Separation of Powers

This is a basic principle of the political systems of modern democracies, be they parliamentary systems, or federal republics, such as the United States.

It refers to the separation of the Executive (the Ministry), the Legislature (the Parliament) and the Judiciary (the Courts), with none of the three branches of government able to exercise total power.

One of the founding fathers of the American Constitution, James Madison, described the idea in these terms: “Ambition must be made to counter ambition”.

The essence of the doctrine of separation of powers is thus based on the idea of checks and balances. The future American president, John Adams, said: “The judicial power ought to be distinct from both the legislature and the executive, and independent of both, so that it may be a check upon both, as both should be checks upon that”.

In the United States, the separation of powers operates in its most total sense. No member of the legislative, executive or judicial arms may simultaneously be a member of one of the other arms.

In Australia’s Westminster system of parliamentary democracy, the separation is not total because the Executive Government is drawn from, and accountable to, the Legislature.

In Australia, the relationship between the Parliament and the Government is of ongoing interest to students of politics for it raises a multitude of questions about where real power lies in our political system. There are those who argue that the power of the Parliament has declined relative to the Executive because of the influence of strong party discipline, particularly in the lower house.

On the other hand, others argue that the upper house, the Senate, restrains the power of the Executive through its ability to query, amend and block government legislation.

Because the Executive sits in Parliament and dominates it to a large extent, the debate about the separation of legislative and executive power is relatively muted in Australia.

However, the question of the separation of the judicial and executive powers is often raised. Following the 1992 Mabo decision of the High Court, and the Wik decision of 1996, amongst others, a number of clashes between politicians and the judiciary occurred. In 1997, the Chief Justice of the High Court, Murray Gleeson, went so far as to criticise attacks on the court by the then Deputy Prime Minister, Tim Fischer.

The principle of the rule of law which underpins our political system depends on the idea that whilst the parliament is supreme in making the laws, the courts, ultimately the High Court, has the responsibility for interpreting that legislation and assessing whether it is within the guidelines established by the Constitution.

For this reason, federal judges remain in office until they turn 70, whilst most State judges are appointed for life. They are unelected, their appointment deriving from the executive government of the day. The judiciary is thus said to be independent and separate from the executive and the parliament.

Writing in 2000, Murray Gleeson, said:

Under our Constitution, the responsibility of ruling upon the validity of laws enacted by democratically elected parliaments is cast upon a group of unelected lawyers. The fact that they are unelected means that they have no need to seek popularity, and should be uninfluenced by public or political opinion. The fact that they are lawyers reflects two considerations. The first is that the Constitution is itself a basic law, and constitutional disputes raise issues concerning the interpretation of a written legal document. The second is that the members of the High Court are expected to approach their task by the application of what Sir Owen Dixon described as “a strict and complete legalism”.

In June 2002, a conflict occurred between the Federal Court and the Minister for Immigration, Phillip Ruddock. The Chief Justice of the Federal Court, Michael Black, called on Ruddock to explain remarks he had made to the media about the courts “dealing themselves back into the review game” on migration cases. The remarks by Ruddock came as the court was hearing five test cases on migration applications.

It was argued by Black that this could be construed as an attempt by the Minister to apply pressure on the Court. Ruddock denied this, but it was reported that the Liberal-National coalition partyroom applauded Ruddock for his “tough stance” against judges.

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