The separation of powers in Australia is the division of the institutions of the Australian government into legislative, executive and judicial branches. This concept is where legislature makes the laws, the executive put the laws into operation, and the judiciary interprets the laws; all independently of each other. The term, and its occurrence in Australia, is due to the text and structure of the Australian Constitution, which derives its influences from democratic concepts embedded in the
Westminster system, the doctrine of "''responsible government''" and the United States version of the separation of powers. However, due to the conventions of the Westminster system, a strict separation of powers is not always evident in the
Australian political system, with little separation between the executive and the legislature, with the executive required to be drawn from, and maintain the confidence of, the legislature; a fusion.
[.]
The first three chapters of the
Australian Constitution
The Constitution of Australia (or Australian Constitution) is a constitutional document that is supreme law in Australia. It establishes Australia as a federation under a constitutional monarchy and outlines the structure and powers of the ...
are headed respectively "The Parliament", "The Executive Government", and "The Judicature". Each of these chapters begins with a section by which the relevant "power of the Commonwealth" is "vested" in the appropriate persons or bodies. On the other hand, the Constitution incorporates
responsible government
Responsible government is a conception of a system of government that embodies the principle of parliamentary accountability, the foundation of the Westminster system of parliamentary democracy. Governments (the equivalent of the executive bran ...
, in which the legislature and the executive are effectively united. This incorporation is reflected in sections 44, 62 and 64 of the Constitution.
Legislature and executive
Currently in Australia, there is no constitutional system where there is a complete separation of powers. In the Westminster system, ministers (executive) are required to sit in Parliament (legislative). This is to adhere with the concept of Responsible Government, which is a requirement of
section 64 of the Constitution.
[ Ministers of State.]
The specific requirement for ministers to sit in Parliament established the connection between executive and legislative, though any person may be appointed a Minister, their appointment lapses if they do not gain a seat in either house of the Parliament within three months. This provision was necessary in 1901, as the first government was sworn in on 1 January but the first parliament was not elected until late March (see
1901 Australian federal election
The 1901 Australian federal election for the inaugural Parliament of Australia was held in Australia on Friday 29 March and Saturday 30 March 1901. The elections followed Federation and the establishment of the Commonwealth of Australia on 1 Janu ...
). However, the provision is still relevant, such as the appointment of
Bob Carr
Robert John Carr (born 28 September 1947) is an Australian retired politician and journalist who served as the 39th Premier of New South Wales from 1995 to 2005, as the leader of the NSW Branch of the Australian Labor Party (ALP). He later en ...
as Foreign Minister in 2012 prior to his appointment to the Senate. It also applies when a minister in the
House of Representatives
House of Representatives is the name of legislative bodies in many countries and sub-national entitles. In many countries, the House of Representatives is the lower house of a bicameral legislature, with the corresponding upper house often c ...
loses their seat at a general election; despite no longer being a member of parliament, the Minister will typically retain their portfolio for some days after the election, until the new government is sworn in. It also applied when
John Gorton
Sir John Grey Gorton (9 September 1911 – 19 May 2002) was an Australian politician who served as the nineteenth Prime Minister of Australia, in office from 1968 to 1971. He led the Liberal Party during that time, having previously been a l ...
became Prime Minister in 1968; he was sworn in while a member of the
Senate
A senate is a deliberative assembly, often the upper house or chamber of a bicameral legislature. The name comes from the ancient Roman Senate (Latin: ''Senatus''), so-called as an assembly of the senior (Latin: ''senex'' meaning "the el ...
, then he resigned to contest a by-election for a lower house seat, which he won, but between his resignation from the Senate and being elected to the House of Representatives, he remained Prime Minister without holding any seat in Parliament.
In ''
'', the
High Court of Australia
The High Court of Australia is Australia's apex court. It exercises Original jurisdiction, original and appellate jurisdiction on matters specified within Constitution of Australia, Australia's Constitution.
The High Court was established fol ...
held that it was impossible, consistent with the British tradition, to insist upon a strict separation between legislative and executive powers. It was found that legislative power may be delegated to the executive, and as a result upheld the validity of
delegated legislation
Primary legislation and secondary legislation (the latter also called delegated legislation or subordinate legislation) are two forms of law, created respectively by the legislative and executive branches of governments in representative democra ...
. By contrast, in its insistence on a strict separation of "judicial power", the High Court has been less willing to compromise.
[.] Furthermore, the role of the courts was discussed in ''
Kable v Director of Public Prosecutions (NSW)
''Kable v DPP'',. is a decision of the High Court of Australia. It is a significant case in Australian constitutional law.
The case is notable for having established the 'Kable Doctrine', a precept in Australian law with relevance to numerous i ...
'', whereby a NSW statute was invalidated since it purported to confer not-judicial functions to court. The principle that a State Court cannot be assigned powers that are incompatible with its constitutionally protected independence was extended to Territory Courts in ''Ebner v Official Trustee in Bankruptcy'' (2000).
The legislature can allocate the executive some of its powers, such as of the making of regulations under an Act passed by Parliament. Similarly, the legislature could restrict or over-rule some powers held by the executive by passing new laws to that effect, though these could be subject to
judicial review
Judicial review is a process under which executive, legislative and administrative actions are subject to review by the judiciary. A court with authority for judicial review may invalidate laws, acts and governmental actions that are incompat ...
.
The exceptionally strong
party discipline
Party discipline is a system of political norms, rules and subsequent respective consequences for deviance that are designed to ensure the relative cohesion of members of the respective party group. In political parties specifically (often refe ...
in Australia, especially in the lower house, has had the effect of weakening scrutiny of the executive by the legislature since within the lower house, every member of the numerically larger party will almost always support the executive and its propositions on all issues.
On the other hand, the
Senate
A senate is a deliberative assembly, often the upper house or chamber of a bicameral legislature. The name comes from the ancient Roman Senate (Latin: ''Senatus''), so-called as an assembly of the senior (Latin: ''senex'' meaning "the el ...
has had the effect of restraining the power of the executive through its ability to query, amend and block government legislation. The result of the adoption of a proportional system of voting in 1949 has been that the Senate in recent decades has rarely been controlled by governments. Minor parties have gained greater representation and Senate majorities on votes come from a coalition of groups on a particular issue, usually after debate by the Opposition and Independents.
The Constitution does, moreover, provide for one form of physical separation of executive and legislature. Section 44, concerning the disqualifications applying to membership of Parliament, excludes from Parliament government employees (who hold "an office of profit under the crown" (iv)) along with people in certain contractual arrangements with the Commonwealth. This was demonstrated in 1992 after Independent MP, Phil Cleary, had won the Victorian seat of Wills. Cleary, on leave without pay from the Victorian Education Department at the time of his election, was held in ''
Sykes v Cleary
''Sykes v Cleary''.The Case Stated (by Dawson J), and then the individual judgments, are separately paragraph-numbered. was a significant decision of the High Court of Australia sitting as the Court of Disputed Returns on 25 November 1992. The ...
'' to be holding an office of profit under the Crown and disqualified. The Court noted that that Section 44's intention was to separate executive influence from the legislature.
Judiciary
As early as
New South Wales v Commonwealth (''The Wheat Case''), the High Court decided that the strict insulation of judicial power was a fundamental principle of the Constitution.
[.][.] This also applies to tribunals and commissions set up by Federal Parliament which, unlike some of their equivalents in the states, can only recommend consequences. The Federal Parliament itself has the rarely used privilege of being able to act as a court in some circumstances, primarily where it may regard a non-member as acting "in contempt" of parliament.
The reasoning in the ''Wheat Case'' was taken further in ''
'' where a decisive distinction between judicial and arbitral functions was drawn. The High Court made reference to the separation of powers again in
R v Kirby; Ex parte Boilermakers' Society of Australia
''R v Kirby; Ex parte Boilermakers' Society of Australia'',. known as the ''Boilermakers' Case'', was a 1956 decision of the High Court of Australia which considered the powers of the Commonwealth Court of Conciliation and Arbitration to punish ...
(''Boilermakers' Case''), highlighting that only a Chapter III Court can exercise judicial powers and, that a Chapter III Court is only permitted to exercise judicial power.
A consequence of the Australian version of the separation of powers is its role in encouraging judicial deference to the "political" arms of government. The normal propensity of the High Court is to recognise that separation of powers requires not only that the "political branches" should not interfere with judicial activity, but also that the judiciary should leave politicians and administrators alone. The importance of deference has been acknowledged in extrajudicial writings, and in decisions such as
''Drake v Minister for Immigration & Ethnic Affairs (No 2)''.
As a manifestation of the separation of powers, a '
Chapter III Court
In Australian constitutional law, Chapter III Courts are courts of law which are a part of the Australian federal judiciary and thus are able to discharge Commonwealth judicial power. They are so named because the prescribed features of these c ...
' cannot make administrative decisions. In administrative law this means that the courts cannot substitute an original decision of the executive, but can only decide on its correctness.
The doctrine of ''
persona designata
The ''persona designata'' doctrine is a doctrine in law, particularly in Canadian and Australian constitutional law which states that, although it is generally impermissible for a federal judge to exercise non-judicial power, it is permissible fo ...
'' permits non-judicial functions to be conferred on judges in their personal capacity, as opposed to their judicial capacity. However, in ''
Hindmarsh Island Bridge case'', it was held that this is subject to the compatibility of the conferred non-judicial function with judicial office.
Prevalence in States
While there are strong textual and structural bases for the independence of the judiciary in the Commonwealth Constitution, the same is not true of the State constitutions. State courts, unlike their federal counterparts, are therefore capable of exercising non-judicial functions. For example, the
District Court of South Australia
The District Court of South Australia is South Australia's principal trial court. It was established as a court of record by the ''District Court Act 1991''. Prior to that the Court had existed since 1969 under the ''Local and District Crimina ...
, through its Administrative and Disciplinary Division, conducts merits review of administrative decisions, a function which at Commonwealth level can only be exercised by Executive tribunals. Nevertheless, a degree of judicial independence is maintained at State level by convention.
The federal separation of powers also has implications for State courts, due to the fact that State courts may be invested with federal judicial power under section 71 of the ''Commonwealth Constitution''. On this basis it was held in ''Kable v Director of Public Prosecutions (NSW)'' that a State court could not be given a function inconsistent with its status as a potential repository of federal judicial power. The doctrine was rarely applied in the early years following Kable, leading Justice Kirby to describe it as "a constitutional guard-dog that would bark but once." However, there has been a revival in the High Court's application of the doctrine since 2009. One recent case was ''
South Australia v Totani
''South Australia v Totani'' is a landmark Australian judgment of the High Court concerning the extent to which the legislative power of an Australian State is limited by the separation of powers in the Commonwealth Constitution. The High Co ...
,''
[.] which involved a challenge to the validity of the ''Serious and Organised Crime (Control) Act 2008'' (SA). Section 14(1) of the Act required members of the
Magistrates' Court of South Australia
The Magistrates Court of South Australia is the lowest level court in South Australia. The Magistrates Court, then known as the Court of Petty Sessions, was established in 1837, by the Court of Sessions Act 1837'' It has both original and appel ...
to make control orders on application by the Commissioner of Police, provided only that the Magistrate was satisfied that the person subject to the control order was a member of a declared organisation. Even though the functions of the Magistrates' Court under the Act are purely a matter of South Australian law, the fact that the Court is also capable of exercising federal jurisdiction was held to require that it maintain certain standards of independence and impartiality so that it retain the character of a court.
Parliamentary scrutiny of the executive and, in particular, by the
New South Wales Legislative Council
The New South Wales Legislative Council, often referred to as the upper house, is one of the two chambers of the parliament of the Australian state of New South Wales. The other is the Legislative Assembly. Both sit at Parliament House in th ...
, was tested in the 1990s when Treasurer
Michael Egan, on behalf of
Cabinet
Cabinet or The Cabinet may refer to:
Furniture
* Cabinetry, a box-shaped piece of furniture with doors and/or drawers
* Display cabinet, a piece of furniture with one or more transparent glass sheets or transparent polycarbonate sheets
* Filing ...
, refused to table documents in the Legislative Council of which he was a member. The Council, determined to exercise its scrutiny of the executive, pressed the issues and eventually adjudged the Treasurer in contempt, suspending him from the house twice. The matters were disputed in three cases in the
High Court and the
Supreme Court of New South Wales
The Supreme Court of New South Wales is the highest state court of the Australian State of New South Wales. It has unlimited jurisdiction within the state in civil matters, and hears the most serious criminal matters. Whilst the Supreme Court i ...
. The results upheld that principle that the Legislative Council does have the power to order the production of documents by a member of the House, including a minister, and can counter obstruction. However, the extent of the Legislative Council's power in relation to
Cabinet
Cabinet or The Cabinet may refer to:
Furniture
* Cabinetry, a box-shaped piece of furniture with doors and/or drawers
* Display cabinet, a piece of furniture with one or more transparent glass sheets or transparent polycarbonate sheets
* Filing ...
documents remains unclear.
In 2018 the High Court held that all matters falling within
section 75,
[ Original jurisdiction of High Court.] and
section 76,
[ Additional original jurisdiction.] of the Constitution formed part of the judicial power of the Commonwealth, including a dispute between the residents of different States. It followed that the federal separation of powers meant that a State tribunal was unable to determine a dispute between residents of different States.
[ ]
Prevalence in Territories
One of the bases for the separation of powers in the Constitution is that the powers of the Parliament are found in
Chapter I, executive powers are in
Chapter II and judicial powers are in
Chapter III. In 1915 it had been held that the separation of powers precluded the exercise of judicial power by the
Inter-State Commission
The Inter-State Commission, or Interstate Commission, is a defunct constitutional body under Australian law. The envisaged chief functions of the Inter-State Commission were to administer and adjudicate matters relating to interstate trade. The ...
, provided for at
section 101,
[ Inter‑State Commission.] in Chapter IV Finance and Trade.
The power to make laws for the government of the territories is found in
section 122,
[ Government of territories.] located in Chapter VI New States. How section 122 relates to Chapter III is "a problem of interpretation ... which has vexed judges and commentators since the earliest days of Federation" Three of the six judges in the ''
Stolen Generations case'',
[ per Brennan CJ, Dawson and McHugh JJ.] held that the separation of powers doctrine did not apply to the power to make laws for a territory under section 122 of the Constitution. The High Court went on to hold in 2004 that federal jurisdiction can be invested by the Australian Parliament in a Territory court as well as in a State court.
[.] In 2015 the question was again considered by the High Court where Gageler J,
[.] and Keane J,
held that the power under section 122 was not constrained by the doctrine of separation of powers enshrined in Chapter III of the Constitution. Keane J similarly held . The other members of the Court, French CJ, Kiefel and Bell JJ,
and Nettle and Gordon JJ,
found it was unnecessary to answer the question.
References
{{DEFAULTSORT:Separation Of Powers In Australia
Australian constitutional law
Separation of Powers in the Australian Constitution cases
Australia
Australia, officially the Commonwealth of Australia, is a Sovereign state, sovereign country comprising the mainland of the Australia (continent), Australian continent, the island of Tasmania, and numerous List of islands of Australia, sma ...