Separation of powers in Australia

The doctrine of the separation of powers in Australia divides the institutions of government into three branches: legislative, executive and judicial. The legislature makes the laws; the executive put the laws into operation; and the judiciary interprets the laws. The doctrine of the separation of powers is often assumed to be one of the cornerstones of fair government. A strict separation of powers is not always evident in Australia; instead the Australian version of separation of powers combines the basic democratic concepts embedded in the Westminster system, the doctrine of "responsible government" and the United States version of the separation of powers. The issue of separation of powers in Australia has been a contentious one and continues to raise questions about where power lies in the Australian political system.

Although it is assumed that all the branches under the separation of powers do not overlap, for example like the US, there is sometimes a ‘common ground’ between all three levels. In Australia there is little separation between the executive and the legislature, with the executive required to be drawn from, and maintain the confidence of, the legislature. In Victorian Stevedoring & General Contracting Co Pty Ltd & Meakes v Dignan the High Court of Australia held that a strict division between these two levels was not practical and re-affirmed the Constitution to outline this (German, 2012).

The first three chapters of the Australian Constitution are headed respectively "The Parliament", "The Executive Government", and "The Judicature". Each of these chapters begins with a section by which the relevant "power of the Commonwealth" is "vested" in the appropriate persons or bodies. The historical context in which the Constitution was drafted suggests that these arrangements were intended to be connected with federal ideas along American lines.

On the other hand, the Constitution incorporates responsible government, in which the legislature and the executive are effectively united. This incorporation is reflected in sections 44, 62 and 64 of the Constitution.

Currently, there is no constitutional system where there is a complete separation of powers. The strict doctrine exists only in a theory – in reality, some overlap is inevitable, though a system of checks and balances has developed. In the Westminster system, ministers (executive) are required to sit in Parliament (legislative). This is to adhere with the concept of Responsible Government. This is also present in the Australian system, being a requirement of section 64 of the Constitution.

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