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The Separation of Powers

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The Separation of Powers A glossary and activity sheet for this poster can be found at THE SEPARATION OF POWERS http://www.ruleoflaw.org.au/education/posters/ The Separation of Powers describes the way in which the law gives power to Balances Checks arms of government the in Australia. It ensures government remains fair and Power is balanced between the three arms of Checks are mechanisms which allow each arm L accountable by creating checks and balances on the use of power. Government, so checks can operate. If power of Government to review or override the actions was not balanced and one arm was too powerful, of the other two arms. It is essential under the rule of law that the use of power is lawful, and can checks on that arm would not be effective. This be challenged. means that each arm should only use power There are many different checks on power Power is balanced between the Judiciary, Legislature and Executive, so each according to the Australian Constitution. within Australian Government. They all aim to J ensure accountability, which means that legal can act as a check on the power of the other. See the boxes surrounded by Executive E the for an explanation of some of the checks on power which decisions can be challenged and that all arms Judiciary Legislature operate in Australian Government. of Government act according to the law. Definitions for words which are bold/ Checks are essential in underlined Statute LAW maintaining the can be found in the Statute LAW LAW rule of law glossary. Statute . The Judiciary The Legislature The Judiciary includes judges and the courts The Judiciary can strike down which exist to interpret the law when there is a The Legislature, which includes the Houses laws made by the Legislature, and legal dispute. The Legislature acts as a check The Executive of Parliament and the representatives declare actions of the Executive The Governor-General on the Judiciary because it can unlawful. This is one of the Judges must make decisions based on the law a who are elected to them, is responsible pass laws which override the most important checks on the provide reasons for their decisions. The GG has ultimate power over for drafting, debating and voting on new decisions of the courts. power of Government because the Commonwealth of Australia. laws, and amendments to existing laws. Judges have the power to make various orders it provides a legal process in This power is usually exercised on However, laws should not be to give effect to their decisions. the courts for individuals to the advice of the Executive Council In Australia there is not a “true” retrospective, which means challenge the decisions of the and its Ministers. separation between the Legislature and the legislature cannot reverse Government. Executive, because those appointed the decision of a court, only The GG gives royal assent to laws passed by the to the Executive are also members change the law from the time Legislature, and has ‘reserve powers’, one of which is of Parliament. it is proclaimed. The Judicial Oath to dismiss the Prime Minister, which are only used in $$ A judge’s pay cannot be reduced while they hold office $$ When sworn in to office, judges make exceptional circumstances. the following oath to ‘...do right to A High Court Justice can only The Federal Executive Council be removed from office by the all manner of people according to law The Federal Parliament which sits in Canberra is bicameral which Governor-General after a vote in without fear or favour, affection or ill- means it has two houses: the House of Representatives and the both houses of Parliament. will’ (be fair and impartial) Members of Senate. the Legislature The High Court are appointed as States and Territories are allocated seats in the House of Ministers to the The High Court of Australia provides one the most important Representatives based on the population of the State or Federal Executive Territory. Prime Treasurer Minister of Minister for Attorney checks on the power of Government in Australia. Council. female Minister Defence Finance General The House of Chief Justice Justices male Representatives *as of July 2012 5 2017 2024 2021 2015 2028 2022 2015 They have the power to implement laws passed by the Parliament and are in charge of Government Agencies and Departments. They have 11 15 30 37 48 Year of French Kiefel Bell Crennan Gageler Keane Hayne powers, defined by law, to deal with social, economic or environmental retirement issues as they arise. TAS NT ACT It is an independent and impartial decision making body They must only use power in the way set out by law. SA WA QLD VIC NSW which has the power to overrule the decisions of all lower courts and to declare laws invalid and actions of The Shadow Cabinet and “The Opposition” are not the Executive unlawful. The Shadow Cabinet part of the The Senate Executive, and have no official status other than being members of the Parliament. They ‘shadow’ The Senate provides for proportional representation of States Justices of the High Court are appointed by the relevant Government Ministers and question the and Territories. All States have 12 Senators and Territories 2 Governor-General on the reccomendation of the actions of the Executive in Parliament. Senators each. The Rule of Law Institute of Australia is an Prime Minister. independent, not-for-profit organisation which Opposition The Opposition is another check on the power promotes discussion of the rule of law in Shadow Australia. It supports principles such as access Leader Ministers of the Executive. They are frequently critical of to justice, the presumption of innocence, Government policy and legislation. fair trials as well as accountability and RoLIA transparency in Government. www.ruleoflaw.org.au.
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