The relationship between the legislature, executive and judiciary

By Michael Kingsley Meek

This is an extract from Lawbook Company's Nutshell: The Australian Legal System  by Michael Meek (Sydney: LBC, 1999, 4th ed). LBC Nutshells are the essential revision tool: they provide a concise outline of the principles for each of the major subject areas within undergraduate law. Written in clear, straightforward language, the authors clearly explain the principles, and highlight key cases and legislative provisions for each subject. The doctrine of separation of powers One of the characteristics of many legal systems is the doctrine of separation of powers  which provides that the functions of the three arms of government should be carried out by separate bodies of people. Such a separation of the arms of government enables a check on the concentration of power in the hands of a few. The doctrine is associated with the French philosopher Montesquieu, and the clearest example of this is found in the American Constitution where the legislative power of the federation is vested in a Congress, the executive power is vested in the President, and the judicial power in the Supreme Court. With the exception of the Vice-President who ex-officio presides over the Senate, no member of one arm of government can be a member of another arm. Extent of the separation of powers In Australia the doctrine applies but to a limited extent. Strictly, the doctrine requires that all three arms of government should be separate. However, in Australia this is not possible as there are some overlaps between the legislative arm and executive arm. The Constitution in fact provides for a formal relationship between the executive and the parliament and the institution of representative and responsible government: Lange v Australian Broadcasting Corporation  (1997) HCA. For example, the Constitution requires that the Ministers of Government must be members of Parliament (s 64). What the doctrine has come to mean in Australia is that the judicial arm of government is to be kept separate from the non-judicial arms: Boilermakers'  case (1956) HCA. In that case, the High Court held that the judicial power of the Commonwealth could only be exercised by those classes of court set out in s 71 of the Constitution and not by a federal non-judicial tribunal. Moreover, a s 71 class of court could not exercise non-judicial powers. As a result of that case the Commonwealth Court of Conciliation and Arbitration which had been exercising both a non-judicial power (making an industrial award) and a judicial power (enforcing the award) was disbanded and two separate bodies, being the Australian Conciliation and Arbitration Commission (which had power to make awards) and the Industrial Court (which had power to interpret and enforce awards) were created. The Industrial Court was in 1976 replaced by the Industrial Division of the Federal Court. Over time, various changes have been made to the industrial jurisdiction of the Court. In 1994 an Industrial Relations Court of Australia was created, and jurisdiction in industrial matters given to that court. However, since 25 May 1997, jurisdiction in industrial matters was transferred back to the Federal Court. Although the Boilermakers'  doctrine has been criticised (R v Joske; Ex parte Australian Building Construction Employers & Builders' Labourers' Federation  (1974) HCA; R v Joske; Ex parte Shop Distributive Allied Employers' Association  (1976) HCA) it still remains: Brandy v Human Rights and Equal Opportunity Commission  (1995) HCA. What this means in practical terms is that if a federal tribunal such as the Australian Competition Tribunal purported to exercise judicial power, its decision could be held to be invalid. To be able to understand and apply the doctrine one needs to know the difference between a judicial power and non-judicial power. Judicial and non-judicial powers Very briefly, a judicial power  includes the hearing of a matter in dispute between parties and then declaring what the pre-existing rights of the parties are under the law. It includes the power to enforce that order and commit for contempt of that order. An example of a non-judicial power  is an arbitral power which, like a judicial power involves a hearing of a matter in dispute between parties but, unlike the latter, requires a decision or award as to what the future rights of the parties are to be. A judicial power is also to be distinguished from an administrative power , which may involve the consideration of policy matters and the creation of new rights and obligations: Precision Data Holdings Ltd v Wills  (1991) HCA. It is difficult to precisely define a judicial power, as there are many common ingredients with administrative and legislative power. Functions may be classified as judicial or administrative according to the way in which they are exercised: Re Ranger Uranium Mines  (1987) HCA. Accordingly, in practice, each case must be examined on its particular facts to determine whether the power is to be categorised as judicial or non-judicial. Consequences of the separation of powers Consequences of the doctrine of separation of powers include the following: It is impermissible for the legislature to direct the courts as to the manner and outcome of the exercise of their jurisdiction: Lim v Minister for Immigration Local Government & Ethnic Affairs  (1992) HCA. Judges are independent of the executive. Some observation on the conscription of judges for service on statutory tribunals subject to executive control are made in Lisafa HoldingsPty Ltd v Commissioner of Police  (1988) NSW CA. The doctrine also prevents the delegation of federal jurisdiction to persons who are not judges. However, the High Court or a Federal Court may delegate powers to registrars provided that the delegation: (a) is not such that judges can no longer be said to constitute the court,and (b) is not inconsistent with the obligation of the court to act judicially. The decision of the delegates must be subject to review by judges or appeal on questions of fact and law: Harris v Caldane  (1991) HCA. The doctrine does not however prevent the enactment of legislation which has the effect of changing for the future the law as previousl declared by a court: R v Tilley  (1991) SAFC. It is important to note that the separation of powers doctrine only applies to federal courts and tribunals, it does not apply to State courts and tribunals (unless they are exercising federal jurisdiction rather than State jurisdiction): Building Construction Employees & Builders' Labourers' Federation v Minister for Industrial Relations  (1986) NSW. 1999


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