Separation of Powers

Introduction

The decentralization of power is the only way to ensure proper checks and balances on those who are entrusted with the power to govern. This is the main reason we have the doctrine of separation of power. The doctrine of separation of power refers to a scenario whereby, there exist different arms of government, which are charged with different roles in government. World over this is an accepted form of governance. There are three arms of government, which are; the executive, the judiciary and the legislature. These arms of government have distinct functions and separated from each other so that; there is no interference at all. The executive comprises of the leader of the nation, the president and the ministers or secretaries who form the cabinet. The executive is charged with the responsibility of governing the nation. The judiciary on the other hand comprises of the courts. Its function is to administer justice in the nation. The judiciary also interprets the laws of the nation and the constitution as well. The legislature comprises of representatives of the people. The function of the legislature is draft legislation for the nation. As shown above, the three arms of government have their own distinct functions and are deemed to be equal, that is none is greater than the other.

Separation of powers

The Australian constitution clearly spells out the three levels of government. These are; the legislature, the executive and the judicature. The power to govern the country is vested in these three arms of government. In Australia, the executive comprises of the prime minister who is the leader of the country and ministers. The Australian parliament comprises of two houses, one is the house of representatives which is the lower house and the senate which is the upper house, the queen is also represented in parliament by the governor general. The judiciary on the other hand consists of the high court and other federal courts. Though there the constitution provides for separation of power between the three levels of government, ministers who are members of the executive sit in parliament.

This is in line with section 64 of the constitution that requires that ministers be appointed from parliament. This implies that if one is not elected to either lower or upper house, he or she is ineligible to be appointed as minister. This has more often than not resulted to the executive being slightly powerful than the legislature. Also some functions of the legislature have been taken up by the executive. Historically in Australia, the executive has always had a majority of members from parliament support it. This has reduced the legislature to play the level of a young brother to the executive. Given the high level of discipline in the parties coupled with the executive sitting in parliament, the checks and balances for the executive have weakened significantly.

Though the doctrine of separation of power in Australia is envisaged in the Australian constitution, the strict adherence of the doctrine is however not satisfactory not just from the point of view of people from other nations, but also the people of Australia. Separation of power in Australia is arguably the most contentious issue so far in the political arena. The question of where the power lies in the political system of Australia is largely unknown. This is all due to the little adherence accorded to the separation of power between the three levels of government.

The main obstacle to the complete separation of power in Australia is the constitution itself. Given that constitution provides for members of the executive sit in parliament, coupled with the fact that the judges of both the high court and other federal courts are appointed by a member of the legislature, that is the governor general, makes separation of power in Australia a pipe dream. This impasse can only be resolved through a complete overhaul of the constitution, or alteration of the legislation to ensure autonomy of the three levels of government from each other. At the moment as things stand the executive no doubt seems to have an upper hand in the affairs of the nation, with regard to influence and autonomy.

In Australia, the high court has played an instrumental role, with regard to the state of the separation of powers as we see it today. The separation of powers in Australia has been fundamentally shaped and defined by the High Court (Sawer 1961; Vile 1967; Finnis 1967). Initially Australia was torn apart on whether to adopt, the American model of separation of powers or the British model. Australia took up the British model eventually. The Australian Founding Fathers settled upon an amalgam of British responsible government and American federalism. The result has been described as 'a hybrid form of government' (Emy 1978: 181; Galligan 1995: 38), (Alvey. J, 2005).

At this point the courts took up the mantle to define the separation of powers. The courts in Australia have expanded their mandate, to include drafting of legislation in addition to interpreting the laws of the nation. As expected this step by the courts has sparked a storm as regards the doctrine of separation of powers. Drafting of laws is primarily the function of the legislature. So when the judiciary declares it will make laws in addition to interpreting, it obviously rubs a few feathers. This declaration has exposed the court to political and scholarly criticism and raised profound questions concerning the tension between a lawmaking judiciary and the doctrine of separation of powers. This theoretical tension creates immediate political implications (Alvey. J, 2005).

Doctrine of separation of power (federal government)

The doctrine of separation of powers with regard to federalism has been borrowed heavily from the United States constitution. At the state level in Australia, formal separation of power is non-existent. The constitution is silent as regards the powers to be exercised by the federal governments. This has seen the courts on numerous occasions disregard the authority of the state. The nature of separation of power that exists at the state level is simply implied. Even the authority to draft legislation in the state is curtailed by the courts. High Court has overruled the state's authority in certain areas through reference to the federal government's constitutional powers. Further, legislative authorities of states within the Australian federation have been limited by rulings of the High Court of Australia (Alvey. J, 2005).

However what is notable is the separation and appearance of the office premises of the three branches of government. The judiciary is headed by the chief justice, the legislature is headed by the speaker and the executive is led by the prime minister and the governor. All these three offices are occupied by different people at any given time. The aim is to implement the separation of powers. However this is just but an ideal set up all theoretical aspects that cannot be realizable in a practical sense. The executive is conspicuously present in parliament; the judiciary is adamant and drafts laws. This not only makes separation of powers difficult but also realistically unattainable, given the current set up of the Australian constitution.

The federal states in Australia have more often than not been subject to the scrutiny of the courts, effectively weakening the autonomy of the states significantly. The courts have deeply entrenched themselves to the affairs of the states, thus not allowing the states to exercise, the power accorded to them in an effective manner. However the problem is not the courts trying to control the federal states, rather, the problem lies squarely with the distribution of powers in the system of Australia. The distribution of the powers is largely unequal and has ended up concentrating power on some branches at the expense of other branches, with the legislature being the worst hit. Given the powerful nature of the executive, there is the increased tendency of the executive to impose on the other branches. This has severely affected the anticipated checks and balances on the executive. However it worth noting that, even though, the distribution of power is not done in a proper way, the Australian constitution recognizes the three branches of government and outlines their functions and how they should relate with each other.

The other issue on separation of power with regard to the federal government is the separation of judicial power at the state level. In the Australian system of separation of power, distinction is encouraged and emphasized. The courts advocate for zero interference with the judiciary, and in return the judiciary does not concern itself with the politics in any way. However the federal parliament is empowered to act as a court in some isolated incidences if they affect it directly. For instance a member of parliament, who acts in contempt of parliament, will face the federal parliament instead of the court. This is one of the incidences when the federal parliament can act as a court. However the power vested in the federal government to act as a court has seldom been exercised in the past.

The doctrine of separation of powers has no doubt revolutionized governance in the world, and Australia is no exception. The doctrine of separation of power exists almost in each country, whether it is monarchial or democratic. What differs from nation to nation as regard separation of power is the strength of the institutions that have been put in place. The strength of these institutions is primarily derived from the overall nature of distribution of power and the complete separation rather than partial separation of powers. In this century, many countries are clamoring to effect changes to their constitutions in order to strengthen their institutions. This is all an effort to enhance proper governance through accountability in those offices that are entrusted with power.

Lack of adequate separation of power, could have dire consequences to the nation as a whole. This is the main issue in Australia. The separation of power in Australia is not formal at the federal level. The powers exercised by the three branches overlap. This has considerably weakened the respective institutions of the Australian system of government. The fact that executive picks ministers from parliament coupled with the fact that judges are appointed by the governor general has ensured that the executive is powerful all round in the practical sense. Theoretically, the constitution deems the three branches to be equal; however that is not the case. What needs to be done in Australia is complete divorce of the three branches of government from each other to ensure distinct functions of the three levels of government without interference.

The doctrine of separation of powers is used to safeguard against misuse of power by those at the helm. World over I has been witnessed first-hand how inadequate distribution and separation of power can be detrimental. The tyrannical regimes in many countries especially in Asia and Africa all has to with improper separation of powers. In most of these countries, the executive is involved in all the three arms of government and Australia is no exception. For instance, the executive is solely responsible in appointing the judges to the courts. Due to the prerogative power accorded to the executive, he or she fills the powerful positions with his cronies. At the legislature, the executive is present as the majority in most cases. Given such a setup, the executive virtually controls all arms of government and hence making the power susceptible to misuse, thereby defeating the logic behind the doctrine of separation of powers.