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The doctrine of the separation of powers in Australia divides the institutions of government into three branches: legislative, executive and judicial. The legislature makes the laws; the executive put the laws into operation; and the judiciary interprets the laws. The doctrine of the separation of powers is often assumed to be one of the cornerstones of fair government. A strict separation of powers is not always evident in Australia;〔see eg, ''Hilton v Wells'' () HCA 16 (AustLII )〕 instead the Australian version of separation of powers combines the basic democratic concepts embedded in the Westminster system, the doctrine of "''responsible government''" and the United States version of the separation of powers. The issue of separation of powers in Australia has been a contentious one and continues to raise questions about where power lies in the Australian political system. Although it is assumed that all the branches under the separation of powers do not overlap, for example like the US, there is sometimes a ‘common ground’ between all three levels. In Australia there is little separation between the executive and the legislature, with the executive required to be drawn from, and maintain the confidence of, the legislature. In Victorian Stevedoring & General Contracting Co Pty Ltd & Meakes v Dignan the High Court of Australia held that a strict division between these two levels was not practical and re-affirmed the Constitution to outline this (German, 2012). The first three chapters of the Australian Constitution are headed respectively "The Parliament", "The Executive Government", and "The Judicature". Each of these chapters begins with a section by which the relevant "power of the Commonwealth" is "vested" in the appropriate persons or bodies. The historical context in which the Constitution was drafted suggests that these arrangements were intended to be connected with federal ideas along American lines. On the other hand, the Constitution incorporates responsible government, in which the legislature and the executive are effectively united. This incorporation is reflected in sections 44, 62 and 64 of the Constitution. ==Legislative and executive powers== Section 64 provides that federal Ministers - members of the executive - must sit in Parliament. The specific requirement for ministers to sit in Parliament established the connection between executive and legislative, effectively preventing an American-style separation of the two. Strictly speaking, any person may be appointed a Minister, but their appointment lapses if they do not gain a seat in either house of the Parliament within three months. This provision was necessary in 1901, as the first government was sworn in on 1 January but the first parliament was not elected until late March (see Australian federal election, 1901). No non-parliamentarian was appointed a Minister since then, until the appointment of Bob Carr as Foreign Minister in 2012. However, the provision is still relevant. It applies when a minister in the House of Representatives loses their seat at a general election; despite no longer being a member of parliament, the Minister will typically retain their portfolio for some days after the election, until the new government is sworn in. It also applied when John Gorton became Prime Minister in 1968; he was sworn in while a member of the Senate, then he resigned in order to contest a by-election for a lower house seat, which he won, but between his resignation from the Senate and being elected to the House of Representatives, he remained Prime Minister without holding any seat in Parliament. In ''Victorian Stevedoring & General Contracting Co Pty Ltd & Meakes v Dignan'', the High Court of Australia held that it was impossible, consistent with the British tradition, to insist upon a strict separation between legislative and executive powers.〔 Victorian Stevedoring & General Contracting Co Pty Ltd v Dignan; sub nom Meakes v Dignan (1931) 46 CLR 73 (), see also ''Roche v Kronheimer () HCA 25; 29 CLR 329 (2 June 1921) (AustLII )〕 It was found that legislative power may be delegated to the executive, and as a result upheld the validity of delegated legislation. By contrast, in its insistence on a strict separation of "judicial power", the High Court has been less willing to compromise. Furthermore, the role of the courts was discussed in Kable v Director of Public Prosecutions (NSW) (), whereby a NSW statute was invalidated since it purported to confer not-judicial functions to court.〔 See also ''Kirk v Industrial Relations Commission'' (2010) 113 ALD 1. () 〕 The executive is not only physically part of the legislature, but the legislature can also allocate it some of its powers, such as of the making of regulations under an Act passed by Parliament. Similarly, the legislature could restrict or over-rule some powers held by the executive by passing new laws to that effect, though these could be subject to judicial review. The exceptionally strong party discipline in Australia, especially in the lower house, has had the effect of weakening scrutiny of the executive by the legislature since within the lower house, every member of the numerically larger party will almost always support the executive and its propositions on all issues. On the other hand, the Senate has had the effect of restraining the power of the executive through its ability to query, amend and block government legislation. The result of the adoption of a proportional system of voting in 1949 has been that the Senate in recent decades has rarely been controlled by governments. Minor parties have gained greater representation and Senate majorities on votes come from a coalition of groups on a particular issue, usually after debate by the Opposition and Independents. The Constitution does, moreover, provide for one form of physical separation of executive and legislature. Section 44, concerning the disqualifications applying to membership of Parliament, excludes from Parliament government employees (who hold "an office of profit under the crown" (iv)) along with people in certain contractual arrangements with the Commonwealth. This was demonstrated in 1992 after Independent MP, Phil Cleary, had won the Victorian seat of Wills. Cleary, on leave without pay from the Victorian Education Department at the time of his election, was held in ''Sykes v Cleary'' to be holding an office of profit under the Crown and disqualified. The Court noted that that Section 44's intention was to separate executive influence from the legislature.〔''Sykes v Cleary'' () HCA 60; (1992) 176 CLR 77 (25 November 1992) ().〕 抄文引用元・出典: フリー百科事典『 ウィキペディア（Wikipedia）』 ■ウィキペディアで「Separation of powers in Australia」の詳細全文を読む スポンサード リンク
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