Separation of Powers in Australia

1. Explain the Doctrine of the Separation of Powers and how it operates in Australia. 

The doctrine of the separation of powers is a political system used in Australia, where the institutions of government are divided into three main branches. These include the executive, legislative, and judicial (Greenfeld, 2012).

The legislature includes the parliament that is responsible of making the laws of the country. The executive includes the ministries that are responsible of putting the laws made by the legislature into operation. The judiciary, which made up of the courts, is responsible of giving interpretation to the laws. 

The doctrine of separation of powers is usually said to be a cornerstone to fair governance.in Australia, this doctrine is puts together the uncomplicated democratic concepts that are part of the Westminster system, the version of power separation of United States, and the responsible government doctrine. Separation of powers has been a highly complicated issue in Australia due to the fact that it has not been totally described where the ultimate power lies within the political system of Australia. It has been difficult to argue out whether there is an overlap between the different branches of the doctrine of separation of power in Australia, although between these different branches, there is a visible common ground. 

In Victorian Stevedoring & General Contracting Co Pty Ltd &Meakes v Dignan, the high court ruled that it was not practical to have a division that is strict between the executive and the legislature; hence re-affirming this to be outlined in the constitution(Carney, 2000).Little distinction exists between the Australian legislature and executive as seen in the above case.Members of the executive of Australia are actually members of the Parliament.

The Governor-general is responsible of appointing the executive and judge of the high court, yet he is part of the Parliament(Greenfeld, 2012). From the Australian constitution, section 64 provides that the members of the executive who are federal ministers must be part of the parliament(Carney, 2000).

This establishes a clear connection between the legislature and the executive, hence eliminating the total separation of the executive and legislature as seen in the American system. TheAustraliansystem of separation of powers stipulates thatthe political branches are not supposed to interrupt judicial activities. 

2. Is there a true separation of powers between the institutions of government in Australia? 

The separation of powers phenomenon between the Australian institutions of government is not clear. There is no true separation between the executive and legislature.

This means that there is no true separation between the institutions of government. This is evident with the fact that the members of the executive must be members of the Parliament. On the other hand, the federal judiciary of Australia has strictly protected its independence from the legislature and the executive. This means that in the case of the judiciary, there is a true separation with the other branches of government. New South Wales v Commonwealth Wheat case in 1915, the high court came up with a decision that strict protection of the power of the judiciary was very fundamental in the constitution(Greenfeld, 2012).

This protection was to be granted to commissions and tribunals that were formed by the legislature. This protection goes both ways where the political branches are not to interfere with the work of the judiciary, and at the same time, the judiciary should not interfere with the legislature and executive. 

Some people will argue their case that the fact that the judges of the high court are selected by the Governor-General, who is a member of the executive; there is still no true separation of the judiciary and the other two branches. This is because the leadership of the judiciary is totally affected by the executive that nominated the judges, and at the same time, the executive member that selected the high court judges is part of the legislative. Where the power lies within the Australian system has been a controversial issue for a long while.

The effect brought about by the strong party discipline has led to the executive dominating the legislative. There is a visible overlap of the legislative and executive branches in the above case hence there is no true separation between the two branches. 

Comparing the American phenomenon of separation of power and the Australian phenomenon, one may find that the Australian separation of power is not as strict as the American separation of power. In the American system, the legislative is totally different from the executive unlike in Australia. 

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 compared to Australia

 The doctrine of the separation of powers in the United States of America is quite different from the Australian case, hence my choice of comparison to the Australian doctrine.In America, the legislative, judicial and executive branches of government are very distinct from each other. This is to prevent the abuse of power, and hence the philosophy of separation of power was very crucial in the formulating of the constitution of United States(Hunter-Schulz, 2005).

The separation of power that is administered in America is closely associated to checks and balances system. Regarding the American legislative power, the congress is the branch of government that has sole power to do legislation duties.

the non-delegation doctrine does not allow the congress to give its responsibility of law making to any other branch of government. This is different from the Australian case where the law makers are part of the executive. 

The executive branch in the USA is conferred, with qualifications and exceptions in the president. Section 2 of the American Constitution states that the President is the Commander in chief of the Navy and the Army, with a responsibility of appointing people into office and making treaties on behalf of the nation(Spindler, 2000). The president is also supposed to receive public Ministers and ambassadors with the Senate’s consent, and also make sure that the laws of the nation are executed faithfully.

This means the president is required by the constitution to enforce the laws personally, but through subordinates. The congress may terminate appointments done by the president and in addition, the president executes whatever that is given to him by congress(Spindler, 2000). From the above explanation, the American doctrine of separation of power is very clear between the executive that includes the president, and the legislature that includes the congress(Spindler, 2000). This is a completely different scenario in Australia where the constitution totally links the executive to the legislature. 

As seen in the American perspective, the executive is not part of the legislature as is the case in Australia. The duties of the two branches are completely distinct in the American phenomenon.

In addition, there is a lot of control of power in the American scenario since the ultimate objective of each branch of government is to check the power of the other branches(Hunter-Schulz, 2005). Even the president’s power is greatly checked by the congress since he is no supposed to do anything without the consent of the congress.in Australia, the political parties greatly determine the decisions of the executive since it is through parties that the executive members get into leadership. The power of the judicial branch of the American government is more or less similar to that of the Australian government. It has the power to interprete the law in addition to deciding cases.

the power of the judiciary is completely differentiated from the rest of the branches just like in the case of the Australia(Hunter-Schulz, 2005). 

In America, the executive is responsible of appointing the judges of the judges but under the consent of the senate. This is quite similar to the Australian judiciary where the judges are also selected by the executive. A case where an overlap of government branches of legislature and judiciary is in legislative courts formed by the Congress. On the contrary, there is no overlap because the legislative courts do not have a responsibility of exercising the judicial power. The work of the legislative court is the adjudication of questions regarding public rights.

It is clear that the American constitution has gone a long way in ensuring that one branch of the government does not delegate its duties to another branch of government as it may, at times, be the case of the legislative and executive branches of the Australian government. The big argument in the Australian separation of power regarding where power lies is not the case in the American phenomenon.

Equality of the executive, judiciary, and the legislature is what the constitution of America stipulates. 

Although in some cases, for instance, at the time when the republican government is in power, the legislature is usually dominates(Gerangelos, 2009). It is a shared view between America and Australia that historically, the judiciary has always been seen as the weakest branch as compared to the legislative and executive. The fact that the judges that work in the judiciary are selected by another branch, which is the executive, proves that the judiciary may be weaker than the other two branches(Greenfeld, 2012). It is safe to conclude that the doctrine of separation of powers in the Australian system is quite different from the American system due to the difference in the system of governance.

The judiciary in both scenarios has its seclusion from the other two branches although at the end of the day it may be portrayed as the weakest of the three government branches.

References

1. Carney, G. (2000). Separation Of Powers In The Westminster System. Australasian Study Of Parliament Group, 1-8. Gerangelos, P.

   (2009).

2. The Separation Of Powers And Legislative Interference In Judicial Process. Constitutional Principles And Limitations, 862-865.
3. Greenfeld, M. (2012). The Asymmetry Of The Separation Of Powers.

   The Western Australian

4. Jurist, 233-245. Hunter-Schulz, T. (2005). 
5. Rule of law, separation of powers and judicial decision making in Australia. The National Legal Eagle, 1-6. Spindler, G.

   (2000).

6. Separation of Powers: Doctrine and Practice. Retrieved May 6, 2014, from Parliament of New South Wales: https://www.parliament.nsw.gov.au/prod/parlment/publications.nsf/key/SeparationofPowers

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