Democracy and the rule of law: political and legal systems

Unit 1 asks how a democracy keeps power accountable and how it upholds the rule of law. The rule of law means that everyone, including the government, is subject to known laws that are applied fairly by independent courts. The essential understandings below are the building blocks for every later idea in the unit, so learn them as precise definitions and then practise applying them to Australian examples.

Separation of powers. The doctrine divides government power into three kinds: legislative power (making law), executive power (administering and enforcing law) and judicial power (interpreting law and deciding disputes). Dividing power guards against tyranny because no single body can make a law, enforce it and then judge whether it has been broken.

The Commonwealth Constitution reflects the doctrine in its structure: Chapter I vests legislative power in the Parliament (s 1), Chapter II vests executive power in the King, exercisable by the Governor-General (s 61), and Chapter III vests judicial power in the High Court and other courts (s 71). In practice the separation is strict between the judiciary and the other two branches, but only partial between the legislature and the executive, because ministers sit in Parliament.

Roles of the branches. The legislature (the King, represented by the Governor-General, plus the Senate and the House of Representatives) debates and passes Acts, scrutinises the government and authorises spending. The executive (the Governor-General acting on ministerial advice, the Prime Minister, Cabinet, ministers and the public service) develops policy, administers and enforces Acts and makes delegated legislation. The judiciary resolves disputes, interprets legislation and the Constitution, and develops the common law.

Western Australia mirrors this pattern at State level with the Parliament of Western Australia, the Premier and ministers, and the WA courts.

Judicial independence means judges decide cases free from pressure by the government, parties, the media or the public. Safeguards include secure tenure (federal judges serve until age 70 and can be removed only by the Governor-General in Council after both Houses request it on the ground of proved misbehaviour or incapacity, s 72), salaries that cannot be reduced while in office, and the convention that ministers do not comment on cases still before the courts.

Sovereignty of parliament is the British idea that Parliament can make or unmake any law and that no court can set aside an Act. In Australia this is qualified by constitutionalism: the principle that government must act within the limits set by a constitution. Australian parliaments are supreme only within their constitutional powers, and the High Court can declare a law invalid if it goes beyond them.

Statute still overrides common law, and one parliament generally cannot bind a later parliament.

Federalism is a system in which sovereignty is shared between a central government and regional governments, each with its own constitutional sphere.

The division of powers is the allocation of law-making subjects between them: exclusive powers held only by the Commonwealth (for example customs and excise duties, s 90), concurrent powers listed mainly in s 51 that both levels may use (such as taxation, s 51(ii)), and residual powers left to the States (for example most criminal law, policing and school education).

If a valid Commonwealth law and a State law are inconsistent, s 109 provides that the Commonwealth law prevails and the State law is invalid to the extent of the inconsistency.

Representative government means citizens elect representatives to make decisions on their behalf and can remove them at regular elections; ss 7 and 24 require senators and members to be ‘directly chosen by the people’.

The Westminster conventions of responsible parliamentary government are largely unwritten rules that make the executive answerable to the lower house: the government is formed by whoever holds the confidence of the lower house; ministers are drawn from Parliament (s 64 requires a minister to become a member within three months); each minister is individually responsible for their portfolio; Cabinet is collectively responsible and publicly united; and the Governor-General normally acts only on ministerial advice.