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Discuss the doctrine of separation of powers. Do you think that the separation of powers in Australia is sufficient? In your essay you should:


1. Make arguments as to whether separation of powers in Australia is sufficient – is there enough separation, is there too much, or is it just right? And why?

2. Give a little thought to political court appointments – are they a problem in Australia? What about the US? Should the judiciary be able to appoint judges by itself?

3. Give examples of how and where Australian law, at a state or federal level, has departed from separation of powers, with a particular focus on Chapter III of the Australian Constitution, laws interfering with courts, and institutional integrity of the courts.

4. Make arguments as to whether or not separation of powers should be able to be restricted in certain circumstances, if at all, and if so - how much and why?
You can and should (but don’t have to) use case law and the Australian Constitution. You may also use examples from international jurisdictions such as the United States and Canada (or others) if they are persuasive. But remember to focus on Australian jurisprudence.
 

Distribution of Power: Parliament, Executive, Judiciary

Separation of powers is a constitutional law doctrine under which, there is separation maintained in all the three branches of government i.e. Legislative, Executive and Judicial branches. This doctrine is also known as the method of maintaining equilibrium because every particular branch is provided with certain powers in order to maintain equilibrium among all other branches of government. Each group of government has separate powers and is not permitted to implement the powers of other groups. The Executive Branch is related to the implementation of executive power, the Legislative Branch workout congressional power, and the Judicial Branch workout judicial review. The Doctrine of Separation of Powers was suggested by Montesquieu, even though the thought of separating the legislative power into continuous legislative power, discontinuous legislative power, and federative power, was initially proposed by John Locke. In 1787, the USA incorporated this principle into its constitution. It was proposed by Montesquieu as basic principle that single person should not be a part of more than one of the branches of the government, which meant that Ministers are not required to be elected.

The Constitution of Australia constitutes a set of rules through which the governance of the country operates smoothly. The first three chapters in the Constitution of Australia describe the three separate branches i.e. the Parliament, the Executive and the Judiciary along with their significant roles in the domination of Australia. The authority to create and supervise federal law is distributed among the above mentioned three groups and the division is on the basis of the doctrine of the ‘separation of powers’.This essay discusses about the extent of separation of powers in Australia and whether it is sufficient or not. The political court appointment is also discussed in comparison with the US. It is also discussed where Australian law has departed from separation of powers, with a particular focus on Chapter III of the Australian Constitution, along with laws interfering with courts, and institutional integrity of the courts and whether or not separation of powers should be able to be restricted in certain circumstances and if so to how much extent.

Considering the principle of ‘separation of powers’, there should be a distribution in the power to govern between all three groups in order to avoid all the powers in hands of any of the group. In this context, The Parliament creates and makes changes in the law and is also considered as Legislature, which constitutes the Queen as represented by the Governor General, the Senate and the House of Representatives. The Executive group of the government keeps the law into action  and it also constitutes the Queen as represented by the Governor General, Prime Minister and ministers. The Judiciary takes judgments related to the law and it constitutes the High Court and other federal courts. 

Exceptions to the Principle


There are certain exceptions to the principle because of which Australia does not have total separation of powers. The reason behind this is the overlapping of certain roles of the Parliament, the Executive and the Judiciary such as the Prime Minister and ministers are an integral part of the Executive as well as the Parliament. Similarly, the Prime Minister and ministers as well as the High Court judges are formally chosen by the Governor General, who is associated with the Parliament as well as the Executive. It has been mentioned in the Section 61 of the Constitution that the executive powers of the Commonwealth is in the hands of the Queen and are implemented by the Governor General being the spokesperson of the Queen. It is evident that the Governor General has been provided with specific powers to act in the best interests of the Queen. Furthermore, the part of the Governor General is not only demarcated by the Constitution but also by the customs and traditions. In actual, the executive powers are implemented by the Governor General on the guidance of the Prime Minister and ministers, who holds the responsibility to govern Australia.There is another principle that goes along with the theory of separation of powers and it is known as responsible government. It provides guidance regarding formation and management of law. The responsible government refers to a party or alliance of parties that uphold the support of the majority members of the House of Representatives to persist in the government. It acts as another test on the Executive and ensures they continue to be answerable to the Parliament and do not misuse their authorities.

The separation of powers is a principle that focuses on controlling and delimiting public law but, the rules derived from this principle are significant protectors of personal liberty as well. Predominantly, in Australia, because of no constitutional bill of rights, the separation of powers guarantees rights and immunities, either expresses or implied. Actually, the High Court can enforce trial in case of absence of one party that influences the capacity of the judges to offer explanations for their judgment, or efforts by the executive to order judicial decisions. There are perturbing exceptions as well such as the Court has permitted laws to allow the executive to detain individuals for an indefinite period without any judicial order, laws that necessitate courts to grant anticipatory detention orders against individuals, laws that authorizes the government to depend on the information that has not been provided to other parties to the lawsuit, and laws that order compulsory prison term for specific crimes. It is the reason why, number of people consider that the separation of judicial power is not an alternate for all-inclusive constitutional rights protection such as bill of rights.

Role of Separation of Powers in Protecting Personal Liberty

In Australia, there is no evident separation of powers between the Parliament and the Executive branch. However, the independent authority of the courts has always been strongly sheltered and to a certain extent, it has been facilitated by the safeguard of Federal Judicial Power in Chapter III of the Constitution that has assisted to protect the courts specifically Federal Courts from violations by the Legislative and Executive branches of government. The protections mentioned in Chapter III are an evidence of the largely acknowledged proposal that autonomous judiciary is an essential element of the rule of law as well as a basic requirement of a secure and functional democracy. It will develop confidence in the community that the judiciary will be fair and impartial. However, in present-day society, independence of Judiciary from the Executive is significant because a number of legal conflicts put citizens in opposition to the government which include criminal issues, tax disputes, environmental issues, various administrative decision making challenges and such others. Similarly, the necessity to maintain confidence of community in the judiciary is another essential aspect for the autonomy of Judiciary.To ensure judiciary to have a significant role in maintenance of the separation of powers, it is essential that the courts have the institutional facilities as well as capabilities essential to perform their judicial functions. To be independent from impartial or improper influence is significant but there should be confidence in the community that the courts have the efficiency to support their rights and benefits if illegally violated by the Executive and other components of government and are liable for legal decisions. If the community considers the courts as fair but helpless, or might be undermined by other branches of the government, the significant role of self-sufficient judiciary in supporting the rule of law is also compromised. It is the support and confidence of the community for the judiciary that protect the courts from the intrusions by other branches of government. In other sense, confidence of community in judiciary is an objective as well as a significant constituent in maintaining the separation of powers.

However, it is fundamental to understand why independence is essential in order to be able to appropriately evaluate when separation of powers becomes a concern. The reality of separation of powers in Australia is not that the courts function completely independent of the Executive and Parliament. The function of the courts is to apply the law formed by Parliament. If the constitutional decisions are kept aside, if the parliamentary democracy is not satisfied with the decision of a court, they have the rights to bring in new legislation in order to avert similar result in future. Nowadays, it is in the discretion of the courts to separately and impartially determine the purpose of Parliament instead of being supportive to the ministers or something like that. 

Protection of the Independence of Judiciary


The Executive has the liability and authority to employ judges and to eliminate a judge for misbehavior or inability or attended by both the houses of Parliament. However, the authority of removal has rarely been utilized in the past in Australia as well as no appointments have been politicized.Another aspect is that the courts are not self-funding establishments and are thus dependent on the Executive for financial support. However, the trend to institute user pays system by the governments is increasing and the courts provide unusual context in favor of such a pays system as there is no control of the courts on revenue generation and management. There was a time when judges used to have highest salaries by selling the right to clerks and court officers by taking a portion of their fees for granting writs and various other procedures. This does not happen in the present scenario but, the Chief Justice still have the rights to sell the prime offices. Presently, courts struggle on the basis of excellence and competence of their services; they are still entirely dependent on the Executive for financial support. These entire factors exhibit how there is always an element of fiction to a certain extent, in the concept of strict separation of powers. The most critical risk to the separation of powers is the growing tendencies among the governments to consider the courts and judges as public service providers, which weakens the actuality and insight of the organizational liberty as well as ability of the courts and pressurizes the judiciary to prioritize efficiency over other aspects which are equally significant for fair resolution of the disputes. For example, the associations between the NSW Executive and the Judiciary is in critical situation because regarding all the major issues in the last few years, the Executive has shown readiness to consult that has allowed the Supreme Court to confirm that the court cost have been kept at reasonably controllable levels and the influence of competence bonus have also been decreased. In NSW, the Department of Attorney General and Justice provide funds to the courts which are referred to as the justice cluster. There are huge numbers of people in the branch associated with the management of courts who are not lawyers. There are some courts that seem to consider separation of powers as a way to protect them from the constrictions of public funding or inspection. Such an approach could lead to demands usually associated to the competence and answerability and which might be discordant with the separation of powers. As a result, it develops tension between the judiciary and the executive and might infrequently develop into total opposition.

Challenges to the Separation of Powers

It is evident now that the separation of powers is fundamental to the democracy and is also important for protecting the citizens from power abuse by the government. It has been partially attained by the rule of law, self-governing judiciary, and legislative or constitutional security of public rights. The proper separation of state power supports the rule of law, which leads to assurance of protection of liberty and freedom of individuals. The doctrine is well recognized at central level but, it has a slight impact at the level of state government in Australia. However, the Commonwealth Constitution emphasizes on the separation of powers between all three branches of government, after federation, it has prioritized the States and still continues to do so. The separation of powers in Australia is in line with the Constitution of USA that has also commenced the separation of powers under which the legislative power is made functional by Congress i.e. Parliament (Article I, section 1); the executive power is made functional by the President (Article II, section 1); and the judicial power is made functional by the Supreme Court (Article III, section 1).

There is no official but an implied separation of powers at the State level in Australia. In the past, there had been absence of constitutional separation of powers at the level of State Government in Australia along with Queensland. The government of Queensland had control over the Parliament but, its answerability has been restricted because of two factors. The first factor was the abolition of the Legislative Council in 1922 as the overall implementation of the separation of powers would require re-introduction of upper house in Queensland, which has adopted a unicameral system, wherein, the legislature is under strict control of the Executive as compared to the bicameral parliamentary system. The second factor was that it had certainly not developed an efficient parliamentary committee in order to reconsider the existing government. The fundamental role of the parliamentary committee is to protect the interests of public and the parliamentary system of government in Queensland is known to be as the customized version of Westminster system that does not support entire separation of the legislature and the executive powers. There is no separation of judicial and legislative powers in the New South Wales, Victorian and Queensland constitution. Thus, when there is no constitutional barrier for the State Parliament Legislature to infringe exercising the judicial power, an appeal could be made to the High Court at Commonwealth level to rule against the State Parliament as well as its legislation. The Supreme Court or the Court of Appeal of Queensland has not so far lined expressly on the matter of doctrine of separation of powers but would most probably follow the standard set by other states. In Queensland, following the Australian version of the Westminster Parliamentary System, there is lack of complete separation of powers because the executive is a fraction of the legislature and is responsible towards the legislature. Not similar to the Constitution of Australia, the Constitution Acts of Queensland do not provide expressly that Ministers of the Crown are required to be elected members of the parliament. Above it, Queensland is also a part of the confederation and the High Court of Australia has overridden the authority of state in few areas considering the constitutional authorities of the federal government. Furthermore, the legislative power of Queensland within the confederation of Australia has been restricted by the decisions of the High Court of Australia. The independence of judiciary as well as its significant function in judicial review of the legislation of government and other activities is required to be well-established constitutionally. The function of the Supreme Court and the Court of Appeal is considered as the final regarding the constitutional matters of the State as well as civil rights of people of Queensland unless it is in conflict with the powers of Commonwealth in which the decisions of the High Court are prevalent.

Judiciary's Role in Maintaining Separation of Powers

All three branches need not to interrupt in the functioning of each other but interruptions continue. The Commonwealth justices have to perform their duties till their retirement age i.e. 70 years of permanent tenure, of which they have security and are independent from the executive under section 72 Commonwealth of Australia Constitution Act 1900. However, the executive can opt for judicial substitution and makes the selection authorized and can also eliminate justices from office. The Governor General in Council has the right to remove justices after being attended by both the houses of the Parliament and elimination can take place only on the basis of proven misbehaviour or incapacity under section 72. For example, the executive interference in the judiciary at the level of Commonwealth was proved in the case of High Court Justice Lionel Murphy. It was in 1984 when the Senate selected committees to enquire about the behaviour of Murphy J regarding the allegations of misrepresenting the path of justice. However, justices are selected officially by the Governor General, they are selected by Cabinet. The Attorney General generally takes advice regarding the appropriateness of the selected people from the member ministers, from State Bar Associations, and from State Attorneys General.

In order to improve the contribution towards the doctrine of separation of powers, it is essential to entirely establish and uphold the separation of powers at the State level, for which, Australian States are required to establish the separation of powers in its State Constitutions in order to rise above the supple characteristic of its State Constitutions. The independent arrangement of State Supreme Courts in order to check the constitutional status of the State executive decisions as well as the legislation is required to be highly entrenched into the State Constitutions. It is essential to re-establish the parliamentary inspection of the executive decisions by Parliament to review and approve the senior judicial appointments with the guidance of its parliamentary committee system. There should be a formal process of nominations by the solicitors and barristers, then a panel of judges to review senior judicial appointments by the process of screening or short listing, and then, the Parliamentary committees should approve senior judicial appointments. With a system such as Queensland with unicameral parliament, weak committee system meeting infrequently and where the executive controls the sittings and resourcing of parliament as well as the courts, they are to be provided with the powers to appoint judges and sack them only after extensive parliamentary reform that has taken place. There are necessary reforms of the parliamentary system and there should be more independence for parliament itself. The re-introduction of the upper house in Queensland is also essential and a panel of judges to monitor impending senior judicial appointments and making recommendations. There should be an official process of nominations from attorneys and barristers and parliamentary committee should review chosen nominees and all these phases should be completely open and accountable. 


The political court appointments are one of the significant processes of a nation’s politics. The political court appointments are also important because the supreme courts have enormous judicial powers that further leads to major consequences. This particular section will focus on the political court appointments of Australia and United States along with determining the problems associated with the same. According to the quotes of James J. Spigelman in the study of Faiz (2016), judicial appointment does have any single model that is applied in all the judiciary systems. The author, however, states that the process of judicial appointment or the political court appointment is essential in the context of maintaining public confidence and a judicial independence. The process of political court appointment also influences the integrity, independence and impartiality of the judges.

According to the doctrine of Separation of power, the government institutions are divided into three major branches judicial, executive and legislative branches. In Australia, the Attorney General is responsible for recommending the appointments of judicial to the Government. The laws are made by the legislatures, executive is responsible for putting the laws in operations and judiciary is further responsible for interpreting the laws. The separation of power remains one of the cornerstones of the government. In Australia, the federal level and state level judges are appointed with less transparency and consultation. The appointment process also differentiates by the type of court and jurisdiction. The legislative branch in Australia plays a role of confirming the nominees for the courts. In simple terms, it can be indicated that that Australian government plays an important role in selecting the judges for the court.  In Australia, the Federal Attorney-General “consults” the state counterparts before naming a nominee for a high court according to the act of High Court of Australia Act 1979. The High court in Australia remains that superior court of record that consists of the six justices along with a Chief Justice. The Federal Attorney General in Australia has no obligation towards paying attention to states. The appointments in Australia undermine some of the important aspects such as the public confidence and independence of judges. The political courts appointments in Australia in essence are open to political influence rather than being the “merit only” appointments.

In Australia, the process of appointing a political court is associated with a number of issues. The overall analysis of political court appointments in Australia indicates that the process is informal and opaque.  The political court appointment process in Australia also becomes mysterious as the attorney-general has unlimited decision-making power for selecting the federal judiciary. A certain level of biasness is present in the process of appointment.  For example: the appointment of Ian Callinan, QC on the recommendations offered by John von Doussa.

According to the Clause 2 (Section 2) of the US Constitution’s article, the President in the US is responsible for nominating the judges for Supreme Court with the consent and advices of Senate. One of the important characteristics of the appointment process is that the consent and advice of Senate is important in the process of appointment. In practice, however, the advice of Senate is less important than the consent of Senate. The Senate plays its role only after the nominations of the individuals for the political court. The consultation for the position can be taken by President from anyone he/she prefers. The nominations are further followed by a “confirmation hearing” that includes voting regarding the confirmation of the nomination. The study conducted by Dancey;Nelson & Ringsmuth (2013) indicated that the questions in confirmation hearing in the US’s political court, appointments is more dependent on the political and institutional factors rather than the individual characteristics of nominees. Same as Australia’s political court appointment, the US also does not have any formal method for the appointment for the judicial posts. The consent and advices of Senate has a significant function in the selection process. In simple words, it can be indicated that appointment procedure of judicial officers in the US is more in hand of country’s politicians according to the constitution.  According to Bovend’Eert (2016) the judicial council might turn into a dangerous tool if it is given in hands of politicians.

The above discussion focuses on the appointment process of courts in the US and Australia. The process indicates that there are some major issues in the appointment process of both of Australia and the US courts. The court appointment process in Australia is informal and opaque and that of the US is informal. There are a number of best practices that can be implemented for improving the appointment process of judicial of the US and Australia. One of the most important practices can be using the judiciary for the appointment of judges themselves. One of the major advantages of this can be that the elements of politicization and biasness in the appointment process can be reduced. The judges will be appointed by the judiciary on the basis of their past experiences and the skills and abilities of the nominees. Further, this process might also help in reducing the opaqueness of the appointment process as only the judicial will be responsible for the appointment of judges. In order to use the judicial for the appointment of judges, an independent committee of judicial can be set up so that the committee can collectively make the decisions about the suitable candidate for the judicial position. In addition, in order to improve the appointment process in both the nations, focus should be on being transparent in each stage of appointment. Transparency can be ensured by information sharing with help of online and offline mediums.

Such an “accountable” appointment system should have three key attributes: 1. A nominating commission with diverse membership and appointing authorities, which will vet judicial candidates and create a shortlist of nominees; 2. Appointment by the governor from the commission’s shortlist; and 3. A transparent process, including data collection and ethics rules for commissioners.

Access to justice can be improved in various ways, for example, by providing general information about the length and costs of proceedings, by providing legal aid, the provision of judgments online, etc. Making the justice system more transparent is therefore just one of the ways to make justice more accessible and thus more effective. 


Section 61 of the Constitution is the precursor of the executive power of the Commonwealth. Discussing the characteristic of section 61 in Davis v The Commonwealth (1988), Mason CJ, Deane and Gaudron JJ stated that the extent of the executive power of the Commonwealth has been talked about but has never been defined. Section 61 states that the executive power of the Commonwealth is with the Queen and made functional by the Governor General being the delegate of Queen and also extends to the implementation and preservation of this Constitution as well as of the Commonwealth laws. The interpretation of section 61 is formed by two important but conflicting considerations. There is the realistic urgency of leaving executive government with sufficient powers as well as adequate executive judgment in order to conduct state affairs as they occur. On the other hand, the executive powers must not be so unrestricted in order to agree for the random action. The High Court has exhibited an enduring concern that alternative to the executive power might become a tool for the Commonwealth encroaching the rights as well as functions of the States. It was initially considered by the Court that section 61 authorized the implementation and preservation of the Constitution as well as of legislation sanctioned by Parliament. It has been stated by the Knox CJ and Gavan Duffy J in Commonwealth v Colonial Combing, Spinning & Weaving Co, that section 61 set the limits of the authority by declaring that it is up to the preservation of the Constitution and laws of the Commonwealth. The capacity of the Executive to get into contracts without the sanction of Parliament had been taken into consideration by the High Court in this case. The Court decided that the Executive could not involve into contracts without prior sanction of the Parliament. Excluding, any rights discussed by Parliament of the Commonwealth or by the regulations, the Executive of the Commonwealth did not have any authority to create or approve any of the agreement. Justice Isaacs stated that unless sanctioned by Commonwealth legislation, the Executive Government would have no authority to make any of the contracts. In Constitution Law of Australia, the attitude of the Court towards the ability of the Executive to involve in contracts isn’t in agreement with the New South Wales v Bardolph (1934), it was decided by the High Court that the Executive could reasonably get into a binding contract without parliamentary authorization. It has also been decided by the Justice Dixon that it is a job of the Executive not of the Parliament to get into contracts for the Crown and the advisers of the Crown are responsible politically to Parliament for making contracts.

In Commonwealth v Australian Commonwealth Shipping Board, the High Court had taken into consideration the competence of the Executive to get involved in business performance. It has been stated by the Court that Parliament only has a power as is specifically or by essential inference provided by the Constitution.It has been decided by the Court that Parliament and the Executive Government do not had Constitutional authority to establish a manufacturing business for profit purpose. The executive powers of the Commonwealth did not facilitate the Government to get involved in an action or else unnecessary in express terms by the Constitution.

Thus, it has been proved that the Executive in accordance to section 61 of the Constitution holds the authority to become involved in the treaties. However, in recent times, it has been considerably discussed if there should be limits on the Executive powers regarding it and the Parliament should have significant role in the process of treaty creation. The reason behind it was found to be the prerogative power in the form of treaty making authority and prerogative powers are dependent on management by law.

Conclusion

 After analysing the sufficiency of separation of powers among all three branches of government in Australia, it can only be stated that complete separation is not possible as all are precursors to each other and no one of them could function alone without the support of the other branch. The extent of separation is sufficient and more or less than it will create imbalance of powers between the three branches. 

References

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