Chapter 5: Government in Australia

Government is the term broadly used to describe how a country or state is to be run:

  • who will have powers;
  • what type of powers they will have;
  • how they will be allowed to use those powers; and
  • the extent of those powers.

However, people use the term ‘government’ to mean both the whole system that makes up the way the country is run and also the group of parliamentarians that have majority control of the lower house of parliament.

The Australian Federal election in August 2010 resulted in a ‘hung parliament’, where no political party had an absolute majority of seats in the lower house. The incumbent Prime Minister Julia Gillard managed to secure the support of three independents and one Greens member of parliament to form a minority government.

Hot Tip

The word ‘government’ comes from the Latin word ‘guvernare’ meaning ‘to steer’, ‘direct’, ‘rule’, which in turn comes from the Greek word ‘kubernan’ meaning ‘to steer’.

Why do we have government?

There are a range of theories about why we have government. These include:

  • to create order out of what would otherwise be chaos;
  • to protect the natural rights that we all have as human beings; and
  • to enable the people to work together through a collective mechanism to meet shared needs.

Certainly, one of the key roles of government is to identify how the community’s resources can be most effectively used to meet the community’s needs. In general terms, the role of government is to regulate human activity in the interests of society as a whole.

Our structure of government

Australia is a ‘constitutional monarchy’ with a parliamentary system of government. The Head of State of Australia is Queen Elizabeth II and she is represented in Australia by the Governor General and the State Governors. [1] The Queen appoints the Governor General on the advice of the Prime Minister, the State Governors are appointed on the advice of the relevant State Premier.

The structure of the Commonwealth Government is set out in the Constitution, which divides the government into three ‘arms’ or ‘branches’. Each has defined roles and is not permitted to exercise the power of any of the other branches. The three branches are:

  • the legislature;
  • the executive; and
  • the judiciary.

Each of the three branches of government has a role in the legal system.

The legislature

Both houses of the federal parliament, the House of Representatives and the Senate, make up the legislature, which is responsible for debating and voting on whether or not to make new laws or change existing laws.

The executive

Federal government employees – often referred to as ‘the public service’ – and those members of parliament who are appointed as government ministers make up the executive. The executive is responsible for putting into effect and administering the laws made by the legislature. This is done through government departments and agencies. Interestingly, there is no reference to ministers in the Constitution. Rather, their role has developed over time and is now seen as a key element of the executive working effectively.

The role of the head of state is to give final approval to a Bill becoming law. This is done on the advice of the executive. [2]

The judiciary

The judiciary, comprising the High Court and Federal Courts, is responsible for interpreting the laws of the Commonwealth in court decisions and making decisions on whether or not the other two arms are acting within their powers.

Limits on the power of the branches of government

If one of the arms of the Commonwealth Government attempts to exercise the power of another arm of the Commonwealth Government, or of the States and Territories, this can be challenged as being ‘unconstitutional’, that is, it is not consistent with the structure and powers of government set out in the Constitution. Decisions about whether or not an action is unconstitutional are decided by the High Court.

Hot Tip – Separation of powers

The principle that there is a separation between the branches of government is referred to as the Doctrine of the Separation of Powers.

Australia does not have a complete separation of powers like the United States of America, as the government ministers that make up the executive also sit in the legislature.

States and territories

Each state has its own constitution, for example, in New South Wales the Constitution Act 1902 grants ‘power to make laws for the peace, welfare, and good government of New South Wales’, subject to the Commonwealth Constitution. Each state has a head of government called the ‘Premier’ and a head of state, or ‘governor’.

The territories were established by Commonwealth statutes: The Northern Territory (Administration) Act 1910 and the Seat of Government (Administration) Act 1910. Both territories now also have self-government Acts. The territories each have a ‘Chief Minister’ as head of government.

The roles of the legislature, executive and judiciary at the state and territory level mirror the federal system. Each of them plays a vital role in the legal system:

  • The legislature makes laws by passing Acts of Parliament: statutory law.
  • The executive decides what laws are needed, administers laws that have been made and put laws into effect.
  • The judiciary applies the statute law to situations that they are asked to decide on (this is called statutory interpretation); and develops the law to apply to particular situations where there is not statute (through development and interpretation of common law).

Authority for local government is delegated to it by its state or territory government. For example section 51 of the NSW Constitution Act 1902 provides for a ‘system of local government for the State’.

Each level of government controls (to some degree) activities within their geographic boundary and/or within an agreed set of issues. The statutory law making in each level of government is done by those people elected by the people who live within the boundaries of the government’s authority.

Hot Tip

The ‘Crown’ is another word used for the governing authority in Australia at both the Federal and state and territory levels, eg, ‘Crown lands’. The term ‘crown’ reflects the fact that Australia is a constitutional monarchy.

Harmonisation of laws

There has been a move to harmonisation between the states and territories and the Commonwealth Government in some areas of the law. The Council of Australian Governments (COAG) is an intergovernmental forum that initiates, develops and monitors policy reforms that are of national significance and which require cooperative action by Australian governments. Many of the initiatives to try and reduce the regulatory burden imposed by the three levels of government are implemented by COAG.

Consumer protection in Australia used to be regulated by the Commonwealth Trade Practices Act 1974 and by inconsistent state and territory consumer protection legislation. A single national consumer law, the Australian Consumer Law (ACL), commenced on 1 January 2011. The ACL gives Australian consumers the same rights and protections wherever they are in Australia. It also creates a national enforcement regime.

Another example of harmonisation of laws is the creation of a single national business name registration system, including online registration for both Australian Business Numbers and business names, rather than having to register business names separately in each relevant state and territory.

1. There is debate about whether the head of state of Australia is the Queen or the Governor General. The Australian Constitution does not include any reference to the ‘head of state’.

2. The head of state has a number of roles under the Australian Constitution. For a list of those roles, see Ian Ireland and Kirsty Magary, Powers of the Head of State of Australia and South Africa, Parliamentary Library, Parliament of Australia. 1998)