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

?The Rationale behind the Separation of Powers in the Australian Political System Introduction 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. 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 understanding of how the principle functions by envisioning what a structure devoid of separation of powers may be like. For instance, it could imply that members of the executive branch could enact laws stating who is to be penalised, and what penalty will be exercised, and afterwards wield them capriciously to castigate those they detest, all devoid of the interference of an autonomous judiciary (Campbell, 2004). Only some would view this as a democratic approach towards governance, and by any important criterion it is not, because resolutions on penalty could be established subjectively rather than autonomously (ibid, p. 43). The power of the law would be weakened and dictatorial governance might prosper. This is democracy’s exact opposite. Separation of Powers in Australian Constitutions The principle of separation of powers, as improved by means of judicial resolutions, does not work in a rigid way in Australia because the architects of the Australian Constitution decided to merge the Westminster model of responsible government with the United States Constitution’s federal system. Within the Westminster model of responsible government, an actual separation between the executive and legislative powers does not exist (Groves and Less, 2007, p. 6). Moreover, constitutional conditions mandate that the Ministers of the Crown—members of the executive branch—be taken from the Parliament’s members, otherwise become the parliament’s members for a specific period of time after their delegation as Ministers (Groves and Lee, 2007, p. 6). The ‘responsible government’ model allows the government’s executive power to keep its position provided that it sustains the trust of a majority of the Parliament’s lower house. Another important aspect was the value given to the principle of ‘parliamentary sovereignty.’ According to Sir Anthony Mason, “Reliance on parliamentary sovereignty has been talismanic and it has resulted in the separation doctrine having no application to the legislative power” (Campbell and Lee, 2001, p. 37). Such was accepted by the High Court in Dignan, which gave consent to the federal Parliament to hand over its legislative authority to the executive. On the other hand, there was an evident demand by the Court for rigid separation of the judiciary branch, under several limitations. Such limitations are associated with the Parliament’s use of contempt powers and the federal service tribunals’ use of power (ibid, p. 37). McHugh and Gummow J. J., Toohey, Dawson, and Brennan C. J., in Wilson v Minister for Aboriginal and Torres Strait Islander Affairs, described the reason for the separation of powers within the Commonwealth Constitution along these lines (Campbell and Lee, 2001, p. 37): “The Constitution reflects the broad principle that, subject to the Westminster system of responsible government, the powers in each category—whose character is determined according to traditional British conceptions—are vested in and are to be exercised by separate organs of government. The functions of government are not separated because the powers of one branch could not be exercised effectively by the repository of the powers of another branch. To the contrary, the separation of functions is designed to provide checks and balances on the exercise of power by the respective organs of government in which the powers are reposed.” And they further claimed (Winterton, 2006, p. 391): “The separation of the judicial function from the other functions of government advances two constitutional objectives: the guarantee of liberty and, to that end, the independence of Chapter III judges.” Basically, the constitutional systems of Australia establish only an incomplete separation of powers. The courts, or the judiciary, are autonomous from the legislature and executive branches, and an autonomous judiciary is mandated in a federal structure. Nevertheless, relative to the other two powers, the Westminster rule of Australia makes sure that the executive branch is obtained from the legislature’s members. The executive is created by the winning political party in the parliament’s lower house. The executive’s members are hence legislature’s members as well, and the two powers are strongly connected and not completely unrelated (Galligan, 1995). This approach enables Westminster rules of parliamentary accountability to be exercised, in order to ensure that the executive can be summoned to report in the parliamentary board. The principle of ‘responsible government’ stipulates that the executive is obtained from the legislature so as to guarantee accountability processes through the parliament to the public (Galligan, 1995, p. 6). Therefore, the rationale for Australia’s partial separation of powers is the use of a different democratic approach to parliamentary structure. This differentiates Australia from other nations where the executive is independent from legislature and is chosen by the president (e.g. United States), and it implies that the Australian separation of powers is partial. The political structure of Australia rests between the complete separation of powers embodied by the United States and the larger unification of powers modelled by the United Kingdom’s Westminster conventions. The Australian High Court, at Commonwealth status, is rationally completely detached from the other government branches. Then again, the ministry—constituents of the elected executive—should be the parliament’s constituents and can only stay in position if the parliament backs them up, implying that there is an indefinite division between parliament and the executive (Smith et al., 2006, p. 173). The Governor-General, more officially, symbolises the sovereign as a part of both the parliament and the executive. Such attributes of the Australian political system’s incomplete separation of powers have already been established in 1901 and were mostly rooted in earlier legal tradition in the Australian colonies (Smith et al., 2006, p. 173). Those are established attributes of the political system of Australia. However, the definition, implication, and value of the separation of powers often emerge as topics in debates about political practices in Australia. For instance, deliberations in the l990s about an impending Australian republic unavoidably raised issues about the powers and sovereignty of future rulers, specifically of those chosen by the electorate, and their connections with current parliamentary and executive agencies (ibid, pp. 173-174). The constitutional system of Australia has embraced the American model which places separation of powers under checks and balances and, above all, which holds that the judiciary is the ultimate arbitrator on constitutional matters and in addition can evaluate the appropriate use of executive power by means of administrative law assessment. The idea of judicial assessment in Australia had its roots in the constitutional systems during the colonial period (Cannon, 2008, p. 29). At this point the judiciary did not only possess the authority to declare that a statute was unconstitutional but it also could scrutinise a statute for it did not abide by higher Imperial law from the English Parliament operating as an Imperial Parliament above its territories (Cannon, 2008, p. 29). A number of colonial judges were quite bold they proposed that the law may be assessed as violating common law rule yet this was revoked by the Colonial Laws Validity Act 1865 (ibid, p. 29). The High Court, as stated by the Federal Constitution, is the arbitrator of the separation between the Federal Government’s power and the State Governments’ residual power. Such purpose of evaluation is dissimilar from that in the United States, where the Supreme Court comprise the Bill of Rights, which may be exercised to invalidate executive and legislative decisions (Cannon, 2008, pp. 29-31). The High Court has aggressively protected the separation of the judiciary branch. An interstate commission was mandated and delegated by Section 101 of the Constitution with “such powers of adjudication and administration as the Parliament deems necessary” (Zines, 2008, p. 209) to address matters of trade and commerce. This resulted in the formation of the interstate commission. As proclaimed by the High Court numerous of its powers were basically judicial and per se were null and void for it was a court that did not abide by Chapter III of the Constitution, which has specific prerequisites for the formation of courts that should be abided by (ibid, pp. 209-214). The Court differentiated between judicial power and adjudication. This rigid separation of the judiciary branch does not extend to State constitutions; however, since the Commonwealth Constitution expects bestowal of federal rule on State Supreme Courts, the States are mandated to form and sustain a Supreme Court that possesses objectivity, autonomy, and credibility in order for it to competently wield federal rule. An outcome of the rigid separation of the judiciary branch is the necessity to identify an ‘exercise of judicial power’ (Zines, 2008, p. 273). The Privy Council, in the Boilermakers’ Case, presented the difference between combination or designation of power, which could be allowed, and judicial power that could not be combined (Cannon, 2008, p. 29): “The delegation of legislative power by the legislature to any executive body does not mean that the legislature has abdicated a power constitutionally vested in it. For the executive body is at all times subject to the control of the legislature. On the other hand in the Federal system the absolute independence of the judiciary is the bulwark of the Constitution against encroachment whether by the legislature or the executive. To vest in the same body executive and judicial power is to remove a vital constitutional safeguard.” Even though the principle of separation of powers is vital in the Constitution, the division between legislative and executive power in actual fact is not rigid. Both depend on parliamentary backing and since “government has a majority in parliament effectively Cabinet can ensure the exercise of both executive and legislative power” (Cannon, 2008, p. 28). In agreement with this reasonable integration, a number of legislative tasks can be performed by the executive branch. On the contrary, there is a rigid division of the judiciary. There is a licence within the executive branch to enact minor resolutions, referred to as ‘regulations,’ which have to be subjected to Parliament’s scrutiny and approval. The judiciary have allowed such practice (Cannon, 2008, pp. 28-29). The rationale is that Parliament gives a designation of the authority to formulate regulations for definite functions in the central legislation and can prohibit any formulated regulations. In recent times, a number of scholars and lawmakers have charged the High Court of acting outside its task of interpreting the law and interfering with the authority of the parliament to enact laws on particular matters (Zines, 2008). Also recently, a chain of involvements by state legislatures to countermand judicial resolutions has brought up issues about the absence of strong and competent separation of judiciary and legislature in Australian political systems. As stated by Patapan (2000), the principle of separation of powers as it is evident in Australian state constitutions articulates two major premises, both based on the ideas of the intellectuals of the U.S. Constitution (e.g. James Madison), and from the prominent Commentaries on the Laws of England (Patapan, 2000, p. 34). The former premise is that a separation of power is crucial to discourage authoritarianism. The latter assumption is that a separation of powers is fundamental to the reinforcement and protection of individual freedom. This is due to the fact that a separation of powers is the most appropriate method for establishing the rule of law, the assumption that an unbiased, impartial collection of widely recognised rules is exercised justly and visibly to everyone (ibid, pp. 34-35); the principle, hence, safeguards Australians against subjective rulings, and protects as well autonomy and liberty. Conclusions Without a doubt, the practice of separation of powers in Australian constitutions is rooted historically in traditions and customary practice. The reason underlying the principle of separation of powers could be viewed to be entrenched in Western-based parliamentary democracies. The division of executive, legislative, and judiciary branches, undoubtedly in its traditional structure, is operating in Australia somewhat incompletely. The incomplete separation of powers in Australia, especially the executive and legislative branches, within the government’s system necessitates checks and balances, as well. The objective of regulated government can, to a certain extent, be attained by the autonomy of judicial powers and in their legal function of judicial evaluation. References Blackshield, A. and Williams, G., 2002. Australian constitutional law and theory: commentary and materials. NSW, Australia: Federation Press. Campbell, T., 2004. Separation of Powers in Practice. California: Stanford University Press. Campbell, E. and Lee, H.P., 2001. The Australian Judiciary. Cambridge: Cambridge University Press. Cannon, A., 2008. Lessons from the Australian Constitution: An Introduction to the Australian Legal System. Australia: LIT Verlag Munster. Galligan, B., 1995. A Federal Republic: Australia’s Constitutional System of Government. Melbourne, Australia: CUP Archive. Groves, M. and Lee, H.P., 2007. Australian Administrative Law: Fundamentals, Principles, and Doctrines. Cambridge: Cambridge University Press. Patapan, H., 2000. Judging Democracy: The New Politics of the High Court of Australia. Cambridge: Cambridge University Press. Sharma, U. and Sharma, S.K., 2000. Principles and Theory of Political Science. New Delhi: Atlantic Publishers & Dist. Smith, R., Vromen, A. and Cook, I., 2006. Keywords in Australian Politics. Cambridge: Cambridge University Press. Winterton, G., 2006. State Constitutional Landmarks. NSW, Australia: Federation Press. Zines, L., 2008. The High Court and the Constitution. NSW, Australia: Federation Press. Read More