The Concept of Separation of Powers in Australia
Discuss about the Federal and State Constitutional Law.
The real political and constitutional power in Australia is vested not in the Prime Minister, Cabinet or Parliament, but in unelected officials, such as judges and the Governor-General.
Australia has a written constitution that has derived the concept of separation of powers from the UK, which delegates responsibilities between the legislature, judiciary and executive. The Parliament is vested with legislative power and is the supreme source of law, which may develop any law it considers as necessary subjected to the restraints conferred upon it by the Constitution. The executive is responsible to implement the laws passed by the Parliament, judiciary is responsible for adjudicating the laws enforced, and to ensure it is consistent with the constitutional provisions. The executive power of the Commonwealth is vested in the Queen but the power is exercised by the Governor-General who is required to a act on the advice of the cabinet. Although the executive is required to act as per the law, but the extent to which courts have become the institutions of the society, construing, recognizing, and even enforcing the law, it can be said that judiciary is playing significant role in exercising the political as well as the constitutional power.
In this research essay, the doctrine of separation of powers shall be explained to understand the separate statutory roles delegated to the three branches of the government. The three branches of law are obligated to act independently without interfering with the roles played by one another. However, the research paper aims at explaining that though the constitution has vested the political powers upon the elected officials comprising the prime minister and cabinet, but in reality, the non-elected officials that is, the judges and the governor general are exercising the political and constitutional powers within the country.
The fundamental concepts of Australian constitutions include the rule of law, parliamentary sovereignty, and bicameralism, separation of powers, constitutional interpretation and federalism doctrine. The rule of law requires that law must comprise consistent and transparent rules as well as procedures rather than being an outcome of random decision-making, which usually takes place in a modern dictatorship and monarchy. The concept of separation of powers forms a crucial part of the Australian constitution, which safeguards the rule of law and liberties. The rule of law also requires that law is equally applicable to the government as well as to all ensuring independence of the judiciary from sectional and political influence. The rationale of separating the powers is to ensure that the rights of an individual to a fair and impartial justice leading to fair administration of justice are secured.
The Role of Elected Officials and Unelected Officials
The separation of judiciary from the political influence is necessary to prevent concentration of power, which may otherwise be detrimental to liberty. To ensure the checks and balances, the Constitution has stipulated that the federal judicial power must not exercise executive or federal legislative powers. The constitution sets out that federal judicial power shall be exercised by the courts (Federal courts, High Court and state courts) who shall only exercise judicial powers subject to certain exception when it may exercise non-judicial powers as well as was established in the New south Wales v Commonwealth  (Wheat’s case).
Since the ‘judicial power’ of the Commonwealth, judiciary has not been defined precisely but the characteristics can be identified through some case laws. In Huddart Parker v Moorhead , the judiciary powers include determining of controversies relating to subjects, sovereign where such decisions become binding upon the concerned parties. The case of Brandy v HREOC  and Federal Commissioner of Taxation v Munro  HCA 58 established another characteristic of commonwealth judiciary that the decisions are enforceable. The judicial powers of Commonwealth courts also encompass the right to determine cases pertaining to rights and duties including those that are of administrative nature as was established in Luton v Lessels . Judicial functions include powers vested in a deciding body. Some of the functions include the right to construe law; to determine and hear complaints; to determine guilt and punish offenders; to enforce compliance and punish for court’s contempt. The Luton’s case states that the characteristics of the courts are merely indicative and not decisively judicial.
In regards to the constitutional powers being exercised by the courts, several disputes have arose where legislation has conferred certain non-judicial powers or functions on the courts. This is evident from the power conferred upon the courts to issue control orders in order to detain a person to prevent a potential terrorist attack in the future as was observed in Thomas v Mowbray  HCA 33. The judges are also conferred with the power to issue ‘search warrant’ or relevant non-judicial orders against concerned parties which have often given rise to debates whether it amounts to judicial or administrative orders. However, presently the issuance of search warrant and similar order is perceived as judicial order.
In Thomas’s case, there have been several debates regarding the issue of control order to detain a person as it was not clear whether such issue of control order amounted to administrative or judicial function. It was argued that it did not amount to any legal dispute or breach that the court had to issue such order, which primarily is a function of the executive. Further, industrial courts are conferred with powers to exercise their discretion in respect of administrative sectors, which establishes that the courts were empowered to exercise non-judicial powers as well. This was evident from the decision in R v Spicer  where the industrial court disallowed the implementation of industrial rules without any application for the same but by suo motto.
The Fundamental Concepts of Australian Constitution
In Thomas’s case, courts have made pre-emptive orders such as curfew, fingerprinting, report to police and disallowing communication with Osama and others and issued control orders to detain him. Thomas contended that these functions were non-judicial and are executive in nature. However, the decision stated that judges are allowed to make decisions based on reasonability and potential outcomes, which includes bail, intervention orders etc.
Further, as exception to the separation of powers doctrine, the courts may delegate certain judicial power to the non-judges as this forms a significant part of the court. In Harris v Caladine  HCA 9, the family court had delegated duties to registrars. For instance, court may delegate some decision making powers to the non-judges in cases where they are only required to make consent orders or where the case does not need to real adjudication. However, the decisions given by the non-judges are subjected to appeal and review by judges as was established in Rola Company Australia P/L v Commonwealth  69 CLR 185. Furthermore, though the Military Tribunals (Court Martial) are not courts that are stipulated under Chapter III, but establishments of courts under the defense, are empowered under section [51(vi)] of the Constitution to deal with military discipline with military framework as was held in R v Cox  HCA 18.
The doctrine of separation of powers have empowered the courts and the judges to adjudicate the legal statutes assed by the parliament and enforced by the executive, which implies that the judiciary is responsible for discharging judicial actions. This principle was established in the Brandy’s case and courts mentioned in Chapter III may not exercise non-judicial powers as was observed in the Ex parte Boilermakers' Society of Australia  case. In the Boilmaker’s case, it was held that non-judicial power cannot be conferred upon courts mentioned under Chapter III of the Commonwealth. Nevertheless, Ch III of the Commonwealth Constitution vests federal judicial power on the state courts.
On the other hand, there is an exception to this rule and judges are authorized to perform non-judicial functions in their personal capacity in the form of a ‘designated person’ or ‘persona designata’. This rule of exception was established in the case of Hilton v Wells . In this case, the issue arose was whether the Federal Court judges are empowered to act on an application given by the executive in order to assist in criminal investigations.
Judiciary as an Institution for Exercising Political Power
The decision held that judges are empowered to act independently even though not as a judge of the Federal Judge but as a designated person. The judges were designated as competent and qualified individuals, hence, the vesting of non-judicial powers in judges was held to be valid with certain limitations. In Grollo v Palmer  184 CLR 348, the exception to the persona designate were highlighted which stated that the judges are entitled to exercise non-judicial power provided such power is compatible with the primary job of the judge that is exercising of judicial power. Secondly, the judge must give consent to undertake the responsibility and such exercising of non-judicial functions must not affect his uprightness and competence to carry out his judicial actions as a judge. It must be determined whether such non-judicial function involves exercise of discretion on political grounds or requires performance in a judicial manner. This is because if it involves exercise of political discretion, the function is incompatible with the role played by judiciary.
Initially, the doctrine of separation of judicial power was not stipulated in the Constitution that was applicable to state courts until it was established in the case of City of Collingwood v State of Victoria (No. 2) . Prior to the case law, state parliaments often conferred non-judicial actions upon the state courts. However, although the Ch III vested federal judicial powers on the state courts but High Court overturned this principle in numerous cases. The overturning of the decision was given for the first time in Kable v Director of Public Prosecutions (NSW) . In this case, a NSW Act conferred upon the Supreme Court to detain Greg Kable if the court was satisfied that he was likely to commit a serious act of violence. Even after his conviction, the NSW legislation empowered the NSWSC to detain Kable, which gave rise to the issue whether power of NSW court to preventive detention amounted to violation of separation of federal judicial power. The High Court held that the decision to impose preventive detention was administrative nature as it was related to potential commission of future crimes, which does not amount to a judicial process.
The NSW legislation was held to be incompatible with the Federal judicial power of the NSW Supreme Court to exercise such non-judicial power. The fact that state courts are vested with federal jurisdiction itself is a part of federal judicial system. Therefore, the state courts exercising non-judicial powers are a contravention of the federal constitutional separation of judicial power as was stipulated in the Boilmaker’s case. Further, in International Finance Trust Company Limited v New South Wales Crime Commission  HCA 49, the NSWSC passed an ex parte property seizure orders on an application made by NSW Crime commission as per NSW legislation. It was held that the provisions of the statute were invalid as it denied procedural fairness, which is detrimental and contrary to the institutional integrity of the Supreme Court. It further adversely affects the ability of the courts to exercise its Federal jurisdiction.
The Characteristics of Commonwealth Judiciary Powers
In regards to the exercise of political role by the Governor-General, it is important to understand the role of the Governor-General. The governor-general is representative of the Queen who acts on behalf of the Queen on the advice of the minister and in compliance with the Constitution. The Queen appoints the Governor-general on the advice of the Prime Minister. Nevertheless, the original executive power is vested in the Queen and the Constitutional provisions bind the Crown. The governor-general merely exercises such executive power being the representative of the Queen. The dismissal of the Prime Minister in 1975 is evident of the fact that the supreme power to exercise the Constitutional powers vests with the Queen. In 1975, the GG dismissed PM Gough Whitlam on the ground of not being able to pass the budget in the Senate.
This is evident from the fact that the executive power of the Commonwealth is vested in the Queen and is generally exercised by the Governor-General under section 61 of the Constitution. However, the Governor-General is empowered to exercise powers that are not in accordance to the ministerial advice and the appointment as well as dismissal of prime minister is such powers. The prime minister may be dismissed on grounds of unlawful conduct or loss of confidence of the Parliament. These powers are known as the reserve powers. Further, the governor general carries out all the functions that are otherwise performed by the head of the state without any reference made to the Queen although he is the representative of the Queen and not the agent or delegate. Furthermore, the republicans demanded that the head of the state is a Queen and not an Australian, hence, the head of the state should be a Australian citizen. In response to such republican campaign, the governor-general in 2004 has stated that the Queen shall remain as the head of the state but the Governor-general shall carry out all the function of the Queen on her behalf.
From the above discussion, it can be inferred that with the incorporation of the separation of powers within the Australian Constitution, the judiciary has always maintained its independency by exercising judicial powers. However, with the establishment of the exception rule of “persona designata”, the courts have been empowered to exercise non-judicial powers but the rule is confined to certain limitations as well. The judges must give their consent to perform such non-judicial actions and such actions must be compatible with the actions of the courts that it must not affect the capacity of the courts to exercise their judicial powers. Further, the courts are empowered use their discretionary powers in respect of any political decisions as it shall affect the institutional integrity of the court. The separation of judicial powers is integral to gain public confidence in courts and is fundamental to institutional integrity of the courts that are vested with federal jurisdiction. Thus, any court that is vested with non-judicial functions amounts to interference with such principles.
On the contrary, the Governor-General who acts as the representative of the Queen is an unelected official unlike the prime minster and the other cabinet minister. However, since the governor-general exercises the power vested in the Queen, which is mostly executive power, it would not be completely incorrect to state that the executive power is indirectly vested in the Governor-general. This also demonstrates the interrelation between legislature and the executive, given that mostly, the governor-general acts on the advice of the cabinet ministers and the Prime Minister. The Governor-General is responsible to safeguard the Constitution and facilitate the work of Commonwealth government and Parliament.
Therefore, it can be stated that The Australian Constitution has incorporated the separation of powers doctrine, which ensures that the legislature executive and judiciary acts independently without any interference in each other’s conduct. However, in Australia, even though judicial independence is strictly maintained but legislature does not act independently from the executive as the ministers of government are required to be members of the Parliament under section 64 of the Constitution as well.
Brandy v HREOC  HCA 10, 183 CLR 245
City of Collingwood v State of Victoria (No. 2)  1 VR 652
Ex parte Boilermakers' Society of Australia (1956) 94 CLR 254
Federal Commissioner of Taxation v Munro  HCA 58
Grollo v Palmer  184 CLR 348
Harris v Caladine  HCA 9,
Hilton v Wells  HCA 16 - 157 CLR 57; 58 ALR 245
Huddart Parker v Moorhead  HCA 36 8, CLR 330
International Finance Trust Company Limited v New South Wales Crime Commission  HCA 49. 240 CLR 319; 84 ALJR 31; 261 ALR 220
Kable v Director of Public Prosecutions (NSW) (1997) 189 CLR 51
Luton v Lessels  165 CLR 462
New south Wales v Commonwealth  20 CLR 54
R v Cox  HCA 18 - 71 CLR 1
R v Spicer  SCC 3,  1 S.C.R. 11
Rola Company Australia P/L v Commonwealth  69 CLR 185
Thomas v Mowbray  HCA 33
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