The doctrine of the separation of powers is one extending back hundreds of years. It is a doctrine, which has had a significant impact on the Australian constitutional system, and is consequently reflected within it. However, this essay argues that the doctrine has, to a degree, been tempered by the recognition of responsible government, despite its obvious reflection in the Cth Constitution. This essay will also discuss the separation of judicial power principles as part of the overall doctrine, and the significant impact it has on limiting and regulation the role of the judiciary. The issues of an elected judiciary and of parliamentary privilege will also be discussed. The doctrine of the separation of powers is reflected in the Australian constitution law systems to a significant degree. This essay will focus on the Cth Constitutional system primarily, as this is where the operation of the doctrine is very clear.
As stated, this doctrine is hundreds of years old. In the 1700s Montesquieu suggested that √ political liberty can only be found where there is no abuse of power, and that to prevent such abuses there must be checks on power. He identified three sorts of power in government: legislative, executive and judicial. He suggested that their separation was necessary because where powers are united in the same body there can be no liberty. Taking a more modern view in 1987, Phillips and Jackson recognised that in modern times the function of the executive has widened considerably. They suggested, as a deviation from Montesquieu’s stricter approach, that, “A complete separation of powers…with no overlapping or co-ordination would (even if theoretically possible) bring government to a standstill”. They suggest that the doctrines role is to prevent tyranny and to enable checks on power.
This is not my work. - ANU LAW STUDENTS SOCIETY.