Why did the constitution give the legislative branch so much power over the executive branch?

1. The Judiciary

The Judiciary includes judges and the courts. The role of the Judiciary is to interpret the law when there is a legal dispute.

Inhaltsverzeichnis Show

1. The Judiciary
2. The Executive
3. The Legislature

The judge must apply the law (rather than their personal, moral, or political views) to make decisions and provide reasons for these decisions. This is an important check on the powers of the Judiciary by ensuring that laws are made by elected representatives in Parliament (the Legislature) and any disputes concerning these laws are decided by an independent, impartial body according to those laws.

Another significant check on the power of the Judiciary is judicial review. This means review by higher courts. The Judiciary has the power to strike down laws made by the Legislature and declare actions of the Executive unlawful. Judicial review ensures the other arms of Government are accountable under the law and are restrained from enacting laws that may be unconstitutional (and therefore invalid and unenforceable) and behaving unlawfully. This is a highly important check on the power of the Government because it provides a legal process in the courts for individuals to challenge the decisions of the Government. It also upholds an important rule of law principle: all individuals are equal and accountable under the law, and no one is above the law, regardless of their status or rank.

Lastly, the Constitution ensures judicial independence from the Executive and Legislature and protection from political interference by protecting the tenure and remuneration of the Judiciary. Therefore, a judge cannot merely be sacked (or pay reduced) if they make a decision that Government in power dislikes.

2. The Executive

The Executive includes ministers and the government departments, agencies, and statutory bodies they are responsible for. The role of the Executive is to propose (but not pass laws) and then implement laws passed by the Legislature into operation. It has the power to oversee Government Agencies and Departments and deal with social, economic, or environmental issues as they arise.

Checks and balances on the Executive ensure their power is used in a way set out by law. As mentioned before, the judiciary is the primary check on the overuse and misuse of power by the Executive.

Another check on the power of the Executive is scrutiny by the Legislature and Parliamentary Committees who have the ability to ask the Executive questions in Parliament and to disallow laws passed by the Executive. The Executive is also held accountable by the Shadow Cabinet and the ‘Opposition’ who are frequently critical of Government policy and legislation.

It is important to note that there is only partial separation of powers between the Executive and Legislature in Australia as members of the Executive are drawn from Parliament. It is also important to note that in the Executive arm lies the greatest potential and practice for power and, therefore, corruption.

3. The Legislature

The Legislature is an assembly of elected representatives, known as the Parliament, who has the legislative power to make laws. According to Tom Bingham, the Legislature, under the Constitution, may enact any legislation it chooses:

the Parliament has no legislative superior. The courts have no inherent powers to invalidate, strike down, superseded or disregard the provision of an ambiguous statute duly enacted by Parliament and indeed, an extremely limited power to enquire whether a statute has been duly enacted…

A further internal check on the legislature is that bills can only be passed according to parliamentary rules and procedures. For example public readings of the bills and the bills being made publicly available on the Parliament website enable scrutiny by the public and the media. The bi-cameral system of Government – one which has an Upper and Lower House of Parliament – is a significant check on the power of the Legislature. The important debate and scrutiny of bills within the ‘party room’ enable members of the Legislature to express the views and concerns of those who they represent. It is an important internal check on the power of the Legislature. The Upper House has been described as:

the most important of the constitutional checks on balances on excessive concentration of power…It is the one place where Government can, of right, be questioned and obliged to answer.

– NSW Legislative Practice Chapter 2

Another important check on the power of the Legislature is the ability of the Governor General to dissolve the Legislature, which is only done in exceptional circumstances. The Governor General also must give royal assent to laws passed by the Legislature.

Further, the Constitution balances the law-making power between Federal and State Governments. The Federal Government has the power to legislate with regard to issues such as defence, taxation and immigration, whilst State Governments can make laws in areas such as roads, hospitals, and schools.

Rule of law principles also guide law making. Laws should not be retrospective. This means that once a court decision is handed down, the Legislature cannot then reverse this decision by introducing laws that illegalise actions that were deemed legal at the time by the courts The laws must consider how they delegate power, and must not include arbitrary, overly discretionary or retrospective provisions, be clear, able to be complied with and relatively stable.

Whilst the judiciary is a check to ensure all legislation is lawful, the Legislature also acts as a check on the Judiciary because it can pass laws that override the decisions of the courts.

Separation of Powers

The term “Separation of Powers” was coined by the 18th century philosopher Montesquieu. Separation of powers is a model that divides the government into separate branches, each of which has separate and independent powers. By having multiple branches of government, this system helps to ensure that no one branch is more powerful than another. Typically, this system divides the government into three branches: the Legislative Branch, the Executive Branch, and the Judicial Branch. The United States federal government and forty states divide their governments into these three branches.

In the federal government, Article 1 of the United States Constitution establishes the Legislative Branch, which consists of Congress. Congress, in addition to other enumerated responsibilities, is responsible for creating laws. As a general rule, the nondelegation doctrine prohibits the Legislative Branch from delegating its lawmaking responsibilities. Congress can, however, provide agencies with regulatory guidelines if it provides them with an “intelligible principle” to base their regulations on. For more information on the Legislative Branch, refer to “Congress.”

Article 2 of the United States Constitution establishes the Executive Branch, which consists of the President. The President approves and carries out the laws created by the Legislative Branch. For more information on the Executive Branch, refer to “Executive Branch.”

Article 3 of the United States Constitution establishes the Judicial Branch, which consists of the United States Supreme Court. The Judicial Branch interprets the laws passed by the Legislative Branch. For more information on the Judicial Branch, refer to “Judiciary.”

Separation of Powers in the United States is associated with the Checks and Balances system. The Checks and Balances system provides each branch of government with individual powers to check the other branches and prevent any one branch from becoming too powerful. For example, Congress has the power to create laws, the President has the power to veto them, and the Supreme Court may declare laws unconstitutional. Congress consists of two houses: the Senate and the House of Representatives, and can override a Presidential veto with a 2/3 vote in both houses.

The Checks and Balances System also provides the branches with some power to appoint or remove members from the other branches. Congress can impeach and convict the president for high crimes, like treason or bribery. The House of Representatives has the power to bring impeachment charges against the President; the Senate has the power to convict and remove the President from office. In addition, Supreme Court candidates are appointed by the President and are confirmed by the Senate. Judges can be removed from office by impeachment in the House of Representatives and conviction in the Senate. In this way, the system provides a measure, in addition to invalidating laws, for each branch to check the others.