Unit 1 -

Democracy and rule of Law

Limits to power – Australia and the USA
Chapter 1
 Introduction Montesquieu observing the
success of the English
system of government
• Good government in a liberal democracy requires
that power be limited. Constitutions are superior laws which
• Arbitrary power is limited by important principles of achieve:
democracy. Two of the most important principles are: 1. Geographic distribution of power
2. Create institutions of government &
• Separation of powers, and
define powers
• Constitutionalism 3. Specify procedures and processes of

• Q: Explain these principles and how they originated. government

4. Outline relationship between
citizens and gov (rights)
5. Contain a mechanism for alteration
Australia’s Constitution & separation of powers
• Revision: How would you describe Australia’s system of government?

• Australia is a representative democracy and

constitutional monarchy organised as a federation
with a Westminster system of responsible parliamentary government.
• How many chapters does our constitution have?

• 8 chapters

• What is outlined in Chapter 1:

• Legislative power is vested in the Commonwealth parliament, which inc. the King, as monarch.

• Chapter 2:

• Executive power is vested in the King and is exercised by the Governor-general. (Does not mention
executive)
• Chapter 3:

• Judicial power is vested in the High Court of Australia and allows parliament to create other federal courts.
 The powers in brief – Australia
chapter 1: legislative power
Judicial

• Legislative power is? the power to _____________________.

• Section 1 of the Aus Constitution creates a bicameral commonwealth parliament composed of a

Executive

HoR, a Senate and the King (due to traditional and historic reasons and follows British
practice). The Monarch only plays a formal role & has no part in legislating.

• Australia’s Head of State is ___________ and their Aus representative is the

________________.

• The two houses have almost identical powers except: ______________

___________________________________________________________
Legislative
 The powers in brief – Australia
chapter 1: legislative power
Judicial

• Statute laws are universal and powerful instruments for social control and they need to
reflect the will of the people in a democracy.

• This is achieved by the two houses being ‘directly chosen by the

Executive

people’ as required by sections _________ of the constitution.

• What is Federalism? _____________________________________

• Specific powers are written and are called heads of power.

• The Aus parliament makes laws covered by a head of power, if not they may be challenged in the High
Court. In this respect the Aus Parliament is similar to the US Congress and contrasts with the British, which
almost has no restriction on its law making powers.
Legislative

• The constitution does not say anything about the processes and procedures by which the statute laws are to
be made. Instead it grants the Parliament power to make its own rules, called Standing Orders.
 Chapter 2: Executive
Judicial

power
• Executive power is the power of government to:
• carry out or execute laws by developing policies and implementing statutes.
Executive

• The executive branch (or government) includes?

• the Queen, Gov-Gen, PM & Cabinet & wider ministry & public service and other agencies tasked
with day-to day implementation of the laws.

• Section 61 vests the executive power of the Commonwealth in the King & appointed rep. This creates
the formal or constitutional executive. The GG only uses their formal powers when advised by
members of the Cabinet.
Legislative

• The King is the Head of State, the GG the acting Head of State, the PM the Head of Government.
 Chapter 2: Executive
power
Judicial

• The Constitution makes almost no mention of the political executive.

• Cabinet ministers are chosen by the PM from amongst elected Members of Parliament.

• Australia’s founding fathers wished to guarantee a Westminster form of parliamentary

Executive

executive. Section ___ of the Constitution achieves this guarantee by ensuring that the
Ministers (who form the executive cabinet) must be Members of Parliament & must
command the support of the lower house of the Parliament. This is a huge difference
to the US.
Legislative
 Chapter 2: Executive
power
Judicial

• The part of the executive branch which includes the public service and gov
departments, agencies etc is named the:
Executive

• Administrative Executive.

• It is appointed and governed by the Public Service Act 1999 and other statutes.

• Australia’s written constitution is extremely minimalist when creating executive

institutions, but found in unwritten constitutional conventions inherited from Britain.
Legislative
 Chapter 3: Judicial power
Judicial

• Judicial power is the power to:

• adjudicate disputes and to make legally binding decisions about rights and obligations.
This is done by interpreting and applying laws.
• Jurisdiction means: _________________________________
• Jurisdiction is arranged __________________
Executive

• Section ___ of the Constitution gives the judicial powers of the Commonwealth to the High Court
of Aus and ‘in other such courts as the parliament’ creates. (But only on a federal level as states have
the power over their own judicial level).
• The Constitution creates a strict separation of the judicial power following the US model
rather than the British.
Legislative
 A non-Westminster Case study:
The United States Constitution and the separation of powers

• Q: How would you describe the US system of government?

• The US is representative democracy and a republic organised as a federation

with an executive presidential system of government.

• The US constitution contains 10 articles, the first 3 which perform exactly the same functions as Chapter 1-3

• Article 1: vests legislative power in the Congress of the US consisting of HoR & Senate

• Article 2: vests the executive power in the Pres & VP who are elected together. It also establishes the
Electoral College – the voting system for electing the P &VP.

• Article 3: vests the judicial power in the Supreme Court that is independent & allows Congress to create
inferior courts.
• The US’s system was born of conflict after the War of Independence and so its
system of gov is revolutionary, not evolutionary like Aus’s.
• The US founding fathers were very
keen to create a system that
prevented tyranny so more
rigorously applied the separation
of powers than Britain had.
 The powers in brief – The US Article 1: Legislative
Article 3

• Like Australia, the lawmaking powers of Congress are limited by their Constitution, especially by the fact
that it shares sovereignty with 50 states in a federation. Law making powers are specified and
enumerated, therefore defining and limiting the powers of Congress.

• The US Congress was used as a model for the Aus Parliament so, it is not surprising that the US and Aus
legislatures have very similar designs.
Article 2

• Q: What are some similarities between the two?

• A key similarity is that both feature strong bicameralism – that is both houses have almost the same law
making powers. Another similarity is that the HoR is the people’s house in both countries, and the
Senate is the state’s house.
Article 1
 Article 2: Executive
Article 3

Power

• The greatest distinction between Aus and US systems lies in the form of the executive
branch of gov. What are the differences?
Article 2

• In the US system the Head of State and the Head of Gov is the President of the US, a single
office that is directly elected by the people.
• The US executive is entirely separate from the other two arms of gov. Executive gov gets 4 yr
terms, Aus 3 yrs.
• Secretaries in the cabinet are appointed and accountable to the President, they are not
Members of Congress or elected officials accountable to Congress. The US’s constitution has
no equivalent of Aus’ section 64.
Article 1
 Article 3: Judicial power
Article 3

• Like its Australian counterpart, the US judiciary is entirely separate and independent
from the other two arms of gov and is a powerful check on powers of the Congress and
President.
Article 2
Article 1
 Checks & balances in
Aus & the USA
• The separation of powers by itself is insufficient to limit powers.
What else must be added?
• It must be accompanied by a system of checks and balances in which the powers possessed by one branch are held in check
by the powers of the other two.

• Strong checks and balances are a very prominent feature of the US’s system.

• They are also present in the Aus system of gov but to a lesser degree. One example that serves to illustrate this
difference is the appointment of judges to the highest court in each country. Judges of the US Supreme Court are
nominated by the Pres. but must be confirmed by the Senate before appointment. This process involves both the other
arms of the gov and prevents the executive branch from possessing the sole power of judicial appointment. In Australia,
judicial appointment is based on the British model in which the Attorney General, the Chief Law Officer and member of
Cabinet, appoints judges without requirement Parliamentary endorsement,

• Another example of a difference ?

• concerns the relationship between the executive and legislative arms. In Australia the executive and legislature are fused
together where as they are independent in US.