Government of Australia
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The Government of the Commonwealth of Australia (also referred to as the Australian Government, the Commonwealth Government, or the Federal Government) is the government of the Commonwealth of Australia, a federal parliamentary constitutional monarchy.
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 contract are embodied in the Australian Constitution, which was drawn up at a Constitutional Convention and ratified by the people of the colonies at referendums. The Australian head of state is the Queen of Australia who is represented by the Governor-General of Australia, with executive powers delegated by constitutional convention to the Australian head of government, the Prime Minister of Australia.
The Government of the Commonwealth of Australia is divided into the executive branch, composed of the Federal Executive Council presided by the Governor-General, which delegates powers to the Cabinet of Australia led by the Prime Minister, the legislative branch composed of the Parliament of Australia's House of Representatives and Senate, and the judicial branch composed of the High Court of Australia and federal courts. Separation of powers is implied by the structure of the Constitution, the three branches of government being set out in separate chapters (chs I to III). The Australian system of government combines elements of the Westminster and Washington systems with unique Australian characteristics, and has been characterised as a "Washminster mutation".
Structure of Australian Government
Section 1 of the Australian Constitution creates a democratic legislature, the bicameral Parliament of Australia which consists of the Queen of Australia, and two houses of parliament, 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 Commonwealth 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 Australia 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", two of which are self-governing: the Australian Capital Territory (ACT) and the Northern Territory (NT). These territories' legislatures, their Assemblies, exercise powers devolved to them by the Commonwealth; the Commonwealth Parliament remains able to override their legislation and to alter their powers. Australian citizens in these territories are represented by members of both houses of the Commonwealth Parliament. The territory of Norfolk Island was self-governing from 1979 until 2016, although it was never represented as such in the Commonwealth Parliament. The other territories that are regularly inhabited—Jervis Bay, Christmas Island and the Cocos (Keeling) Islands—have never been self-governing.
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 that reflects the differing populations of the States. Thus New South Wales has 48 members while Tasmania has only 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 thus be able to amend or reject bills originating in the House of Representatives. The ACT and the NT each elect two Senators.
The third level of government after Commonwealth and State/Territory is Local government, in the form of shires, towns and cities. The Councils of these areas are composed of elected representatives (known as either councillor or alderman, depending on the State), usually serving part-time. Their powers are devolved to them by the State or Territory in which they are located.
Government at the Commonwealth level and the State/Territory level is undertaken by three inter-connected arms of government:
- Legislature: The Commonwealth Parliament
- Executive: The Sovereign of Australia, whose executive power is exercisable by the Governor-General, the Prime Minister, Ministers and their Departments
- Judiciary: The High Court of Australia and subsidiary Federal courts.
The Separation of powers is the principle whereby the three arms of government undertake their activities largely separately 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, except that (representing the sovereign) Governors-General, State Governors and Territory Administrators sign enactments into law through providing Royal Assent
- the Executive administers the laws and carries out the tasks assigned to it by legislation
- the Judiciary hears cases arising from the administration of the law, applying both statute law and the common law; the Australian courts cannot give an advisory opinion on the constitutionality of a law, but the High Court of Australia can determine whether an existing law is constitutional
- the Judiciary is appointed by the sovereign's representatives, on the advice of the Commonwealth or State/Territory government; but the Legislature and the Executive should not try to influence its decisions.
Until the passage of the Australia Act 1986, and associated legislation in the Parliament of the United Kingdom of Great Britain and Northern Ireland, some Australian cases could be referred to the British Judicial Committee of the Privy Council for final appeal. With this act, Australian law was made unequivocally sovereign, and the High Court of Australia 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.
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 of Australia, 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 "quota-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 Territory (which for this purpose includes the Indian Ocean Territories, Christmas Island and the Cocos (Keeling) Islands), while another two senators are elected by the voters of the Australian Capital Territory (which for this purpose includes the Jervis Bay Territory). Senators from the territories are also elected using preferential voting, but their term of office is not fixed; it starts on the day of a general election for the House of Representatives and ends on the day before the next such election.
The members of the House of Representatives are elected by majority-preferential voting using the non-proportional Instant-runoff voting system from single-member constituencies allocated among the states and territories. In ordinary legislation, the two chambers have co-ordinate 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 2 July 2016.
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 in the House. The current Leader of the Opposition in the Commonwealth parliament is Bill Shorten.
Head of state
The Australian Constitution dates from 1901, when the Dominions of the British Empire were not sovereign states, and does not use the term "head of state". As Australia is a constitutional monarchy, government and academic sources describe the Queen as 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 independently exercise many important powers in their own right. The governor-general represents Australia internationally, making and receiving state visits.
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 Kingdom 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 titles with any reference to her status as Queen of the United Kingdom and Defender of the Faith as well were removed, making her Queen of Australia.
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.
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 and Australian Monarchist League.
The Federal Executive Council is a formal body which exists and meets to give legal effect to decisions made by the Cabinet, and to carry out various other functions. All Ministers are members of the Executive Council and are entitled to be styled "The Honourable", a title which they retain for life. The Governor-General usually presides at Council meetings, but in his or her absence another Minister nominated as the Vice-President of the Executive Council presides at the meeting of the Council. Since 19 September 2013, the Vice-President of the Federal Executive Council has been Senator George Brandis, who has also been Attorney-General in the Government.
There are times when the government acts in a "caretaker" capacity, principally in the period prior to and immediately following a general election.
The Cabinet of Australia is the council of senior Ministers of the Crown, responsible to the Federal Parliament. The ministers are appointed by the Governor-General, on the advice of the Prime Minister, who serve at the former's pleasure. Cabinet meetings are strictly private and occur once a week where vital issues are discussed and policy formulated. Outside the cabinet there is an outer ministry and also a number of junior ministers, called Parliamentary secretaries, responsible for a specific policy area and reporting directly to a senior Cabinet minister.
The Constitution of Australia does not recognise the Cabinet as a legal entity; it exists solely by convention. Its decisions do not in and of themselves have legal force. However, it serves as the practical expression of the Federal Executive Council, which is Australia's highest formal governmental body. In practice, the Federal Executive Council meets solely to endorse and give legal force to decisions already made by the Cabinet. All members of the Cabinet are members of the Executive Council. While the Governor-General is nominal presiding officer, he almost never attends Executive Council meetings. A senior member of the Cabinet holds the office of Vice-President of the Executive Council and acts as presiding officer of the Executive Council in the absence of the Governor-General.
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 are in power, the Prime Minister makes all Cabinet and ministerial appointments at their own discretion, although in practice they consult 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 their 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 state capitals, most frequently Sydney and Melbourne. Kevin Rudd was in favour of the Cabinet meeting in other places, such as major regional cities. There are Commonwealth Parliament Offices in each State Capital, with those in Sydney located in Phillip Street.
There are 18 departments of the Australian Government.
- Attorney-General's Department
- Department of Agriculture and Water Resources
- Department of Communications and the Arts
- Department of Defence
- Department of Education and Training
- Department of Employment
- Department of Finance
- Department of Foreign Affairs and Trade
- Department of Health
- Department of Human Services
- Department of Immigration and Border Protection
- Department of Industry, Innovation and Science
- Department of Infrastructure and Regional Development
- Department of Social Services
- Department of the Environment and Energy
- Department of the Prime Minister and Cabinet
- Department of Veterans' Affairs
- Department of the Treasury
As a federation, in Australia judicial power is exercised by both federal and state courts.
Federal judicial power is vested in the High Court of Australia and such other federal courts created by the Federal Parliament, including the Federal Court of Australia, the Family Court of Australia, and the Federal Circuit Court of Australia. Additionally, unlike in the United States, the federal legislature has the power to enact laws which vest federal jurisdiction in State courts. Since the Australian Constitution requires a separation of powers at the federal level, only courts may exercise federal judicial power; and conversely, non-judicial functions cannot be vested in courts.
State judicial power is exercised by each State's Supreme Court, and such other courts and tribunals created by the State Parliaments.
The High Court is the final court of appeal in Australia and has the jurisdiction to hear appeals on matters of both federal and state law. It has both original and appellate jurisdiction, the power of judicial review over laws passed by federal and State parliaments, and has jurisdiction to interpret the Constitution of Australia. Unlike in the United States, there is only one common law of Australia, rather than separate common laws for each State.
- Australian federal budget
- Australian Public Service
- Referendums in Australia (and non-binding plebiscites)
- Second Turnbull Ministry
^ 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.
- House of Representatives, The Australian System of Government (PDF), Australian Government Publishing Service, p. 3, retrieved 10 March 2011
- Parliamentary Education Office. "FAQ > 3. Historical firsts > 3.25 Who was Australia's first head of state?". Australian Government Publishing Service. Retrieved 10 March 2011.
- Department of Foreign Affairs and Trade. "Protocol > Protocol guidelines > The Australian Government". Australian Government Publishing Service. Retrieved 14 March 2011.
- Australian Public Service Commission. "About the Commission > The Australian experience of public sector reform > The Constitutional and Government framework". Australian Government Publishing Service. Retrieved 14 March 2011.
- "Australian Citizenship – Our Common Bond" (PDF). Department of Immigration and Citizenship. August 2012.
- Thompson, Elaine (1980). "The "Washminster" Mutation". Australian Journal of Political Science. 15. p. 32.
- "Australia Act 1986". Office of Legislative Drafting, Attorney-General's Department. Commonwealth of Australia.
- "Australia: Replacing Plurality Rule with Majority-Preferential Voting". Palgrave Macmillan Ltd.
- "The first Parliament: Developments in the Parliament of Australia". Parliamentary Education Office of the Government of Australia.
- The Constitution (2012) Overview by the Attorney-General's Department and Australian Government Solicitor 
- "Governor-General's Role". Office of the Governor-General. 20 July 2015. Retrieved 1 March 2015.
- Worsley, Ben (11 September 2007). "Rudd seizes power from factions". Australian Broadcasting Corporation.
- "Cutting bureaucracy won't hurt services: Rudd". News Online. Australian Broadcasting Corporation. 21 November 2007. Retrieved 28 November 2007.
- "Government departments". Australian Government Directories. Australian Government. Retrieved 17 March 2015.
- Robert French, 'Two Chapters about Judicial Power', speech given at the Peter Nygh Memorial Lecture, 15 October 2012, Hobart, p 3.
- R v Kirby; Ex parte Boilermakers' Society of Australia (1956) 94 CLR 254.
- Lange v Australian Broadcasting Corporation (1997) 189 CLR 520 at 563.
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