What is the term for a system with two or more government exercise power over the same people in the same territory?

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The principle of the separation of powers distributes the power to govern between the Parliament, the Executive and the Judiciary. This fact sheet examines the role of each group and the related principle of responsible government.

The Australian Constitution is the set of rules by which Australia is run. The first 3 chapters of the Constitution define 3 mostly separate groups—the Parliament, the Executive and the Judiciary—and the roles they play in the governing of Australia. The power to make and manage Australian law is divided between these 3 groups. This division is based on the principle of the 'separation of powers'.

Under this principle, the power to govern should be distributed between the Parliament, the Executive and the Judiciary to avoid any group having all the power. Each group should work within defined areas of responsibility to keep a check on the actions of the others.

Separation of roles

Parliament

The Parliament makes and amends the law

Parliament (also referred to as the Legislature) is made up of the King (represented by the Governor-General), the Senate and the House of Representatives

Executive

The Executive puts the law into action

The Executive is made up of the King (represented by the Governor-General), Prime Minister and ministers

Judiciary

The Judiciary makes judgements about the law

The Judiciary is made up of the High Court of Australia and other federal courts

Exceptions to the principle

Australia does not have a complete separation of powers because some of the roles of the Parliament, the Executive and the Judiciary overlap. For example, the Prime Minister and ministers are part of the Executive and the Parliament. High Court judges, the Prime Minister and ministers are officially appointed by the Governor-General, who is part of the Parliament and the Executive.

The role of the Governor-General

Section 61 of the Constitution states that ‘the executive power of the Commonwealth is vested in the Queen and is exercisable by the Governor-General as the Queen’s representative’. (Covering clause 2 says that the ‘Queen’s’ powers extend to her heirs.) This means that the Governor-General has been given certain powers to act on behalf of the King. The role of the Governor-General is not just defined by the Constitution; it is also defined by custom and tradition.

While executive power is exercised by the Governor-General, in reality this is normally done on the advice of the Prime Minister and ministers, who have day-to-day responsibility for governing Australia. The Governor-General does not have the authority to make decisions on behalf of the government, but has a role in both the government and the Parliament.

Responsible government

The separation of powers works together with the principle of ‘responsible government’ to guide the way law is made and managed. Responsible government means that a party or coalition of parties must maintain the support of the majority of members of the House of Representatives in order to remain in government. This provides another check on the Executive, ensuring they are accountable to the Parliament and do not abuse their power.

History

The origins of the principle of the separation of powers can be traced back as far as ancient Greece. It was made popular by French philosopher Charles de Montesquieu in his book L'Esprit des Lois (the Spirit of the Laws) (1748). He wrote that a nation's freedom depended on the 3 powers of governance—legislative, executive and judicial—each having their own separate institution. Montesquieu’s ideas have since been widely used in the development of many democratic countries.

What is the term for a system with two or more government exercise power over the same people in the same territory?

Parliamentary Education Office (peo.gov.au)

This diagram illustrates the separation of powers in the Australian system of government. The Parliament (represented by an icon of Australian Parliament House) has the power to make and change law. The Executive (represented by a group of people) has the power to put law into action. The Judiciary (represented by an icon of a scale) has the power to make judgements on law. The three groups—Parliament, Executive and Judiciary—are connected.

What Will I Learn

  • The following information and activities will help you to develop an understanding of the concept of the ‘division of powers’
  • You will learn how it applies in Australia and NSW

Australia’s system of government operates from a set of rules and structures based on a written document called the Australian Constitution. It came into existence at Federation in 1901 and created three levels of government.  Federal Parliament and the state parliaments are two of the levels and the third level of government are local councils (shires and municipalities). 

The division of powers in the Australian Constitution is also often referred to as the three levels of government in which no one level of government can control all the laws and activities in the nation.

What is the term for a system with two or more government exercise power over the same people in the same territory?

Generally, there are four different types of legislative power:

  • Specific
  • Exclusive 
  • Concurrent
  • Residual
WHAT POWER? DEFINITION EXAMPLE 
Specific These are law making powers given to the Federal Parliament and listed in sections 51 and 52 of the Constitution. They provide the Commonwealth with the power to make laws for ‘peace, order and good government of Australia’. Immigration
Exclusive Some powers are also exclusive to the Commonwealth. They are powers that only the Commonwealth can make laws for and the States cannot. The states are excluded from legislating about areas such as immigration, defence and currency. For example, it would make life in Australia a bit difficult if every state had their own currency, which is why this type of power suits the Australian Parliament.  Currency
Concurrent Some powers are non-exclusive and shared with the states. They are called concurrent powers because both the Federal Parliament and the State Parliaments can make legislation about these areas. However if a State were to make a law that conflicted with a law of the Federal Parliament, s 109 of the Constitution states that the Federal legislation will override state legislation. Taxation 
Residual  These are the law making powers of each state agreed to at Federation when each of the colonies discussed the powers they wanted to retain and what they were willing to cede to the new Federal Parliament. The law-making powers of the states are not written in the Australian Constitution and are far-reaching, and the New South Wales Constitution does not list law-making powers either. Instead, it provides the Parliament with a broad grant to “make laws for the peace, welfare, and good government of New South Wales” (section 5 of the Constitution Act 1902)  Schools

What is the term for a system with two or more government exercise power over the same people in the same territory?

The Parliament of Australia in Canberra 

As well as being based on Britain’s Westminster system, some features of Australia’s federal system were inspired by the federal system of the United States. These include: 

  • outlining the powers of Federal Parliament (s 51) 
  • giving of ‘residual’ power to the states (s 108)
  • an inconsistency clause (s 109)
  • strong bicameralism, with a Senate in which the states are equally represented notwithstanding great disparities in population (s 7)
  • election of senators in alternating electoral cycles (s 13)
  • the establishment of a High Court of Australia as a supreme court empowered to declare actions of either level of government unconstitutional (s 71)
  • a complex procedure to alter the Constitution through referendum (s 128)

What is the term for a system with two or more government exercise power over the same people in the same territory?

NSW Parliament in Sydney

Each level of government provides services for the people of Australia. Each of them is elected by the people that they provide services for.

WHAT LEVEL? 

LEADER

EXECUTIVE BODY 

SOME KEY RESPONSIBILITIES

THE WHOLE NATION

What is the term for a system with two or more government exercise power over the same people in the same territory?

Prime Minister 

Federal Parliament in Canberra 

House of Representatives with 150 members each representing their own electorate (including 48 in NSW)

Senate with 76 members 12 from each state, 2 from each of the two territories 

  • Foreign Affairs 
  • Trade 
  • Immigration 
  • Borders & Travel
  • Currency 
  • Defence 
  • Airports 
  • Post and Telecommunications
  • Social Services
  • Tertiary Education 

STATE (OR TERRITORY)

What is the term for a system with two or more government exercise power over the same people in the same territory?

Premier (or Chief Minister in territories) 

In NSW New South Wales Parliament on Macquarie Street in Sydney 

Legislative Assembly with 93 members representing 93 electorates

Legislative Council with 42 members representing the whole State  

  • Fair Trade
  • Hospitals
  • Transport
  • Schools
  • Utilities
  • Public Works 
  • Main roads
  • Ports & Waterways

LOCAL AREA 

What is the term for a system with two or more government exercise power over the same people in the same territory?

Mayor (or Lord Mayor) 

City, Municipal or Shire Council

Local government administration offices are located in larger local centres. Councils have between 5-15 Councillors.

Each usually represents one section (Ward or Riding) within the local government area.

  • Local roads and street 
  • Libraries
  • Waste disposal 
  • Recycling 
  • Community services 
  • Parks and sporting facilities
  • Swimming pools