Separation of powers in Australia
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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.[1]
The first three chapters of the
Legislature and executive
Currently in Australia, there is no constitutional system where there is a complete separation of powers.
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). However, the provision is still relevant, such as the appointment of Bob Carr as Foreign Minister in 2012 prior to his appointment to the Senate. It also applies when a minister in the House of Representatives 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 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 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.
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" (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 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.[8]
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.[9][10] 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 J W Alexander Ltd where a decisive distinction between judicial and arbitral functions was drawn.[11] The High Court made reference to the separation of powers again in R v Kirby; Ex parte Boilermakers' Society of Australia (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.[10]
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).[12]
As a manifestation of the separation of powers, a 'Chapter III Court' 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.[13]
The doctrine of persona designata permits non-judicial functions to be conferred on judges in their personal capacity, as opposed to their judicial capacity.[1][14][15] 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.[16]
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.[5] For example, the District Court of South Australia, 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.
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.[21][22][23] However, the extent of the Legislative Council's power in relation to Cabinet documents remains unclear.
In 2018 the High Court held that all matters falling within
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
References
- ^ a b Hilton v Wells [1985] HCA 16, (1985) 157 CLR 57, High Court (Australia).
- ^ Carney, G (1993). "Separation of Powers in the Westminster System" (PDF). ASPG (Qld Chapter). Retrieved 8 March 2017.
- ^ Constitution (Cth) s 64 Ministers of State.
- ^ Victorian Stevedoring & General Contracting Co Pty Ltd v Dignan [1931] HCA 34, (1931) 467 CLR 73, High Court (Australia), see also Roche v Kronheimer [1921] HCA 25, (1921) 29 CLR 329, High Court (Australia)
- ^ a b c d Kable v Director of Public Prosecutions (NSW) [1996] HCA 24, (1996) 189 CLR 51, High Court (Australia).
- ^ Kirk v Industrial Court of NSW [2010] HCA 1, (2010) 239 CLR 531, High Court (Australia).
- ^ Ebner v Official Trustee in Bankruptcy [2000] HCA 63, (2000) 205 CLR 337, High Court (Australia).
- ^ Sykes v Cleary [1992] HCA 60, (1992) 176 CLR 77, High Court (Australia).
- ^ a b New South Wales v Commonwealth [1915] HCA 17, (1915) 20 CLR 54, High Court (Australia).
- ^ a b R v Kirby; Ex parte Boilermakers' Society of Australia [1956] HCA 10, (1956) 94 CLR 254, High Court (Australia).
- ^ Waterside Workers' Federation of Australia v J W Alexander Ltd [1918] HCA 56, (1918) 25 CLR 434, High Court (Australia)
- ^ Re Drake and Minister for Immigration and Ethnic Affairs (No 2) [1979] AATA 179, (1979) 11 FLR 203, Administrative Appeals Tribunal (Australia).
- Court of Appeal(England and Wales).
- ^ Grollo v Palmer [1995] HCA 26, (1995) 184 CLR 348, High Court (Australia).
- ^ Wainohu v New South Wales [2011] HCA 24, (2011) 243 CLR 181, High Court (Australia).
- ^ Wilson v Minister for Aboriginal & Torres Strait Islander Affairs [1996] HCA 18, (1996) 189 CLR 1, High Court (Australia).
- ^ Baker v R [2004] HCA 45, (2004) 223 CLR 513 at [54] per Kirby J, High Court (Australia).
- ^ Appleby, G (2014). "The High Court and Kable: A Study in Federalism and Rights Protection". Monash University Law Review. (2015) 40 Monash University Law Review 673.
- ^ South Australia v Totani [2010] HCA 39, (2010) 242 CLR 1, High Court (Australia).
- ^ Serious and Organised Crime (Control) Act 2008 (SA) s 14.
- ^ Egan v Willis and Cahill [1996] NSWCA 583, (1996) 40 NSWLR 650, Court of Appeal (NSW, Australia).
- ^ Egan v Willis [1998] HCA 71, (1998) 95 CLR 424, High Court (Australia).
- ^ Egan v Chadwick [1999] NSWCA 176, (1999) 46 NSWLR 563, Court of Appeal (NSW, Australia).
- ^ Constitution (Cth) s 75 Original jurisdiction of High Court.
- ^ Constitution (Cth) s 76 Additional original jurisdiction.
- ^ Burns v Corbett [2018] HCA 15 Judgment summary (PDF), High Court
- ^ Constitution (Cth) s 101 Inter‑State Commission.
- ^ Constitution (Cth) s 122 Government of territories.
- ^ Re The Governor, Goulburn Correctional Centre; Ex parte Eastman [1999] HCA 44, (1999) 200 CLR 322 at p. 332 [9] (2 September 1999), High Court (Australia).
- ^ Kruger v Commonwealth [1997] HCA 27, (1997) 190 CLR 1, High Court (Australia) per Brennan CJ, Dawson and McHugh JJ.
- ^ North Australian Aboriginal Legal Aid Service Inc v Bradley [2004] HCA 31, (2004) 218 CLR 146, High Court (Australia).
- ^ a b c d North Australian Aboriginal Justice Agency Limited v Northern Territory [2015] HCA 41, (2015) 256 CLR 569, High Court (Australia).