The doctrine of separation of powers, the cornerstone of the Australian government since the enactment of the constitution, has both a storied and tumultuous history. The notion was first presented by Aristotle, who in his writing noted the distinct roles that a liberal government has. Developed and refined by Montesquieu and Locke, the doctrine evolved to encompass the idea that governmental power should be divided between different branches.
In the 1700s, Montesquieu suggested in De l'esprit des lois that political liberty could only be found where there is no abuse of power, and that to prevent such abuses, there must be checks and balances regarding governmental power . His writings advocate the separation of powers as a form of protection against despotism and absolute power. He identified three distinct arms of the government – the legislative, the executive and the judicial. Additionally, the doctrine states that each branch should engage in some form of scrutiny over the others, to ensure the allocated powers aren’t being exceeded or misused.
Constitutional Protection
The modern and adapted view of Montesquieu separations of powers is supported in the Australia Constitution Act (‘the Constitution’). The founders of our nation during the development of the Constitution considered two main forms of government – the British Westminster system of responsible government and the American Federalism, with a hybrid system being settled upon. The Constitution reflects Montesquieu’s theory through Chapters I (the legislature), II (the executive) and III (the judiciary) respectively.
At a commonwealth level, the High Court of Australia has shaped and defined how the doctrine operates , which is based on their interpretation of t...
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...ng element of the doctrine at the state level is that the High Court has not established a precedent yet on what is unconstitutional.
The separation of powers doctrine is entrenched in the Constitution, acting as a force to protect individual rights and liberties. It provides checks and balances on the ensuring that each arm of government remains separate and distinct from each other. In Australia, the legislative and executive arms aren’t required to have such strict separation under the responsible government concept. However the main principle of the separation of powers doctrine (under the responsible government doctrine) is that the judiciary remain completely independent from the other two arms of government. The judiciary’s independence has been protected at both levels of government by the High Court, with its interpretation of the Australian constitution.
The milestone judicial decision in Cole v Whitfield pronounced a pivotal moment in Australian jurisprudence in relation to the interpretation of s92 of the Australian constitution. This essay will critically analyse the constitutional interpretation approach utilised in Cole v Whitfield. This method will be compared with the interpretational methods exemplified in Commonwealth v Australian Capital Territory. Although within these two cases there appears to be a preference towards a particular interpretational method, each mode has both strengths and weaknesses. Accordingly, the merit of each should be employed in conjunction with one another, where the court deems fit, complementing each other. This may provide a holistic approach to interpreting the constitution.
Separation of powers means what it says. Power id distributed among the three branches of government: the executive branch, the legislative branch, and the judicial branch. In Document B of the DBQ Packet, James Madison quotes, “’the accumulation of all powers, legislative, executive, and judiciary, in the same hands… may be justly pronounced the very definition of tyranny…. (L)iberty requires that the three great departments should be separate and distinct.’” In other words, if one person or group owns too much power in a government, then they are considered a tyrant, whether the person (or group) who gained the power was elected into power, born into it, or declared themselves ruler. If the government was not divided into three branches and was only a single department, then too much power would be granted to that government, defying Madison’s ideals of a tyranny-free country. With the government split into different departments, each branch owns its own set of powers. The legislative branch creates laws, the executive branch administers the laws, and the judicial branch interprets laws. Separation of powers guards against tyranny because it helps prevent the development of a branch of government that may ratify, carry out, and portray laws as they wish. Power is distributed among branches ensuring that all offices play a role in the United States’
Nowadays, the Australian legal system has three powers, which are legislative, executive and judicial. Legislative power is in charge of making the laws; subsequently those laws will be passed to the executive power to administer the laws it...
Montesquieu states “government should be set up so that no man need be afraid of another”. From this doctrine American Political Philosophers derived the separation of powers into the Executive, Judicial, and Legislative branches. Montesquieu’s presentation of the branches of government were adopted into American political documents upon their creation. The idea that there wasn’t one governing body, but three was unheard of. Most occupants of the new “America” came from England a country ruled by a King. Therefore making it a Monarchy where a single family is seen as divine and ordained by God to be the ruler over that country. The power is passed down generation to generation and each firstborn son is then placed in power after his father. So, the idea of having a government that does not just depend on one family, but many different persons to run it was not a common philosophy. But, the writers of the Constitution and the Bill of Rights thought that this would be a new and honorable way to run their fledgling country. So thus, the Democratic Republic of the United States was born. Designating the three branches with their own roles in society guaranteed that no one branch would have more power that the others, but it would just have different powers. The three branches are like a triangle. They balance eachother out and support each
Cases on the foundations of a constitutional order, such as parliamentary sovereignty, tend to be rare in any event. But what makes R (Jackson) v. Attorney General [2005] U.K.HL. 56; [2006] 1 A.C. 262 a significant case, is the dicta regarding constitutional issues mentioned by the judges in relation to parliamentary sovereignty. The discussions of the central issues in the case are in many ways constitutionally orthodox, treating the primary concerns as that of statutory interpretation and adopting a literal interpretation of the 1911 Act. By contrast, the discussion of the wider issues suggest that the judiciary may have support for what could be classed as unorthodox opinions on the doctrine of parliamentary sovereignty. The concept of parliamentary sovereignty is to be considered as a mere ideology in the eyes of the legislature, as the modern day practical sovereign parliament is far from that of the theory.
Our Constitution establishes three branches of government and defines their very existence. The reason for the three branches is to separate the powers. The phrase “separation of powers” isn’t in the constitution, but it best explains the intention of the Constitution. It is essential that the assignment of lawmaking, enforcing and interpreting be spread out among the separated powers to ensure that all power doesn’t fall into the lap of one group, or even a power-hungry individual. The powers of which I’m speaking that were intentionally separated by way of the Constitution are the Legislative Branch, Executive Branch and finally, the Judicial Branch.
9. Woodgate, R., Black, A., Biggs, J., Owens, D. (2003). Legal Studies for Queensland, Volume 1, ForthEdition, Legal Eagle Publications: Queensland. 10. Woodgate, R., Black, A., Biggs, J., Owens, D. (2003).
As a whole, the separation of powers remains to be a vital part in our government system today. As society has grown and developed throughout the years, the government system has grown with it and adjusted to today’s issues and problems. The government, while it serves as a superior leader for our country, remains to be a service to the people, and has creates a voice for all people to have. It allows everyone to be acknowledged and equal, no matter the
The principle of separation of powers is laid out in Articles I, II, and III, in effort to avoid tyranny. It is a part of a system called check and balances. The check and balances play the roles of the three branches of government. This system was made so that no one branch will over power the other. The three branches come together and help one another by being independent of the other. The legislative branch consists of the Congress, the judicial branch consists of the courts, and the executive branch consists of the president. For an example, when a bill is in progress and the chief executive (president or governor) does not approve of it, he can reject legislation and return it to the legislature with reasons for the rejection. This is a process called veto power.
The decision for Australia to adopt the Federal system was on the principle of which the State’s governments wanted to keep their power. For this reason there was the separation of powers between the newly formed Commonwealth government and the existing State governments. At a constitutional level, there are rulings in which the powers are separated, these rulings due to disputes have slightly changed since 1901. These changes all fell towards the one government, the Commonwealth (Federal) government. However this was not just a landslide event, the Constitution of Australia set up this imbalance of powers between the Commonwealth and State governments. We will explore this further in the points discussed later in this essay.
... a very strong separation between Executive and Legislature, and the Judiciary – Members of Parliament and Government ministers cannot sit in the Judiciary and interpret the law. There is not, however, such a strict separation between the Executive and the Legislature, as the Executive sits in Parliament as well.
One of the features of the Australian constitution is that is it structured in a way that theoretically reflects the rule of law. This is reflected through the ‘separation of powers’ doctrine, which is assumed to be a fair structure of government. Its principles suggest that power does not lie with one branch of government, but is spread out amongst three (legislative, executive and judicial).
This exercises the idea of independence within ‘different functions of government’; it is represented by the legislature, the executive and the judiciary. Separating the three prevents a dangerous occurrence where power is entirely centralized in one group.... ... middle of paper ... ... Carl F. Stychin and Linda Mulcahy, Legal Methods and Systems, (4th edn, Sweet & Maxwell 2010).
One of the biggest threats to a thriving country is a tyrannical government. To prevent this, the Founders declared that the power of the government must be separated. This principle, the Separation of Powers, states that, to prevent tyranny, one governmental branch cannot have supremacy over the country. The power must be divided among three branches. These are the executive, judicial, and legislative branches. The Separation of Powers is of equal importance now as when the Constitution was written because it prevents tyranny.
Lisa Webley and Harriet Samuels defined the separation of powers as a theory or doctrine that describes the way in which a state organises the distribution of power and function between its different parties. The separation of powers is divided into three branches which are the executive, legislative and Judiciary.