Separation of powers in Australia

The doctrine of separation of powers refers to the separation of the legislature, the executive and the judiciary. A strict separation is not maintained in Australia, following the Westminster system and the doctrine of responsible government. Nevertheless, it is clear that it has been heavily influenced by the United States version of the separation of powers. The issue of separation of powers in Australia has been a contentious one and continues to raise questions about where power lies in the Australian political system.

The first three chapters of the Australian Constitution are headed respectively "The Parliament", "The Executive Government", and "The Judicature". Each of these chapters begins with a section by which the relevant "power of the Commonwealth" is "vested" in the appropriate persons or bodies. The historical context in which the Constitution was drafted suggests that these arrangements were intended to be connected with federal ideas along American lines.

On the other hand, the Constitution incorporates responsible government, in which the legislature and the executive are effectively united. This incorporation is reflected in sections 44, 62 and 64 of the Constitution.

Legislative and executive powers

Section 64 provides that federal Ministers - members of the executive - must sit in Parliament. The specific requirement for ministers to sit in Parliament established the connection between executive and legislative, effectively preventing an American-style separation of the two.

In "Victorian Stevedoring & General Contracting Co Pty Ltd & Meakes v Dignan", the High Court of Australia held that it was impossible, consistent with the British tradition, to insist upon a strict separation between legislative and executive powers. It was found that legislative power may be delegated to the executive, and as a result upheld the validity of delegated legislation. By contrast, in its insistence on a strict separation of "judicial power", the High Court has been less willing to compromise.

The executive is not only physically part of the legislature, but the legislature can also allocate it 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") 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.

Separation of federal judicial power

As early as "New South Wales v Commonwealth (Wheat Case)" (1915), the High Court decided that the strict insulation of judicial power was a fundamental principle of the Constitution. 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 JW Alexander Ltd" (1918). A decisive distinction between judicial and arbitral functions was drawn.

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 extra-judicial writings, and in decisions such as "Drake (No 2)".

The doctrine of "persona designata" permits non-judicial functions to be conferred on judges in their personal capacity, as opposed to their judicial capacity.

Separation of powers in the States

While there are strong textual and structural basis for the separation of powers in the Commonwealth Constitution, the same is not true of the State constitutions. At State level, separation of powers exists largely by virtue of convention. This has been shown in cases such as "Clyne v. East" (1967) for New South Wales and the doctrine extensively discussed in cases such as "Kable v. The Director of Public Prosecutions". In these and other judgments it was noted that a subdued doctrine of separation of powers operating as accepted practice is taken for granted in the state. That the position is similar in other states has been confirmed in cases in Victoria, Western Australia and South Australia.

Parliamentary scrutiny of the executive and, in particular, by the NSW Upper House, was tested in the 1990s when Treasurer Michael Egan, on behalf of Cabinet, refused to table documents in the Legislative Council of which he is 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. However, the extent of the Legislative Council's power in relation to Cabinet documents remains unclear and, should the question arise, will be subject to continued court interpretation.