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The Rationale behind the Separation of Powers in the Australian Political System - Essay Example

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Almost all constitutional structures of the Western hemisphere presume that there are three major forms of administrative power, namely, (1) executive, (2) legislative, and (3) judicial. …
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The Rationale behind the Separation of Powers in the Australian Political System
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Download file to see previous pages Almost all of them believe that the powers must be exercised by three distinct branches, namely, an executive, a legislature, and a judiciary. The rationale for this separation of powers is in part due to the assumption that it is wise for distinct powers to be used in distinct ways. Nevertheless, most significantly, the separation of powers is a means of regulating power, of preventing any single branch from becoming unduly powerful (Sharma and Sharma, 2000). Moreover, different nations have different thoughts on how to divide these three major government powers. It is not possible for one branch to become fully independent from the others because all belong to a single government. This essay argues that Australia’s partial separation of powers ensures a strong checks-and-balances mechanism and a rigid preclusion of authoritarianism. Overview The separation of the legislature, executive, and judiciary is a constitutional model that is rooted in the assumption that government is more effective if the various areas of governing are scattered among various entities that continue to be independent from each other. Advocates of the assumption normally recognise three government functions, namely, (1) law making, (2) law implementation, and (3) law interpretation-- which are the legislature, executive, and the judiciary, respectively (Smith, Vromen and Cook, 2006). Within the separation of powers, the autonomy of all the government branches is usually safeguarded by an established constitution, in order that no independent branch can lawfully infringe upon the powers of the others. In addition, according to Winterton (2006), such separation is established by prerequisites that constituents of one governmental institution cannot concurrently work in another institution and by safeguarding the term of constituents of one institution from intrusion by another institution. A prominent French scholar, Montesquieu, perfectly illustrated the rationale of the principle of separation of powers (Sharma and Sharma, 2000, p. 548): “[T]here is no liberty, if the judiciary power be not separated from the legislative and executive. Were it joined with the legislative, the life and liberty of the subject would be exposed to arbitrary control; for the judge would be then the legislator. Were it joined to the executive power, the judge might behave with violence and oppression. There would be the end of everything, were the same man or the same body, whether of the nobles or of the people, to exercise these three powers, that of enacting laws, that of executing the public resolutions, and of trying the causes of individuals.” The separation of powers is a very old concept; nevertheless, it obtains its current importance from the contemporary interest in regulating governmental powers. Political scholars assumed that the public could be shielded from too much government power if the executive’s decisions had to be approved by an autonomous legislature and may be questioned in autonomous courts. The contemporary form of separation of powers can hence be viewed as originating mainly from ‘liberalism’ instead of ‘democracy’ (Winterton 2006). Proponents of democracy at times claim that the law is supposed to represent people’s will, instead of representing a more intricate structure of separation of powers (Sharma and Sharma, 2000). In actual fact, political structures differ in the degree to which they divide powers and in the processes by which separation is attained. Contemporary liberal democratic regimes are influenced by the separation of powers principle. The separation of the three branches is a constitutional way of mitigating the existing difficulties of guaranteeing democratic governance. It contributes to a better ...Download file to see next pagesRead More
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