The Australian Federal System of Government

Australia’s system of government is based on the British Westminster system of responsible government. A key difference between Australia and the UK is that the UK does not have written constitution, whereas Australia’s founders devised a written (or codified) constitution to create the Commonwealth of Australia. 

As a result, Australia is a:

  • Representative parliamentary democracy – Australians vote for members of parliament to make laws on their behalf.
  • Constitutional monarchy – The sovereign (the King) is Australia’s head of state but does not have absolute power and is required to follow the Australian Constitution. The King gives his powers to the Governor-General, whom he appoints on the advice of the Australian Prime Minister. As a check or balance of power, the Sovereign has the power to dismiss the Governor-General on the advice of the Prime Minister. 

Federation of states – the Australian Federation occurred when the six original colonies came together to create the Commonwealth of Australia in 1901. The Commonwealth Government was created as an additional layer of government at the time of Federation. Each state is individually represented in the Senate, as a House of Review. 

Note that the Australian Territories do not have the same constitutional powers as a state (ie ACT and NT, Christmas Island etc).  However, all elected governments in each jurisdiction operate in the same manner, according to the principles of Responsible Government, and each state has a Governor. The States have residual powers under the Constitution, to make laws regarding, for example, health, education and law enforcement.  In contrast, the Commonwealth looks after Defence, External Affairs, Currency, Marriage, etc. Where there are similar laws in the same area, the Constitution provides that Commonwealth law will take precedence.

 

Parliamentary Government

The Constitution of Australia establishes the Federal Government by providing for the Parliament, the Executive Government and the Judiciary. 

Parliamentary government means that the Executive Government comes from within the Parliament and is responsible to the Parliament. This is the central feature of a Westminster-style of government, following the United Kingdom model—in contrast to other systems of government where the Executive is quite separate and not directly answerable to the Legislature—for example, in the USA (where the USA constitution states that the President is the executive).

The Parliament consists of the Sovereign, represented by the Governor-General, and two Houses: the House of Representatives (the Lower House) and the Senate (the Upper House); this is a bi-cameral system, unlike the Queensland, ACT and NT uni-cameral system. The Parliament passes legislation; proposed laws have to be agreed to by both Houses of Parliament to become law. The two Houses have equal powers, except that there are Constitutional limits on the power of the Senate to introduce monetary bills.

Responsible government means that a party or coalition of parties must have the support of the majority of members of the House of Representatives to stay in government. This provides a check on the Executive, ensuring they are accountable to Parliament and do not abuse their power. The government appoints ministers to oversee the conduct of federal government departments and agencies. The Prime Minister is elected by the members of the majority party in the Lower House. By virtue of the Westminster convention, the Prime Minister must be a member of the Lower House.

The Separation of Powers

The power to make and manage laws is shared between the parliament, the government and the courts, to avoid one group having all the power:

  • The Parliament, which makes and changes the law; 
  • The Executive, which puts the law into action; and 
  • The Judiciary, which makes judgements about the law. The High Court may rule a law to be unconstitutional—that is, beyond the power of the Parliament to make. The Constitution cannot be changed by an Act of Parliament alone; a referendum of the people is necessary (and a referendum requires a majority of votes in a majority of states to succeed).

The Governor-General

The Governor-General performs the ceremonial functions of head of state on behalf of the Sovereign. While Executive Government powers are exercised by the Governor-General or in the Governor-General’s name, such actions are carried out as advised by the Prime Minister and Ministers.

The Governor-General, as the Vice Regal Representative, also has additional constitutional ‘reserve powers’, that the Sovereign does not have. This is additional to the powers of ‘Royal Assent’ to sign legislation into law and make regulations. 

The Federal Executive Council

The Federal Executive Council is the constitutional mechanism for providing ministerial advice to the Governor-General. It is not a forum for policy debate or deliberation and its proceedings are entirely formal. All Ministers and Parliamentary Secretaries become members of the Executive Council. Meetings of the Council are presided over by the Governor-General. The matters dealt with at each meeting are recommendations by Ministers, for the approval of the Governor-General in Council, that something be done—for example, that a regulation be made, a treaty be ratified, or a person be appointed to a position.

While the Executive Council may seem no more than a rubber stamp, the processes involved in bringing matters before the Council ensure that Ministers’ actions are properly documented, are legally and constitutionally valid, and are in accordance with government policy.

The Ministry

Ministers are selected by the Prime Minister, to administer the major departments and are, usually, members of Cabinet. Other Ministers are responsible for particular areas of administration within a major department, or may be in charge of a small department. Ministers are appointed from both Houses of Parliament, although most (about two thirds) are Members of the House of Representatives.

Parliamentary Secretaries

Up to 12 Members and Senators are appointed by the Prime Minister as Parliamentary Secretaries (also referred to as Assistant Ministers) to assist or represent Ministers in their administrative responsibilities.

Prime Minister

The Prime Minister is the head of the government, achieving this position by being the elected leader of the party in government.

The Cabinet

The Cabinet consists of senior Ministers presided over by the Prime Minister; it is the government’s pre-eminent policy-making body. Major policy and legislative proposals are decided by the Cabinet. The Prime Minister selects Ministers for Cabinet positions. The Cabinet does not exist under the Australian Constitution but exists part of the Westminster Conventions of responsible government.

Parliamentary Committees

A parliamentary committee consists of a group of Members or Senators (or both in the case of joint committees) appointed by one or both Houses of Parliament. The purpose of parliamentary committees is to perform functions which the houses themselves are not well fitted to perform, such as carrying out inquiries, hearing witnesses, sifting evidence, discussing matters in detail and formulating reasoned conclusions.

Acts of Parliament

The normal flow of the legislative process is that a Bill (a draft Act, or, in the terminology of the Constitution, a proposed law) is introduced into one House of Parliament, passed by that House and agreed to (or finally agreed to when amendments are made) in identical form by the other House. At the point of the Governor-General’s assent, a bill becomes an Act of the Parliament.

Cabinet Processes

The Cabinet is the council of senior ministers who are empowered by the Government to take binding decisions on its behalf.

As a forum, the Cabinet seeks, through discussion and consultation, to resolve disputes and build consensus around often difficult and controversial issues. The decisions of the Cabinet are understood to be collective, not of individual ministers, and Cabinet solidarity requires all ministers to take responsibility for them and support them.

Ministers bringing submissions to cabinet are responsible for ensuring the consultation necessary to enable a fully informed discussion occurs at both ministerial and official levels.

Central Agencies

The central agencies—Department of the Prime Minister and Cabinet (PM&C), the Department of Finance and the Treasury—have an important part in the consideration and approval of major capability proposals, prior to being considered by Cabinet for approval. Major Defence capability proposals are subject to a two-stage approval process, known as First Pass and Second Pass approval. Defence is required to engage with these agencies in the development of its submissions for First Pass and Second Pass approval. 

Parliamentary Procedures

Several parliamentary procedures have an impact on departments and agencies. Key among these procedures are the following:

  • ‘Ministerials’, which are letters written to the minister, letters written to a local member and referred to the minister or Questions without Notice asked of the minister in parliament. These are passed to the relevant section in Defence and must be investigated promptly and a report prepared for the minister; there is a protocol setting out the process.
  • The minister may also be asked a Question on Notice by a member of parliament or by a parliamentary committee, for which the minister will require a briefing.
  • The minister may also require the department to prepare a briefing on issues likely to be raised in Question Time in parliament. 
  • Parliamentary committees (House of Representatives, Senate or Joint committees) frequently require attendance by the minister or senior Defence officials to give evidence or other explanations. The most well-known is the Senate Estimates Committee, which scrutinises how the government is spending taxpayers’ money. This committee is an important way of making the government accountable for its actions and also helps senators to make informed decisions about government spending. 

Defence, being subject to the minister and parliament, is obliged to comply, usually in a short time-frame, which can have an impact on operational objectives.

Machinery of Government and Administrative Orders

In Australia, the terms ‘machinery of government changes’ and ‘administrative re-arrangements’ are interchangeable and are used to refer to the changes to the structure of government and the allocation of government functions between departments and ministers. 

Machinery of government changes may occur at any time, however the most significant changes generally occur immediately following an election. There is usually very little consultation or discussion prior to machinery of government changes, especially those following elections. Administrative Arrangements Orders (AAOs) are made by the Governor-General on the advice of the Prime Minister formally allocating executive responsibility among ministers. AAOs establish Departments of State under the Constitution, including the principal matters and legislation dealt with by each department and its minister.

The Range of Commonwealth Legislation 

Legislation passed by the parliament over the years since Federation covers a wide range of matters. Some of the legislation relating to the public sector is as follows:

  • WH&S Act 2011 
  • PGPA Act 2013 
  • Procurement (Judicial Review) Act 2018 
  • PSA Act 1999
  •  Fair Work Act 2019
  • Privacy Act 1988 
  • Public Interest Disclosure Act 2013

Public Sector Code of Conduct 

For all public servants, a condition of employment is the Code of Conduct (the Code), set out in s13 of the Public Service Act 1999 . The Code requires that an APS employee must:

  • behave honestly and with integrity in connection with APS employment;
  • act with care and diligence in connection with APS employment;
  • when acting in connection with APS employment, treat everyone with respect and courtesy, and without harassment;
  • when acting in connection with APS employment, comply with all applicable Australian laws;
  • comply with any lawful and reasonable direction given by someone in the employee’s Agency who has authority to give the direction;
  • maintain appropriate confidentiality about dealings that the employee has with any Minister or Minister’s member of staff;
  • take reasonable steps to avoid any conflict of interest (real or apparent) and disclose details of any material personal interest of the employee in connection with the employee’s APS employment;
  • use Commonwealth resources in a proper manner and for a proper purpose;
  • not provide false or misleading information in response to a request for information that is made for official purposes in connection with the employee’s APS employment;
  • not improperly use inside information or the employee’s duties, status, power or authority:
  • to gain, or seek to gain, a benefit or an advantage for the employee or any other person; or
  • to cause, or to seek to cause, detriment to the employee’s Agency, the Commonwealth or any other person. 
  • at all times behave in a way that upholds the APS Values and Employment Principles, and the integrity and good reputation of the employee’s Agency and the APS;
  • while on duty overseas, at all times behave in a way that upholds the good reputation of Australia; and
  • comply with any other conduct requirement that is prescribed by the regulations 

The APS Values 

The six APS Values are:

  • Impartial – the APS is apolitical and provides the government with advice that is frank, honest, timely and based on the best available evidence.
  • Committed to service – the APS is professional, objective, innovative and efficient, and works collaboratively to achieve the best results for the Australian community and the government.
  • Accountable – the APS is open and accountable to the Australian community under the law and within the framework of Ministerial responsibility.
  • Respectful – the APS respects all people, including their rights and their heritage.
  • Ethical – the APS demonstrates leadership, is trustworthy, and acts with integrity, in all that it does.
  • Stewardship – the APS builds its capability and institutional knowledge, and supports the public interest now and into the future, by understanding the long-term impacts of what it does.

Note that deliberate noncompliance with any aspect of the code of Conduct or Values by APS and SES employees can result in fines, demotion and dismissal.