1.1. Understanding the concept of the separation of power doctrine
1.2. Thesis Statement: The doctrine of separation of power in the Australian legal system has been compromised over the years. However, it is also evident that Australia upholds the critical components that protect individual rights and liberties from the excesses of the government.
1.3. Significance of separation of power
2.1. Absolute separation of power
2.2. Important principles of separation of power
2.3. Exercising judicial power by Chapter III courts
2.3.1. Role of state courts
2.3.2. Role of federal courts
2.4. Exercise of non-judicial power by federal courts
2.4.1. Provision under s71
2.4.2. Exception to the principle
- Military tribunals
- Exercising of quasi-judicial functions
- The role of Parliament under s49
- Constitutional requirements
- Significance of the separation of power doctrine
- Asymmetrical nature of the Australian model
- The role of the High Court
Separation of Power in the Australian Legal System
The separation of power is an important doctrine in law as it ensures that each arm of the government executes its mandate independently and without interference from the other arms (O’Donoghue, 2014). In essence, the separation of power ensures the three arms of the government remain distinct and perform their works without encroaching upon each other. The doctrine of separation of power in the Australian legal system has been compromised over the years. However, it is also evident that Australia upholds the critical components that protect individual rights and liberties from the excesses of the government.
In constitutionalism, the doctrine of separation of power is a critical principle in law. The Australian Constitution sets out the separation of power between the three arms of the government, including the judiciary, the legislature, and the executive (O’Donoghue, 2014). The doctrine holds that each arm of the government should perform its functions without interference from the other arms (French, 2009). However, the Australian government has an asymmetrical application of the principle of separation of power. According to O’Donoghue (2014), there is a lack of separation of power between the Australian legislature and the executive. In the Australian framework, the executive is in charge of the legislature, and the ministers form part of the government as well as the legislature (Lee, 2011). Moreover, the legislature confers power and delegates legislation to the executive arm of the government. Therefore, the mode of application of the doctrine in Australia is that the judiciary is completely separate from the executive and the legislature.
According to Lee (2011), there are important aspects of the separation of power that are entrenched in the Australian Constitution. Firstly, the Australian Constitution vests judicial power on a Chapter III Court. Secondly, a Chapter III court does not exercise non-judicial power. Chapter III courts within the Australian legal framework include the High Court of Australia as well as any other court that might be created by the Parliament (O’Donoghue, 2014). For a court to be considered a Chapter III court, it justices must enjoy a life tenure, besides, the courts must exercise a function.
The main question in this essay is whether there is an absolute separation of power in the Australian legal system. As noted above, the important tenets of the separation of power, as outlined in Chapter III, is that the Chapter III courts should not have non-judicial power (Lee, 2011). In addition, the federal judicial power is only available in a Chapter III court. Therefore, if there is a violation of these principles, then there is a clear breach of the doctrine of separation of power. If Chapter III courts exercise non-judicial power, then there is a clear violation of the separation of power (Lee, 2011). According to the principle of Judicial Independence, a judiciary that executes administration activities negates its independence. The federal and state courts have an important role to play in ensuring the rule of law is followed at all times (Campbell, Lee, and Campbell, 2013).
Judicial power has attracted many definitions. However, there are clear features that indicate a court is exercising judicial power (Campbell, Lee, and Campbell, 2013). For example, in exercising judicial power, a court should focus on settling disputes, determination of individual rights and liberties and ensuring a conclusion is reached on the matter under deliberation. However, if a Chapter III court executes functions that are non-judicial in nature, it will essentially be violating the separation of power doctrine. In addition, the court would be in breach of the Constitutional (Aroney et al, 2015).
Australian states lack explicit separation of power in their Constitutions (French, 2009). However, the Australian Legal system allows state courts to exercise federal power because they form part of the federal courts (French, 2009). Kable (1996) held that state courts with federal judicial power should not be given non-judicial power by the Parliament.
On the other hand, federal courts have maintained a strict separation of power doctrine. However, some exceptions have enabled Chapter III courts to exercise non-judicial power (Bannister, 2015). In Queen Victoria Memorial Hospital v Thornton (1953), the High Court held that the exercise of judicial power was an acceptable use of judicial power by a Chapter III court (French, 2009). In addition, the High Court has argued that superior courts are eligible to use non-judicial power to provide rules of procedure to govern conduct (Lee, 2011). Lastly, the Commonwealth Parliament can vest non-judicial functions to a justice of Chapter III court if such a function is conferred on them in their individual capacity, and not as judges.
Secondly, the federal judicial power is a preserve of courts established under Chapter III. If a Chapter III court exercises such power, then there is a clear violation of the doctrine of separation of power (French, 2009). Section 71 of the Australian Constitution, allows only Chapter III courts to have federal jurisdiction (Bannister, 2015). In other words, only the High court, the federal courts and other courts identified by the Parliament can exercise judicial power. The aim of this provision is to ensure separation of exercising of judicial power from non-judicial power. The important feature of Chapter III courts is that they exercise independent and impartial judicial power. However, if the functions of a court were non-judicial, giving such a court judicial power would be invalid. In New South Wales v Commonwealth (1915), the High Court argued that only Chapter III court was eligible to exercise federal judicial power. The Court found that the creation of Interstate Commission was invalid because the Judges had only 7-year tenure (Bannister, 2015). Ion addition, the High Court has held that vesting the Arbitration Court with judicial power goes against the Constitution. In R v Kirby, Ex parte Boilermakers’ Society of Australia (1956) the High Court held that only a Chapter III court could exercise judicial power.
In spite of such rulings, there are some exceptions to this principle. The Australian Federal Parliament can vest military tribunals with judicial power, even though such tribunals are not part of the Chapter III courts (Re Tracey; Ex parte Ryan, 1989). The reasoning is that military tribunals do not exercise the judicial power of the Commonwealth. In Harris v Caladine (1991), the High Court held that courts could still exercise some minor functions that are administrative in nature. Although such functions are quasi-judicial in nature, they are valid because they are subject to judicial review (French, 2009). Lastly, under s49 of the Constitution, both houses of Parliament can establish if there has been contempt of Parliament (Bannister, 2015). The section gives Parliament the power to oversee its mandate as well as the power to deal with individuals who might hinder Parliament from executing its mandate.
In conclusion, the separation of power is a well-established doctrine in the Australian Constitution. Separation of power is a critical doctrine because it provides enough safeguards against the excesses of the government of the day. As noted in this discussion, it is clear that the separation of power ensures that each arm of the government undertakes its functions without interference from other state organs. However, the application of the doctrine in the Australian legal framework is asymmetrical in favour of the legislature and the executive. On the other hand, the judiciary continues to maintain its distinctive feature compared to the other arms of the government, although it is also compromised at the state level. In spite of this, the High Court has continued to provide leadership by protecting the separation of power from government interference. Although there have been some compromises at the state level, the High Court has shown the way by ensuring the doctrine is protected from any encroachments by the government. Such a move has been critical in protecting individual rights and liberties as is evidenced by the decisions made by the High Court. Most importantly, the Australian Constitution provides a clear guideline on the separation of power.
Aroney, N. et al. (2015). The Constitution of the Commonwealth of Australia. Cambridge: Cambridge University Press.
Bannister, J. et al. (2015). Government accountability. Cambridge: Cambridge University Press.
Campbell, E., Lee, H.P., and Campbell, M. E. (2013). The Australian judiciary. Cambridge: Cambridge University Press.
French, R. (2009). Executive toys: Judges and non-judicial functions. Journal of Judicial Administration 19 (5), 6
Harris v Caladine (1991) 172 CLR 84
Kable v Director of Public Prosecutions (NSW) (1996) 189 CLR 51
New South Wales v Commonwealth (Wheat Case) (1915) 20 CLR 54.
O’Donoghue, A. (2014). Constitutionalism in Global Constitutionalisation. Cambridge: Cambridge University Press.
Queen Victoria Memorial Hospital v Thornton (1953) 87 CLR 144
R v Kirby; Ex parte Boilermakers’ Society of Australia (1956) 94 CLR 254
Re Tracey; Ex parte Ryan (1989) 166 CLR 518