Separation Of Powers In Australia Essay

Political thinkers Rousseau, Locke and Montesqieu claimed that the powers of government should be limited, divided and checked. The principle is that there should be a division of government executive, legislative and judiciary powers into three separate arms or institutions that act separately and are independent of one another (members of one branch cannot be members of either of the other two). Australia’s constitution separated powers by delegating the legislative power to Federal parliament (s.1), executive power to the Governor General (s.61) and the Judiciary to the High Court (s.71). However due to Westminster conventions (adopted from the British system of parliament) commonly practiced by the Australia government, the members of the executive (cabinet) are selected from the legislative by the Prime Minister (going against the concept of having no cross-branched members). The PM (also Westminster convention) is not mentioned in the constitution and yet exercised executive power; for example in 2003 PM John Howard exercises (s.68) by sending troops to Iraq. The constitution also provides the executive with the power to appoint the High Court Judge (s.72) and thus is could be argued that the executive has power over the Judiciary in that sense; However the constitution actively safeguards the position of the Judiciary by stating the High Court Judge “Shall not be removed except by the Governor-General in Council, on an address from both Houses of the

First of all, there are some similarities between the Australian government and the American government. They both have a congress, although they call it parliament in the Australian government. Both have a federal government; this means that they have state and federal governments. They have senators that represents the states. They have a house that is elected by the people. In both countries, legislation has to be passed through both houses. They both have a court that interprets the constitution and handles final appeals (Supreme Court in U.S. and High Court in Australia). Also, they both have written constitutions that describes the powers of government. However, they both have differences.

Australia has been federated for 114 years, yet we still don’t have our own head of state. Yes, we have a head of state in the form of a Governor General, but this person does not represent the views of the Australian people, but rather serves as the representative of the Queen. A Queen that will never be a true Australian.

The Australian Constitution is a rich amalgam of various classical political principles. The concepts of the Rule of Law and the doctrine of the Separation of Powers evident in Montesquieu’s Spirit of the Laws are both salient examples of political theses that are central to Australian Constitutional Law. The structure of the Constitution itself and decisions of the High Court of Australia unequivocally validate the entrenchment of the doctrine separation of powers in the Commonwealth Constitution . In particular, the High Court has applied this with relative rigour with respect to the separation of judicial power. The separation of the judicial power is fundamentally critical to upholding the rule of law. The High Court in Wilson v Minister for Aboriginal Affairs noted that “the separation of the judicial function…advances two constitutional objectives: the guarantee of liberty and, to that end, the independence of Chapter III judges” . Kitto J in R v Davidson also identified that the judiciary should be subject to no other authority but the law itself . This is a critical aspect ensuring the concept of legal equality is upheld. Therefore, its role clearly extends to providing checks and balances on the exercise of power by the legislative and executive arms of government . This ensures the liberty of the law and limits the abuse of the judicial system. Judicial Power is defined as “the power which every sovereign must of necessity have to decide between its subjects

On the first of January 1901 Australia became a federation when the Commonwealth of Australia Constitution Act came into force. Since this time, Australia has been a federated country, consisting of a Commonwealth Parliament and six State Parliaments these being Tasmania, Victoria, New South Wales, Western Australia, Queensland and South Australia. The Division of law-making power has changed considerably since 1901.

”Liberty required that the three great department of power should be separate and distinct.” The Legislative, Executive,and Judiciary are the three powers of department. By separating the powers provides a safeguard by ensuring all the government powers do not fall into the hands of a group or a single person. Each power has their own rules, running style, and different types of power to rule. Therefore Separating the Powers provides a stable society and country.

Level 2 – Separation of Powers The separation of powers is divided into three definite sections: Legislative Power consists of the Senate and the House of Representatives, they make and amend laws. Executive Power consists of the Governor General, the Senate and the House of Representatives, they put the law into action. Judicial Power consists of the High Court and other

     Australia’s form of government has been described as a constitutional monarchy, in which the queen of England is the nominal head of state. In the federal government, power rests with the elected political party that holds the majority in the House of Representatives. The leader is the prime minister. The Senate consists of 76 members who are elected every six years. The House of Representatives has 147 members and they face elections every three years. Any laws that involve changes to the Constitution must be decided by a referendum in which the country’s citizens are called to vote on whether or not they want such changes to take place.

The doctrine of the separation of powers is an important principle in Constitutional law. The separation of the legislature is the power to make laws; the executive is the power to administer the laws; and the judiciary is the power to interpret and enforce laws that is constructed through the Commonwealth of Australia.

The Separation of Powers was very important to our beloved Founding Fathers. They had to get approval from all thirteen colonies and that took two long years. The Fathers had time to think and luckily, the colonies finally agreed on creating the Constitution which thankfully, in the United States case, helped form the idea of The Separation of Powers. Each branch of government is different and has specific jobs to help the government effectively make better decisions and work together in a proper manner. These different branches include; the legislative branch are where the laws are created, budgets are passed, and wars are declared. Without the legislative branch it would be hard to create laws, pass budgets, and declare war. The Executive branch enforces, or vetoes the laws that the Legislative branch

The Division and Separation of power are essential to keep our societies rulers to have a restriction on their powers. The importance of each on the Australian domestic law especially in relation to the rule of law, and protecting individual rights, and the legal system.

Australia’s government design was taken from the British Westminster system after those who originally colonized Australia. A functional, western style democracy, there are a number of minor political parties operating in Australia but the country’s federal politics is an essential 2-party system at present, much like the United States (Our Country, 2015).

To make sure all of the branches carrying out their own responsibility and does not do one another’s works, which is also called overlapping, doctrine of separation of power is introduced to uphold the smooth and effective duty of each and every branches.

Switzerland was a confederation of sovereign states called cantons until 1848. Since then, a constitution has been written and the country became a federation.

Governments perform three functions namely executive, judicial and legislative functions. The role of separation of powers involves the diffusion rather than concentration of powers within the state. Thus, these branches should be separate, unique and equal. The underlying principle of the separation of powers is that individuals have the potential to harm others, and this can become a reality when power is concentrated in one person, faction, or institution. However, if the branches were completely separate it would be unworkable since Parliament is