The Separation of Powers refers to a principle outlining that no one body should have complete control over the legal system, and thus that this control should be separated. These bodies will, in theory, act as checks and balances on each other, so that no one level has complete control and thereby preventing corruption of power.

Separation of Powers at Federal Australian level

Chapters One, Two and Three of the Australian Constitution establish bodies to manage legislative power, executive power, and judicial power respectively. It outlines that legislative power will be exercised by parliament, executive power by the Crown, and judicial power by the courts.¹

Legislative:

The legislative function refers to the power to make law. As per Chapter One of the Australian Constitution, this power belongs to parliament, as the sole body with the ability to pass legislation.

Executive:

The executive function refers to the power to administer the law (to ensure that the law is carried out). The Constitution, under Chapter Two, allocates this role to the Crown (Governor-General). However, in reality, the Governor-General acts on the advice of the government of the day. An example of executive power being exercised is that the Government ensures that Federal Police are resourced to enforce the law.

Judicial:

The judicial function refers to applying the law when a dispute arises. As per Chapter Three of the Australian Constitution, this power belongs to the courts .

Separation of powers in practice: illicit drugs

The legislative (Commonwealth Parliament) makes the law prohibiting importation of illicit drugs. The executive (Governor-General and government) ensure that federal police and customs officials are resourced. If federal police and/or customs officials find a someone breaking the law, the judicial (Federal Court) will hold a trial, and convict and sentence the offender.

Overlap of the three functions

The three functions are not totally separated. The Crown and the Government are members of both the legislative and the executive. There is also overlap between the judiciary and the executive. This is because, in the Supreme Court (Trial Division and Court of Appeal) and the High Court, the Crown appoints justices, acting on the advice of the Attorney-General.

See also:

Representative Government

Parliament

1. The Australian Constitution, http://www.aph.gov.au/About_Parliament/Senate/Powers_practice_n_procedures/Constitution  ↩