What Will I Learn
- The following information and activities will help you to understand what ‘separation of powers’ means.
- You will find out about the roles of the Parliament, Executive, Judiciary and Head of State and how government is formed in Australia’s system of government.
- You will find out what the difference is between parliament and government, including what responsible government, parliamentary majority, a hung parliament and minority government mean.
- You will also learn about the role of political parties and independent members of parliament.
The Separation of Powers
Australia’s system of government is based on the Westminster system inherited from Great Britain. The Australian Constitution was created at Federation in 1901 and sets out the rules by which Australia is to be governed. The constitution lists the powers of each branch of government.
Each State also has its own Constitution.
The NSW Constitution
In NSW Section 5 of the NSW Constitution Act 1902 allows the elected Parliament of New South Wales to make laws for the “peace, welfare and good government” of the State. The NSW Parliament may make laws in all matters, unless that matter is specifically one that the Australian Constitution gives the Federal Parliament power to make laws about.
There are three branches of government or main areas of power that the constitution discusses:
- Legislative (parliament)
- Executive (the Government)
- Judicial (courts)
Each is separate from the other but also has some power to check over the others. No one branch can control all power in a democratic system. This is called the separation of powers.
The separation of powers is applied strictly at the Commonwealth level due to the structure and wording of the Commonwealth Constitution, particularly in insulating the judiciary from the legislature and executive. In NSW our basic governmental structures were in place before the Australian Constitution. The separation of powers is less stringent, but remains an accepted convention in NSW.
The Separation of Powers in NSW
NSW has a bicameral law-making body. The two Houses of Parliament are:
• the Upper House or Legislative Council
• the Lower House or Legislative Assembly
Bills can be introduced in either House of Parliament but must pass both to become an Act (also known as a law). There is one exception to this – money bills. These are bills where the Government is asking the parliament for money to provide services for the people of NSW. These bills only need to be passed by the Lower House.
As well as law-making, Parliament represents the people (through elections) and determines the Government (the party with an elected majority in the Lower House). It also provides an overview, or check, on the activities of the Government.
Watch a Regular Sitting Day in the 57th Parliament (2019 – 2023)
Stay tuned for an updated video with the Speaker of the 58th Parliament The Hon. Greg Piper MP.
The New South Wales Legislative Assembly
- Elections for the NSW Parliament are held every four years on the fourth Saturday in March
- 93 members are elected to the NSW Legislative Assembly, each representing one of the 93 electorates in the state
- Each member is elected for a four year term
- In the Westminster system the Government is formed by the political party that wins the majority of seats in the lower house. The leader of that party is commissioned by the Governor to form the Government. Some members are chosen from the Government to also be Ministers.
- Ministers sit on the front bench to the right hand side of the Speaker. Members of the Government who are not Ministers sit on the back bench and are called backbenchers
- The Opposition sits on the left hand side of the Speaker. Members of the Opposition who are not Shadow Ministers sit on the back bench and are also called backbenchers.
- Members of minor parties or Independents also sit to the left of the Speaker but near the back of the chamber in front of the public galleries.
- The Speaker’s role is similar to the chairperson of a meeting. They make sure that the rules of debate are followed so that members can represent their constituents. They are assisted by the Clerks and the Serjeant-at-Arms who are not elected representatives but expert public servants.
- The mace sits on the table symbolising the authority of the Speaker and of the Parliament to make decisions for the people of NSW.
- Parliamentary sittings are live streamed on the parliament’s website and open to the public. They are also recorded by Hansard reporters and the media can attend and report on proceedings from the press gallery.
Go on a Virtual Tour of the Legislative Assembly Chamber
The Legislative Council
- The Legislative Council consists of 42 members each elected for an eight year term. This means that at each state election (held every four years) half, or 21, members are elected and the other half, or 21, remain as members until the next election.
- The 42 members are elected under a system of proportional representation from a single electorate encompassing the whole State.
- The Legislative Council is also known as the ‘House of Review’ and one of its roles is to scrutinise the Government and keep them accountable to the people of NSW. It does this through debating bills, reviewing legislation, inquiring into issues through the committee system, including the annual Budget Estimates inquiries, orders the Government to table state papers in the house, questioning Ministers at Question Time.
- Similar to the Legislative Assembly, Government members sit to the right of the President, who is the Presiding Officer for this House, and Opposition members sit to his/her left. Ministers sit on the front benches and members of the Government who are not Ministers sit on the back bench and are called backbenchers
- Members of the Opposition who are Shadow Ministers sit on the front bench and Members of the Opposition who are not Shadow Ministers sit on the back bench and are called backbenchers.
- Members of the Legislative Council that do not belong to the Government or Opposition parties sit on the benches in front of the public galleries and perpendicular to the Government and Opposition benches (often referred to as cross benches).
- The President’s role is similar to the chairperson of a meeting. They make sure that the rules of debate are followed so that members can represent their constituents. They are assisted by the Clerks and the Usher of the Black Rod who are not elected but expert public servants.
- The Black Rod sits on the table symbolising the authority of the President and of the Parliament to make decisions for the people of NSW.
- Parliamentary sittings are live streamed on the Parliament’s website and open to the public. They are also recorded by parliamentary Hansard reporters and the media can attend and report on proceedings from the press gallery.
Go on a Virtual Tour of the Legislative Council Chamber
Currently in the NSW Legislative Assembly the seats are distributed in the following way:
Quick Government Facts:
- To form government and pass bills a parliamentary majority (47 of the 93 members) is needed. This is called a majority government.
- The political party that has been elected with the majority of members in the Legislative Assembly (or Lower House) forms Government.
- The Liberal and National parties have formed a coalition. This means they work together and have 48 of the 93 seats between them and can therefore form Government. They will remain the Government until the next election or unless they lose the support of the majority of members in the Legislative Assembly.
- The Labor Party has 36 of the 93 seats and forms the Opposition.
- The other members are either Independents (members who do not belong to a political party) or belong to minor parties (Parties that are too small to form Government).
- If no political party achieves a majority in the Legislative Assembly this is called a hung parliament. Government might then be formed by a major party joining with independents or minor parties to achieve the necessary numbers to govern. This is known as a minority government.
The Legislative Council
Although the Government is formed in the Legislative Assembly, there are also members of the Government in the Legislative Council or Upper House. Some of these Government members are also Ministers. After an election the Government may or may not hold the majority of seats in the Legislative Council. More than half, or 21, of the 42 members of the Legislative Council need to vote on a Bill for it to pass.
As shown in the diagram above, currently no one party in the Legislative Council gained a majority of seats so the Government must negotiate either with the Opposition or with the minor parties and independents to pass a bill. This gives these members the balance of power as their decision to vote with or against the Government will decide if a bill is passed.
Quick Voting Facts
- In 1973 Australia lowered the voting age from 21 to 18, mainly because young men who had been fighting in the Vietnam War had no right to vote.
- The voting age in Australia for local, state and federal elections is 18.
- Countries with a minimum voting age of 17 include East Timor, Indonesia, North Korea,South Sudan and Sudan.
- Countries where the minimum age is 16 include Argentina, Austria, Brazil, Malta, Cuba, Scotland, Ecuador, Nicaragua and the Isle of Man, Jersey and Guernsey (three self-governing British Crown Dependencies).
- People aged 16–18 can vote in Bosnia, Serbia and Montenegro if employed.
- Most countries, including the USA and Britain have a voting age of 18.
The word “government” is often used to talk about our whole system of law and decision making. When we add a capital G, we are talking about the “Executive Government”. This refers to the Premier and Ministers of the State Government or the Prime Minister and Ministers, if we are talking about the Federal Government.
In Australia and other Westminster style governments, the majority party in the lower house of the Parliament (in New South Wales this is the Legislative Assembly) forms ‘the government’. The members of that party sit in the Chamber to the right of the Speaker and are referred to in parliament as “the Government”. Leading members of Parliament from this majority party become the Ministers, and the chief minister in the state is called the Premier. The Government is made up of the Premier and Ministers. Each Minister is responsible for one or more government department or agency which carries out the activities of government. Like all the other members of parliament, Ministers also represent their constituents in their electorate.
The responsibilities of the NSW Government include:
- Developing government policy for the state – for example plans for managing schools, hospitals or public transport.
- Introducing Bills to parliament to create new legislation or amend current.
- Administering the laws passed by Parliament for Government departments and agencies. Preparing the Budget, also called an Appropriation Bill. The Government proposes how much money it will need to action the policies that it took to an election. The Parliament must pass the Appropriation Bill before the Government can spend the money and implement the policies.
What is Responsible Government?
Responsible Government means that the political party that wins the majority of seats in the Lower House after an election becomes the government and its leaders become the Premier and Ministers. Ministers are responsible to, or must account to, the Parliament for their decisions and the decisions of the departments they are in charge of. This means that they must answer questions at Question Time from members of Parliament regarding the decisions made by themselves and their departments.
To remain in government, a party or coalition must continue to have a majority of members of the Lower House. If the government loses a majority of members and the parliament is able to pass a motion of no confidence in the government, the Governor may dissolve the Legislative Assembly before the fixed four year term expires and call an election. They can also consider whether the Opposition could form Government and act until the next scheduled election.
In Summary: What is the Difference Between Parliament and Government?
To use a sporting analogy, Parliament is the whole game and the Government is the team with the most players in the Legislative Assembly.
The Parliament is made up of all of the members that have been elected to the Legislative Assembly and the Legislative Council. The role of the parliament is to represent the people and to make laws. The Parliament also checks up on what the Government is doing. This is called keeping the Government accountable to the people of the NSW.
Government is made up of the Premier and the Ministers, who come from the political party or coalition that won the most seats in the Legislative Assembly after an election. The role of Government is to propose some of the ideas that become laws and to put those laws into action. The Government also administers government departments to make sure that all of the State’s services are working properly.
The Head of State
In NSW (and the other states) the Head of State is the Governor who is appointed by the sovereign on the Premier’s recommendation and represents the Crown in NSW. The Governor-General is the Head of State for Australia. The Governor is part of both the Executive and Legislature of the State, acting on the advice given to them by the Government or Parliament. The Governor can act independently if necessary. The Governor appoints the Premier and Ministry after an election and assents to bills passed by Parliament, making them laws. The Governor represents NSW at special occasions and acts as patron to community organisations and supports community activities.
The Governor of NSW Her Excellency the Honourable Margaret Beazley AC QC
The judiciary is made up of independent judges appointed to a system of courts, the highest in NSW is the NSW Supreme Court. The Commonwealth also has a system of courts and the highest court in the nation is the High Court.
Judges are appointed by the Executive Government but cannot be removed except by a parliamentary process. Judges interpret the laws and can even decide that a law passed by a parliament is unconstitutional.