In Queensland, the doctrine of separation of powers appears not to operate as a legal restriction on power

but it provides the basis for important principles which the law protects, such as the independence of the

judiciary, and for certain political conventions. Because it is not a legal restriction in Queensland, serious

consideration has to be given to other controls on power, such as a committee system for parliamentary

review of executive action. Moreover, there are other areas within the constitutional and political system of

Queensland where it would seem desirable that the doctrine be put into effect even as a matter of political

practice. These areas will be explored towards the end of this paper.

What I hope this paper achieves, is to put the doctrine of separation of powers into its proper context as an

ideal of good government and to demonstrate that it provides a basis for the adoption of structures,

processes and controls which protect liberty now and in the future. As our system of government evolves,

new conventions, political practices and even at times new legal rules, will need to be devised to protect the

liberty of the people. The doctrine of separation of powers provides the justification for these measures and

helps to determine their nature and scope. There is a need to monitor our political system, be vigilant about

liberty and advocate new measures when this liberty is threatened. The doctrine of separation of powers is

the key to this whole process.

The following aspects will be considered:

1. Definition of the Doctrine of Separation of Powers

2. Origins and philosophical development of the Doctrine of Separation of Powers

3. The position in Queensland

4. The position at the Commonwealth level

5. Issues for Queensland

1. DEFINITION OF DOCTRINE OF SEPARATION OF POWERS

Probably the leading modern work on separation of powers is by Professor Vile, published in England in

1967:"Constitutionalism and the Separation of Powers" where the following definition is given:

A 'pure doctrine' of the separation of powers might be formulated in the following way: It is

essential for the establishment and maintenance of political liberty that the government be divided

into three branches or departments, the legislature, the executive and the judiciary. To each of

these three branches there is a corresponding identifiable function of government, legislative,

executive, or judicial. Each branch of the government must be confined to the exercise of its own

function and not allowed to encroach upon the functions of the other branches. Furthermore, the

persons who compose these three agencies of government must be kept separate and distinct, no

individual being allowed to be at the same time a member of more than one branch. In this way

Information Paper on Parliament and Government in Queensland

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each of the branches will be a check to the others and no single group of people will be able to

control the machinery of the State. (p13)

2. ORIGINS AND PHILOSOPHICAL DEVELOPMENT

The doctrine is founded upon the need to preserve and maintain the liberty of the individual. The

mechanism it adopts is to divide and distribute the power of government to prevent tyranny, arbitrary rule

and so on. The essence of the doctrine is therefore one of constitutionalism or limited government. As the

above definition states, the basic control adopted is to vest the three types of governmental power,

legislative, executive and judicial in three separate and independent institutions, the legislature, the

executive and the courts, with the personnel of each being different and independent of each other.

There is a complete separation as regards powers, institutions and personnel. Yet, there seems to be no

current constitutional system which adopts this complete separation of powers. Some of the early American

States and the French constitution of 1791 tried to strictly give effect to this doctrine but failed. The strict

doctrine is only a theory and it has to give way to the realities of government where some overlap is

inevitable. But while permitting this overlap to occur, a system of checks and balances has developed (and

needs to continue to develop).

The United States Constitution of 1787 incorporates the doctrine of separation of powers with a system of

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