The Separation of Powers — A Comparison

Date01 September 1987
Publication Date01 September 1987
AuthorSir Harry Gibbs
DOI10.1177/0067205X8701700302
SubjectArticle
THE
SEPARATION
OF
POWERS-
A COMPARISON
SIR
HARRY
GIBBS*
It
is
a great privilege for
me
to
be
here today at this College, which had
become distinguished
as
a seat
of
learning long before
my
own country had first
been settled by English-speaking people. The occasion for
my
presence
is
to
deliver one
of
a series
of
lectures given in honour
of
Sir Robert Gordon Menzies,
who was Prime Minister
of
Australia from 1949 to 1966 and who, more
relevantly for today's occasion, was both a distinguished constitutional lawyer
and a lover of Virginia.
The theory
of
Montesquieu, that
to
secure liberty it
is
necessary
to
separate the
three main functions
of
the
state-
the legislative, the executive and the judicial
-has
had a profound and lasting influence on political thought. James Madison,
who expounded the theory with such effect
in
No.
47
of
The Federalist papers,
regarded the separation
of
powers
as
the most sacred principle of the United
States Constitution.
As
he
recognised, the principle
is
a political maxim rather
than a technical rule
of
law, 1 and it
is
a maxim which,
in
its
practical application,
can lead to very different results
in
different constitutional settings.
In
France,
for instance, the judiciary has no power
to
interfere with the work
of
the
legislature, and
so
cannot challenge the constitutional validity
of
a statute, and
the ordinary courts cannot review administrative action, although administrative
tribunals have been developed to fulfil that function. 2 The purpose of this address
is
to compare the working
of
the principle in two federal constitutions -those
of
the United States and Australia.
The Constitution
of
the Commonwealth
of
Australia
was
framed
in
the last
decade of the nineteenth century
by
men who had before them,
as
an
inspiration
and a model, the Constitution
of
the United States. The provisions
of
the
Australian Constitution which deal with the division
of
the functions
of
government and the investiture
of
power
to
exercise those functions closely
follow the form of the American model.
In
Chapter I
it
is
provided that the
legislative power
of
the Commonwealth shall
be
vested
in
a federal parliament,
whose powers are defined. Chapter
II
provides that the executive power
is
vested
in the Queen and is exercisable by the Governor-General
as
the Queen's
representative. Chapter III provides that the judicial power
of
the Common-
wealth shall
be
vested
in
a federal supreme court, to
be
called the High Court
of
Australia, and in such other federal courts
as
the parliament creates, and
in
such
other courts
as
it
invests with federal jurisdiction.
It
goes on to protect the tenure
of
the Justices and to define the jurisdiction
of
the federal courts. These
provisions differ significantly from those of the United States Constitution
in
two
important respects -first, the Australian Commonwealth remains under the
Crown, with the Queen
as
the titular head
of
the executive, and secondly, the
*The
Hon Sir Harry Talbot Gibbs
G.C.M.G.,
K.B.E. Chief Justice
of
the High Court
of
Australia
1981-87.
1 Cited in L Tribe, Constitutional Choices ( 1985) 309.
2 Cummins, "The General Principles
of
Law, Separation
of
Powers and Theories
of
Judicial
Decision
in
France" (1986)
35
ICLQ 594--628.

To continue reading

Request your trial

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT