judicial independence.

The definition above of the pure doctrine of separation of powers classifies governmental power into the

traditional three powers: legislative, executive and judicial. Although Montesquieu is generally credited with

using these labels, this tripartite classification of power had earlier origins which may even have relied upon

the religious notion of "the trinity". However, the legislative and executive powers were viewed as part of the

judicial power at least up until the early eighteenth century.

This tripartite classification of power is not, however, without its difficulties. Not all government powers can

be neatly slotted into just one of these categories as the pure doctrine assumes to be the case. The

inadequacy of this classification has become more obvious in recent times in relation to at least two areas of

government activity: rule making and policy making. Both these processes occur in all three branches of

government and how they fit into the doctrine of separation of powers is still being resolved. They certainly

challenge the applicability of the pure doctrine today but it is the theory of limited government by division of

powers and controls thereon, which helps to determine the appropriate relationship between rule makers

and policy makers in the three branches- of government. Here, Vile asserts that an informal rule needs to be

recognised by the principals of the three branches, namely, Members of Parliament, Ministers and their

officials, and judges, that each recognise the difference between their own respective primary functions and

the primary functions of the others.

3. The Queensland Position

The doctrine of separation of powers is reflected in the structure of the Queensland constitutional system:

{ the Legislative Assembly - legislative power

{ the Executive Council (Cabinet) - executive power

{ the State Courts - judicial power

Information Paper on Parliament and Government in Queensland

Parliamentary Education & Training Services, Queensland Parliament

The personnel of the Legislative Assembly overlap with that of the Executive and must do so as the

principal feature of the Westminster system: responsible government. The Ministers of the Crown including

the Premier must by convention be Members of the Parliament in order for them to have the confidence of

the Lower House to form the Executive Government. Hence, they are responsible to the Lower House.

On the other hand, a strict separation of personnel is maintained in Queensland between the State Courts

and the other two branches. In England, this is not the case with the position of the Lord Chancellor who is a

member of Cabinet and presides over the House of Lords in both its legislative and judicial capacities.

While the powers of each of these three branches of government are essentially different, there are grey

areas where it is difficult to characterise the power as legislative or judicial. These difficulties have had to be

resolved at the Commonwealth level by the High Court (see below), but do not pose a legal difficulty at the

State level. As stated earlier, the doctrine is not a legal restriction in Queensland. Although this has not

been declared by the Queensland Supreme Court, it has been so held in New South Wales, (Clyne v East

(1967) 68 SR (NSW) 385; BLF V Minister for Industrial Relations (1986) 7 NSWLR 372), in South Australia

(Gilbertson v South Australia (1976) 15 SASR 66), and in Western Australia (J.D. & W.G. Nicholas v

Western Australia [1972] WAR 168).

The reasons given in the various cases for the doctrine not applying as a legal restriction in those States

may be summed up as follows:

I. no reference in the State Constitution to the vesting of the judicial power of the State in any particular

institution or court;

II. no entrenchment in the State constitution of the Supreme Court or of its judicial power;

III. no clear division of powers in the State Constitution;

IV. the past practice of Colonial and State Parliaments of delegating legislative and judicial functions to

administrative bodies;

V. Colonial and State Parliaments have in the past exercised judicial power by way of impeachment and

bills of attainder.

The consequence of the doctrine not being a legal restriction at the State level is that Parliament can enact

a law which constitutes an exercise of judicial power or interferes in the judicial process; a State Court or

judge may be vested with powers of a legislative nature; the Executive or a Minister or public official may be

vested with legislative or judicial power.

In other words, while the Westminster system in Queensland reflects the doctrine in terms of structure, and

less so as regards personnel, there is a capacity for the powers of each to be shared to some extent. This

may be desirable in many cases but there are dangers as well.

Separation between Legislative and Executive Powers

The most significant transfer of power occurs between the legislature and the executive in the Westminster

system by the former vesting in the latter substantial powers to make delegated legislation principally in the

form of regulations. The complexity of government necessitates delegated legislation but safeguards need

to be put in place. Even at the Commonwealth level where the doctrine of separation of powers operates as

a legal restriction, the High Court approved in Dignan's Case (1931) 46 CLR 73 the delegation of

law-making power by Parliament to the Executive provided it was not too wide a delegation of power. This

proviso means little in practice (see below).

There are few legal limits and controls on the power of the Parliament to delegate its law-making function to

the Executive. At present the only legal limitation is that Parliament must always retain the capacity to

revoke the delegated power and assume the power to itself. This limitation is based upon the legal principle

that Parliament cannot abdicate its powers (see Cobb & Co Ltd v Kropp [1967] 1 AC 141). A further legal

limitation which might be considered is a prohibition on the use of Henry VIII clauses, i.e. subordinate

legislation be incapable of amending statutes (cf Legislative Standards Act 1922 (Qld) s.4(4)(c) ). EARC has

just recommended in its Report on Consolidation and Review of the Queensland Constitution (August 1993)

that the proposed Constitutional Convention consider the desirability of adopting this prohibition (para 8.24).

The controls currently in place on the exercise of a delegated power include:

· the ultra vires rule, that is, if the exercise of a delegated power falls outside the scope of the power,

the exercise of the power is invalid;

Information Paper on Parliament and Government in Queensland

Parliamentary Education & Training Services, Queensland Parliament

· the Statutory Instruments Act 1992 (Qld) which requires subordinate legislation (such as regulations)

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