What is the difference between the division of powers and the separation of powers in australia

Australian Parliament House. Source: JJ Harrison

Inhaltsverzeichnis Show

Separation of roles
Exceptions to the principle
The role of the Governor-General
Responsible government

The Separation of Powers in the Constitution divides the institutions of government into three groups. These are the Legislature, the Executive and the Judiciary. The legislature is better known as the Parliament, which debates and makes laws. The Executive Government, which we usually refer to as ‘the government’, recommends new laws and puts them to the Parliament. The Judiciary applies and interprets the law.

French philosopher Montesquieu said the King’s power must be limited

Every person with power is apt to abuse it. To prevent this, power should be a check to power. When the legislative and executive powers are the same person there can be no liberty. The monarch might enact tyrannical laws and execute them in a tyrannical manner.
(paraphrased)

What is the Separation of Powers?

Checks and balances on the people in our institutions of government mean none of them have too much power. The first three chapters of our give legislative power to Parliament, executive power to the Government and judicial power to the courts.

What are the rules for each branch of government?

The Parliament debates and makes laws that everyone in Australia must follow. The Executive Government implements laws once passed. Courts apply and interpret the law.

How do the three branches of government restrain each other?

If the Government recommends a law unacceptable to Parliament, Parliament can refuse to pass it. If an unconstitutional law is made by the Parliament the Court can invalidate it. The Court can only rule on matters allowed by law or the Constitution.

The separation of powers protects us

Sometimes the Government is frustrated when Parliament does not pass legislation. And occasionally people complain about the Court striking down unconstitutional laws. But the system was deliberately designed this way to protect us from an abuse of power.

Click here to download a PDF of Principle 3: Separation of powers in detail

Click here to read about the Separation of Powers High Court Case - Parliament cannot make laws to keep evidence from the High Court

The Constitution and Division of Powers:

The constitution provides for the allocation of law making powers to the Commonwealth Parliament. Here it sets out what is referred to as the division of powers. The division of powers refers to the separation or allocation of law making powers to Commonwealth and the States determined at the time of federation .

The division of powers incorporates four sections:

Specific powers : These are law making powers that were given to the Commonwealth to make laws. They are enumerated (listed one by one) under Section 51 & 52 of the Constitution. These law making powers are given to the Commonwealth to make laws for 'peace, order and good government of Australia'. Some examples of these law making powers include fisheries, lighthouses and immigration.

Exclusive powers: Within the specific set of law making powers given to the Commonwealth as discussed above, a number of these are exclusive. Exclusive powers are ones that only the Commonwealth can make laws for and the States cannot. These include areas of national concern such as immigration, defence and currency. These law making powers are part of specific powers but they are considered and termed differently because the states are excluded from legislating on them.

Concurrent powers: Within the set of law making powers given to the Commonwealth as discussed above, a number of these law making powers are also non exclusive and as such are shared with the states. These are known as concurrent powers because both the Commonwealth and the States have the authority to legislate in these areas. These areas are marriage, divorce and bankruptcy. However it is important to acknowledge here that if States made a law that conflicted with Commonwealth's laws, S109 within the Constitution states that Commonwealth's laws will always override that of the states.

Residual powers: These law making powers are not found within the Australian constitution. At the time of federation, colonies wanted to retain some of their law making powers and not completely give up their legislative authority to the Commonwealth. As such, they retained a set of law making powers that each state can legislate based on the need of their states. These areas of law making include education, criminal laws and health. e.g. in Victoria we have the VCE as oppose to HSC.

How to write about the DOP collectively: The division of powers refers to the allocation of law making powers between the Commonwealth and the States. Within this structure there are four division. Specific powers are enumerated in the Constitution and are given to the Commonwealth to make laws for the 'peace, order and good government' of Australia. These include postal, fisheries and lighthouses. Within Specific powers certain powers are exclusive. Exclusive powers refer to a set of law making powers only the Commonwealth can legislate on which include immigration, currency and defence. Concurrent powers are law making powers shared between the Commonwealth and the States these include marriage, divorce and bankruptcy. Finally residual powers are not found in the Constitution and are left over to the States. These include criminal law, education and health.

The principle of the separation of powers distributes the power to govern between the Parliament, the Executive and the Judiciary. This fact sheet examines the role of each group and the related principle of responsible government.

The Australian Constitution is the set of rules by which Australia is run. The first 3 chapters of the Constitution define 3 mostly separate groups—the Parliament, the Executive and the Judiciary—and the roles they play in the governing of Australia. The power to make and manage Australian law is divided between these 3 groups. This division is based on the principle of the 'separation of powers'.

Under this principle, the power to govern should be distributed between the Parliament, the Executive and the Judiciary to avoid any group having all the power. Each group should work within defined areas of responsibility to keep a check on the actions of the others.

Separation of roles


Parliament	The Parliament makes and amends the law	Parliament (also referred to as the Legislature) is made up of the King (represented by the Governor-General), the Senate and the House of Representatives
Executive	The Executive puts the law into action	The Executive is made up of the King (represented by the Governor-General), Prime Minister and ministers
Judiciary	The Judiciary makes judgements about the law	The Judiciary is made up of the High Court of Australia and other federal courts

Exceptions to the principle

Australia does not have a complete separation of powers because some of the roles of the Parliament, the Executive and the Judiciary overlap. For example, the Prime Minister and ministers are part of the Executive and the Parliament. High Court judges, the Prime Minister and ministers are officially appointed by the Governor-General, who is part of the Parliament and the Executive.

The role of the Governor-General

Section 61 of the Constitution states that ‘the executive power of the Commonwealth is vested in the Queen and is exercisable by the Governor-General as the Queen’s representative’. (Covering clause 2 says that the ‘Queen’s’ powers extend to her heirs.) This means that the Governor-General has been given certain powers to act on behalf of the King. The role of the Governor-General is not just defined by the Constitution; it is also defined by custom and tradition.

While executive power is exercised by the Governor-General, in reality this is normally done on the advice of the Prime Minister and ministers, who have day-to-day responsibility for governing Australia. The Governor-General does not have the authority to make decisions on behalf of the government, but has a role in both the government and the Parliament.

Responsible government

The separation of powers works together with the principle of ‘responsible government’ to guide the way law is made and managed. Responsible government means that a party or coalition of parties must maintain the support of the majority of members of the House of Representatives in order to remain in government. This provides another check on the Executive, ensuring they are accountable to the Parliament and do not abuse their power.

History

The origins of the principle of the separation of powers can be traced back as far as ancient Greece. It was made popular by French philosopher Charles de Montesquieu in his book L'Esprit des Lois (the Spirit of the Laws) (1748). He wrote that a nation's freedom depended on the 3 powers of governance—legislative, executive and judicial—each having their own separate institution. Montesquieu’s ideas have since been widely used in the development of many democratic countries.

Parliamentary Education Office (peo.gov.au)

This diagram illustrates the separation of powers in the Australian system of government. The Parliament (represented by an icon of Australian Parliament House) has the power to make and change law. The Executive (represented by a group of people) has the power to put law into action. The Judiciary (represented by an icon of a scale) has the power to make judgements on law. The three groups—Parliament, Executive and Judiciary—are connected.