Separation of Powers Doctrine in Australia: De Facto Human Rights Charter

By Bagaric, Mirko | International Journal of Punishment and Sentencing, January 2011 | Go to article overview

Separation of Powers Doctrine in Australia: De Facto Human Rights Charter


Bagaric, Mirko, International Journal of Punishment and Sentencing


Abstract: Australia is the only western nation without a bill of rights. The High Court of Australian has interpreted the separation of judicial powers in the Commonwealth Constitution over the past decade in the manner which confers a number of rights to citizens. The paper examines the scope of the separation of powers doctrine and concludes that its ongoing expansion may provide a de facto bill of rights in Australia, especially in relation to criminal law matters.

1 Introduction

The Australian legal system does not have laws which systematically protect human rights. The absence of a systematic body of law which protects human rights is a distinctive aspect of the Australian legal system. Australia is the only developed country that does not have a comprehensive legislative regime for recognising and protecting human rights.

Two jurisdictions, Victorian and the Australian Capital Territory, have charters of rights. (2) However, these do not confer stand alone rights. Instead they operate as interpretive devises, urging courts to give rights-embracing interpretations of statutes that impact on human rights.

The Commonwealth Constitution protects a small number of rights. The rights enshrined in the Constitution are:

* The right to just compensation for property acquired by the Commonwealth--s 51(xxxi).

* The right to trial by jury for serious offences--s 80.

* Freedom of movement between States--s 92.

* The right of religion--s 116.

* No discrimination on the basis of State residence--s 117.

* Freedom of speech in relation to political matters. This is a right implied from the text and character of the Constitution.

While the Commonwealth Constitution contains only a small number of express and implied rights, it has been interpreted and applied in a manner to provide some important, potentially wide-ranging, rights protections.

This has resulted from the operation of the separation of powers doctrine. In the purest sense, the separation of powers doctrine provides that there are three categories and organs of government functions: legislative, executive and judicial, and that each function of government should be exercised only by the relevant organ. Accordingly, the functions of government should be kept separate and autonomous. (3)

Although strictly the separation of powers doctrine requires the functions of each organ to be kept separate, the High Court has not enforced the separation of powers doctrine between the legislative and the executive. This is largely because our system of responsible government requires a close integration between Parliament and the executive. (4) However, apart from several narrow and generally well-defined exceptions, (5) the High Court has been far more dogmatic in relation to the separation of judicial power.

Initially the justification for the separation of judicial power stemmed from the text and structure of the Constitution. Chapter 1 deals with 'The Parliament'; Ch II, 'The Executive Government'; and Ch III, 'The Judicature'. (6)

This justification, which focuses on the division of governmental function, has now been supplemented with a purposive approach; one which takes the protection of individual rights and freedoms as its goal.

The need for the separation of judicial power to act as a restraint on governmental power derives from the view that it is dangerous to accumulate all governmental powers into the one government organ: (7)

   The lesson of history is that the separation of powers doctrine
   serves a valuable purpose in providing safeguards against the
   emergence of arbitrary or totalitarian power. (8)

Thus the main objective of the separation of powers doctrine is the protection of individual rights and freedoms which are related to the curial process. In Kable v Director of Public Prosecutions (NSW) [1996] HCA 24, at [24], Gaudron J stated that one of the central purposes of the judicial process is to protect:

   . … 

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