Kate SlackThe Separation of Powers: A Doctrine
July 11th 2010 07:30
Ultimately, responsibility for ensuring that the bulwarks of the rule of law are abided by in a liberal democratic state with government institutions organised according to the doctrine of separation of powers is born by the judiciary. Originally philosophized by Montesquieu in the distinguished L’Esprit des Lois, the separation of powers was designed to ensure that governmental power was not concentrated in the hands of one body or person. Instead Montesquieu considered that safeguards needed to be in place whereby the political arms of government – the legislature and executive, could be balanced with an apolitical body - the judiciary, responsible for keeping the legislature and executive accountable and within the bounds of the law. Contrasted with the American version of the separation of powers where, “the Executive i.e. The President, and whoever he chooses to appoint as Secretaries of State (i.e. Ministers), are not members of the legislature” (Wells, Dean, ‘Current Challenges for the Doctrine of the Separation of Powers – The Ghosts in the Machinery of Government’, paper presented at Queensland University of Technology, Brisbane, Queensland, 2006 at [107.]), there is much overlap in Australia between the Legislature and the Executive. Where George Washington and Thomas Jefferson followed Montesquieu in creating distinct lines of separation between each arm of government in an attempt to create sufficient checks and balances on one another, Australia followed the 19th century British jurist, Walter Bagehot who said that the “efficient secret of the Westminster constitution was that the Executive and the Legislature are not really separate. The Parliament, or a majority of it selects the Cabinet and because they are therefore not at odds with one another they can comparatively easily despatch the business the public expected them to do when they voted to put them there.” (Wells, above at p107) The American model has led to an immobilization of legislative processes – for example in 1995/6 the “Republican Congress refused to pass President Clinton’s money bills to stop him spending so much on social welfare, many public service agencies closed, and 300 000 public servants” (Wells, above at p107) were out of work. In Australia, the Executive is constituted by the Prime Minister and a select group of Ministers who are also members of the Legislature. This effectively means that policies developed by the government will more often than not pass through the lower house easily, but are still developed subject to accountability mechanisms due to the role employed by the Senate.
The judiciary’s role is still important in this regard as party politics, and a double majority situation can lead to over-reaching laws’ passing through the Senate undermining the review role to be performed by the upper house. Haig Patapan argues that the doctrine also developed with “a Blackstonian view that a division of powers is the best means of institutionalizing the rule of law, by which is meant the establishment of legal foundations for just decision making and securing individual liberty. In this view, the separation of judicial power is the most important.” (Gelber, Katherine, ‘Commentary: High Court review 2005: The Manifestation of Separation of Powers in Australia’ (2006) 41 Australian Journal of Political Science, 3 at p439) If people distinct from those creating the laws are responsible for determining their validity “the laws are likely to be applied more objectively and impartially.” (Wells, above at p106) This requires the “judiciary to speak out publicly against any attempt by the Legislature or the Executive to undermine the rule of law.” (McHugh MH, ‘Tensions Between the Executive and the Judiciary’ (2006) 6 The Judicial Review, at p130) Particular tension therefore exists between the Executive and the Judiciary.
In terms of the judiciary fulfilling its function, Holmes and Przeworski, recognized that “the ruler or sovereign obeys restrictions on his power only when it is in his interest to do so.” (Weigngast, Barry, ‘A postscript to ‘Political Foundations of Democracy ad the Rule of Law’ in Maravall, Jose Maria and Adam Przeworski (eds), Democracy and the Rule of Law, Cambridge, England, Cambridge University Press, 2003, p110) First and foremost this arises where citizens act in unison to oppose potential transgressions by government because they risk political fallout as a result of facing a unified citizenry in dissent. Historically, “Acting in concert to police the state [was] problematic in large part because citizens naturally disagree[d] about what is good and bad, that is, what constitutes a transgression.” (Weigngast, above at p110) This provides the state with leverage to exploit the disunity of its citizens “through the well-known mechanism of divide and conquer. The sovereign transgresses the rights of some citizens while retaining the support of other citizens sufficient in number to keep the sovereign in power.” (Weigngast, above at p111) A means of solving this coordination problem existed in creating a Constitution: a document defining transgressions thus assisting citizens to coordinate. Furthermore, the accountability role of the judiciary is highly important as it
“is foolish to place complete trust in the integrity of executive agencies to act justly in all circumstances. Of course we must place trust in those agencies…But it is the very devotion to their allotted task that carries the risk of individual injustice – injustice that may follow sometimes from an excess of enthusiasm to achieve their purpose, sometimes from incompetence or human error.” (Weigngast, above at p111)
In Australian Communist Party v Commonwealth , Dixon J “firmly rejected any argument that ‘would have the effect of making the conclusion of the legislature final and so the measure of the operation of its own power.” (Brennen, Frank, ‘Lawyers Role in Democracy’ AGM Address at the Law Institute of Victoria, Administrative Law and Human Rights and Government Lawyers Section, Melbourne, Victoria, 2007 p6.) The judiciary therefore occupies a critical position as an independent body interpreting such a constitution and all subsequent statute in order to bring government’s to account on behalf of the citizens. However, the doctrine depends upon the three branches of government understanding their respective spheres, and not exceeding them, or at least not exceeding them in a gross or continuous way. This is because
“by itself a court can do nothing to enforce its decisions…Furthermore, courts and most importantly the High Court, will frequently make orders against a State or the Commonwealth and, in constitutional questions, will often declare that a particular law is unconstitutional, and hence invalid and unenforceable. In practical terms State or Commonwealth parliaments could blithely ignore these findings and continue [down] the path they had legislated for and the court would be powerless to stop them.” (Asche, Austin, ‘Parliamentary Democracy – Checks and Balances’, (2004) 19 Australian Parliamentary Review 1 at p142.)
So while, as Chief Justice Gleeson has recognized, that occasionally, the judiciary will “frustrate ambition, curtail power, invalidate legislation, and fetter administrative action” (McHugh, above at p113), it is absolutely paramount that their decisions are respected.
The judiciary’s role is still important in this regard as party politics, and a double majority situation can lead to over-reaching laws’ passing through the Senate undermining the review role to be performed by the upper house. Haig Patapan argues that the doctrine also developed with “a Blackstonian view that a division of powers is the best means of institutionalizing the rule of law, by which is meant the establishment of legal foundations for just decision making and securing individual liberty. In this view, the separation of judicial power is the most important.” (Gelber, Katherine, ‘Commentary: High Court review 2005: The Manifestation of Separation of Powers in Australia’ (2006) 41 Australian Journal of Political Science, 3 at p439) If people distinct from those creating the laws are responsible for determining their validity “the laws are likely to be applied more objectively and impartially.” (Wells, above at p106) This requires the “judiciary to speak out publicly against any attempt by the Legislature or the Executive to undermine the rule of law.” (McHugh MH, ‘Tensions Between the Executive and the Judiciary’ (2006) 6 The Judicial Review, at p130) Particular tension therefore exists between the Executive and the Judiciary.
In terms of the judiciary fulfilling its function, Holmes and Przeworski, recognized that “the ruler or sovereign obeys restrictions on his power only when it is in his interest to do so.” (Weigngast, Barry, ‘A postscript to ‘Political Foundations of Democracy ad the Rule of Law’ in Maravall, Jose Maria and Adam Przeworski (eds), Democracy and the Rule of Law, Cambridge, England, Cambridge University Press, 2003, p110) First and foremost this arises where citizens act in unison to oppose potential transgressions by government because they risk political fallout as a result of facing a unified citizenry in dissent. Historically, “Acting in concert to police the state [was] problematic in large part because citizens naturally disagree[d] about what is good and bad, that is, what constitutes a transgression.” (Weigngast, above at p110) This provides the state with leverage to exploit the disunity of its citizens “through the well-known mechanism of divide and conquer. The sovereign transgresses the rights of some citizens while retaining the support of other citizens sufficient in number to keep the sovereign in power.” (Weigngast, above at p111) A means of solving this coordination problem existed in creating a Constitution: a document defining transgressions thus assisting citizens to coordinate. Furthermore, the accountability role of the judiciary is highly important as it
“is foolish to place complete trust in the integrity of executive agencies to act justly in all circumstances. Of course we must place trust in those agencies…But it is the very devotion to their allotted task that carries the risk of individual injustice – injustice that may follow sometimes from an excess of enthusiasm to achieve their purpose, sometimes from incompetence or human error.” (Weigngast, above at p111)
In Australian Communist Party v Commonwealth , Dixon J “firmly rejected any argument that ‘would have the effect of making the conclusion of the legislature final and so the measure of the operation of its own power.” (Brennen, Frank, ‘Lawyers Role in Democracy’ AGM Address at the Law Institute of Victoria, Administrative Law and Human Rights and Government Lawyers Section, Melbourne, Victoria, 2007 p6.) The judiciary therefore occupies a critical position as an independent body interpreting such a constitution and all subsequent statute in order to bring government’s to account on behalf of the citizens. However, the doctrine depends upon the three branches of government understanding their respective spheres, and not exceeding them, or at least not exceeding them in a gross or continuous way. This is because
“by itself a court can do nothing to enforce its decisions…Furthermore, courts and most importantly the High Court, will frequently make orders against a State or the Commonwealth and, in constitutional questions, will often declare that a particular law is unconstitutional, and hence invalid and unenforceable. In practical terms State or Commonwealth parliaments could blithely ignore these findings and continue [down] the path they had legislated for and the court would be powerless to stop them.” (Asche, Austin, ‘Parliamentary Democracy – Checks and Balances’, (2004) 19 Australian Parliamentary Review 1 at p142.)
So while, as Chief Justice Gleeson has recognized, that occasionally, the judiciary will “frustrate ambition, curtail power, invalidate legislation, and fetter administrative action” (McHugh, above at p113), it is absolutely paramount that their decisions are respected.
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