliament (for example, by bringing a 'prohibited import' into the country) can only be conclusively determined by a court.
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