Essence of Australian Constitution

“Radical Legal Change is best effected by professional politicians who have a lifetime’s experience of assessing the popular will. They might not be an ideal class, but they are fitter than the courts to make radical legal changes” – Justice Heydon: A Discussion


Power is a vital component for every State to be controlled. Simultaneously, the presence of unchecked authority may drive the State into dark alleyways of corruption and anarchy. Power is both venom and anti-venom, depending on whether it is managed or uncontrolled, regulated or unchecked, and employed logically or irrationally. As the popular phrase goes, "Power corrupts, absolute power corrupts absolutely," and the History of Mankind has witnessed a lot of Tyrants and their exploits because their powers were not governed responsibly. This paradoxical situation concerning power can be solved only through “Separation of Powers'' so that nobody exercising power can get uncontrollable. The concept of separation of powers is not new and has been evolving since ancient times and Political Thinkers like Plato, Aristotle and later Greek Thinkers like Polybius. The later part of development of the concept can be attributed to John Locke and Montesquieu who is widely regarded as the father of modern thinking related to separation of powers which is also referred to as a system of checks and balances. The theory of separation of powers here refers to division of powers between Legislature, Executive and Judiciary. The works of Montesquieu were greatly impressed by thoughts of Locke, Aristotle, Plato and Polybius.

At the commonwealth level, prima facie there is a separation of powers between the three organs of the State, namely Legislature, Executive and Judiciary. However the degree of separation of powers in our country is not complete and at the best partial owing to the Westminster Model of “responsible Government.”[1] The statement in question made by Justice Heydon, raises certain important issues such as extent to which judicial review should be allowed if the same is allowed at all and the competence of Judiciary to take on the role of Legislature in view of the theory of separation of powers prevalent under our common Law. To arrive at a conclusion with the statement in question made by the Hon'ble Justice Heydon a brief scenario o the theory of separation of powers in the Commonwealth of Australia is submitted as follows.

Separation of Powers in Australia

The Australian Constitution takes a paradoxical stance on the notion of Separation of powers. The first three chapters, titled "The Parliament," "The Executive Government," and "The Judicature," all have their scope ostensibly established by the Constitution, whereby powers of the Commonwealth have been vested in that specific body for fulfilling certain responsibilities. For example, the Legislature's scope is to make laws, the Executive's is to put them into effect, and the Judiciary's is to interpret them. This system is quite close to the notion of separation of powers in the United States of America, and perhaps the founders hoped to achieve total separation of powers by using the federal process used in the USA. However, the Australian Constitution also mentions the principle of Responsible Government, therefore there is a real impediment in the way of separation of powers. The Executive Governance is accountable to the Legislature as a result of the Westminster form of responsible government. Federal Ministers, for example, who are members of the Executive, are required under Section 62 of the Australian Constitution to sit in Parliament. In practise, the two branches are intertwined, and the principle of separation of powers is weakened. In Victorian Stevedoring & General Contracting Co Pty Ltd & Meakes v Dignan[2], the High Court of Australia held that it was impossible, consistent with the British tradition, to insist upon a strict separation between legislative and executive powers. It was found that legislative power may be delegated to the executive, and as a result upheld the validity of delegated legislation. Realistically thinking, the Legislature has to depend upon the Executive for making subordinate legislation by delegating certain powers to make the Laws made by the Legislature operational. Unlike America, where the theory of separation of powers operates in its total sense, such a total alienation of powers is not possible in the Commonwealth of Australia owing to the Westminster model of Responsible Government. The provisions laid down in section 44, 62 and 64 of the Australian Constitution provide for Responsible Governance which ironically is in direct contradiction to the concept of separation of powers.  However, the provisions of section 44 of the Constitution of Australia do conserve the theory of Separation of powers to a certain extent by disqualifying any person holding office of profit to become a part of the Legislature. In the landmark case of Sykes v. Cleary and Others (1992) 176 CLR 77,[3] it was held by the Hon’ble High Court of Australia that after Independent MP, Phil Cleary, had won the Victorian seat of Wills. Cleary, on leave without pay from the Victorian Education Department at the time of his election, was held to be holding an office of profit under the Crown and disqualified. The purpose behind this section is to keep the Legislature free from the influence of the Executive.

Even though, there is marked unity between the Executive and the Legislature by virtue of the Australian Constitution itself, there is relative separation from the Judiciary at the Commonwealth level but the other two organs of the Government are not separated totally. The reason why a discussion of separation of powers while restricting the scope of the discussion to Legislature and Executive has been made because, the Judiciary’s role as interpreter of the Constitution has enlarged over the years and critics often say that in the garb of Judicial review, the Judiciary has assumed the role of Legislature, in effect, making Laws and thus breaching the theory of Separation of Powers.

Analysis of Statement in Question

The statement in question made by Hon'ble Justice Heydon, in its basic sense, implies that Judicial Review results in the death of not only the Rule of Law but also the theory of Separation of Powers.[4] Even if the statement in issue appears to be relatively solid when seen through the lens of separation of powers theory, the argument becomes wobbly when viewed through the lens of the function of the judiciary as the guardian of constitutional values. Again, separation of powers is a vital aspect of the Australian Constitution, and it is the responsibility of the judiciary to keep it that way. Parameters on the scope of judicial review that should be acceptable in light of the idea of separation of powers are a contentious matter, and a brief overview of the shift in the attitude of the court throughout the decades is provided below.

Judicial Views on the Theory of Separation of Powers over the years.

[Tina Hunter Schulz] classifies the decisions of Judiciary on the issue into four ages[5]. During the early years of the twentieth Century, The High Court and its justices were influenced by their role in federalism of Australia, and some of them being involved in the drafting of the Australian Constitution itself, they had personal and intimate knowledge of the aims of the Constitution. As a result of this, they imposed restrictions state and federal powers by preventing them from intruding into each others’ affairs and reinforced the doctrine of immunity[6] in the case of D’Emden v Pedder (1904) 1 CLR91.[7] In this phase of the Australian Judicial history, the take of judiciary on the theory of separation of powers was quite strict.

The next phase of the aforementioned history commencing in 1920 saw a liberal approach being adopted by the Judiciary and in the landmark case Amalgamated Society of Engineers v Adelaide Steamship Co. Ltd (1920) 28 CLR 129 the federal legislative powers were further broadened with the scales tipping in favour of the Commonwealth vis-a-vis the state governments.[8] More importantly, a more liberal and broader approach of Constitutional interpretation was adopted by the Judiciary.

The third phase of the judicial history which commenced in the Fifties again witnessed a paradigm shift in the Judicial approach and in the guidance of Justice Nixon, this was the era of judicial restraint and thus again getting back to strict adherence to the theory of separation of powers by the Judges.[9]

The next phase commencing in eighties, in which a mixed approach of the judiciary can be observed as Justice Barwin, a peer of Justice Dixon was a staunch supporter of Judicial Restraint yet this was the era of Judicial Activism with landmark judgements such as Tasmanian Dams case[10] were witnessed. Another significant and revolutionary approach taken by the High Court (Though a questionable approach vis-a-vis the theory of separation of powers) was observed whereby “Disillusionment with parliamentary decision-making parliament cannot be retied upon to make all of the necessary amendments to the laws, so the judiciary must be retied upon to take a more active role.32 This view is questionable, since the separation of powers delineates the role of the judiciary as interpreting the law, not making the law.[11] 

The present approach of the High Court can also be said to be quite conservative and mixed approach as Justices such as Justice Haynes and Callinan support traditional jurisprudence of strict legalism while the statement in question clearly denotes Justice Heydon’s approach on the issue of Judicial review with reference to Rule of Law.[12]


The statement in question is immensely debatable and the approach of judiciary has also been a fluctuating one going from one end to other over the decades. However, what needs to be understood that a more realistic approach has to be adopted as the whole administrative machinery is becoming complex and from what has been witnessed over the past hundred years is that none of the three organs of the state can perform their functions being isolated and mutually exclusive of each other. What needs to be done in the present scenario then, is to adopt a realistic and pragmatic approach to the whole issue and judicial review must be undertaken because it cannot be ignored that judicial review and judicial activism have great accelerators in achieving socio economic justice and at the same time in preserving the core features of the Constitution. However, Judicial Review must be undertaken in a cautious a way so as not to disturb the Constitutional scheme of separation of powers. Judicial review has been a great tool of preserving the Rule of Law and the same should not result in death of the latter as apprehended by Hon’ble Justice Heydon. To conclude, the probable solution to this seemingly endless debate has been expressed beautifully by Hon’ble Justice Kirby, "We need a middle ground that reflects the pragmatic character of the Common law in contemporary times. The extremes of unbound judicial creativity and invention will be tamed. But so too will be the extreme of mechanical application of old law without considering the context in which it must operate and its justice and conformity to basic principle”[13] 

Finally, I would want to argue that in order to realise the larger Constitutional aims of peaceful cohabitation and progress for everyone, a harmonious interaction between the various organs of the State must exist. Judicial review is required for the system of checks and balances to exist, should the Legislature and Executive violate the Constitutional Goals. However, the job of establishing laws should remain in the hands of the legislature, and such legislation can be examined against the touchstone of Constitutional principles; if they are found wanting to adhere to the same, Judicial Review must step in to protect Australia's Constitutional Scheme.