Separation of powers in Australia
Encyclopedia
The doctrine of separation of powers
refers to the separation of the legislature
, the executive
and the judiciary
. A strict separation is not maintained in Australia
, following the Westminster system
and the doctrine of responsible government
. Nevertheless, it is clear that it has been heavily influenced by the United States
version of the separation of powers. The issue of separation of powers in Australia has been a contentious one and continues to raise questions about where power lies in the Australian political system
.
The first three chapters of the Australian Constitution 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. The historical context in which the Constitution was drafted suggests that these arrangements were intended to be connected with federal ideas along American lines.
On the other hand, the Constitution incorporates responsible government
, in which the legislature and the executive are effectively united. This incorporation is reflected in sections 44, 62 and 64 of the Constitution.
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
became Prime Minister in 1968; he was sworn in while a member of the Senate
, then he resigned in order 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 Victorian Stevedoring & General Contracting Co Pty Ltd & Meakes v Dignan, the High Court of Australia
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
. By contrast, in its insistence on a strict separation of "judicial power", the High Court has been less willing to compromise.
The executive is not only physically part of the legislature, but the legislature can also allocate it 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
.
The exceptionally strong party discipline
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
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") 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 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.
The reasoning in the Wheat Case was taken further in Waterside Workers' Federation of Australia v JW Alexander Ltd (1918). A decisive distinction between judicial and arbitral functions was drawn.
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 (No 2).
The doctrine of persona designata
permits non-judicial functions to be conferred on judges in their personal capacity, as opposed to their judicial capacity.
, 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 as function inconsistent with its status as a potential repository of federal judicial power. This principle was recently applied by the High Court
in South Australia v Totani in relation to the Serious and Organised Crime (Control) Act 2008 (SA). Section 14(1) of the Act required members of the Magistrates' Court of South Australia
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
, was tested in the 1990s when Treasurer Michael Egan
, on behalf of Cabinet
, 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 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
documents remains unclear.
Separation of powers
The separation of powers, often imprecisely used interchangeably with the trias politica principle, is a model for the governance of a state. The model was first developed in ancient Greece and came into widespread use by the Roman Republic as part of the unmodified Constitution of the Roman Republic...
refers to the separation of the legislature
Legislature
A legislature is a kind of deliberative assembly with the power to pass, amend, and repeal laws. The law created by a legislature is called legislation or statutory law. In addition to enacting laws, legislatures usually have exclusive authority to raise or lower taxes and adopt the budget and...
, the executive
Executive (government)
Executive branch of Government is the part of government that has sole authority and responsibility for the daily administration of the state bureaucracy. The division of power into separate branches of government is central to the idea of the separation of powers.In many countries, the term...
and the judiciary
Judiciary
The judiciary is the system of courts that interprets and applies the law in the name of the state. The judiciary also provides a mechanism for the resolution of disputes...
. A strict separation is not maintained in Australia
Australia
Australia , officially the Commonwealth of Australia, is a country in the Southern Hemisphere comprising the mainland of the Australian continent, the island of Tasmania, and numerous smaller islands in the Indian and Pacific Oceans. It is the world's sixth-largest country by total area...
, following the Westminster system
Westminster System
The Westminster system is a democratic parliamentary system of government modelled after the politics of the United Kingdom. This term comes from the Palace of Westminster, the seat of the Parliament of the United Kingdom....
and the doctrine of responsible government
Responsible government
Responsible government is a conception of a system of government that embodies the principle of parliamentary accountability which is the foundation of the Westminster system of parliamentary democracy...
. Nevertheless, it is clear that it has been heavily influenced by the United States
United States
The United States of America is a federal constitutional republic comprising fifty states and a federal district...
version of the separation of powers. The issue of separation of powers in Australia has been a contentious one and continues to raise questions about where power lies in the Australian political system
Politics of Australia
The Politics of Australia take place within the framework of a parliamentary democracy, with electoral procedures appropriate to a two-party system. Australia is governed as a federation and as a constitutional monarchy, with an adversarial legislature based upon the Westminster system...
.
The first three chapters of the Australian Constitution 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. The historical context in which the Constitution was drafted suggests that these arrangements were intended to be connected with federal ideas along American lines.
On the other hand, the Constitution incorporates responsible government
Responsible government
Responsible government is a conception of a system of government that embodies the principle of parliamentary accountability which is the foundation of the Westminster system of parliamentary democracy...
, in which the legislature and the executive are effectively united. This incorporation is reflected in sections 44, 62 and 64 of the Constitution.
Legislative and executive powers
Section 64 provides that federal Ministers - members of the executive - must sit in Parliament. The specific requirement for ministers to sit in Parliament established the connection between executive and legislative, effectively preventing an American-style separation of the two. Strictly speaking, any person may be appointed a Minister, but 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 Australian federal election, 1901). No non-parliamentarian has ever been appointed a minister since then. However, the provision is still relevant. It applies when a minister in the House of RepresentativesAustralian House of Representatives
The House of Representatives is one of the two houses of the Parliament of Australia; it is the lower house; the upper house is the Senate. Members of Parliament serve for terms of approximately three years....
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
John Gorton
Sir John Grey Gorton, GCMG, AC, CH , Australian politician, was the 19th Prime Minister of Australia.-Early life:...
became Prime Minister in 1968; he was sworn in while a member of the Senate
Australian Senate
The Senate is the upper house of the bicameral Parliament of Australia, the lower house being the House of Representatives. Senators are popularly elected under a system of proportional representation. Senators are elected for a term that is usually six years; after a double dissolution, however,...
, then he resigned in order 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 Victorian Stevedoring & General Contracting Co Pty Ltd & Meakes v Dignan, the High Court of Australia
High Court of Australia
The High Court of Australia is the supreme court in the Australian court hierarchy and the final court of appeal in Australia. It has both original and appellate jurisdiction, has the power of judicial review over laws passed by the Parliament of Australia and the parliaments of the States, and...
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
Delegated legislation
In the United Kingdom, delegated legislation is legislation or law that is passed otherwise than in an Act of Parliament . Instead, an enabling Act confers a power to make delegated legislation on a Government Minister or another person or body...
. By contrast, in its insistence on a strict separation of "judicial power", the High Court has been less willing to compromise.
The executive is not only physically part of the legislature, but the legislature can also allocate it 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
Judicial review is the doctrine under which legislative and executive actions are subject to review by the judiciary. Specific courts with judicial review power must annul the acts of the state when it finds them incompatible with a higher authority...
.
The exceptionally strong party discipline
Party discipline
Party discipline is the ability of a parliamentary group of a political party to get its members to support the policies of their party leadership. In liberal democracies, it usually refers to the control that party leaders have over its legislature...
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
Australian Senate
The Senate is the upper house of the bicameral Parliament of Australia, the lower house being the House of Representatives. Senators are popularly elected under a system of proportional representation. Senators are elected for a term that is usually six years; after a double dissolution, however,...
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") 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 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.
Separation of federal judicial power
As early as New South Wales v Commonwealth (Wheat Case) (1915), 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 Waterside Workers' Federation of Australia v JW Alexander Ltd (1918). A decisive distinction between judicial and arbitral functions was drawn.
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 (No 2).
The doctrine of persona designata
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 for a judge to do so if the power has been conferred on the...
permits non-judicial functions to be conferred on judges in their personal capacity, as opposed to their judicial capacity.
Separation of powers in the 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 AustraliaDistrict 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...
, 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 as function inconsistent with its status as a potential repository of federal judicial power. This principle was recently applied by the High Court
High Court of Australia
The High Court of Australia is the supreme court in the Australian court hierarchy and the final court of appeal in Australia. It has both original and appellate jurisdiction, has the power of judicial review over laws passed by the Parliament of Australia and the parliaments of the States, and...
in South Australia v Totani in relation to the Serious and Organised Crime (Control) Act 2008 (SA). Section 14(1) of the Act required members of the Magistrates' Court of South Australia
Magistrates' Court of South Australia
The Magistrates' Court of South Australia is South Australia's lowest level court.The Magistrates' Court has a criminal and civil jurisdiction. In its criminal jurisdiction, the Magistrates' Court deals with summary offences, which may be dealt with by a fine, imprisonment of up to two years,...
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
New South Wales Legislative Council
The New South Wales Legislative Council, or upper house, is one of the two chambers of the parliament of New South Wales in Australia. The other is the Legislative Assembly. Both sit at Parliament House in the state capital, Sydney. The Assembly is referred to as the lower house and the Council as...
, was tested in the 1990s when Treasurer Michael Egan
Michael Egan (Australian politician)
Michael Rueben Egan , a former union official and former Australian politician, served as Treasurer of New South Wales between 1995 and 2005...
, on behalf of Cabinet
Cabinet of Australia
The Cabinet of Australia is the council of senior ministers of the Crown, responsible to parliament. The Cabinet is appointed by the Governor-General, on the advice of the Prime Minister the Head of Her Majesty's Australian Government, and serves at the former's pleasure. The strictly private...
, 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
High Court of Australia
The High Court of Australia is the supreme court in the Australian court hierarchy and the final court of appeal in Australia. It has both original and appellate jurisdiction, has the power of judicial review over laws passed by the Parliament of Australia and the parliaments of the States, and...
and the Supreme Court of New South Wales
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...
. 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 of Australia
The Cabinet of Australia is the council of senior ministers of the Crown, responsible to parliament. The Cabinet is appointed by the Governor-General, on the advice of the Prime Minister the Head of Her Majesty's Australian Government, and serves at the former's pleasure. The strictly private...
documents remains unclear.