SEPARATION OF POWERS IN THE AUSTRALIAN CONSTITUTION:

• Published date: 01 December 2017
• Date: 01 December 2017
• Author: Peter GERANGELOS BA, LLB (Sydney), LLM, PhD (University of New South Wales); formerly Principal Solicitor in the Office of the Australian Government Solicitor; Professor of Constitutional Law, The University of Sydney; Fellow of the Australian Academy of Law.

Themes and Reflections

The separation of powers is legally entrenched in the Constitution of the Commonwealth of Australia. It must, however, be accommodated with the principle of responsible government adapted to Australia's federal structure and which tends to the unification of the branches, not separation. Different consequences flow when comparing the separation of the “political” branches (executive and legislative) inter se, on the one hand, and their separation from the judicial branch on the other. How these subtle differences may prevent the application of a thorough-going separation of powers in Australia will be addressed, drawing lessons from the difficulties arising from the dual inheritance of American and British constitutional principles.

I. Introduction

1 This article will attempt to set out the particular constitutional principles and limitations which derive from the “public law doctrine” of the separation of powers legally entrenched in the Australian Constitution.1 It will also attempt to provide an appreciation of the Commonwealth of Australia as a jurisdiction which melds the essentially American doctrine of the separation of powers – in its legal entrenchment if not its philosophical origins – with the principle of responsible government that, along with Britain's other constitutional progeny, it has derived from the UK and has adapted to Australia's federal structure. The difficulty in achieving a workable accommodation arises from the opposing tendencies of each doctrine. Whereas responsible government tends to the unification of the branches of government subject to parliamentary supremacy, the separation of

powers tends to both an equality and separation of the branches. This is less problematic with respect to the judicial branch because the unifying tendency of responsible government affects more the relationship between the legislative and executive branches. Different consequences thus flow when comparing the separation of the “political” branches inter se, on the one hand, and their separation from the judicial branch on the other. How these subtle differences may prevent the application of a thorough-going separation of powers in Australia will be addressed. Moreover, there are aspects of the issues which thereby arise that have a more universal relevance for all jurisdictions which adopt a separation of powers: hence the comparative relevance of the observations which follow.

2 In Australia, the separation of powers doctrine is not expressly provided for in the Constitution but rather is regarded as being legally entrenched by implication. This implication derives from the separate vesting, in separate chapters, of the legislative, executive and judicial power of the Commonwealth respectively in the Parliament, the Executive Government and the federal courts provided for in ch III of the Constitution (“Chapter III courts”).2 The last-mentioned include the High Court, federal courts created by Parliament and also state courts in which Parliament vests federal jurisdiction.3 When interpreting the doctrine in order to identify and define principles governing inter-branch relationships, two related factors must be taken into account: first, the peculiarities of the particular branch power being considered; secondly, the extent to which other constitutional principles override, interfere with or affect the principles which may otherwise derive from the separation of powers. The latter was the very first point made by George Winterton in the leading Australian treatise on executive power, Parliament, the Executive and the Governor-General:4

The Australian Constitution embodies four great constitutional principles: representative government, federalism, the separation of powers and responsible government under the Crown. Representative government is common to all democratic polities, but the other three are not and, indeed, coexist in Australia in a state of uneasy equilibrium. [emphasis added]

3 This “uneasy equilibrium” stems from the fact that while the framers were familiar with, and generally adopted, Westminster principles of responsible government – which had already been applied in their respective colonies – they were also concerned with establishing

a federal commonwealth. Overlaid, therefore, with the dominant British principles of responsible government and parliamentary supremacy (government ministers being members of Parliament and to which they were accountable, maintaining the confidence of the lower house as a prerequisite to their ministerial position, and the Crown's representative acting only ministerial advice) was the federal model they adopted from the US. This model provided for a central government and legislature with enumerated powers, the balance to the states and a legal separation of powers; although with less obvious, and oft-implied, “checks and balances”. While parliamentary supremacy was tempered by its subjection to the Constitution – and hence, virtually axiomatically, to judicial review – responsible government, which tends to fusion and hierarchy with parliament supreme,5 could not be so easily accommodated with the separation of powers which tends to separation and branch equality. Because of these countervailing tendencies, a layer of complexity is added to the determination of the relevantly applicable separation-of-powers principles. How rigorously, therefore, may a court enforce the separation of powers where responsible government is similarly entrenched? As Winterton noted, “much of the uncertainty surrounding federal executive power in Australia stems from the contradictions inherent in the simultaneous operation of the British and American principles”.6 There are fewer difficulties with judicial power as it stands outside the relationship between the political branches inter se, and the High Court has been able to apply a more rigorous and clearly defined separation of judicial power, as will be seen below.

4 The status of the separation of powers as a constitutionally entrenched legal rule was not inevitable in Australia. It came about more by judicial interpretation of the structure of the Constitution than by any clear intention of the framers (which was either lacking or, at best, ambivalent)7 or express words in the text to that effect.8 Its emulation of the US Constitution,9 which separately vested government power in separate chapters, was also influential. Thus, the High Court in

R v Kirby, ex parte Boilermakers' Society of Australia10 (“Boilermakers'”) (endorsed by the Privy Council) held that from the Constitution could be implied a legal separation of powers. The separation of judicial power was applied very strictly. In addition to prohibiting the vesting of “the judicial power of the Commonwealth” (or power incidental thereto) in any body other than the courts for which ch III provides, it limited the power of these Chapter III courts to the exercise of this power alone: other powers, such as arbitral or administrative, was (and still is) constitutionally prohibited to them.11 If the reasoning in this case was applied more universally to separation-of-powers issues, the separation of legislative and executive power inter se, despite the countervailing influence of responsible government, must similarly be applied with rigour.

5 Yet, this strict application of the doctrine, especially its purist isolation of Chapter III courts from the potentially contaminating influences of the exercise of non-judicial power, has not been without its critics. In addition to the ambivalence of the framers and the countervailing influence of responsible government, previous High Court jurisprudence12 would suggest that the separation of powers ought to apply more according to the flexible British approach. Sensitivities relating to administrative efficiency were invoked to suggest a less rigorous approach, one which accommodated a fusion of legislative and executive power, albeit the former supreme, with a more rigorous separation of judicial power to ensure the courts' institutional independence, though not as rigorous as Boilermakers'. The high formalism of Boilermakers', impugned by its critics, is attributed to the strong influence of Sir Owen Dixon, both as puisne justice and Chief Justice, in his judicial and extrajudicial writings.13 Even in Boilermakers' itself, Williams J, referring to the Constitution's structure, stated in a most compelling dissent:14

But the Constitution could hardly have been conveniently framed otherwise when its purpose was to create a new statutory political entity. And with the model of the Constitution of the United States as a guide, its authors were almost bound to frame it in this way. But the

persons elected or appointed to exercise the legislative and executive powers are not kept separate or distinct. The position is exactly the contrary … [emphasis added]

6 Nevertheless, the assertion by Sir Owen that he could “discover no reason in the form or text of Australian constitution why the legal implications of the separation of powers should have been as full as they have been in the United States”15 has not resulted in High Court decisions which have given clear expression to such an assertion. On the contrary, the court has affirmed the subjection of the Executive to legislative control,16 and otherwise adopted a liberal, functional approach to issues relating to their separation.17 It is, however, a different matter when it comes to the separation of judicial power which will be considered first.

II. Separation of judicial power

7 Section 71 of the Constitution, within ch III, provides that “[t]he judicial power of the Commonwealth shall be vested in a Federal Supreme Court, to be called the High Court of Australia, and in such other federal courts as the Parliament creates, and in such other courts [including State courts] as it invests with federal jurisdiction”.18 Section 72...