The Australian Constitution And The Separation Of Power

Through the progression of history the need for the principles articulated in Engineers’ Case was both necessary and appropriate. Callinan J in Workchoices’ Case made

It is recognised that Australia’s System of decision making in the court is in need of reform, if the

Judicial independence is a concept of constitutional law that requires the judiciary o be kept away from all other arms of the government. It requires that the judiciary be free from influence from the other arms of the government and any private individuals. It is vital for the doctrine of separation of powers. Judicial accountability is a principle that brings the concept of keeping the judiciary under scrutiny. It requires that the judiciary and judicial officers be held accountable for their actions while in office (Seibert-Fohr & Muller 2012, p.10). This essay is aimed at discussing these two principles and assess whether the change in the Australian judicial appointments process would enhance judicial independence and judicial accountability with a view of making recommendations where changes are necessary.

An instrument in the Australian political system that produces a fair and democratic society is the Federal Constitution 1901 because it outlines the powers and constraints of the Australian political/legal system. The constitution creates a democratic and fair society because as Judge Murphy describes, it allows “an equal share of power”, this is evident through the division/separation of powers. Moreover, Gordon Reid and Martyn Forrest support Murphy’s claims regarding the constitution producing a fair society because it ‘uphold[s] the highest ideals of political representation’. The constitution protected rights regarding democracy in s 41,7 and 24, thus producing a democratic/fair society. However, in regards to values and ethics the constitution had failed to produce a democratic and fair society in the past, because suffrage was only granted to non-aboriginal men. This was due to the values and ethic of the time period, in which it was thought that aboriginals were not ‘citizens’ and women not qualified to vote.

Having made visits to the Supreme, District and the Local Courts, I was able to obtain a better understanding of the Australian adversarial system. This report will attempt to analyze the distinctions between the different types of courts through primary observations. The report will also assess the models of justice in operation, the triviality of the lower courts compared to the higher courts and assess court procedure in each court.

In order to know whether or not the Justice Knows No Walls Reform Act (“the Act”) can be constitutionally applied to the States. We need to consider if the Act will interfere or restrict the States power over prisons. In Queensland there is already a legislation that protects the rights of prisoners this is the Queensland Corrective Services Act 2006 (QCAct).

The concept of the separation of powers introduced in the American Constitution has been consistently praised throughout early academia as a check on the corruption and tyranny of the federal government. By distinguishing between state and national powers, policies are tailored to fit individual needs, and the personaliz+ed laws of each district collectively appeal to public interests. This statement, however, ignores the historical motives behind the separation of powers. In Slavery in the Structure of American Politics, Donald Robinson unveils the hidden background of American government that lies behind the nationalistic facade cultivated through education at the primary and secondary level. Compared to Hannah Arendt’s positive stance on the separation of powers in On Revolution, Robinson presents a more realistic analysis of the issue through the lenses of slavery and private interest.

Australia adopted its democratic system from both the Westminster and United States pre-established versions. The structure of separation of powers intends to delegate the power of the state to three branches in order to minimise the abuse of this power and ensure justice through its protection. The powers pertaining to each branch are mutually exclusive to each arm of government . The legislative branch, responsible for the drafting and establishing of laws, the executive, aimed at putting the laws into force and implementing them and the judiciary designed to interpret the laws, are evidence of the exclusivity of each branches function within the Australian government. The legislative

The doctrine of the separation of powers is an important principle in Constitutional law. The separation of the legislature is the power to make laws; the executive is the power to administer the laws; and the judiciary is the power to interpret and enforce laws that is constructed through the Commonwealth of Australia.

“The Australian Constitution was drafted at a series of constitutional conventions held in the 1890s. It was passed by the British Parliament as part of the Commonwealth of Australia Constitution Act 1900 and took effect on 1 January 1901. The Constitution is the legal framework for how Australia is governed and it can only be changed by referendum.”

Some judges in their obiter dicta have declared their inclination to disregard the Parliament’s legislative objectives, and therefore limit parliamentary sovereignty if the rule of law is vulnerable or if the circumstances demand “a principle established on a different hypothesis of constitutionalism” . They have also suggested that, while the British Constitution is dominated by parliamentary sovereignty, “The rule of law enforced by the courts is the ultimate controlling factor on which our constitution is based” . This represents a possibility of stretching the dominance of the rule of law in constitutional law so that it becomes more powerful than parliamentary sovereignty in the British Constitution .

Good afternoon, my name is Stephanie Jones and I am a currently a human rights lawyer. Human rights are the basic freedoms and protections that everyone is entitled to purely for simply just being a human being. Today I would like to use this opportunity to discuss with you the greatly debated issue of an Australian Bill of Rights. Australia currently does not have a Bill of Rights, but is the current legal system coping without one? The answer to that question in my opinion is no. Australia currently is not adequately protecting individual human rights without having a Bill of Rights. While many people would argue that yes, Australia protects individual rights well enough as it is, just as many people passionately argue that Australia does indeed need a Bill of Rights for a variety of reasons which will be talked about in greater depth later on. In my talk with you today, I would like to discuss with you all what exactly a Bill of Rights is and what it aims to achieve, how a Bill of Rights has worked in other countries and some of the more popular arguments for and against having one.

Political thinkers Rousseau, Locke and Montesqieu claimed that the powers of government should be limited, divided and checked. The principle is that there should be a division of government executive, legislative and judiciary powers into three separate arms or institutions that act separately and are independent of one another (members of one branch cannot be members of either of the other two). Australia’s constitution separated powers by delegating the legislative power to Federal parliament (s.1), executive power to the Governor General (s.61) and the Judiciary to the High Court (s.71). However due to Westminster conventions (adopted from the British system of parliament) commonly practiced by the Australia government, the members of the executive (cabinet) are selected from the legislative by the Prime Minister (going against the concept of having no cross-branched members). The PM (also Westminster convention) is not mentioned in the constitution and yet exercised executive power; for example in 2003 PM John Howard exercises (s.68) by sending troops to Iraq. The constitution also provides the executive with the power to appoint the High Court Judge (s.72) and thus is could be argued that the executive has power over the Judiciary in that sense; However the constitution actively safeguards the position of the Judiciary by stating the High Court Judge “Shall not be removed except by the Governor-General in Council, on an address from both Houses of the

The rule of law broadly requires; that all are equal before the law , that the government is subject to the law and must exercise its power according to the law, finally that ‘there exist fundamental individual liberties and minimum standards of justice, to which the law must conform’ . The rule of law is problematic to define but put simply it is not ‘the rule of men’ and is evident in societies with functioning judiciaries and a clear separation of powers such as New Zealand. It is one of several intrinsic attributes of our constitutional makeup and overall the Judiciary aid in ‘ensure[ing] that the rule of

The Division and Separation of power are essential to keep our societies rulers to have a restriction on their powers. The importance of each on the Australian domestic law especially in relation to the rule of law, and protecting individual rights, and the legal system.