PRINCIPLE 3: SEPARATION OF POWERS
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.
What is the Separation of Powers?
Checks and balances on the people in our institutions of government means none of them have too much power. The first three chapters of our Constitution outline the powers for our Parliament (the Legislature), our Government (the Executive) and our Courts (the Judiciary).
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.
Chief Justice Kiefel, Case: Graham v Minister for Immigration (2017)
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