The separation of powers

Question 1

What are the means by which Australian Constitution acts as a check of Parliament in law-making?

Answer 1

• the role of the High Court
  in protecting the principle of representative government
• the separation of the legislative, executive and judicial powers
• the express protection of rights

Question 2

What is the separation of powers?

Answer 2

There are three separate powers in our parliamentary system: the executive power, the legislative power, and the judicial power.

Question 3

What is executive power?

Answer 3

• Executive power is to administer the laws and manage the business of government.

Question 4

Who has executive power?

Answer 4

• At a Commonwealth level, this power is vested in the Governor-General. At a state level, this power is vested in the Governor
• In practice, the executive power is carried out by the prime minister (or premier), senior ministers and government departments.

Question 5

What is legislative power?

Answer 5

the power to make laws.

Question 6

Who has legislative power?

Answer 6

Commonwealth is vested in the federal parliament.

At a state level, the legislative power is vested in each of the state parliaments.

Question 7

Are any two powers combined?

Answer 7

The legislative power and the executive power are combined at a federal level.

In practice, the power to administer law and carry out gov’s business (executive power) is placed in the hands of the Cabinet rather than the executive.

Question 8

What is judicial power?

Answer 8

Judicial power is the power given to courts and tribunals to enforce the law and settle disputes.

Question 9

Who has judicial power?

Answer 9

The courts.

• Legislative power and judicial power must be kept separate.
• Although governments appoint judges, the courts are independent of political influence.
  (safeguards citizens against misuse of political power/corruption)

Question 10

Reasons for the Separation of powers

Answer 10

It prevents power from being concentrated in one set of hands and helps to protect individual rights by providing checks and balances on the power of the parliament. No one body can make law, administer law and also rule on its legality.

Question 11

Strengths of the separation of powers

Answer 11

1. While parliament is the supreme law-making body, the judiciary (courts) have the power to invalidate, strike down or declare void a statute that has been passed by parliament beyond its law-making power.
2. The judiciary is independent of the legislature and executive. This independence is vital, especially when the Commonwealth is a party in a case before the Court. It also ensures a decision about the application of law can be made without the fear of electoral backlash as judges are not aligned with political parties.
3. Despite the overlap between the executive and legislative branches of government, there are still some measures in place to ensure the executive is independent from the legislature. For example, certain government employees at a Commonwealth level cannot be members of parliament, thus avoiding executive influence and power over parliament in law-making.
4. The separation of powers is specifically provided for in the Australian Constitution, and therefore cannot be abolished without a referendum.

Question 12

Weaknesses of the separation of powers

Answer 12

1. In reality, the legislative power and the executive power are combined. This can decrease the ability of the separation of powers to act as an ongoing check. The power to administer the law through government departments is carried out by ministers (members of Cabinet), who are drawn from the executive.
2. Judges are appointed by the executive.
   This may result in the perception that the executive seeks to influence judicial benches. The government can choose which judges they want to serve on the Court and some people believe that these choices are influenced by their progressive or conservative views.
3. The ability of the judiciary to act as a check on parliament is dependent on people’s willingness to challenge laws. That is, the courts can only act as a check on parliament when there is a case before them, and that requires someone willing and able to initiate such a case.
4. The separation of powers in the Australian Constitution does not extend to states, although the states separately provide for separation of powers in state constitutions or statutes.