Separation of Powers in Australia

The Doctrine of the Separation of Powers (SOP) in Australia will be analysed both at a Federal and at a State level. The SOP will be defined, followed by a break down of its constituent parts and how they are important elements of the principles in the Constitution. Also, the relationships between the three branches and their function in regards to the SOP will be analysed. A brief history of the High Court will be given and the way in which the SOP was understood at the time of inception in 1903. The High Court of Australia strike of 1905 will be critically evaluated and it will be argued that there was no breach of the SOP. The Doctrine of the SOP is essential for the balance and proper functioning of the Australian legal system. Examples will be provided to show how the SOP has affected the interpretation of the constitution and the functioning of the three arms of government.

The SOP can be defined as a doctrine that divides the institutions of government into three branches: legislative, executive and judicial: the legislature makes the laws; the executive put the laws into operation; and the judiciary interprets the laws. The powers and functions of each are separate and carried out by separate personnel.[1] This division of public power along functional lines allows a single level of government to function properly within a democracy.[2] The Westminster system, which is the Australian legal System, contains elements of partial separation, e.g. the Government’s Ministers are required to be elected Members of Parliament. The Rule of Law is an important concept in terms of SOP as the members of the legislative and executive cannot be members of the judiciary. This allows different people to have different powers in government. The SOP – the principles of dividing and balancing power − can be used to advance rule of law values.[3]

The history of the SOP comes from English philosopher John Locke (1632-1704) and French Philosopher Baron de Montesquieu (1689-1755). Locke inn his Second Treatise of Civil Government, noted the temptations to corruption that exist where “... the same persons who have the powers of making laws to have also in their hands the power to execute them ... “.Baron de Montesquieu, who articulated the fundamentals of the separation doctrine as a result of visiting England in 1729-31. In his The Spirit of Laws (1748), Montesquieu considered that English liberty was preserved by its institutional arrangements. He saw not only separations of power between the three main branches of English government, but within them, such as the decision-sharing power of judges with juries; or the separation of the monarch and parliament within the legislative process.[4] Baron de Montesquieu was the originator of the SOP and stated that it is "...the accumulation of all powers legislative, executive and judicial in the same hands, whether of one, a few or many, and whether hereditary, self appointed, or elective, may justly be pronounced as the very definition of tyranny." [5]

The Constitution of the Commonwealth of Australia outlines the SOP in its first three chapters. Chapter I s 1 outlines the Legislative is the arm of government “the legislative power of the commonwealth shall be vested in a federal parliament”. Chapter II s 61 begins with “the executive power of the commonwealth is vested in the Queen…” This means that executive power was nominally allocated to the Monarch, or her representative the Governor-General. Members of the Executive have to be members of parliament making the separation between the executive and the legislative arms of government partial. Whereas, the Judiciary is the arm of Government that consists of judicial power as stated in Chapter III s 71, “The judicial power of the commonwealth shall be vested in the Federal Supreme Court, to be called the High Court of Australia…”[6] This separation of roles of each arm of government does not constitute a separation of powers in itself.[7] The judiciary can be seen as independent and separated from the other two arms of government where there is an ‘asymmetrical’ commingling of powers as members of the Parliament can also be members of the Executive.[8]

The following examples show how Chapter III and s 71 of the constitution have been used to show a separation between the judiciary from the parliament and executive. In New South Wales v. Commonwealth the High Court ruled that this part of the Constitution does embody the doctrine of separation of judicial powers. However, the Courts have found that the separation that exists for the judiciary does not strictly apply to the relationship between executive and legislature. In Victorian Stevedoring and General Contracting Co. v. Dignan, it was found that legislative power may be delegated to the executive. The same case, however, reconfirmed the separation of judicial powers.[9] Evatt J said “unless the legislative power of the Parliament extends [to the power to delegate], effective government would be impossible”.[10] The wheat case of 1915 asked the question of whether an institutional body that falls outside the arms of government must conform to the SOP. For J Isaacs the fundamental principle was the “SOP” as “the dominant principle of demarcation”[11]. These examples highlight the SOP in regards to the powers that each arm of government has relative to each other.

The States of Australia also have their own constitutions with no SOP. Queensland, for example, is part of a federation and the Australian High Court has overruled the State’s authority in certain areas, through reference to the Federal Government’s constitutional powers, Mabo vs the State of Queensland, which granted land title rights to the original inhabitants of Murray Island. In Spratt v Hermes it was stated that ”the first five Chapters of the Constitution belong to a special universe of discourse, namely that of the creation and the working of a federation of States, with all the safeguards, inducements, checks and balances that had to be negotiated and carefully expressed in order to secure the assent of the peoples of the several Colonies”[12] Therefore, the states must conform to the constitution in matters relating to the SOP.

The High Court is the appellate court of justice in Australia. The High Courts first incumbents were sworn in on 6th October 1903. The Act establishing the High Court was the Judiciary Act 1903 (Cth) - which became law on 25th August 1903.[13] In describing the High Court and SOP, Chief Justice Murray Gleeson states "The essence of a federal system of government is an agreed division of powers and authority between the political entities which make up the federation: in Australia, the Commonwealth and the States. Inevitably, disputes will arise from time to time, either between governments, or between citizens and governments, over the limits of the powers defined by the Constitution. Resolving such disagreements is, ultimately, the task of the High Court." Furthermore, he states “The responsibility of ruling upon the validity of laws enacted by democratically elected parliaments is thus 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 Court are expected to approach their task by the application of what Sir Owen Dixon described as 'a strict and complete legalism'".[14]

The Independence of the High Court and judiciary in general is paramount to the success of the SOP. This can be seen in the Kable decision, as McHugh J states “I was not quite going so far as to say there is an entrenched separation of powers , but there is certainly an entrenched independence of the judiciary and one would think consistently with that, that Parliament could not pass any law which would infringe on the independent exercise of judicial functions, quite apart from - they might be able to invest judicial power in some other body, a non-judicial body, but can they do anything that infringes the independence of the judiciary in the exercise of its judicial powers?”[15] The independence of the judiciary and separation form the other two arms of power is essential for citizens to know that they are protected from tyranny with the checks and balances that come with SOP. Furthermore,” the Boilermakers Case made rigid distinctions between courts and other institutions and between judicial and other powers.”[16]

The High Court of Australia strike of 1905 was borne through tensions between Attorney-General Josiah Symon and the Chief Justice of the High Court Griffith. This was the period just after federation in which the states and delegates battled to achieve an outcome that would see federation as representative of States as can be seen by the importance placed on the senate as a House of review with the each State represented in proportion to their population. There was bickering between delegates such as Symon from South Australia about the permanent seat of the High Court in Melbourne which he was in favour of. The issues which were being argued between the two were the place of sitting of the high court, the costs of relocating Griffith’s library to Sydney from Brisbane and the finances for travelling between states. The strike began on the 1st of May 1905 after a series of letters were sent between the two arguing their reasons for the above mentioned issues. In August 1905, the strike was resolved after Isaacs was sworn in as the Attorney-General and Deakin as the Prime Minister.[17] The High Court was not obliged to adhere to the wishes of the Executive or Legislature.

The SOP was not breached in the strike due to there being no legislation passed on the matters of difference between the two branches which denied the rights and autonomy of the high court. It was more of a personal feud between the Attorney-General Symon and Chief Justice Griffith on matters of administration and were both at fault for the strike. The Attorney-General was behaving like a recalcitrant, as he did not seem to respect the independence of the High Court since he had a different view on the workings of the high court during the federation conventions. CJ Griffith was being stubborn not to submit to the requests of the Attorney-General as he saw the powers of the high court to be independent from the executive. Furthermore, the lack of legally binding documents used in the feud was a further reflection that the SOP was not breached. In Polyukhovich, the Parliament decides, by enactment, that a law is "for the peace, order, and good government of the Commonwealth", that, of itself, provides sufficient connexion between this country and the subject matter of that law for the purposes of s 51.[18] The independence of the judiciary as a separate functioning apparatus of the constitution shone through as a result of the strike.

In conclusion, the SOP works well in Australia and is partial in nature since the members of the Executive are also members of the legislative. The proper functioning of the Australian legal system is very reliant on the SOP operating in both theory and practice. The High Court of Australia’s strike was 1905 a shining example of how the SOP works in Australia and an early demonstration of the High Courts independence from the Executive and Legislative. The High Court has dealt with issues of the potential breaches of the SOP in the above mentioned cases and has maintained the integrity of the judiciary within the framework of the constitution as it relates to the SOP. Throughout Australia’s short history of federal governance, the SOP has been a fundamental feature and foundational principle of the legal system.

Reference List

Airo-Farulla, G. & White, S. (2004) Separation of Powers ‘Traditional’ Administration and Responsive Regulation Retrieved 4 May 2009. http://austlii.law.uts.edu.au/au/journals/MqLJ/2004/4.html

Alvey, J. (2005) The Separation of Powers in Australia: Implications for the State of Queensland. Retrieved May 4 2009 http://auspsa.anu.edu.au/proceedings/publications/Alveypaper.pdf

Blackshield, T. Coper, M. Williams, G. (2001) The Oxford Companion to the High Court of Australia. Oxford University Press.

Boilermakers (1955) 94 CLR 254

Finnis, J.M.(1968) Separation of Powers in the Australian Constitution. Retrieved May 4 2009. http://digital.library.adelaide.edu.au/dspace/bitstream/2440/14978/1/alr_V3n2_1968_FinSep.pdf

Kable v Director of Public Prosecutions for NSW S114/1995 [1995] HCATrans 430

Meyerson, D. (2004) The Rule of Law and the Separation of Powers. Retrieved 4 May 2009.http://www.austlii.edu.au/au/journals/MqLJ/2004/1.html

Neumann, G. (1973) The High Court of Australia. A Collective Portrait 1903-1972. 2nd ed. Department of Government and Public Administration. University of Sydney.

Opeskin, B. & Wheeler,(2000) F. Australian Federal Judicial System. Melbourne University Press

Polyukhovich [1991] HCA 32; 172 CLR 501

Sauer-Thompson, G. (2004) Separation of Powers. Retrieved 4 May 2009. http://www.sauer-thompson.com/archives/philosophy/2004/07/separation-of-powers.html

Saunders, C. (2003) It’s Your Constitution: Governing Australia Today. 2nd ed. Federation Press. Retrieved 4 May 2009. http://books.google.com.au/books?id=QQ8h8zhJ9U8C&printsec=frontcover#PPA156,M1

Spindler, G. (2000) Separation of Powers: Doctrine and Practice. Retrieved 4 May 2009. http://www.parliament.nsw.gov.au/prod/parlment/publications.nsf/0/E88B2C638DC23E51CA256EDE00795896
[1] Spindler, G. (2000) Separation of Powers: Doctrine and Practice.
[2] Saunders,C (2000) The Separation Of Powers in Opeskin, B.& Wheeler, F. Australian Federal Judicial System.
[3] Meyerson, D. (2004) The Rule of Law and the Separation of Powers.
[4] op cit
[5] Sauer-Thompson (2004) Separation of Powers.
[6] Saunders, C (2003) It’s Your Constitution: Governing Australia Today.
[7] Spindler,G (2000) Separation of Powers: Doctrine and Practice.
[8] Saunders,C, (2000) The Separation Of Powers in Opeskin, B.& Wheeler, F. Australian Federal Judicial System.
[9] Op cit
[10] Meyerson, D. (2004) The Rule of Law and the Separation of Powers.
[11] ibid
[12] Op sit
[13] Neumann,G. (1973) The High Court Of Australia. A Collective Portrait 1903-1922.
[14] Sauer-Thompson (2004) Separation of Powers.
[15] Kable v Director of Public Prosecutions for NSW S114/1995 [1995] HCATrans 430
[16] Saunders,C, C (2000) The Separation Of Powers in Opeskin, B.& Wheeler, F. Australian Federal Judicial System.
[17] Blackshield, T. Coper, M. Williams, G. (2001) The Oxford Companion to the High Court of Australia.
[18] Polyukhovich [1991] HCA 32; 172 CLR 501