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Discuss the extent to which the separation of powers acts as a check on the Commonwealth Parliament in law-making. - VCE - SSCE Legal Studies - Question 6 - 2023 - Paper 1
Question 6
Discuss the extent to which the separation of powers acts as a check on the Commonwealth Parliament in law-making.
Worked Solution & Example Answer:Discuss the extent to which the separation of powers acts as a check on the Commonwealth Parliament in law-making. - VCE - SSCE Legal Studies - Question 6 - 2023 - Paper 1
Step 1
The Role of the Judiciary as a Check
Answer
In Australia, judicial power is vested in the High Court and other courts, which have the authority to rule on the validity of Commonwealth legislation. The judiciary ensures that laws enacted by Parliament comply with the Constitution. This serves as a check because if a law is found unconstitutional, the judiciary can invalidate it. Thus, the judiciary acts independently of the parliament, emphasizing its role in maintaining the rule of law.
Step 2
The Judiciary's Independence
Answer
The judiciary operates independently, meaning it can check the legislature without external influence. Judges are appointed by the executive and serve for life, allowing them to make impartial decisions. This independence is crucial as it allows the judiciary to uphold constitutional principles even against the interests of the government.
Step 3
The Role of the Executive as a Check
Answer
Executive power is held by the Crown and exercised by the Governor-General. The executive's ability to refuse to enact legislation passed by parliament also serves as a check on Parliament. If the executive disapproves of a law, it can withhold assent, which highlights the requirement for legislative proposals to align with broader governance considerations.
Step 4
Parliament's Power to Make Laws
Answer
Parliament has the fundamental power to create laws; however, this power is not limitless. Laws must comply with the Constitution, and there are checks through mechanisms like the High Court’s capacity to review legislation for constitutional validity. Furthermore, effective law-making requires the government to consider public opinion and parliamentary support.
Step 5
Role of the Governor-General
Answer
In practice, the Governor-General acts on the advice of the Prime Minister. This function creates a 'fused' executive where the lines between governance and the legislature are interconnected. While this can facilitate efficient law-making, it also raises questions about the true separation of powers when the Governor-General’s role is reduced to a ceremonial one.