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. Show 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
Exceptions to the principleAustralia 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-GeneralSection 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 governmentThe 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. HistoryThe 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.
The judiciary is one of the three arms of government, along with parliament and the executive. The judiciary is independent of the other two arms of government. This independence is one of the most vital safeguards of a democracy and is underpinned by the rule of law. The rule of law is the system where everyone is equal under the law and all persons are subject to the rule of law. Everyone is entitled to have an action heard by an independent and impartial court or tribunal. A judiciary which exists merely to do a government's bidding or to implement government policy provides no guarantee of liberty. Members of the judiciary are bound by their oath and affirmation "to do right to all manner of people according to the laws and usages of the State without fear or favour, affection or ill will". Security of tenure is an important part of judicial independence so that governments cannot influence the decisions of a judge. A judge is appointed until the age of 70, and cannot be removed from office except by the Governor following an address from both houses of parliament - the Legislative Assembly and the Legislative Council. Judges are appointed by the Governor on the recommendation of cabinet. The Chief Justice is closely consulted during the process. Parliament's function is to enact laws. The courts are bound by statute (laws made by parliament) and by decisions made in previous cases (precedent). The courts also pronounce law in those areas where parliament has not legislated. The power of the court to pronounce law is called upon only where the authority of a statute or previous case law is lacking. Under the constitution, parliament is supreme. Parliament can change the law in any way it chooses. The executive is constituted by the Governor General (Australia) or the Governor (State), who represents the crown, the government of the day and the public service. The role of the executive is to administer the laws enacted by parliament.
Last updated: 1-Mar-2019 [ back to top ]
We provide advice to government on issues about the federal courts. These include: The power to make laws in Australia is divided between the executive, the parliament and the judiciary. This is known as the separation of powers doctrine and is an essential feature of the Australian system of government. Under Australia’s Constitution, our judiciary is independent from the other arms of government. The separation of powers doctrine means that in interpreting and applying the law, judicial officers act independently and without interference from the parliament or the executive. The constitutional guarantees of tenure and remuneration assist in securing judicial independence. Federal judicial officers are appointed by the government of the day and cannot be removed from office except on the grounds of proved misbehavior or incapacity. The remuneration of judicial officers cannot be reduced while the judge holds office. Chapter III of the Constitution establishes the High Court of Australia and empowers parliament to create other federal courts and to vest federal judicial power in state and territory courts. There are 3 principal federal courts: The High Court of Australia is the highest court and the final court of appeal in Australia It hears matters involving a dispute about the meaning of the Constitution, as well as final appeals in civil and criminal matters from all courts in Australia. The Federal Court of Australia hears matters on a range of different subject matter including: It also hears appeals from decisions (except family law decisions) of the Federal Circuit Court. The Federal Circuit and Family Court of Australia (FCFCOA) commenced operation on 1 September 2021. It compromises 2 divisions: All federal family law matters will be filed in Division 2 and then, if required, will progress to Division 1. Division 1 retains jurisdiction to hear family law appeals and all Division 1 judges are able to hear appeals as either a single judge or as part of a Full Court. The FCFCOA sits in each state and territory except Western Australia, where family law matters are heard by a state court: the Family Court of Western Australia. State and territory courtsEach state and territory has their own laws and court system. State and territory courts fall within the responsibilities of the relevant state or territory Attorney‑General or Minister for Justice. |