In the case of the Australian states, where the basic governmental structures were in place before the Australian Constitution, separation of powers has little constitutional existence even though it operates as accepted practice in New South Wales and other states through constitutional convention.
The Executive
As with the Commonwealth, Ministers have powers to make regulations (in effect, legislating) and are, of course, Members of Parliament and responsible to it. Again, the rigid party system increases the domination of at least the lower house by the executive from the majority party and there are often complaints that the executive is manipulating parliament or treating it with contempt. In some cases upper houses have increased their roles of scrutiny of the executive, though this varies according to the electoral systems used for upper houses – where they exist.
Parliamentary scrutiny of the executive and, in particular, by the NSW Upper House, was tested in 1996-99 when Treasurer Michael Egan, on behalf of cabinet, refused to table documents in the Legislative Council of which he is a member. The documents related to several controversial issues, and the reasons given for this refusal included commercial confidentiality, public interest immunity, legal professional privilege and cabinet confidentiality. The Council, determined to exercise its scrutiny of the executive, pressed the issues and eventually adjudged the Treasurer in contempt, suspending him from the house twice. The matters were disputed in three cases in the High Court and the Supreme Court of NSW (10-12). The results upheld that the Legislative Council did have the power to order the production of documents by a member of the House, including a minister, and could counter obstruction where it occurred. However, the question of the extent of the power as regards cabinet documents, will be subject to continued court interpretation.
The Judiciary
In relation to the judiciary, traditionally the most separated and independent arm, the separation so clearly established in the Commonwealth does not exist in the state constitutions. Nevertheless, certain state courts, having had jurisdiction to deal with Federal laws conferred on them by the Commonwealth Parliament, have in effect a Federal Constitutional basis for separation of their powers. The general separation of state courts is practiced, but the issue of tribunals set up by state parliaments is different since such bodies sometimes exercise both executive and judicial power through being able to impose fines or penalties. The Administrative Decisions Tribunal in NSW is one such example.
In NSW, the issue of judicial independence was recently raised in a rare Australian instance of a legislature exercising scrutiny over a judge. The power of removal of a judge in NSW lies with the Governor on Parliamentary recommendation, the possible grounds being proved misbehaviour or incapacity. In 1998 the Judicial Commission recommended Parliament consider removal of a Supreme Court Judge on the grounds of incapacity. In the Court of Appeal (13) the Judge, Justice Bruce, argued that this contradicted the concept of the independence of the judiciary. The Supreme Court agreed that, despite the lack of any formal separation of powers in the NSW Constitution, the Commonwealth Constitution did significantly restrain Parliamentary interference with the judiciary. Nevertheless, the court held that nothing had occurred that would impinge on the integrity of the judicial system and that Parliament could consider the case. Justice Bruce appeared before the Legislative Council but removal was not recommended.
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