(This article is about separation of powers as a structural protection in the Constitution (Unit 3, AOS 2). For “separation of powers” as a principle of the Australian parliamentary system (Unit 3, AOS 1), click here.)
Separation of powers is a vital constitutional principle. Its intention is to ensure that no one body is to have complete control over the three functions of the legal system at Commonwealth level. In preventing complete control, it aims to prevent abuse of power, as each body acts as a check on the others. This guarantees the people the freedom from an abusive legal and political system.
The three functions include:
The legislative function is contained within Chapter I of the Constitution, and is concerned with making law.1 It states that the power to make law resides with parliament.
The executive function is contained within Chapter II of the Constitution and is concerned with administering the law (i.e. ensuring that law is carried out).2 The Governor-General exercises this function in theory. However, in reality, the Governor-General acts on the advice of the government of the day.
The judicial function is contained within Chapter III of the Constitution and is concerned with applying the law when a dispute arises.3 This power belongs to the courts.
Commonwealth of Australia Constitution Act 1900 UK, Parliament of Australia, http://www.aph.gov.au/About_Parliament/Senate/Powers_practice_n_procedures/Constitution ↩
Parliament of Australia, Constitution ↩
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