Executive and legislative relationship australia wa

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executive and legislative relationship australia wa

As Under Treasurer, he is also Chairman of the Western Australian Treasury and Commonwealth-State financial relations, and supporting Government to achieve legislative and accounting standards advice, and supporting efficient and. Subsidiary legislation must exist in relation to an enabling Act. The enabling form of delegated legislation, these are made by the executive or a Minister to Finding Subsidiary Legislation on Western Australian Legislation. The rules of government for this new nation were enshrined in the Australian their own constitutions, as well as a structure of legislature, executive and judiciary. the federal-state relationship, and the government of Australia's territories.

In a judgement delivered the following year, the High Court held that the Act was beyond the legislative competence of the Australian Parliament and thus invalid. His "fight" took the form of an endeavour by the means authorised by the Australian Constitution, [14] to amend the constitution so as to confer the requisite legislative power on the parliament.

That required means included the successful passage of a referendum. As it transpired, the referendum was not passed either by the requisite majority of the Australian States or by an overall majority and thus failed.

The case stands to this day in Australia as an important example of the limits of our parliament's ability to circumscribe civil liberties, even of the promoters of unpopular causes. Very recently, when Papua New Guinea's Supreme Court held that the detention of asylum seekers on Manus Island violated the National Constitution, [16] the immediate response of the Prime Minister, the Honourable Peter O'Neill MP, was to state publicly that the government would abide the order of the court.

The point for present purposes is that the reactions of Prime Ministers Menzies and O'Neill were in conformity with the Latimer House Principles, whereas, with all due respect, the behaviour of President Mugabe and the statement made by Prime Minister Gillard were not. In relation to relations between the parliament and the Executive on the one hand and the judiciary on the other, these principles do not exist to protect the vanity or sensibilities of the judiciary.

The reasoning employed in a judgement is not immune from criticism. What should be avoided is criticism which is subversive of the separate, constitutional role of the judiciary to interpret and apply the law of the land or, put another way, criticism which is subversive of the rule of law.

Statements which suggest that the judiciary must adhere to the views of the Executive are likewise subversive. There is a corollary of this so far as the judiciary is concerned. It is not the function of the judiciary to have the general administration of Acts of Parliament or to formulate and implement national policy.

These are the functions of the Executive. The concern of the judiciary is only with the legality of the discharge of these functions by the Executive, not with their merits.

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If, in so doing, the court avoids administrative injustice or error, so be it; but the court has no jurisdiction simply to cure administrative injustice or error. The merits of administrative action, to the extent that they can be distinguished from legality, are for the repository of the relevant power and, subject to political control, for the repository alone. But that need is no less in, for example, a case concerning the judicial review of a decision concerning whether an individual is entitled to a particular benefit under statute than it is in a case involving the constitutionality of an action implementing high national policy.

Further, it is not only in these public law cases that that need arises. It is the daily business of the courts to determine a range of other civil disputes, notably including tax liability disputes, to which a body politic or official or agency thereof is a party.

That is not to mention criminal cases in which the Crown or the State will always be a party. In all such cases, a failure on the part of the other branches of government to respect the separate, adjudicative role of the judiciary is subversive of the rule of law. The exercise of judicial power must entail deference not just to the separate role of the Executive but also to the separate role of parliament.

A not infrequently encountered need for this deference occurs when a court is urged by a Minister or other officer or agency of the Executive to adopt a construction of legislation favoured by the Executive but which does not accord with the meaning of that legislation as disclosed by its text.

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In these circumstances, it is not for a court to construe the legislation on the basis of what parliament might have specified if it were desired to implement a particular policy. For to do that would, in effect, be to legislate.


Instead, the court must construe the legislation on the basis of the text parliament has chosen to approve. If that text has imperfectly implemented that policy, it is for parliament, if so disposed, to amend the legislation so as more exactly to implement that policy.

This approach to the construction of legislation must inform the judiciary in cases great and small. That persistence and the related behaviours of King Charles in endeavouring to govern without parliament and to impose taxes without parliamentary authority led in the midth century to civil war between the King and his supporters and parliament and its supporters.

King Charles lost that war and paid for his adherence to his principles with his life. But the subsequent English experience after that civil war was that regicide and the triumph of parliament and a republican ideal led not to government by parliamentary authority but instead to a military dictatorship under Lord Protector Oliver Cromwell, backed by the New Model Army. On Cromwell's death, peace was preserved by a restoration of the monarchy but on terms that, over the course of the reign of King Charles II and his successors, led to an acknowledgement of the supremacy of parliament within the field of its legislative competence and to the affirmation of the separate role of an independent judiciary by express provision for the continued tenure in office of judges, subject to capacity and good behaviour.

executive and legislative relationship australia wa

The instruments by which these features of what has proved to be an enduringly successful system of government were enshrined were: The Declaration of Breda of 4 Aprilby which King Charles II undertook, if restored to power, to issue a general pardon for crimes committed during the Civil War and the period of the Protectorate for all those who acknowledged him as the lawful monarch; to uphold the right of those who purchased property during that period to retain that property; religious toleration; to pay arrears owing to members of the army, and that the army would be reconstituted under the service of the Crown.

In this lie the origins of the Westminster system of government in which Ministers appointed by the Crown or other Head of State hold office only while they enjoy the confidence of parliament.

executive and legislative relationship australia wa

This declaration was later recited and the rights it specified enacted by the English Parliament in the Bill of Rights Eng. The Act of Settlement Engwhich provided for the succession to the Throne and for the terms of that succession after the failure of King William and Queen Mary and their successor, Queen Anne to produce a surviving heir.

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It affords the judiciary a tenure not enjoyed by Chief Justice Coke and facilitates the discharge of the judicial function he defended.

In England and Wales, provision for this tenure of this kind for the senior judiciary is now found in s 11 of the Senior Courts Act UK. Furthermore, no arm of government is supposed to abdicate power to another arm. The premise of this construct is not a harmonious relationship but a checking and balancing of power.

Inevitably, the checking provides the blueprint for, and generates, tension between the three arms of government.

It is unrealistic to think that it can be eliminated. But it can be reduced, if the Executive and the Judiciary recognise 'that each has a role to perform and that each is better equipped to carry it out than the other'. As Professor Pearce has said, '[f]or the good of our society, it is better for the combatants to realise that they are there to serve the people, not their own ends, and to adapt their conduct accordingly'". The virtue and value of the Latimer House Principles is that they specify conduct which can reduce the inevitable tensions between the branches of government and thus serve the end of the good of a society.

Moral right of author asserted. Non-exclusive publication right granted to: The views expressed in this speech are personal, not those of either Australian or Papua New Guinean courts or governments.

A controversy of land between parties was heard by the King, and sentence given, which was repealed for this, that it did not belong to the common law: A Force for Freedom. Barry Rose Law Publishers Hostettlerp. National Library of Australia, "Trove" database: Each accessed, 12 May As the Act of Settlement as in force today in the United Kingdom, see legislation.

executive and legislative relationship australia wa

Records pertaining to the Legislative Assembly can be located through the listings at the hardcopy AN finding aid available at the State Records Office Search Room and online. The following are selected examples of the types of records created by the Legislative Assembly: Tabled Papers,Series This collection contains papers tabled in the Legislative Assembly for its consideration. The subjects covered by the papers include: In some cases the tabled papers consist only of the front cover as the contents have been either returned to the relevant department, transferred to the Legislative Council after tabling or lost.

Photographic copies of two framed documents: These Royal Commissions cover a range of topics including Aboriginal issues, coal, bribery and corruption, fisheries, immigration, railways, forestry, and hospitals, and date back to Records of Royal Commissions vary although generally they consist of transcripts of evidence submitted to the Commission, the final reports and draft reports, exhibits gathered, correspondence, minutes, press cuttings and other original records used to compile the Commissions' final reports.

References to Royal Commission records can be located either through the alphabetical listing in the hardcopy AN finding aid available at the State Records Office Search Room or by searching the online catalogue using the title of the Royal Commission or keywords. Printed reports of the Royal Commissions can be consulted in the Battye Library using the printed appendices to the Votes and Proceedings of Parliament, and are being digitised by the WA Parliament.

Royal Commission records are covered by a 30 year restricted access rule. Please see the Accessing Restricted Records section for information on how to apply for access to restricted records. The CSO was the conduit through which the Governor's instructions were disseminated to the various Government Departments of the day, as well as being the first point of contact between the Governor and the Colonists, both collectively and individually. See also further information on CSO records. The Executive Council initially consisted of the same persons as the Legislative Council and was presided over by the Governor.