THE SEPARATION OF POWERS

A glossary and activity sheet for this

poster can be found at
http://www.ruleoflaw.org.au/education/posters/

The Separation of Powers describes the way in which the law gives power to Balances Checks
the arms of government in Australia. It ensures government remains fair and Power is balanced between the three arms of Checks are mechanisms which allow each arm L
accountable by creating checks and balances on the use of power. Government, so checks can operate. If power of Government to review or override the actions
was not balanced and one arm was too powerful, of the other two arms.
It is essential under the rule of law that the use of power is lawful, and can
checks on that arm would not be effective. This
be challenged. There are many different checks on power
means that each arm should only use power
Power is balanced between the Judiciary, Legislature and Executive, so each according to the Australian Constitution. within Australian Government. They all aim to J
can act as a check on the power of the other. See the boxes surrounded by ensure accountability, which means that legal E
Executive
the for an explanation of some of the checks on power which Judiciary decisions can be challenged and that all arms
Legislature
operate in Australian Government. of Government act according to the law.

Definitions for words which are bold/ Checks are essential in

underlined can be found in the Statut
e maintaining the

LAW
rule of law.
Statut
glossary.
e

LAW
The Judiciary
Statut
e

The Judiciary can strike down
laws made by the Legislature, and
declare actions of the Executive
unlawful. This is one of the
most important checks on the
power of Government because
it provides a legal process in
the courts for individuals to
challenge the decisions of the
Government.
$$ A judge’s pay cannot be reduced
while they hold office $$
The Judiciary includes judges and the courts
which exist to interpret the law when there is a
legal dispute.
Judges must make decisions based on the law a
provide reasons for their decisions.
Judges have the power to make various orders
to give effect to their decisions.
The Judicial Oath
When sworn in to office, judges make
LAW
The Legislature
The Executive
The Legislature, which includes the Houses The Legislature acts as a check
of Parliament and the representatives on the Judiciary because it can
The Governor-General who are elected to them, is responsible pass laws which override the
The GG has ultimate power over for drafting, debating and voting on new decisions of the courts.
the Commonwealth of Australia. laws, and amendments to existing laws.
This power is usually exercised on
However, laws should not be
the advice of the Executive Council In Australia there is not a “true”
retrospective, which means
and its Ministers. separation between the Legislature and the legislature cannot reverse
Executive, because those appointed the decision of a court, only
The GG gives royal assent to laws passed by the to the Executive are also members change the law from the time
Legislature, and has ‘reserve powers’, one of which is of Parliament. it is proclaimed.
to dismiss the Prime Minister, which are only used in
exceptional circumstances.

A High Court Justice can only

the following oath to ‘...do right to
all manner of people according to law The Federal Executive Council
be removed from office by the The Federal Parliament which sits in Canberra is bicameral which
Governor-General after a vote in without fear or favour, affection or ill- means it has two houses: the House of Representatives and the
both houses of Parliament.
will’ (be fair and impartial) Members of Senate.
the Legislature
are appointed as States and Territories are allocated seats in the House of
The High Court Ministers to the
The High Court of Australia provides one the most important Representatives based on the population of the State or
Federal Executive Territory.
checks on the power of Government in Australia. Council. Prime Treasurer Minister of Minister for Attorney
Minister Defence Finance General The House of female

Chief Justice Justices Representatives male

*as of July

They have the power to implement laws passed by the Parliament and
2012
5
2017 2024 2021 2015 2028 2022 2015
are in charge of Government Agencies and Departments. They have 11 15 30 37 48
Year of powers, defined by law, to deal with social, economic or environmental
retirement French Kiefel Bell Crennan Gageler Keane Hayne
issues as they arise.
TAS NT ACT
They must only use power in the way set out by law.
It is an independent and impartial decision making body SA WA QLD VIC NSW
which has the power to overrule the decisions of all
lower courts and to declare laws invalid and actions of The Shadow Cabinet and “The Opposition”
the Executive unlawful. The Shadow Cabinet are not part of the
The Senate
Executive, and have no official status other than
being members of the Parliament. They ‘shadow’ The Senate provides for proportional representation of States
Justices of the High Court are appointed by the relevant Government Ministers and question the and Territories. All States have 12 Senators and Territories 2
Senators each.
Governor-General on the reccomendation of the actions of the Executive in Parliament.

RoLIA
Prime Minister. The Rule of Law Institute of Australia is an
independent, not-for-profit organisation which
Opposition The Opposition is another check on the power promotes discussion of the rule of law in
Shadow
Leader Ministers of the Executive. They are frequently critical of Australia. It supports principles such as access
to justice, the presumption of innocence,
Government policy and legislation. fair trials as well as accountability and
transparency in Government.
www.ruleoflaw.org.au