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House of Representatives                                Ch 2                                                 p 42

A note on separation of powers and checks and balances

The doctrine of separation of powers was popularised by Montesquieu in 1748 in his work L’Esprit des Lois . The doctrine held that there were three essentially different powers of government: legislative, executive and judicial; and that a country’s liberty depended on each of these powers being vested in a separate body. This theory had a marked effect on subsequent parliamentary and governmental development in democratic societies.

The doctrine of the separation of powers influenced the framing of the Australian Constitution to the extent that the powers of the main arms of government were set down in three separate chapters (s .  1, The Legislature; s .  61, The Executive; s .  71, The Judicature). However, as Ministers must be, or become, members of the legislature, there is a combining and overlapping of the legislative and executive functions.

According to Bagehot, the relationship between the legislative and executive powers in the Westminster system is better described as a ‘fusion of powers’:

The efficient secret of the English Constitution may be described as the close union, the nearly complete fusion, of the executive and legislative powers. ¹

This fusion takes place in a Cabinet, which:

. . . is a combining committee—a hyphen which joins, a buckle which fastens, the legislative part of the State to the executive part of the State. In its origin it belongs to the one, in its functions it belongs to the other. ²

Although this fusion of powers in the Westminster tradition may be regarded as a strength, it is also recognised as a potential danger. It is accepted to be undesirable for all or any two of the three powers to come under the absolute control of a single body. There are therefore checks and balances which prevent the fusion of executive and legislative powers from being complete. The essence of a democratic Parliament is that the policy and performance of government must be open to scrutiny, open to criticism, and finally open to the judgment of the electors. When the Government puts its policy and legislation before Parliament it exposes itself to the scrutiny and criticism of an organised Opposition and of its own Members, who may be critical of, and suggest changes to, government policy and administration. Parliament is an important brake on the misuse of executive power of the Government collectively, or Ministers individually. It is essential that there be no erosion of Parliament’s role in scrutinising the actions of government, such as might cause the Parliament to become a mere ‘rubber stamp’ in respect of government policy. Through the procedures of the House and the will of individual Members, and especially through the institutionalised Opposition, the executive and legislative functions remain sufficiently distinct.

Walter Bagehot, The English Constitution , 4th edn, Fontana, London, 1965, p. 65.

Bagehot, pp. 67-8.