Separation Of Powers In Australia Essay

The commonwealth of Australian Constitution Act (1900) sets out a type of separation of powers between the legislative power (section 1), executive power (section 61) and judicial power (section 71). The law making power is vested in the Federal Parliament, the executive power is vested in the Queen, whom is represented by the Governor-General, advised by the cabinet and the executive council. The judicial power is vested in the Federal Supreme Court, namely the High Court.

The commonwealth constitution allow the High Court to become the interpreter of the commonwealth constitution and to define the separation of power doctrine in the Australian government. The constitution defined the judiciary as a separation of judiciary power from the other powers. The High Court is given the power to maintain the rule of law and define the law-making means for both the legislature and the judiciary.

According to the constitution, the judiciary power is vested in the High Court, Federal courts and the state courts. No other body mentioned are allowed with judicial power, and is explicitly stated in the constitution. The High Court not only interpret the law, but also makes law.

The High Court had somehow justified the interpretation of the separation of law in two aspects. The first aspect is emphasized on the purpose of maintaining the

federal character of the commonwealth constitution. For the importance of the separated and independent judicial branch, and for the rule of law, nor interfered by the other powers. The second aspect indicates as part of the check-and-balance between the three branches, the protection of the individual liberty, and the security of judicial independence.
The adoption of the Westminster system blurs the separation of power between the legislative branch and the executive branch.

The Governor-General, appointed to represent the British Crown, appoints the Ministers to administer the State Departments. According to Section 64 of the constitution, the Ministers appointed are to sit in the Federal Parliaments. The Prime Minister of the government is elected from the House of Representatives. The law making power is also given to the executive, especially in the hands of the governor-general. It however, is not delegated enough power to legislate without restrictions, for example, imposing

taxes.
According to the Section 1 of the Constitution, the legislative power is exercised by the Federal Parliament composed of the Queen and the two Houses. The members of the executive also not only take part in making of law, but also in making of subordinate law, which is done by the delegation of legislative power by the Parliament. The executive power is but limited by the Federal constitution, so that it cannot overrule the state powers.
The separation of power among the three branches, to conclude, is fundamentally shaped and defined by the High Court. The rules of separation have been outlined by the High Court. It somehow gave priority to the separation of judicial power from the other two branches, but defined a partial separation between the executive and the legislative. The legislature can delegate powers without restriction, and the power includes the roles and functions of the Federal Parliament. Although the lower house is controlled by the Executive, the Senate and the parliamentary committees are there to remain as a check on the Executive. The executive branch is given the role and functions of the Governor-General, the Prime Minister and the Cabinet. The judiciary involves the rules and functions of the High Court Justices. The constitution had given the High Court a political role, as the branch can both interpret and make law. The Commonwealth Constitution is known to include the mixing of powers between the main institutions of the government.