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The Commonwealth of Australia is a federal constitutional monarchy under a parliamentary democracy. The Commonwealth of Australia was formed in 1901 as a result of an agreement among six self-governing British colonies, which became the six states. The terms of this agreement are embodied in the Australian Constitution, which was drawn up at a Constitutional Convention and ratified by the people of the colonies at referenda. The structure of the Australian Government may be examined in light of two distinct concepts, namely federalism and the separation of powers into legislative, executive and judiciary branches of government. Separation of powers is implied from the structure of the Constitution which breaks down the branches of government into separate chapters.

The Federal Government

Federalism

Section 1 of the Australian Constitution creates a federal legislature, the bicameral Parliament of Australia, which consists of the Queen and two houses, the Senate and the House of Representatives. Section 51 of the Constitution provides for the Commonwealth Government's legislative powers and allocates certain powers and responsibilities (known as "heads of power") to the federal government. All remaining responsibilities are retained by the six States (previously separate colonies). Further, each State has its own constitution, so that Australia has seven sovereign Parliaments, none of which can encroach on the functions of any other. The High Court of Australiamarker arbitrates on any disputes which arise between the Commonwealth and the States, or among the States, concerning their respective functions.

The Commonwealth Parliament can propose changes to the Constitution. To become effective, the proposals must be put to a referendum of all Australians of voting age, and must receive a "double majority": a majority of all votes, and a majority of votes in a majority of States.

The Commonwealth Constitution also provides that the States can agree to refer any of their powers to the Commonwealth. This may be achieved by way of an amendment to the Constitution via referendum (a vote on whether the proposed transfer of power from the States to the Commonwealth, or vice versa, should be implemented). More commonly powers may be transferred by passing other acts of legislation which authorise the transfer and such acts require the legislative agreement of all the state governments involved. This "transfer" legislation may have a "sunset clause", a legislative provision that nullifies the transfer of power after a specified period, at which point the original division of power is restored.

In addition, Australia has several territories, three of which are self-governing: the Australian Capital Territorymarker (ACT), the Northern Territorymarker (NT) and Norfolk Islandmarker. The legislatures of these territories exercise powers delegated to them by the Commonwealth, and the Commonwealth Parliament retains the power to override territorial legislation and to transfer powers to or from the territories. While Australian citizens living in the Australian Capital Territory and the Northern Territory are represented in the Commonwealth Parliament, Norfolk Islanders are not represented federally.

Australia's other territories that are regularly inhabited (Jervis Baymarker, Christmas Islandmarker and the Cocos Islandsmarker) are not self-governing. Instead, these territories are largely governed by federal law, with Christmas Island and the Cocos Islands also having local governments. The largely uninhabited Coral Sea Islandsmarker was established as a Territory of the Commonwealth in 1969 while Ashmore and Cartier Islandsmarker has been a territory since 1933 and administered under the laws of the Northern Territory.

The federal nature of the Commonwealth and the structure of the Parliament of Australia were the subject of protracted negotiations among the colonies during the drafting of the Constitution. The House of Representatives is elected on a basis which reflects the differing populations of the States. Thus New South Walesmarker has 50 members while Tasmaniamarker has five. But the Senate is elected on a basis of equality among the States: all States elect 12 Senators, regardless of population. This was intended to allow the Senators of the smaller States to form a majority and amend or even reject bills originating in the House of Representatives. The ACT and the NT also elect two senators each.

The third level of government after Commonwealth and State/Territory is Local government, in the form of shire, town or city. These bodies such as Councils are composed of elected representatives, usually serving on a part-time basis.

Government is undertaken by three inter-connected arms of government:

  • Legislature: The Commonwealth Parliament
  • Executive: The Sovereign, whose executive power is exercisable by the Governor-General, the Prime Minister, Ministers and their Departments
  • Judiciary: The High Court of Australiamarker and subsidiary Federal courts.


The Separation of powers is the principle whereby the three arms of government undertake their activities separate from each other:

  • the Legislature proposes laws in the form of Bills, and provides a legislative framework for the operations of the other two arms. The Sovereign is formally a part of the Parliament, but takes no active role in these matters
  • the Executive enacts the laws by Royal Assent, administers the laws and carries out the tasks assigned to it by legislation
  • the Judiciary hears cases arising from the administration of the law, using both statute law and the common law. The Australian courts cannot give advisory opinions on the constitutionality of laws
  • the other arms cannot influence the Judiciary.


Until the passage of the Australia Act 1986, and associated legislation in the parliament of the United Kingdom, some Australian cases could be referred to the Judicial Committee of the Privy Councilmarker for final appeal. With this act, Australian law was made unequivocally sovereign, and the High Court of Australiamarker was confirmed as the highest court of appeal. The theoretical possibility of the British Parliament enacting laws to override the Australian Constitution was also removed.

Legislature

Flowchart of the legislative process in Australia


The Legislature makes the laws, and supervises the activities of the other two arms with a view to changing the laws when appropriate. The Australian Parliament is bicameral, consisting of the Queen, a 76-member Senate and a 150-member House of Representatives. Twelve Senators from each state are elected for six-year terms, using proportional representation and the single transferable vote (known in Australia as "preferential voting": see Australian electoral system), with half elected every three years.

In addition to the state Senators, two senators are elected by voters from the Northern Territorymarker (which for this purpose includes the Indian Ocean Territories, Christmas Islandmarker and the Cocos Islandsmarker), while another two senators are elected by the voters of the Australian Capital Territorymarker (which includes the Jervis Bay Territorymarker for this purpose). Senators from the territories are also elected using preferential voting, however, their term of office is not fixed: it starts on the day of a general election for the House of Representatives and ends the day before the next such election day.

The members of the House of Representatives are elected by preferential voting from single-member constituencies allocated among the states and territories roughly in proportion to population. In ordinary legislation, the two chambers have coordinate powers, but all proposals for appropriating revenue or imposing taxes must be introduced in the House of Representatives. Under the prevailing Westminster system, the leader of the political party or coalition of parties that holds the support of a majority of the members in the House of Representatives is invited to form a government and is named Prime Minister.

The Prime Minister and the Cabinet are responsible to the Parliament, of which they must, in most circumstances, be members. General elections are held at least once every three years. The Prime Minister has a discretion to advise the Governor-General to call an election for the House of Representatives at any time, but Senate elections can only be held within certain periods prescribed in the Constitution. The most recent general election was on 24 November 2007.

The Commonwealth Parliament and all the state and territory legislatures operate within the conventions of the Westminster system, with a recognised Leader of the Opposition, usually the leader of the largest party outside the government, and a Shadow Cabinet of Opposition members who "shadow" each member of the Ministry, asking questions on matters within the Minister's portfolio. Although the government, by virtue of commanding a majority of members in the lower house of the legislature, can usually pass its legislation and control the workings of the house, the Opposition can considerably delay the passage of legislation and obstruct government business if it chooses. The day-to-day business of the house is usually negotiated between a designated senior Minister, who holds the title Leader of the House, and an Opposition frontbencher known as the Manager of Opposition Business. The current Leader of the Opposition in the federal Parliament is Tony Abbott.

Executive

Head of state

The Australian Constitution dates from 1900, when the Dominions of the British Empire were not sovereign states, and does not use the term "head of state". In practice, the role of head of state of Australia is divided between two people, the Queen of Australia and the Governor-General of Australia, who is appointed by the Queen on the advice of the Prime Minister of Australia. Though in many respects the Governor-General is the Queen's representative, and exercises various constitutional powers in her name, they are also independently vested with many important constitutional powers by the Constitution.

The Sovereign of Australia, currently Queen Elizabeth II, is also the Sovereign of fifteen other Commonwealth Realms including the United Kingdom. Like the other Dominions, Australia gained legislative independence from the Parliament of the United Kingdommarker by virtue of the Statute of Westminster 1931, which was adopted in Australia in 1942 with retrospective effect from 3 September 1939. By the Royal Style and Titles Act 1953, the Australian Parliament gave the Queen the title Queen of Australia, and in 1973 removed from the Queen's Australian style and titles any reference to her status as Queen of the United Kingdom and Defender of the Faith.

Section 61 of the Constitution provides that 'The executive power of the Commonwealth is vested in the Queen and is exercisable by the Governor‑General as the Queen’s representative, and extends to the execution and maintenance of this Constitution, and of the laws of the Commonwealth'. Section 2 of the Australian Constitution provides that a Governor-General shall represent the Queen in Australia. In practice, the Governor-General carries out all the functions usually performed by a head of state, without reference to the Queen.

The question of whether the Queen is Australia's head of state became a political one during the 1999 Australian republic referendum, when opponents of the move to make Australia a republic claimed that Australia already had an Australian as head of state in the person of the Governor-General, who since 1965 has invariably been an Australian citizen. The former Governor-General, Major General Michael Jeffery, said in 2004: "Her Majesty is Australia's head of state but I am her representative and to all intents and purposes I carry out the full role." However, in 2005, he declined to name the Queen as head of state, instead saying in response to a direct question, "The Queen is the Monarch and I represent her, and I carry out all the functions of head of state." The Governor-General represents Australia internationally, making and receiving State visits.

In 2009 Prime Minister Kevin Rudd described the Governor-General as the Australian head of state, announcing an overseas visit by Quentin Bryce by saying, "A visit to Africa of this scale by Australia's Head of State will express the seriousness of Australia's commitment".

Under the conventions of the Westminster system the Governor-General's powers are almost always exercised on the advice of the Prime Minister or other ministers. The Governor-General retains reserve powers similar to those possessed by the Queen in the United Kingdom. These are rarely exercised, but during the Australian constitutional crisis of 1975 Governor-General Sir John Kerr used them independently of the Queen and the Prime Minister.

Australia has periodically experienced movements seeking to end the monarchy. In a 1999 referendum, the Australian people voted on a proposal to change the Constitution. The proposal would have removed references to the Queen from the Constitution and replaced the Governor-General with a President nominated by the Prime Minister, but subject to the approval of a two-thirds majority of both Houses of the Parliament. The proposal was defeated. The Australian Republican Movement continues to campaign for an end to the monarchy in Australia, opposed by Australians for Constitutional Monarchy.

Executive Council

The Federal Executive Council consists of the Governor-General, the Prime Minister and Ministers. It is a formal body which exists to give legal effect to decisions made by the Cabinet, and to carry out various other functions. Members of the Executive Council are entitled to be styled "The Honourable", a title which they retain for life. The Governor-General usually presides at Council meetings, but a Minister with the title Vice-President of the Executive Council serves as the link between the government and the Council.

Cabinet

The Constitution of Australia does not recognise the Cabinet, and its decisions have no legal force. All members of the ministry must be sworn as members of the Executive Council, a body which is chaired by the Governor-General and which meets solely to endorse and give legal force to decisions already made by the Cabinet. That is why there is always a member of the ministry holding the title Vice-President of the Executive Council.

Until 1956 all members of the ministry were members of the Cabinet. The growth of the ministry in the 1940s and 1950s made this increasingly impractical, and in 1956 Robert Menzies created a two-tier ministry, with only senior ministers holding Cabinet rank, also known within parliament as the front bench. This practice has been continued by all governments except the Whitlam Government.

When the non-Labor parties have been in power, the Prime Minister has made all Cabinet and ministerial appointments at his own discretion, although in practice he consults with senior colleagues in making appointments. When the Liberal Party and its predecessors (the Nationalist Party and the United Australia Party) have been in coalition with the National Party or its predecessor the Country Party, the leader of the junior Coalition party has had the right to nominate his party's members of the Coalition ministry, and to be consulted by the Prime Minister on the allocation of their portfolios.

When the Labor first held office under Chris Watson, Watson assumed the right to choose members of his Cabinet. In 1907, however, the party decided that future Labor Cabinets would be elected by the members of the Parliamentary Labor Party, the Caucus, and the Prime Minister would retain the right to allocate portfolios. This practice was followed until 2007. Between 1907 and 2007, Labor Prime Ministers exercised a predominant influence over who was elected to Labor ministries, although the leaders of the party factions also exercised considerable influence. Prior to the 2007 general election, the then Leader of the Opposition, Kevin Rudd, said that he and he alone would choose the ministry should he become Prime Minister. His party won the election and he chose the ministry, as he said he would.

The cabinet meets not only in Canberra but also in various other Australian state capitals, most frequently Sydney and Melbourne. Kevin Rudd has said that he is in favour of the Cabinet meeting in other places, such as major regional cities. The Commonwealth Parliament Offices in Sydney are located in Phillip Street.

Departments

Caretaker governments

There are times when the government acts in a "caretaker" capacity, principally in the period prior to and immediately following a general election.

Judiciary

The Judiciary interprets the laws, using as a basis the laws as enacted and explanatory statements made in the Legislature during the enactment.



See also



Notes

Footnotes

 Prior to 1931, the junior status of dominions was shown in the fact that it was British ministers who advised the King, with dominion ministers, if they met the King at all, escorted by the constitutionally superior British minister. After 1931 all dominion ministers met the King as His ministers as of right, equal in Commonwealth status to Britain's ministers, meaning that there was no longer either a requirement for, or an acceptance of, the presence of British ministers. The first state to exercise this both symbolic and real independence was the Irish Free State. Australia and other dominions soon followed.


Citations



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