ROLES, FUNCTIONS, AND INTERELATIONSHIP OF THE ARMS OF STATE

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Roles, Functions, and Interrelationship of the Arms of the State

Introduction

The separation of powers doctrine is a key characteristic of many legal systems that dictate the functions of the government arms in the country. The doctrine facilitates checks and balances on the concentration of power in a few individuals who are leading the country. The noticeable demonstrations of this doctrine are vested in the Australian constitution where the powers of the government arms are divided accordingly. The paper will discuss the role, functions, and interrelationship of the arms of the state as well as importance of the state in the study and practice of industrial relations in Australia

 

The Government Structure

               

                                                                                 Parliament of Australia (2014b)

Roles and Functions of Legislative

The parliament of Australia is at the heart of the national government. It is made up of the Queen (represented by the Governor-General), the Senate (Upper House), and the House of Representatives (Lower House) (Lee & Campbell 2013, p. 85). The Lower House has 150 members that represent electorates of the equal number of voters. In the parliamentary system of Westminster, the government is drawn from the parties that control the House of Representatives. The government in Australia will hold an office on the assumption that they retain the confidence and support of the House of Representatives (Lesley 2010). Minority groups in the country are represented in the Senate since the voting for senatorial seats observe the proportional voting. In essence, the three elements of Australian Parliament exhibit a parliamentary democracy and constitutional monarchy (Gareth 2006). According to Parliament of Australia (2014b), the parliament is charged with crucial functions that give it a mandate to serve the people as listed below.

• to legislate
• provide the funds required by the government through enactment of law provisions
• provide a forum for representation of the popular group
• to offer checks and balances or the actions of the government
• to provide the platform for the formation of the government and maintain or dissolve the government under provision stated on the law

It is worth noting that both Houses must pass the proposed laws, which must receive an assent from the Governor-General prior to becoming Acts of Parliament (Parliament of Australia 2014a). Any proposed law can be introduced in either of the House. However, laws relating to taxation and revenue must be tabled in the House of Representatives. The change of the constitution is an action of the people and the Parliament. In fact, both Houses must enter into consensus on the change of the proposed amendments or change of constitution. However, if an agreement is being reached, the proposal is presented to the people by the Governor-General to be voted for. Indeed, for a proposal to succeed, the majority of the voters must support its overall and in the majority of states (Parliament of Australia 2014b).

Roles and Functions of Executive

Governor-General appoints the Prime Minister, who by agreement under the Constitution appoints the party leader with the majority seats in the House of Representatives (Parliament of Australia 2014b). The majority party, therefore, becomes the government and consequently appoints the ministers who must be members of the Parliament. The Governor-General presides over the ministers who are referred by the Constitution as the Federal Executive Councils. The council main function is to receive the ministerial advice and consequent approval and sign official documents such as regulations, statutory appointments, proclamations, and ordinances (Parliament of Australia 2014). In essence, Australia functions under a Cabinet system of governance. Although the Cabinet is not discussed in the constitution, it is the key decision making body of the government which consists of senior Government Ministers. More importantly, the decisions made by the Cabinet become a legal binding after the Federal Executive Council ratifies them formally (Gelev 2011).

 It is imperative to keep the system under control, especially when legislative bodies instigate and pass a law. In fact, laws are broad in outline; hence, regulations to provide the specifics of implementation are necessary. Therefore, the executive branch is responsible for the drafting of regulations because the expertise is integrally within the ministries and administrative agencies (Kincaid, Saunders, & Leroy 2006). In fact, to understand the concept, a hypothetical case concerning a law on foreign investment can be considered. Fundamentally, the legislature will make policy choices regarding drafting of a particular law. The legislature may seek to encourage the foreign investors to buy their raw materials within the country. However, the quality supplied locally may not consistently exhibit the high quality required. Therefore, when drafting the law, the legislature may provide a clause on tax incentives to investors who decide to buy from the local suppliers.

In essence, the executive as the tax authority will consider the pertinent information required by the foreign investors for them to be eligible for a tax exemption. In addition, the executive must also put in place measures that will dictate how often such information is to be submitted (Kincaid, Saunders & Leroy, 2006). Still, the executive should initiate the oversight required to curb falsification of information and accordingly highlight the consequences of failing to provide the required information . The executive branch in Australia can issue an order and decrees to guide the operations of the ministries or executive branch agencies in case of national emergency such as war (Warhurst 2008). In this context, if Australia went into the war with another country, an executive decree may be issued to prohibit any investment from that country. However, the judiciary reviews such decrees in case there is an incompatibility with another law or there is any constitutional violation (Kincaid, Saunders & Leroy, 2006).

Roles and Functions of the Judiciary

Judiciary refers to the system of courts that dispensate and administer justice.  The High Court of Australia is at the top of the Australian judicature and the final court of appeal (Museum of Australian Democracy 2014). The role of the court is to apply and interpret the law. In fact, the whole process of judiciary entails interpretation of the constitution and resolving the arising legal dispute between the parliament and executive. The judiciary also decides the cases of federal significance, which include hearing of appeals and deciding the constitutional validity of the laws (Lee & Campbell 2013). For instance, judiciary protects the common law from overriding an Act of Parliament, but ensures that an Act of Parliament can override the common law in case the determination of such provision is required.

The role of the judiciary is unique among other government branches because it is not directly answerable to the demands of the popular will. In fact, judges are appointed for a lengthy period of service. In that context, the judiciary is uniquely devised to protect the rights of the minority from the influence of the majority. It is the function of the judiciary to examine the legality of legislative and executive actions by reviewing laws and the conduct of ministries and the executive agencies (Lee & Campbell 2013). The judiciary is significantly qualified to determine whether the action agency or a particular law is consistent with other laws or the constitution. It is worth noting that despite these powers, the judiciary does not have the authority to determine or pass on the wisdom of such laws.

According to Lee and Campbell (2013, p. 75), the doctrine of separation of powers was developed by the courts. The clause sustains the judicial independence, however,  the doctrine cannot protect the independence of the judiciary. In fact, what protects the independence of the judiciary is the consensus of the community and belief that judiciary protects their rights without experiencing domination by the parliament or the executive.

Interrelationship

There are limitations as to the extent of separation of powers in Australia.  French philosopher Montesquieu (1689-1755) is associated with the establishment of the doctrine (Lee and Campbell 2013, p. 50). In essence, the doctrine requires the separation of all the three arms of the government. However, it is not possible for all functions to separate because some functions overlap between the executive and legislative arms (Thomas 2009). The Australian constitution provides a formal relationship between the parliament and the executive. In fact, there must be a responsible government (executive) and a reliable institution of representation (parliament) (Job 2005). In this context, the Constitution requires that the all the Ministers of the Government must first be the members of the Parliament.

The judicial arm of the government is also separated from other arms of the government by the Constitution. The doctrine was demonstrated during Boilermakers’ case (1956) HCA (Lee and Campbell 2013, p. 57). The ruling by the High Court indicated that the Commonwealth judicial powers could only be exercised by courts defined in the Constitution (s 71) (Lee and Campbell 2013, p. 58). In addition, those courts established in s 71 could not also exercise non-judicial powers.

Another aspect that demonstrates the interrelationship of the arms of the government is in the instances and the process of determination of judicial and non-judicial power.  Judicial powers are exercised through a process that encompass hearing of a disputed matter between the parties and the consequent declaration of the pre-existing rights of those parties as stipulated in the law. In that process, the judiciary has the power to enforce a particular order and commit for contempt of the same order (Sawer, Abjorensen & Larkin, 2009).

On the other hand, non-judicial power just like judicial power is an arbitral power that involves a hearing of a disputed matter between two parties. However, the process requires an award or decision that will dictate the outcome of the future rights of the parties involved. In addition, judicial power should be distinguished from the administrative power, which involves the creation of new rights and obligations. Hence, it requires the consideration of policy matters as it was in the case of Precision Data Holdings Ltd v Wills (1991) HCA (Kelemen 2004). Sometimes it is hard to define the judicial power because many aspects of the administrative and judicial power tend to overlap. Therefore, the functions are classified as administrative or judicial according to the way they are exercised. Lastly, the federation legislative power remains with the Congress, and the executive power is bestowed on the presidency. In addition, the judicial power lies in the Supreme Court (Gareth, 2006).

The Role of the State in the Study and Practice of Industrial Relations in Australia

In the study and practice of industrial relations in Australia, it is imperative to understand the role of the state. In fact, the state has a powerful impact on the industries and nations, efficiency of enterprises, and the welfare and equity of the employees. Understanding the role of the state is demonstrated by going beyond  the ‘commonsense perception’ of the industrial relation. In this case, the perception only emphasizes the sensational conflict conditions between the employers and trade unions (Bray, Waring & Cooper, 2014). Therefore, it is necessary to go from the ‘commonsense perception’ to a more theoretical informed explanation of the industrial relations, which defines it as the study of the employment relationship.

The role and function of the state in the modern economies cannot be ignored, whether through macroeconomic policy, legislation or its role as an employer (Bell & Head 1994). The role of the state is pervasive, and Australia has developed an Industrial Relation System where the state plays an active role. Therefore, it is imperative to understand the role of the state in the study and practice of industrial relations in Australia. The state plays various roles in initiating the institutional framework for the bilateral relationship between employers and their representatives as well as workers and their trade unions. According to Spigelman (2004), the Australian government is involved in the collective bargaining, which is demonstrated in a centralized system.

The state provides the institutional framework for the bilateral relationship of the  workers and their trade unions as well as employers and their representatives. Creighton & Stewart (2005) aver that the framework regulates the relationship between the labor and the management at all levels (enterprises, regions, and the entire economy). In addition, the balance is attained after adjusting the legal environment.

It is through the role of state that we understand the importance of the Collective Bargaining System. In this context, the state provides a mechanism for settling the employment terms in the industry by non-political means (Cooper 2005). The legal framework entails substantive provisions for minimum standards that are accepted universally, including minimum wage, occupational health and safety provisions, vacations, minimum wage, protection against dismissal, and anti-discrimination regulations. Therefore, the state provides an efficient system that supports collective bargaining.

The state provides ways to avoid and limit industrial conflicts. In Australia, the right to strike is guaranteed by law. At the same time the state takes  actions to curb unofficial and official strikes as well as lockouts in order to  safeguard the citizens from real and imagined consequences. In fact, the Australian government is responsible for the conflict resolutions in the public and private sector by providing procedural rules for conciliation, mediation, and compulsory or even voluntary arbitration (Wailes 2002).

The Australian government has a role to participate in the Public Sector Labor relations. Indeed, the public authorities and the state are the direct employer of the majority of citizens in the labor force as indicated by Wailes (2002). Therefore, the study and practice of industrial relations must be understood so that the role of the state can be appreciated. The state, therefore, exerts significant influence on the sectors involved and participates in the development of industrial relations systems.

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

References

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