Executive decisions are often made in the glare of media publicity, often with the aim of pleasing the public — and gaining popular support. However, what is most often overlooked by all critics is the fact that where is the common man to go, when the executive fails to perform its duties properly? No doubt the Minister would respond that these figures are irrelevant. This means that the Governor-General has been given certain powers to act on behalf of the Queen. However, many of those promises have never been fulfilled, and, on occasion, private players have taken undue benefit of this. Congress has the sole authority to enact legislation, establish a budget for the federal government, and declare war on behalf of the United States.
Many students of political theory regard this tension between the arms of power as indicating a healthy and well-oiled, working government. They must maintain an a-political stance. Judicial power is the power to interpret the constitution and laws and apply them, and to decide controversies arising between state or private parties. It is a potent instrument of social justice to bring about equality in result. As a result, the doctrine of the separation of powers is entrenched in the Australian Constitution.
People who exercise political power, and claim to represent the will of the people, do not like being checked or balanced. Inevitably, the checking provides the blueprint for, and generates, tension between the three arms of government. It is difficult to precisely define a judicial power, as there are many common ingredients with administrative and legislative power. Firstly, the power of the judiciary to interpret the parliamentary legislature, to give meaning to the words used in a statute and to fill in the gaps, secondly, the judicial power to declare a statute unconstitutional and thirdly, tine power of the courts to invalidate constitutional amendments. Review of a public servant's decision by an administrative tribunal, whose members do not have the same security of tenure and independence as judges, is no substitute for review by a court.
For example, the Prime Minister and ministers are part of the Executive and the Parliament. In Ancient Greece, rulers and a group of respected elders in the community were empowered to hear disputes. The Justive Department whose job is to enforce the law, is under the President's control. The executive is made legally responsible to the people by allowing the latter to challenge executive decisions in court using the facility of judicial review. Division 1 of Part 8 of the Migration Act 1958 Cth , as amended, provides in section 474 that a privative clause decision is final and conclusive, must not be challenged, appealed against, reviewed, quashed or called into question in any court and is not subject to prohibition, mandamus, injunction, declaration or certiorari in any court on any account. Under the provisions of the Constitution, the parliament is not sovereign and the judiciary Supreme Court is not supreme except in its own domain. The 42nd Constitutional Amendment Act was also passed putting new limitations on the judiciary.
Similarly, the power to deal with public nuisances, apprehended danger to public tranquillity, etc. Occasional conflict may do no harm. Of course, both branches have their own distinct roles, some of which we will cover in this comparison article. However, power to grant custody police custody or judicial custody under Section 167, power to grant bail under Sections 436, 437, power to conduct trial for criminal offences under various provisions of the Cr. All of these matters may throw light on the meaning of indeterminate expressions or ambiguously worded legislation. One hopes that this advice is followed meticulously. Although the core natures of legislative, executive and judicial powers are clear and their ordinary applications distinct, they intersect at the margins.
Professor Dennis Pearce is not only a distinguished lawyer but, as Commonwealth Ombudsman, he has been in a unique position to see the reaction of the Executive Government to judicial review of Executive power and action. The purpose was not to avoid friction, but, by means of the inevitable friction incident to the distribution of the governmental powers among three departments, to save the people from autocracy. But even if this is so, it is not a principled basis for rejecting judicial review and making inroads into the rule of law. Judicial review can impact on the political image and agenda of the Executive Government. However, in Australia this is not possible as there are some overlaps between the legislative arm and executive arm. The Legislature may change the substantive rules of law. The Industrial Court was in 1976 replaced by the Industrial Division of the Federal Court.
Second, the Executive believes that it is not the role of the Judiciary to direct the expenditure of resources or to require the allocation of additional resources to an agency. Concentration of all the powers in one particular authority led to abuse of power as the decision taken by the authority was whimsical and arbitrary on several occasions. First Class Judicial Magistrate are allowed to pass a sentence of imprisonment for a maximum of 3 years or fine up to Rs. The Executive Branch The governor. But if the rule of law is to remain the basis of our democracy, the courts cannot be moved by the political consequences of their decisions. There are a number of examples of the Judicial Branch checking the power of the Executive Branch.