Law- Separation Of Powers Essay

Length: 5 pages Sources: 5 Subject: Government Type: Essay Paper: #73552927 Related Topics: Constitutional Law, Prime Minister, Judicial Branch, Doctrine
Excerpt from Essay :

Separation of Powers

Doctrine of Separation of powers in Australia

The concept of separation of powers has been in operation and application in many countries. This has always helped them in ensuring efficient governance and effective working of each arm of the government without interfering with the other organs of the government. Factually, the different arms of the governments cannot operate independent of each other, yet they must keep a safe distance that will enable them operate effectively and carry out their daily activities. This doctrine of separation of powers classifies the institutions of government into 3 major branches classified as the legislative, the Executive and the judicial branch. Separation of powers in Australia

The Australian system is referred to as the Westminster system which is a system that was adopted from England and still has the Queen as the overall head who resides in England but represented locally by the Governor-General. The country is governed by the Prime Minister and has a two chamber commonwealth parliament that is responsible for making laws. The government is led by a prime minister and his or her government must have a majority seats in the House of Representatives. Australia is also noted to have eight State and Territory Parliaments (Museum of Australian Democracy, 2014). It is noted that the Doctrine of separation of powers in such a system does not fully exist. This is seen from the fact that, though the three branches of government exist in Australia, such that there is the legislature that is manifest in the two parliaments that are in place, executive branch that comprises the ministers and the government departments as well as the agencies, as well as the judiciary which is made up of the judges and the courts. The appointment of the Governor is done on the advise of the Government in Australia, this represents the case of the legislature giving instructions to the executive hence forming one of the interconnections. In his duties, the governor general appoints the ministry upon being advised by the Prime Minister, presenting a case of the executive getting into the legislature to form part of the executive yet forming another interconnection between the two branches. The Governor general can also dissolve the parliament again acting as advised by the prime minister, which highlights another aspect of the two branches being joined at the hip and acting in an inseparable manner since the governor, who is a member of the executive taking a step that would dissolve the timetable of the legislature. The interesting fact however is that the executive or the ministry is formed by people picked from parliament and they are responsible to the parliament which is the legislature and this form and intricate interconnection in personnel as well as the actions or execution of duties.

Analysis

There are a lot of interconnections that exist in the Australian Governance system in general and especially between the executive and the legislature; this interconnection makes it impossible for the doctrine of separation of powers to effectively be practiced. Firstly, the Queen is considered the head of the commonwealth Australia tough the powers are delegated to the Governor General who operates from Australia and this is a constitutional requirement. The queen is hence seen as part of the executive and her representative in Australia the Governor General can only act on permission given by the elected government.

As a parliamentary democracy, Australia has the Queen, the Senate and the House of Representatives. This is indeed the basis for the responsible government (Parliamentary Education Office, 2014). Apart from making laws that govern the country, the Australian parliament is responsible for ensuring that the minister and the government is responsible for the decisions and actions that they take in their

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The ministers are drawn from the parliament hence available for questioning on regular basis and in that manner the parliament holds the executive responsible. This again represents yet another point at which the two branches are interconnected hence it cannot be claimed that the two branches of government are fully independent and that there is absolute separation of powers. The two branches of government are intricately interconnected such that one branch gets itself in the hands of the other at a given level, and the reverse happens at a different t level as well. The Australian system is such that the legislature can allocate some of its powers to the executive for instance to make regulations under an Act of parliament and in the same fashion, the legislature is able to restrict and even overrule some of the powers that the executive has through passage of laws to that effect (Australianpolitics.com, 2014). However, it is worth noting that in the Australian system, the separation of the judiciary is more obvious and very distinct as compared to the legislature and executive.

The American system and separation of powers

The American system is one that interests many when it comes to the governance structure and the separation of powers among the three arms of the government. It will be interesting hence to see the purpose and the functions as cut out for the various branches. The American system thrives on the complete separation of powers unlike the Australian Westminster system that is based on partial separation of powers. The American system has the congress as the organ that is responsible for making laws. It is comprised of the elected members unlike the Westminster system where the members of the upper house can be appointed. This means that the Congress is more autonomous since there are no members who exist in the house at the behest of a prime minister of a member of the executive hence creating absolute separation of powers.

In the American system, the head of the government or head of the executive is the president who is democratically elected by the citizens unlike the Westminster system where the executive council and their head the Prime Minister though hold executive powers, they are appointed by the crown with the help of the lower house (legislature) and must be members of parliament. This indicates that even at the executive level, the American system creates a clear separation of powers since the president is not at the mercy of the other two braches of the government and is not a creation of the legislature.

The judiciary in the U.S. also displays a clear separation of powers in the governance system. The Supreme Court judges are appointed by the president but the appointments are ratified by the senate and their impeachment can only be done by the congress. This is an attempt to ensure there is no interference in the works of the Judiciary by any other single branch. The judiciary here has the judicial powers including the judicial review of the executive and the legislative activities. In the Australian system however, the judges are appointed by the executive and hold judicial powers. Their removal can be done by the crown who is widely considered part of the executive hence technically the appointment is made and revoked by the executive, unlike the American system (Carney G., 1993).

The main function of the legislative in USA is to make the laws that govern the nation and to amend them accordingly as time and circumstances may require. The work of the executive is to ensure the laws are put into operation in order for the laws to make much meaning. The judiciary on the other hand has the duty to interpret the law in order for the law to be functional and be understood by the citizens of the nation (Spindler G., 2000). Each of these arms of the governments have separate powers and separate functions carried out by separate personnel but it is important…

Sources Used in Documents:

References

Australianpolitics.com, (2014). Westminster System. Retrieved April 21, 2014 from http://australianpolitics.com/democracy-and-politics/key-terms/westminster-system

Carney G., (1993). Separation of Powers in the Westminster System. Retrieved April 21, 2014 from http://www.parliament.qld.gov.au/aspg/papers/930913.pdf

Museum of Australian Democracy, (2014). Australia's System of Governance. Retrieved April 21, 2014 from http://static.moadoph.gov.au/ophgovau/media/images/apmc/docs/61-System-of-government.pdf

Parliamentary Education Office, (2014). Separation of Powers: Parliament, Executive and Judiciary. Retrieved April 21, 2014 from http://www.peo.gov.au/learning/fact-sheets/separation-of-powers.html


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