Hi all, this is my first post here.
Some background info: I am studying legal 3/4, currently in year 11.
Note that answer is in italics, with the question for reference.
'The operation of the separation of powers is the same both in theory, and in practice.' Analyse this statement. {6 marks}
The operation of separtation of powers is the same both in theory, and in practice to a limited extent.
Separation of powers exists to ensure that no one body has complete legal and political control. The Australian parliament systems separates the legislative function carried out by parliament (law-making), the executive function (administration of laws) carried out by the Governor-General in theory, but the cabinet in practice, and the judicial function carried out by the courts (applying and interpreting the law).
Although the executive and legislative function should be separated in theory, in practice there is an overlap between these two functions in the Australian parliament systems. This is because the cabinet, comprised of the Prime Minister and senior government ministers, undertakes the legislative function as they are part of parliament, and the cabinet also undertakes the executive function, by administering the laws through their departments, in practice. Therefore, there is not a true separation of powers in practice between the executive and legislative.
However, the judiciary is truly separated from the legislative and executive branches both in practice and theory, which ensures cases are handled in an independent and impartial manner, which is not subject to political interference, thereby avoiding corruption. The importance of this separation was demonstrated by the High Court’s decision in the Malaysian Solution case, where they held the Gillard government’s law to be ‘ultra vires’. This shows the importance of the courts providing a check and balance on parliament’s law-making power.
In conclusion, the separation of powers is the same in practice and in theory to a limited extent, as the judiciary is completely independent, however there is still an overlap between the legislative and executive branches.