Rant on separation of powers

By Darryl Browne in Blog on May 15, 2012

It’s probably because Bjelke-Petersen didn’t “feed the chooks”[1] enough. Because ever since Bjelke-Petersen was, supposedly, embarrassed by his inability to explain (to a journalist) the doctrine of the separation of powers, every Tom, Dick and Harry has used the separation of powers doctrine as an excuse to accuse others of ignorance, incompetence, or worse.

OMG: Don’t they know better?

The latest was Anthony Albanese accusing Tony Abbott of not knowing the “difference between the separation of powers”. This, I guess, means that there’s a difference between the separation of powers and… something else. But really Albanese was probably suggesting that Abbott doesn’t know that different powers are allocated to the different arms of government. (The three arms of government are the legislature, the executive and the judiciary.)

(Albanese also accused Abbott of breaching the Crimes Act, an accusation which is probably based on a sounder footing. He also alluded to the Rule of Law in a clumsy way, but I’ll vent my spleen on that phenomenon on another day.)

There’s no separation of powers in Australia

Let’s state the position succinctly: the separation of powers (SOP) doctrine does not apply in any State, or federally, in Australian. On reflection, the reason is reasonably obvious: it’s a French concept, which was rather gleefully adopted by the Americans, but it never found favour at Westminster. The Australian system of government, as distinct from the structure of our constitution, was largely modelled on Westminster, not the US. So SOP has never applied, except in minds of some, in Australia.

It’s different for the US

The classis exposition of SOP is the US system of government. SOP requires each arm of government, the executive, legislative and judicial, to be separate. Accordingly, if a person wishes to be part of the executive – a Minister in the Westminster/Australian system – they cannot be a member of the legislature or judiciary.

A recent high profile example is Hilary Clinton. After the last Presidential election, Barack Obama asked the then Senator Clinton to join the executive as Secretary of State. She agreed, but to do so she needed to resign from the US Senate, one of the Houses of the US Congress, or legislature. [2]

No SOP in Australia

By way of contrast, at Westminster, and Australia, a person cannot become a member of the executive unless they’re a member of the legislature. For instance, Bob Carr had to become a Senator before he could be made the Foreign Minister. This is, of course, the complete opposite of the position with Hilary Clinton.

It is also anathema to SOP. SOP would require that Carr, or any other Minister, not be both a Minister and a Member of Parliament.

First High Court authority: no SOP for the States

Apart from the reality of the situation, if more is needed to establish that SOP doesn’t apply in any meaningful way in Australia, there is High Court authority to that effect.

In the first “Bikies’ case” [3] the Chief Justice of the High Court, Justice Robert French, referred to the absence of SOP at a State level. He said:

“There was at Federation no doctrine of separation of powers entrenched in the constitutions of the States. Unsuccessful attempts to persuade courts of the existence of such a doctrine were made in New South Wales, Western Australia and South Australia in the 1960s and 1970s, and Victoria in 1993, relying, inter alia, upon the decision of the Privy Council in Liyanage v The Queen. The absence of an entrenched doctrine of separation of powers under the constitutions of the States at Federation and thereafter does not detract from the acceptance at Federation and the continuation today of independence, impartiality, fairness and openness as essential characteristics of the courts of the States.” [4]

So there you have it: no SOP at the State level.

No SOP at a federal level

The position at the federal level is sometimes thought to be different, largely because Chapter 3 of the Constitution has been interpreted to prevent judicial functions being performed by entities which are not courts or judicial. This notion has been (wrongly) confused with the SOP doctrine.

The Bikies ride again

That position was, coincidentally, made clear in the second “Bikies’ case”, where Justice French was joined by Justice Susan Kiefel in delivering reasons for a decision which included the statement that there was “no general constitutional prohibition against the appointment of judges to non-judicial offices or to carry out non-judicial functions” [5]. If there was a SOP doctrine operating at a federal level, the appointment of judges in this fashion would offend it.

The quintessential example

The most obvious example that can be given to rebut any suggestion that a SOP doctrine exists under a Westminster system of government concerns the Lord Chancellor. Until 2005[6], the Lord Chancellor was, concurrently:

the highest Law Lord in the Appellate Committee of the House of Lords (which has since been renamed the UK Supreme Court), this being the highest court in Britain;
a Minister of the crown; and
a member of the UK Parliament.

In other words, the Lord Chancellor was simultaneously a member of each of the three arms of government, the exact opposite of the position that would be allowed if there was an operating SOP.

Chicken feed

So when Bjelke-Petersen is presented as an imbecile, for not understanding the separation of powers doctrine, he should not be singled out as a solitary example, and he probably was hardly done by. (Mind you, he may have deserved it for not feeding the chooks more often!)

[1] “feeding the chooks” was the Queensland Premier’s euphemism for fraternising with the media.

[2] Another example is Senator Obama himself; he also needed to resign from the Senate before being inaugurated as the 44th President.

[3] South Australia –v- Totani [2010] HCA 39

[4] Justice French cited authority for his statements, but these have been deleted from the quote.

[5] Wainohu –v- NSW [2011] HCA 24 at [21]

[6] Since 2005 the Lord Chancellor has lost the first of the three simultaneous positions.

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