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22 February 2022

The three branches of government are the legislature, executive, and judiciary. The Constitution addresses the legislative branch, Parliament, first, in Chapter I. It is followed by the executive in Chapter II and judiciary in Chapter III, as in the US Constitution. Therefore, we will start with the legislative branch.

Federal Parliament is divided between two houses, the lower house and upper house, referred to as the House of Representatives and Senate, respectively. Each house is also known as a chamber, so collectively they are also referred to as the Chambers of Parliament. This is where the word bicameral comes from, as it literally translates as ‘two chambers.’ Members of the House of Representatives represent the people of Australia, while the Senators represent the interests of the States as legal entities. This will be explored more in the next article.

However, Chapter I, Part I, Section 1 of the Constitution refers to the legislative power not only being vested in the Senate and House of Representatives, but also in the Queen, who is included in the Parliament. Section 2 provides for the appointment of the Governor-General by the Queen to serve as the Queen’s representative, exercising the Queen’s power on her behalf. As the Constitution received royal assent, a topic discussed below, from Queen Victoria on 9 July 1900, the monarchy is referred to as the Queen in the Constitution. However, Clause 2 makes it clear that any reference to the Queen is also a reference to any future British monarchs, the Queen’s “heirs and successors.” However, as this series will refer to matters and legislation outside of the Constitution, the term ‘Crown’ will be used henceforth to refer to the monarch.

Under British and Australian law, a piece of legislation is referred to as a ‘bill’ until it receives royal assent. A bill has no legal authority. Section 58 of the Constitution grants the Governor-General the authority to give royal assent to bills. In Britain, that power is held by the Crown. However, as the Governor-General is merely a representative of the Crown, Section 59 allows the Crown to intervene and overrule the royal assent given by the Governor-General, effective immediately, provided that the Crown intervenes within one year of the Governor-General granting royal assent. The giving of royal assent is generally seen as a formality, but if assent was not granted, then a bill would not enter into force. In some cases, Section 60 allows for royal assent to be reserved for the Crown, meaning that the Governor-General cannot assent to it. Royal assent is similar to the US President, the head of the executive branch of the government, signing bills passed by Congress into law, except in Australia the power to veto a law has not been exercised.

Once a bill has received royal assent, it enters into force, a process known as ‘commencement,’ and becomes an ‘act,’ which is legally binding. According to Section 3 of the Acts Interpretation Act 1901 (Cth), which was the second law to be passed by Parliament, if a provision of the act states that the act comes into effect on a certain day, the act comes into effect at the start of that day. Specific provisions that are expressly referred to can commence on an earlier or later date. If the act does not refer to a specific date of commencement, Section 3A(2) applies, which states that it will commence 28 days after the day it received royal assent. The only exception is Section 3A(3), which states that constitutional amendments commence on the day of royal assent.

Aside from being the representative of the Crown, the Governor-General has one other power in Chapter I, Part I, relating to the Parliament. That power, found in Section 5, relates to summoning, dissolving, and proroguing Parliament. That will be discussed more in a later article.

Parliament is divided between the House of Representatives, the Senate, and the Crown, the latter being represented by the Governor-General. The powers of the Governor-General are granted by the Crown, meaning that as the Crown’s representative, the Governor-General has all the powers of the Crown. This includes giving royal assent to bills, after which they enter into law. However, as the Governor-General represents the Crown, the Crown can overrule the Governor-General on this matter.

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Stuart Jeffery, aka LibertyDownUnder, is the founder of the Australian Liberty Network. He is also the host of the Gumtree of Liberty and Gumtree of Liberty Live podcasts, and is editor of the Liberty Review. Stuart is currently studying a Bachelor of Laws and Bachelor of Arts, majoring in international relations, at the University of Southern Queensland.

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