Separation of Powers in Australia: Extent and Sufficiency

Separation of Powers

Contents
Introduction......................................................................................................................................3
Discussion........................................................................................................................................4
Conclusion.....................................................................................................................................19
References......................................................................................................................................19

Introduction
Separation of powers is a constitutional law doctrine under which, there is separation maintained
in all the three branches of government i.e. Legislative, Executive and Judicial branches. This
doctrine is also known as the method of maintaining equilibrium because every particular branch
is provided with certain powers in order to maintain equilibrium among all other branches of
government. Each group of government has separate powers and is not permitted to implement
the powers of other groups. The Executive Branch is related to the implementation of executive
power, the Legislative Branch workout congressional power, and the Judicial Branch workout
judicial review. The Doctrine of Separation of Powers was suggested by Montesquieu, even
though the thought of separating the legislative power into continuous legislative power,
discontinuous legislative power, and federative power, was initially proposed by John Locke. In
1787, the USA incorporated this principle into its constitution. It was proposed by Montesquieu
as basic principle that single person should not be a part of more than one of the branches of the
government, which meant that Ministers are not required to be elected.1
The Constitution of Australia constitutes a set of rules through which the governance of the
country operates smoothly. The first three chapters in the Constitution of Australia describe the
three separate branches i.e. the Parliament, the Executive and the Judiciary along with their
significant roles in the domination of Australia. The authority to create and supervise federal law
is distributed among the above mentioned three groups and the division is on the basis of the
doctrine of the ‘separation of powers’.2This essay discusses about the extent of separation of
1Gabrielle Appleby, Kate Allman and Alys Martin, The Separation of Powers and Rule of Law in the Australian
Constitution (2017) The Boiling Frog <https://boilingfrog.com.au/separation-powers-rule-law-australian-
constitution/>.
2John Basten, "Constitutional Dimensions of Statutory Interpretation" in Constitutional Law Conference (Supreme
Court of New South Wales, 2015) <http://www.supremecourt.justice.nsw.gov.au/Documents/Publications/
Speeches/2015%20Speeches/Basten_20150724.pdf>.

powers in Australia and whether it is sufficient or not. The political court appointment is also
discussed in comparison with the US. It is also discussed where Australian law has departed
from separation of powers, with a particular focus on Chapter III of the Australian Constitution,
along with laws interfering with courts, and institutional integrity of the courts and whether or
not separation of powers should be able to be restricted in certain circumstances and if so to how
much extent.
Discussion
Considering the principle of ‘separation of powers’, there should be a distribution in the power to
govern between all three groups in order to avoid all the powers in hands of any of the group. In
this context, The Parliament creates and makes changes in the law and is also considered as
Legislature, which constitutes the Queen as represented by the Governor General, the Senate and
the House of Representatives. The Executive group of the government keeps the law into action
and it also constitutes the Queen as represented by the Governor General, Prime Minister
and ministers. The Judiciary takes judgments related to the law and it constitutes the High Court
and other federal courts. 3
There are certain exceptions to the principle because of which Australia does not have total
separation of powers. The reason behind this is the overlapping of certain roles of the Parliament,
the Executive and the Judiciary such as the Prime Minister and ministers are an integral part of
the Executive as well as the Parliament. Similarly, the Prime Minister and ministers as well as
the High Court judges are formally chosen by the Governor General, who is associated with the
Parliament as well as the Executive. It has been mentioned in the Section 61 of the Constitution
3T. Bathurst, Separation of Powers: Reality or Desirable Fiction? (2013) AustLII
<http://classic.austlii.edu.au/au/journals/NSWJSchol/2013/39.pdf>.

that the executive powers of the Commonwealth is in the hands of the Queen and are
implemented by the Governor General being the spokesperson of the Queen. It is evident that the
Governor General has been provided with specific powers to act in the best interests of the
Queen. Furthermore, the part of the Governor General is not only demarcated by the Constitution
but also by the customs and traditions. In actual, the executive powers are implemented by the
Governor General on the guidance of the Prime Minister and ministers, who holds the
responsibility to govern Australia.4There is another principle that goes along with the theory of
separation of powers and it is known as responsible government. It provides guidance regarding
formation and management of law. The responsible government refers to a party or alliance of
parties that uphold the support of the majority members of the House of Representatives to
persist in the government. It acts as another test on the Executive and ensures they continue to be
answerable to the Parliament and do not misuse their authorities.5
The separation of powers is a principle that focuses on controlling and delimiting public law but,
the rules derived from this principle are significant protectors of personal liberty as well.
Predominantly, in Australia, because of no constitutional bill of rights, the separation of powers
guarantees rights and immunities, either expresses or implied. Actually, the High Court can
enforce trial in case of absence of one party that influences the capacity of the judges to offer
explanations for their judgment, or efforts by the executive to order judicial decisions. There are
perturbing exceptions as well such as the Court has permitted laws to allow the executive to
detain individuals for an indefinite period without any judicial order, laws that necessitate courts
to grant anticipatory detention orders against individuals, laws that authorizes the government to
4Peter Gerangelos, "The Separation of Powers and Legislative Interference with Judicial Functions in Pending
Cases" (2002) 30(1) Federal Law Review.
5Legal Information Institute, Separation of Powers (2018) LII / Legal Information Institute
<https://www.law.cornell.edu/wex/separation_of_powers>.

depend on the information that has not been provided to other parties to the lawsuit, and laws
that order compulsory prison term for specific crimes. It is the reason why, number of people
consider that the separation of judicial power is not an alternate for all-inclusive constitutional
rights protection such as bill of rights.6
In Australia, there is no evident separation of powers between the Parliament and the Executive
branch. However, the independent authority of the courts has always been strongly sheltered and
to a certain extent, it has been facilitated by the safeguard of Federal Judicial Power in Chapter
III of the Constitution that has assisted to protect the courts specifically Federal Courts from
violations by the Legislative and Executive branches of government. The protections mentioned
in Chapter III are an evidence of the largely acknowledged proposal that autonomous judiciary is
an essential element of the rule of law as well as a basic requirement of a secure and functional
democracy.7 It will develop confidence in the community that the judiciary will be fair and
impartial. However, in present-day society, independence of Judiciary from the Executive is
significant because a number of legal conflicts put citizens in opposition to the government
which include criminal issues, tax disputes, environmental issues, various administrative
decision making challenges and such others. Similarly, the necessity to maintain confidence of
community in the judiciary is another essential aspect for the autonomy of Judiciary.8To ensure
judiciary to have a significant role in maintenance of the separation of powers, it is essential that
the courts have the institutional facilities as well as capabilities essential to perform their judicial
functions. To be independent from impartial or improper influence is significant but there should
6Bani Mahajan, Doctrine of Separation of Powers - Academike (2014) Academike
<https://www.lawctopus.com/academike/doctrine-of-separation-of-powers/>.
7 Sarah Murray, "Giving Chapter Iii Back Its Constitutional Mojo? – Lessons from State Courts and Beyond" (2010)
40(1) Monash University Law Review.
8Dr Max Spry, The Executive Power of the Commonwealth: Its Scope and Limits (1995) Parliament of Australia
<https://www.aph.gov.au/About_Parliament/Parliamentary_Departments/Parliamentary_Library/pubs/rp/
RP9596/96rp28>.