PARLIAMENT

The two basic functions of parliament are to legislate and to supervise the executive. Legislation comprises two forms: passing statutes, and overseeing the making of 'delegated legislation'.

1. COMMONWEALTH PARLIAMENT: The legislative powers of the Commonwealth are defined in two broad ways:
   

• By the conferment of power (what the Commonwealth is permitted to do).

• By the imposition of prohibitions (what the Commonwealth is forbidden to do).

The power of the Commonwealth can be extended a number of ways. For example, the Constitution does not endow the Commonwealth with specific educational legislative power except for the 'Benefits of Students' provision in s51 (xxiiiA). However, despite the lack of specific constitutional powers, the Commonwealth has a considerable influence over educational policy making, especially by virtue of financial grants made by the Commonwealth for educational purposes of various kinds. The power of the “purse strings”!

The grants are designated for specific purposes, since the Commonwealth stipulates how the money shall be spent. In addition, s51(xxxix) (External Affairs power) potentially endows the Commonwealth with the formidable power to legislate in a number of areas otherwise outside it’s domain.

PROHIBITIONS: Are the reverse of powers, and serve to deprive the Commonwealth of power to legislate in certain areas. For example, s92 of the Constitution which ostensibly protects freedom of trade between the States. However, there are some express prohibitions in the Constitution which preclude certain sorts of legislation by the Commonwealth. For example:

s116: The Commonwealth shall not make any law for establishing any religion, or for imposing any religious observance, or for prohibiting the free exercise of any religion, and not religious test shall be required as a qualification for any office or public trust under the Commonwealth.

This section was crucial in the DOGS (Defence of Government Schools) case: AG (Vic); ex re Black v Commonwealth (1980) 33 ALR 321 which is the leading case in the history of the State aid to private schools debate.

2. STATE PARLIAMENTS: Whereas the majority of the powers of the Commonwealth parliament are conferred by the Constitution, most of the legislative powers of the States are in a single section. Commonwealth powers are specific, whereas those of the States are general powers. For example, s5 of the Constitution Act 1902 (NSW) is a 'power to make laws for the peace welfare and good government' of the State 'in all cases whatsoever'.

THE EXECUTIVE

The executive consists of two bodies:

1. Cabinet
2. Executive council.

Both are composed of government ministers. Cabinet meetings are where the government deliberates and comes to agreement about its political decisions. Having reached such agreement, the cabinet ministers reconvene as the Executive Council where the Governor (or Governor General in Commonwealth matters) is formally advised of the cabinet's decision.

The Governor then acts to implement this decision which necessitates the exercise of the Governor's statutory or prerogative powers. The administration of government is carried out by the government departments headed by a Minister as political head, and by a chief executive officer public servant (for example, the Director ­General of Education) as the permanent head.

STATUTES: Are the major source of executive power, and statutes confer authority on the crown, ministers, public servants, and other officers. Statutory powers are invariably cast in terms of a duty or a discretion. With regard to duties, or mandatory powers as they are also called, the Minister (or such other officer or group) is actually required to do something. Legislation will mandate that the Minister shall...'. On the other hand discretionary powers are indicated by an expression such as: 'The Director­ General may...'. However, discretionary powers should not be construed as an open invitation for an official to act arbitrarily. This is the province of Administrative Law.




SOMETHING TO DO

Length: 1000 words

Consider the operations of a typical real estate agent set up as a company in an outer suburb of a large city. List 12 important laws that impinge on his/her day to day running of the business. Which of those laws are under Commonwealth legislation? For the Commonwealth laws determine from an examination of s51 of the Constitution, the powers on which they depend.