A form of the doctrine operates in the Australian versions of the Westminster model, most notably in the Federal Constitution.
The Australian Constitution
Although there are separate chapters in the Australian Constitution for the Parliament, Executive and Judiciary, this does not constitute a separation of powers in itself. Executive power was nominally allocated to the Monarch, or her representative the Governor-General (Section 61), while allocating it in practice to the Ministry by requiring the Governor-General to act on the Government’s advice (subject, of course to the Governor-General’s controversial ‘reserve powers’). This was the Westminster model and it relied on convention as much as the words of the Constitution. However, the specific requirement for Ministers of State to sit in Parliament (Section 64) clearly established the connection between Executive and Parliament and effectively prevented any American-style separate executive.
The situation with the judiciary, however, was different. The whole of Chapter III of the Constitution (Judicial Power of the Commonwealth) and Section 71 in particular, has been used by the courts to establish a strict separation of powers for Federal Courts from the ministry and parliament. In New South Wales v. Commonwealth (1), the High Court ruled that this part of the Constitution does embody the doctrine of separation of judicial powers. This also applies to tribunals and commissions set up by Federal Parliament which, unlike some of their equivalents in the states, can only recommend consequences. The Federal Parliament itself, however, has the rarely used privilege of being able to act as a court in some circumstances, primarily where it may regard a non-member as acting “in contempt” of parliament.
The Constitution does provide for one form of physical separation of executive and legislature. Section 44, concerning the disqualifications applying to membership of Parliament, excludes from Parliament government employees (who hold “an office of profit under the crown”) along with people in certain contractual arrangements with the Commonwealth. Section 44’s intention is to separate executive influence from the legislature. This requirement does not apply to state elections.
The Role of Political Parties
Even though the Australian Constitution says little about political parties, parties have an important impact on the relationship of powers between executive and legislature. The existence of varied political parties is a feature of the freedoms of opinion essential to a liberal democratic system and the contest between them is a factor in controlling the potential excesses of any one group. However, the system can have other effects. Since by convention the party controlling the lower house forms the government, then the ministry (being also the party leaders) also exerts authority over the lower house. The exceptional strength of Australian party discipline ensures that, within the house, every member of the numerically larger party will almost always support the executive and its propositions on all issues. Despite debates and the best efforts of the Opposition and Independents (particularly in Question Time), this inevitably weakens the effective scrutiny of the executive by the legislature.
Party domination in Australia thus further reduces the separation between executive and legislature, although Parliamentary processes do usually prevail. However, robust democratic systems have a capacity to self-correct, as has been demonstrated by the Senate. Because of the party system, the Senate failed to ever be ‘the states’ house’ originally intended by the Constitutional framers. However, the adoption of a proportional system of voting in 1949 created a new dynamic and the Senate in recent decades has rarely been controlled by Governments. Minor parties have gained greater representation and Senate majorities on votes come not from the discipline of a single party but from a coalition of groups on a particular issue. This happens in most democracies but in Australia is often regarded (particularly by supporters of the major parties) as an unnatural aberration. As a result the role of the Parliament as scrutineer of executive government, immobilised to some extent in the Lower House by the party system, has been expanded by the Upper House.
|
