Which one of the following statements is true under the separation of powers?

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The doctrine of the separation of powers in the Westminster system is usually regarded as one of the most fundamental tenets of liberal democracy.

The doctrine of the separation of powers divides the institutions of government into three branches: legislative, executive and judicial: the legislature makes the laws; the executive puts the laws into operation; and the judiciary interprets the laws. The powers and functions of each are separate and carried out by separate personnel. No single agency is able to exercise complete authority, each being interdependent on the other. Power thus divided should prevent absolutism (as in monarchies or dictatorships where all branches are concentrated in a single authority) or corruption arising from the opportunities that unchecked power offers. The doctrine can be extended to enable the three branches to act as checks and balances on each other. Each branch’s independence helps keep the others from exceeding their power, thus ensuring the rule of law and protecting individual rights.

Under the Westminster System – the parliamentary system of government Australia adopted and adapted from England – this separation does not fully exist and the doctrine is not exemplified in the constitutions of the Australian states. However in Australia the three branches exist: legislature in the form of parliaments; executive in the form of the ministers and the government departments and agencies they are responsible for; and the judiciary or the judges and courts. However, since the ministry (executive) is drawn from and responsible to the parliament (legislature) there is a great deal of interconnection in both personnel and actions. The separation of the judiciary is more distinct.

If the object of separation of powers is to develop mechanisms to prevent power being overly concentrated in one arm of government, then in practice in Australia mechanisms for avoiding the over-concentration of power exist in many ways – through constitutions and conventions; the bicameral system; multiple political parties; elections; the media; courts and tribunals; the federal system itself; and the active, ongoing participation of citizens.

• Origins of the Doctrine
• The Doctrine in Australia - the Commonwealth
• The Doctrine in Australia - the States
  

Separation of powers is a doctrine of constitutional law under which the three branches of government (executive, legislative, and judicial) are kept separate. This is also known as the system of checks and balances, because each branch is given certain powers so as to check and balance the other branches.

Each branch has separate powers, and generally each branch is not allowed to exercise the powers of the other branches. 

The Legislative Branch exercises congressional power, the Executive Branch exercises executive power, and the Judicial Branch exercises judicial review. 

Further Reading

For more on separation of powers, see this Florida State University Law Review article, this Cornell Law Review article, and this Northwestern University Law Review article.  

Separation of powers, therefore, refers to the division of government responsibilities into distinct branches to limit any one branch from exercising the core functions of another. The intent is to prevent the concentration of power and provide for checks and balances.  

The traditional characterizations of the powers of the branches of American government are:

• The legislative branch is responsible for enacting the laws of the state and appropriating the money necessary to operate the government. 
• The executive branch is responsible for implementing and administering the public policy enacted and funded by the legislative branch. 
• The judicial branch is responsible for interpreting the constitution and laws and applying their interpretations to controversies brought before it.

Forty state constitutions specify that government be divided into three branches: legislative, executive and judicial. California illustrates this approach; "The powers of state government are legislative, executive, and judicial. Persons charged with the exercise of one power may not exercise either of the others except as permitted by this Constitution."

While separation of powers is key to the workings of American government, no democratic system exists with an absolute separation of powers or an absolute lack of separation of powers. Governmental powers and responsibilities intentionally overlap; they are too complex and interrelated to be neatly compartmentalized. As a result, there is an inherent measure of competition and conflict among the branches of government. Throughout American history, there also has been an ebb and flow of preeminence among the governmental branches. Such experiences suggest that where power resides is part of an evolutionary process. 

This page provides resources for legislators and staff to use in addressing separation of powers issues. It organizes them into broad categories and links to a diverse set of resources to illustrate how the doctrine applies to specific issues under each category. The resources include law review articles, court cases and legislative reports.

Resources

Alaska: Alaska Legislature, Separation of Powers

Iowa:  Iowa Legislative Services Agency, Legislative Guide to Separation of Powers, 2005

Minnesota:  Minnesota House Research, Separation of Powers: When Statutes and Court Rules Conflict, 2005

Receiving Information or Recommending Additions

If you have any questions, please contact Brenda Erickson.  Also, please contact Brenda if you would like to recommend legislative resources or case law that may enhance the Separation of Powers website. 

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