Separation of powers


Introduction

The doctrine of the separation of powers had a celebrated moment in the history of Queensland politics. It occurred in December 1988, at the Fitzgerald Commission of Inquiry into Possible Illegal Activities and Associated Police Misconduct. In spite of his 19 years experience as the Premier of Queensland, the by then retired Sir Joh Bjelke Petersen was unable to explain the doctrine to the Inquiry. Quite simply, the ex-Premier had no idea. Evan Whitton (1989:184-185) reported part of the exchange as follows:

Michael Forde (Counsel examining Sir Joh Bjelke Petersen): What do you understand by the doctrine of the separation of powers under the Westminster system?

Sir Joh Bjelke Petersen: The Westminster system? The stock?

Forde: The doctrine of the separation of powers under the Westminster system?

Bjelke Petersen: No, I don’t quite know what you’re driving at. The document?

Forde: No, I’ll say it again. What do you understand by the doctrine of the separation of powers under the Westminster system?

Bjelke Petersen: I don’t know which doctrine you refer to.

Forde: There is only one doctrine of the separation of powers.

Bjelke Petersen: I believe in it very strongly, and despite what you may say, I believe that we do have a great responsibility to the people who elect us to government. And that’s to maintain their freedom and their rights, and I did that - sought to do it - always.

Forde: I’m sure you’re trying to be responsive to the question, but the question related to the doctrine of the separation of powers or the principles -

Bjelke Petersen: Between the Government and the - Is it?

Forde:No, you tell me what you understand.

Bjelke Petersen: Well, the separation of the doctrine that you refer to, in relation to where the Government stands, and the rest of the community stands, or where the rest of the instruments of Government stand. Is that what - ?

Forde:No.

Bjelke Petersen: Well you tell me. And I’ll tell you whether you’re right or not. Don’t you know?

Less than a year later in September 1989, when Russell Cooper replaced Mike Ahern (who had replaced Bjelke Petersen in December 1987), ABC journalist Quentin Dempster asked the Premier-elect the same question. “What do you understand by the doctrine of the separation of powers under the Westminster system?” For all to see, the question was met with a similar display of incomprehension from Cooper.

By some quirk of history, 1989 was also the tricentenary of the birth of the French writer Charles Louis de Secondat, Baron de Montesquieu. Although the idea of a separation of powers has a long history that can be traced back to Aristotle, and is clearly evident in John Locke’s 1690 Second Treatise of Civil Government, it is particularly associated with Montesquieu.

Montesquieu

A jurist in his earlier life, in his latter life Montesquieu was a philosopher and an international man of letters. From 1729 to 1731 he travelled to England and mixed in court and literary circles. He returned to France as an admirer of British liberty and the British political arrangements underpinning that liberty. In 1733 he wrote an essay on the British constitution and in 1748 he wrote De l’esprit des lois (The Spirit of Laws), which he conceived as a scientific study of government.

Montesquieu described an ideal type of constitution developed from his understanding of the English constitution as it was in the early part of the 18th century. In chapter 6 of book XI of The Spirit of Laws, he identified three separate functions of government: what we today call the legislative, the executive and the judicial functions of government. Although he did not use the term “separation of powers”, Montesquieu argued no two, let alone three, functions should be under the control of one branch of government.

Montesquieu also proposed the idea of checks and balances. Not only should the functions of government be distributed to many hands, the branches of government should be able to impose certain limits on the actions of others. Montesquieu argued, for example, that the chief executive should have veto over legislation, and the legislature should have the power to enquire into how its laws are put into effect and to impeach ministers.

The idea of a separation of powers arrived at a critical time in European and American history. In the 1789 French Declaration of the Rights of Man and Citizen, which followed the French Revolution, we find:

“Any society in which rights are not guaranteed, or in which the separation of powers is not defined, has no constitution.” (Article 16)

It was at the conclusion of the American Revolution in the 1787 Constitution of the United States that we find the strongest working expression of a separation of powers. In the United States there is a real division of powers between the three branches of government, a fairly strict observance of the separation of powers, and a comprehensive system of checks and balances.

Central features of the doctrine of the separation of powers

Today, the doctrine of the separation of powers refers to a system of government with three core features:

  • there are three functions of government: legislative, executive and judicial;
  • for each of these functions there should be separate branch or agency of government confined in operation to its own function; and
  • the members of one branch of government cannot be a member of either of the other two branches.

Advocates of the doctrine of the separation of powers argue that this system was first articulated by Montesquieu, but others are not persuaded.

Criticisms of the doctrine of the separation of powers

Montesquieu is misunderstood

Some believe that Montesquieu has been misunderstood, particularly by those who argue for the doctrine of the separation of powers. According to this alternative view, Montesquieu’s real insight was the general principle that power must be distributed to avoid a monopoly of power being created: freedom is best preserved when the total sum of power is widely distributed. The corollary of this view can be summed up in the much-repeated quote from Lord Acton:

“Power tends to corrupt, and absolute power corrupts absolutely. Great men are almost always bad men.” (3 April 1887 in an letter to the Bishop of London, Mandell Creighton)

Alois Riklin (2000) said that Montesquieu was not advocating a strict separation of powers. Rather, Montesquieu cautiously referred to a “certain distribution of powers”, as well as “balancing” “controlling”, “tempering”, and “combining” powers in a model of liberal political order where the three functions of government are sometimes separated and sometimes combined.

Montesquieu was concerned not so much with ensuring the separation of powers as with creating a subtle network of separation and mixing, of ‘checks and balances’, that is, of restraints, counterweights, and balances.

This broader view of Montesquieu’s position affords a number of insights. Even within one branch of government, power can be monopolised and mechanisms are needed to restrain and balance the potential for an abuse of power.

It is for this reason Montesquieu preferred bicameral (two chamber) parliaments over unicameral (single chamber) parliaments. Similarly, the convention that ministers of state should not involve themselves in operational policing matters is a balancing mechanism within the executive branch of government designed to prevent abuses of power. An apolitical, professional public service that serves the government of the day without fear or favour is another balancing mechanism to a politicised executive. As is an independent electoral commission to impartially manage elections to parliament.

Interestingly, it was the absence and/or failure of many of these distributive mechanisms within a branch of government, rather than a failure of the separation of powers between the branches of government, that was at the heart of the Queensland corruption problems the Fitzgerald Inquiry was addressing.

In addition to suggesting that Montesquieu was misunderstood, others have criticised the strong formulation of the doctrine of the separation of powers as being an unachievable ideal.

An impractical separation

In respect of the descriptive element of the doctrine, critics argue that the functions of government can not be so clearly and neatly divided, saying it is neither possible nor desirable to completely separate legislative and executive functions. In Australia and the United States, the executive branch of government exercises substantial legislative functions. Similarly, the process of interpreting the law of necessity involves precedent making, and therefore law making. Notwithstanding these difficulties, the descriptive element of the doctrine is at least useful for conceptualising the business of government.

Enthusiasm for the normative elements of the doctrine - what good governments ought to do - is weaker still. According to Carney (1993), some of the early US state constitutions and the French constitution of 1791 sought to implement a complete separation of powers, institutions and people. These experiments failed, and it is now recognised that the strict doctrine is only a theory that must give way to the realities of government, where some overlaps are necessary.

At a technical level, some commentators have observed that a complete separation of powers is inconsistent with the notion of checks and balances. Of necessity, checks and balances involve one branch of government in the business of another. A system of checks and balances implies (at best) only a partial separation of powers.

Others observe that, notwithstanding article 16 of the Declaration of the Rights of Man and Citizen, Westminster systems of government achieve liberty for the individual without a complete separation of powers between the three branches of government (and historically, without a bill of rights).

Separation of powers in the Westminster system

In contrast to the United States, the separation of powers in the United Kingdom has meant little more than an independent judiciary. By virtue of their common membership, there is not a strict separation of the legislative and executive branches of government. Under the principles of responsible government, the members of the executive are drawn from and are responsible to the legislature: Ministers of State are always Members of Parliament.

In the United Kingdom, even the independence of the judiciary is incomplete. The Lord Chancellor is a member of all three branches of government. He is a member of the executive, a member of legislature, and also a member of the judiciary (through the Judicial Committee of the House of Lords). However, the Lord Chancellor traditionally does not sit in cases where the UK Government is a party to the action.

The Australian system of government does not have a similar position to the Lord Chancellor. Consequently, it can be argued that Australia has a slightly stronger separation of powers than the United Kingdom. This is particularly the case at the Federal level, where the Australian Constitution is framed in a manner consistent with the doctrine of the separation of powers.

Separation of powers in Australia

Like the Constitution of the United States, the Australian Constitution provides three functions of government, and for three institutions to exercise those functions. The first three chapters of the Australian Constitution deal with the three institutions of government.

  • Chapter I - the parliament;
  • Chapter II - the executive; and
  • Chapter III - the judicature.

Each of the three functions of government is vested separately in these three institutions by sections 1, 61 and 71 of the Australian Constitution.

1. The legislative power of the Commonwealth shall be vested in a Federal Parliament, which shall consist of the Queen, a Senate, and a House of Representatives, and which is herein-after called “The Parliament,” or “The Parliament of the Commonwealth.”

61. The executive power of the Commonwealth is vested in the Queen and is exercisable by the Governor-General as the Queen’s representative, and extends to the execution and maintenance of this Constitution, and of the laws of the Commonwealth.

71. The judicial power of the Commonwealth shall be vested in a Federal Supreme Court, to be called the High Court of Australia, and in such other federal courts as the Parliament creates, and in such other courts as it invests with federal jurisdiction. The High Court shall consist of a Chief Justice, and so many other Justices, not less than two, as the Parliament prescribes.

However, the Australian Constitution also incorporates the Westminster doctrine of responsible government, which effectively locks together the executive and legislative branches of government. In practice, the High Court has allowed the executive to exercise substantial delegated legislative powers, but it has upheld a very strict separation of judicial powers.

The separation of powers in the constitutions of the states is less clear than in the Australian Constitution. According to Carney (1993), the Supreme Courts in New South Wales, South Australia and Western Australia have held that the doctrine of the separation of powers does not apply in the states because:

  • there is no reference in the state constitutions to the vesting of the judicial power of the state in any particular institution or court;
  • there is no entrenchment in the state constitutions of the supreme court or of its judicial power;
  • there is no clear division of powers in the state constitutions;
  • the past practice of colonial and state parliaments of delegating legislative and judicial functions to administrative bodies;
  • colonial and state parliaments have in the past exercised judicial power by way of impeachment and bills of attainder.

Nonetheless, state practice on the separation of powers essentially mirrors Commonwealth practice.

Conclusion

Formally, the doctrine of the separation of powers refers to a system of government with three core features:

  • there are three functions of government: legislative, executive and judicial;
  • for each of these functions there should be separate branch or agency of government confined in operation to its own function; and
  • the members of one branch of government cannot be a member of either of the other two branches.

Ironically, if Sir Joh Bjelke Petersen had been a better student of history and politics he might have told the Fitzgerald Inquiry that the formal doctrine of the separation of powers is not a part of the Westminster system of government. While the doctrine has a limited application at the Federal level, it is not part of the state constitutions. Australia’s system of government is essentially a Westminster form of responsible government with conjoined legislative and executive functions at its centre.

Although Australia’s system of government is not based on a formal separation of powers like the United States, it has a number of other mechanisms to ensure that institutional power is distributed, balanced and restrained, particularly within each institution of government. These mechanisms act to protect the liberty of the individual.

This demonstrates that an implementation of the formal doctrine of the separation of powers is not the only way to address the dangers of monopolised power. Arguably, a separation of powers (broadly defined) is necessary to avoid the pitfalls of monopolised power. However, there are many ways to achieve this outcome, of which the formal doctrine of the separation of powers is just one.

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