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Separation of Powers - Definition and Origins

The separation of powers

The legislature enacts the laws, the Executive applies the laws and the judiciary interprets the laws. The idea can be traced back to Aristotle who argued for a mixed system of government, but it was in the 18th century through the writings of Montesquieu (France), Locke, Blackstone (Britain), that the doctrine gained substantial support. 

The Founding Fathers of the United States embraced the concept with enthusiasm, providing for a written Constitution incorporating the checks and balances of a stated Bill of Rights, along with a tripartite system of separation for government - the Congress, the President with the Executive and an appointed Supreme Court.

Australia and the Westminster system

Unlike the United States arrangement, which provides for a distinct separation of powers, the Westminster system contains elements of partial separation, e.g., the Government's Ministers are required to be elected Members of Parliament. 

As the Australian system of Government is based on a federal system, it incorporates features from both Britain and the United States. Therefore, the Australian Constitution provides for a Westminster-type Parliament - the Sovereign, an Upper House (Senate) and a Lower House (House of Representatives) with an Executive consisting of elected Members of Parliament. The Senate, however, like its United States counterpart, is representative of the States, with the High Court, similar to the United States Supreme Court, as the judicial interpreter of the Australian Constitution and the Federal Government's legislation. 

Queensland and the Westminster system

The Constitution of Queensland Act 2001, unlike the Australian Constitution, currently does not expressly provide that Ministers of the Crown have to be elected parliamentarians. By Westminster conventions, however, that is the case, thus allowing for "responsible Government". In another comparison with the Australian Constitution, the Queensland Constitution does not prescribe a rigid "separation of powers" and the Queensland Parliament could legislate to alter the judicial role of the State's courts.

On the other hand, because Queensland is part of a federation, the Australian High Court has overruled the State's authority in certain areas, through reference to the Federal Government's constitutional powers, e.g., Eddie Mabo and Others vs the State of Queensland, which granted land title rights to the original inhabitants of Murray Island.