1. Explain the Doctrine of the Separation of Powers and how it operates in Australia The Doctrine of Separation of Powers is widely used in many democracies around the world. It is based on the idea that in order to maintain civil liberty, there is a need to separate the institutions that make the law, those that execute it, and those which adjudicate the law. The concept was defined by Charles de Secondat, Baron de Montesquieu in Spirit of Laws1, this framework allows checks and balances in the system, with power divided into three branches of government ensuring that no individual branch is able to wield complete power, nor abuse it, thus protecting the liberty of the citizens. “The dignity and stability of government in all its branches, the morals of the people and every blessing of society, depends so much upon an upright and skillful administration of justice, that the judicial power ought to be distinct from both the legislature and the executive, and independent of both, so that it may be a check upon both, as both should be checks upon that”2. In Australia, the Doctrine of Separation of powers is constructed through the Commonwealth of Australia Constitution Act. The power to make and manage law is divided between the following three groups: Legislative power3 – held by the Parliament, which makes and amends the law. The Australian Parliament is made up of the Queen, the Senate, and the House of Representatives. Executive power4 – held by the Government, which puts the law into action. For Australia, the Government is made up of the Prime Minister and government ministers. Judiciary power5 – held by the courts, which interpret and adjudicate the law. This is made up of the High Court and other federal courts. The separation of powers in Australia work together with the principle of responsible government to ensure that the Executive, in this case the government, “is accountable to Parliament and must retain the confidence of the House of Representatives to remain in office”6 This framework provides another check on the Executive so they remain accountable and do not abuse their power.
2. Is there a true separation of powers between the institutions of government in Australia? A modern definition by Vile, states that in a ‘pure doctrine’, persons who compose these three agencies of government must be kept separate and distinct, no individual being allowed to be at the same time a member of more than one branch 7. This is the doctrine at its most strict form, with complete separation of powers across all institutions of government. As mentioned earlier, Australia maintains a system of responsible government where the Executive is made accountable to the Parliament. However, the Executive is drawn from the Legislature, and members of the Judiciary are appointed by the Governor-General, on the advice of the Executive8. Under this framework, the extent of Separation of Power in Australia is limited due to overlaps between the three branches of government. Particularly the legislative arm and executive arm as the constitution states that the Ministers of Government must be members of Parliament9. Furthermore, legislative power may be delegated to the executive under special circumstances as was found in Victorian Stevedoring and General Contracting Co. v. Dignan 10. Although Australia does not maintain a true separation of powers, there is a clear separation between the Judiciary and the other two arms, which, according to Baron de Montesquieu was the most important part of the separation of powers, as it guards government against its own lawlessness, prevents any deviation from the rule of law by allowing the legislative and executive powers to be checked by the judicial arm that will interpret the laws and apply them equally to everyone11
3. Choose another country (either a common law or civil law jurisdiction) to explain how the Doctrine of the Separation of Powers operates in that other country...
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