Clark's Chapter 4: Separation of Powers and Judicial Powers

N.B - Summary currently only covers pages 83 – 96 inclusive

A Summary.

One of the key assumptions of the Australian constitution order is that the concentration of public power in a few hands is thought to be a bad thing. The solution lay; it was said, in separating the various powers of government by putting them into separate institutions and by preventing the aggregation of governmental functions into the hands of a single person.
There are two approaches to this theory of the separation of powers:

1 - Involves looking at the three branches of government and seeing whether they are exercised by separate branches of government.
2 - Looks at the personnel of each brand to consider whether or not he personnel overlap with those in the other branches.

History

The formulation of a doctrine of a separation of powers appears to have emerged in the second half of the 17th century. Throughout the 17th and 18th century there was concern of the possibilities of abuse of power. It was assumed that men were ambitious, inclined to greed and were the subject of unbridle passions and appetites.
The modern view of power is that the government is not the enemy of the people and that most officials actually obey the law and operate within its limits the majority of the time. However, that is not to say they all do, since the evidence shows quite clearly they do not.
But there is no presumption in favour of the view that powers will be abused by officials. The possibility that power may be abused is not a reason for restricting a power given by statute.

Locke

Some writers have contended that the English political philosopher John Locke was a major writer on the separation of powers. In particular his work, Second Treatise on Government. He considers the three powers of the Commonwealth and notes the dangers of human frailty were the executive and legislative powers to be in the same hands. Locke, in fact, does not explain how the executive power and the federative power (power to enter international agreements, conduct wars etc) are to be separated in practice but he is emphatic that they must be placed in the hands of distinct persons. Locke says very little on judicial power. Though his work is historically important, Locke’s writings have had little impact on contemporary judicial thinking on the question of the separation of powers.

Montesquieu

Most often referred to as the principle writer on separation of powers. While he thought that the executive should check the legislature he did not think the legislature should check the executive. One clear feature about his writing is that he says very little about the separation of judicial from the other branches of government. His writing proved to have a continuing influence, though in a muted way, in Australia, namely being citied in numerous cases.

Position in Commonwealth constitutional law

HCA has discerned, as necessary inference from the structure of the Commonwealth Constitution, a doctrine of the separation of the judicial power (s71) from the executive (s61) and the legislature (s1) of the Commonwealth. There are a various bases for this doctrine:

• Secure the legitimacy of the judicial branch by preserving its reputation for impartiality and non-partisanship.
• Role of the judicial branch is to provide checks and balances on the exercise of the power of the respective organs of government
• Guarantees liberty by preventing the concentration of power in a few hands
• Secures the independence of the judges who are enabled to make decisions without fear of executive or legislative retaliation.

Position in the States

History

At first, the government of the Australian colonies ignored the notion of separation of powers completely. In certain fundamental respects, prior to responsible government in the 1850s, the system of governance was based upon the concentration of powers. The judges sat on the Executive Council which also doubled as the legislature.
Another departure from the principles of the separation of powers is in the SA Court of Appeal created by legislation in 1855-56, consisting of the Governor presiding with the members of the Executive Council except the Attorney-General who was presumably appearing before the court. This institution heard cases, although not many of them, and was abolished in 1935.

The avoidance of the multiple holding of parliamentary seats

At federation many of the early ministers in the first Commonwealth Parliaments were, formerly, senior colonial politicians in each of their home colonies. With the creation of the federal system steps were taken to prevent dual membership of both State and Commonwealth parliaments, further diffusing legislative power.
The present position is that a person may not be a member of both parliaments simultaneously. Similarly, in the case of jurisdictions with a bicameral parliament, a person cannot be a member of both Houses at the one time.

Partial separation of executive and legislative power

Australia has never adopted the principle that the executive and legislative branches should be separate from each other. There is a legal and political requirement in Australia that ministers are themselves members of parliament.

Substantive separation of judicial and legislative power

The real role of the doctrine of the separation of powers in Australia stresses the separation of judicial personnel and functions from the functions and personnel of the other two branches of government. However, there is not a complete separation in Australia because the judges of the State Supreme Courts do in fact make subordinate and delegated legislation, namely the Rules of the Supreme Court and of the District or Country Court. There role in making subordinate legislation is strictly limited to this, however.
Historically judges have had and continue to have a role in the formation of new parliaments. After an election, the Governor normally appoints as commissioners the Chief Justice or another judge of the Supreme Court to swear in the new members of parliament. The administration of an oath to the new members, it is suggested, does not offend against the separation of powers.

Separation of judicial and executive power

As a general principle, judges cannot be members of the political executive. The more difficult question is whether judges might undertake tasks that could be characterised as administrative or executive in nature. None of this seems to be Constitutionally objectionable since ‘…so far as their constitutions are concerned the States have no need to distinguish between the judicial and administrative functions, at least in relation to the identity and status of the person authorised to perform them’.