SEPARATION OF POWER IN AUSTRALIA

SEPARATION OF POWER IN AUSTRALIA

Introduction

Separation of powers

This refers to the mode of governance in any given state.  The model is usually used interchangeably with the principle of trias politica (Vile, 1998).  The model is adopted from the Greece doctrine in which the powers of the state were separated so that the abuse of power by the umbrella government is eradicated or minimized.  The model has the government divided into three arms, each with independent and separate powers and responsibilities so as to ensure minimal influence by one branch over the others.  The model usually has three divisional branches namely executive, legislature and the judiciary.  The principle of power separation or distribution is put in place to ensure that the business of government is equally distributed among these branches. In Australia, each of the separate arms of the government in any state are given specific functions and responsibilities and they relate in a way that the doctrine of power separation is upheld.

The parliament arm of the government retains its power of legislation by drafting and debating Bills.  The executive on the other hand has the responsibility for initiating, developing and implementing policies and the administration of legislation in the state.  The Judiciary, comprising of the court system is given the responsibility of interpreting the legislation and applying it accordingly without fear or favoritism.  This separation is ensured so that there is no accumulation of powers in the hands of one individual as it leads to tyranny in many cases and dictatorship.

The application in Australia

All over the world the doctrine of power distribution or separation of powers is always assumed to be the cornerstone of a just and fair government (Vile, 1998) .  Unknown to many this is not always the case in Australia.  A strict adherent to the principle of power separation is not evident.  The Australian separation of power is one that combines the doctrine of responsible government , the separation of power version of the USA and the basic concepts of democracy of the system applied in Westminster.  The issues surrounding the separation of power in Australi has for a long time been a contentious one and it is hard to point out where the power lies in the political system of Australia.  The  spirit of the principle of power separation is so that the branches do not overlap at any given issue, but  there sometimes exists a common ground among the branches.  The political system in Australia is such that there is a minimal separation between the legislature and the executive.  The three arms of government in Australia are not given an opportunity to exercise total power. Unlike in the USA where the separation of power is applied in totality, Australian system does not allow the practicability of power separation.

The Westminster system applied in legislative democracy in Australia, the totality of power separation is not ensured because the the system draws the executive arm of government from the legislature and it is accountable to it.  This raises many questions and doubts about where the real power of the government lies.

Executive and legislative powers

Section 64 of the Australian laws ensures  that federal ministers should sit in parliament.  Unlike the American system, the minister is supposed to be members of the parliament thus having influence on both sides of the executive and the legislature.  The Australian system allows for election of parliament before election of parliament.  The system relates so that the legislative powers are delegated to the members of the executive therefore diluting the separation of powers.  The executive sometimes holds the responsibility of the legislation and the legislation can restrict the powers held by the executive through enacting of new laws that can be reviewed by the judiciary.  The situation is made worse by the strong discipline by the party members who have weakened the scrutiny of the executive especially in the lower house of the legislature.

The senate in Australia has for a long time restricted the powers of the executive through amendment and blocking of the legislation.  The effect is that the Senate has been rarely if at all, controlled by the executive arm of the government.  The Australian constitution in commonwealth arrangement, provides physical separation of power between the government and the legislation.  In this case a member employee of the government cannot be elected to the legislature.

Separation of federal judicial power

In accordance with commonwealth doctrine, the Australian constitution provides for total insulation of the power of the judiciary.  The federal government and the legislature have no influence on , the powers of the judiciary as this may be regarded as a contempt of the legislature.  The Australian system also gives a strict distinction between the judiciary functions and the functions of the other arms of government.  The separation of power in Australia in the judiciary is in the form that the 1udiciary is left alone in its decision and function and in response the judiciary differs itself from the other arms of the Australian political system.

Separation of powers in the states

There exists structural and textual independence of the Australian  judiciary in the constitution of the commonwealth.  The independence is not totally ensured in the state constitution.  The state constitution provides for the state courts to perform non judicial acts.  The courts for instance, are given powers by the constitution to conduct performance reviews of the administrators.  This is opposed to the commonwealth doctrine where the function is done by the executive itself.  The Australian system of power separation becomes more complicated due to the fact that the federal powers of the judiciary are given to the state courts in accordance to the spirit of commonwealth constitution.  This is usually done to ensure that the state courts continue to maintain the impartiality and the independence of any given court.

Conclusively the separation of power among the three arms of government in the Australian system is not ensured in totality.  The spirit of the relationship is that the three arms cannot work alone as the judiciary is there to give guidelines on whether the actions done by the executive or the legislature is within the spirit of the constitution.  The fact that the executive sits in the legislative assembly and has dominated on the debates in the house, the question about separation of power is mutually muted.  The character and nature  of the power separation in the Australian system continue to be defined and shaped by the court system which applies the commonwealth concept with clear reference to federal and state system.

 

 

 

 

References

Vile, M. (1998). Constitutionalism and the Separation of Powers. Indianapolis: Liberty Fund.

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