In the following essay, I would like to explain the key provisions of the doctrine of the separation of powers, as well as to demonstrate how that doctrine operates within the system of Australia`s public law.
- Separation of powers doctrine
Separation of powers is a political and legal theory, according to which the government should be divided between three independent branches: legislative, executive and judicial. The differentiation between these powers prevents possible abuse of power and the emergence of a despotic regime where no individual freedom is possible. Each of the three authorities performs its inherent tasks and functions. The principle of separation of powers states, that the powers must be distributed and balanced among various government agencies in order to prevent accumulation of all powers, or most of them, in the hands of a single public authority or public official, and thus prevent arbitrariness. Independent branches of government can restrain, balance and control each other, avoiding violations of the constitution and laws due to the so-called "system of checks and balances."
Most consistently the principle of separation of powers was developed in the U.S. Constitution by the "founding fathers": Alexander Hamilton, James Madison, John Jay. They complemented the concept by the model of "vertical" separation of powers, that is, method of separation of powers between the federal and state governments. In addition, the content of the classical model was supplemented with a previously mentioned system of "checks and balances ".The concept of checks and balances is meant to counterbalance the powers and influences of three branches of power with the help of different limitations on their functions which are imposed on the mutual basis. Checks and balances is an essential part of the doctrine of separation of powers, and the latter can fully function only if this method is incorporated into the political and legal system of the state.
1. separation of powers is usually established by the constitution;
2. legislative, executive and judicial powers are granted to separate state bodies and agencies;
3. all of the authorities are equal and autonomous;
4. none of the governmental authorities can exercise the powers granted by the Constitution to another authority;
5. the judiciary branch is independent from political influence. Judiciary can declare a law void if it contradicts the constitution.
2. Separation of powers in Australia
The functions of judiciary, legislative and executive powers are set forth in the Australian Constitution – Commonwealth of Australia Constitution Act. Pursuant to the constitution, legislative power of the Commonwealth is exercised by the Federal Parliament which consists of the Queen, a Senate and a House of Representatives. The basic function of the Parliament is to pass legislation. In order for the proposed bill to become the law, it has to be agreed on by both Houses of Parliament. The Parliament exercises control over administrative actions of the Executive Government, inspects its policy on the issues of expenditures and taxation, and serves as a forum for the discussion of the public policy. Members of the Executive Government (The Cabinet of Australia) are chosen from the members of the Parliament, and the ministers are directly responsible to the Parliament.
Executive powers of the Commonwealth are exercised by the Governor-General, direct representative of the Queen. Even though Governor-General, according to the Constitution, has relatively extensive powers, in reality, practically all the executive powers in the Commonwealth are vested in the Cabinet of Australia which is headed by the Prime Minister of Australia.
The judicial branch of the Commonwealth is represented by the Federal Supreme Court to be called the High Court of Australia. The Parliament has the power to create federal courts and invest other courts with federal jurisdiction. The judicial is the most independent branch of power which performs the functions concerning the interpretation of laws and application of the latter in individual cases. The High Court of Australia, on sufficient grounds, may declare an act of Parliament unconstitutional which makes that particular act void.
The system of the Australian government does not strictly adhere to the idea of the separation of powers. The main peculiarity of the Australian government system is that the executive branch is strongly connected with the legislative branch. The Cabinet of Australia is formed from the representatives of the governing party or coalition of parties; the leader of that party usually becomes a Prime Minister who assigns ministers to their respective positions. This system is also known as the doctrine of the responsible government, which means that the executive government (Prime Minister, ministers) must be formed from the members of the governing party, as well as the executive branch must at all times be held accountable to the Parliament. The fact that the ministers are members of both legislative and executive branches reaffirms the basic idea that the issue of passing legislature and its subsequent execution must be considered as a single process. The Parliament effectively controls the executive activities of the government, but at the same time the executive is granted with the possibility to adopt acts and regulations pursuant to the laws adopted by the Parliament.
Even though state constitutions do not formally adhere to the doctrine of separation of powers, it has been widely recognized that this system should be employed on the state levels, as well as on the level of the Commonwealth. In Kable v. The Director of Public Prosecutions, the High Court of Australia held that the state court (Supreme Court of New South Wales) must exercise its powers within the limits established by the federal constitution and adhere to the general (federal) principle of separation of powers. The rulings of state courts in Collingwood v. Victoria, Nicholas v. Western Australia, Gilberston v. South Australia reaffirmed similar position in regard to the state separation of powers as formulated in Kable v. The Director of Public Prosecutions. In reality, the government systems of the majority of the states are almost similar to the federal system. The degree of separation of powers between governmental authorities in Australia (both on state and federal level) indicates the features of Westminster government system: bicameral parliament, executive branch consists of the members of legislature, sovereign being a ceremonial holder of executive power, etc.
The doctrine of separation of powers implies that all the power within the state must be divided between three independent branches of power: legislative, judicial and executive. Although the federal constitution formally recognizes the separation of powers doctrine in Australia, in fact, Australian government does not have a strict separation of powers between different authorities. Instead, the separation of power in Australia reflects the Westminster system of government which, on the other hand, implies a strong connection and mutual influence of executive and legislative branches, preserving an independent status of judicial government. Although the powers of state governments are limited by the federal constitution, the governments may still exercise their powers within the limits of their respective state constitutions, as long as it does not contradict the provisions of the federal constitution.
- The Australian system of government, Parliament of Australia, retrieved from http://www.aph.gov.au/About_Parliament/House_of_Representatives/Powers_practice_and_procedure/00_-_Infosheets/Infosheet_20_-_The_Australian_system_of_government.
- The Constitution of the Commonwealth of Australia. Sydney, N.S.W.: Constitutional Commission, 1987.
- Graham Spindler. Separation of Powers: Doctrine and Practice, retrived from http://www.parliament.nsw.gov.au/prod/parlment/publications.nsf/key/SeparationofPowers
- Kable v. The Director of Public Prosecutions for New South Wales FC 96/027 Commonwealth Constitution.
- Tina Hunter Schulz, Rule of law, separation of powers and judicial decision making in Australia, The National Legal Eagle, 2005.
- The Westminster system of government, retrieved from https://www.princeton.edu/~achaney/tmve/wiki100k/docs/Westminster_system.html
- Check and balances, article retrieved from Encyclopedia Britannica