The separation of powers in Australia is one of the cornerstones of our democratic government.
It allows us to be pretty confident that there are rules that govern our lives and that if for whatever reason the rules don't work we can get a remedy. Not only that, that the rules that govern how we behave also apply to the government itself.
Essentially, our system means that we have a government based on the rule of law, that is that we all (the government included) live with the protection that the rules apply to all of us. It's different to being ruled by the power and will of one person, or of a select few, North Korea- I'm looking at you.
How does the separation of powers work?
That's pretty easily explained using a dessert, the humble trifle.
A trifle has three main ingredients: A base of sweet, sweet, jelly, a decadent sponge cake middle, and a whole heap of custard topping it all off magically.
Is it a surprise that the institutions of government also come in threes? (Even though they are not as delicious.)
In government we have: the legislative, the executive and, the judiciary.
THE JELLY IS LIKE THE LEGISLATIVE ARM OF GOVERNMENT.
The jelly is the base to the whole frikin dessert, without a base you just have a soggy sponge, gross.
The jelly gives the trifle a fair bit of support; even though the jelly wobbles around a fair bit because it's jelly, it holds everything together because it's the base.
The legislative is responsible for making sure that there is a good foundation for government, like jelly does to our trifle. The legislative arm is the arm that makes laws by discussing them together as a group and then agreeing to make them official.
In Australia our jelly is the Commonwealth Parliament. Not the building itself, there have been about three different parliament buildings since Federation!
What I mean by the Commonwealth Parliament is the body under the Constitution of Australia that we elect to represent us all and that makes laws for us in our name.
The parliament isn't the politicians either, pollies come and go, but the institution remains. Just like you can have jelly of different flavours and colours, it's still jelly. The jelly is the important thing here friends, not the flavour!
So to recap, the legislative is the body of government that create laws by discussing them and then passing them on our behalf.
Ok- so we've got a jelly base, but we don't have a trifle yet. We need to add more deliciousness so it works. Let's add the next layer. The sponge cake.
THE SPONGE CAKE IS LIKE THE EXECUTIVE ARM OF GOVERNMENT.
The sponge cake makes the trifle just a little bit taller, a little bit more delicious and it also gives it structure because jellySw. on its own is boring.
The sponge gives your trifle a bit of context and direction. That's what the executive government does.
The executive arm of government is the group that is responsible for the administration of the government.
They enforce the laws that the legislature has passed by using the police or the army, or just by making decisions and policies; they also set the agenda.
The executive arm of government is in the middle (like the sponge is) pressing the buttons to make sure things get done the way that they want to see things done.
Think of the executive as the government in power, at the moment as of today it's the Prime Minister, Tony Abbott and his group of ministers; together they're pulling the levers and pushing the buttons. Yes, we elect them like we elect the legislative arm, but the executive is the one with the authority to enforce the laws by setting priorities.
Tones and his ministers are in the middle of our trifle. A trifle without a middle is a devastating mess. A government without an executive to set the pace is also a devastating mess.
So to recap, the executive enforce laws and they set the agenda. They're the ministers of government who are in the middle giving our trifle structure.
So, our trifle is starting to take shape but it's missing the most boss of boss ingredients. A trifle without custard is just a sponge cake with jelly, gross.
THE CUSTARD IS LIKE THE JUDICIARY
The custard is all over your trifle. You pour it on and it just completes the whole thing. It just sits on top of that delicious mess made by the jelly and the sponge and covers it.
Custard keeps the layers below in check by completely blanketing them in delicious dairy goodness. It also gives it meaning- without custard you just have a jelly cake. Yuck.
A lot like the judiciary.
While the judiciary (also known as the courts) don't cover the parliament or the government in dairy products they do sit on top of the system.
Not because they're the most important but because their role is to oversee the whole process and make sense of it.
Remember the judiciary pass laws in line with the agenda that the executive has set.
Then what happens if the laws that are being made are really unfair, or if they are just really bad laws? What about if those laws don't make a lot of sense in the real world? Or if the laws aren't very good, what happens then?
The judiciary comes in and they either try and make sense of the laws and give them meaning, or they interpret the laws to solve problems if the laws aren't clear enough.
It sounds weird that someone has to interpret the laws that the other parts of government have made. Why don't they make the laws clearer and easier to understand?
Well, they do. But the people who decide the laws and make them official can't make rules and laws regarding absolutely everything, taking in to consideration every single factor that could possibly happen. The Parliament would just get bogged down in too much detail.
The detail is what the judiciary do, they look at what has happened in a particular case and they apply the laws that have been made to what has happened to solve a problem.
The judiciary also makes sure that the other two arms aren't getting too greedy and giving themselves too much power.
The judiciary also gives us a way for all of us to solve our legal disputes, either between individuals themselves, or between individuals and the government.
Just like custard covers your trifle to make sure it's not just a sponge and a wobbly jelly, the judiciary checks the other two arms of government to make sure that they're not going mad with power.
So to recap, the judiciary is the only arm of government that can interpret laws and apply them to the facts before it.
We now have a trifle!
The jelly base is the legislature, they debate ideas and turn them in to laws.
The sponge middle run the show, they set the agenda and enforce the laws.
The custard top then look at the laws and they interpret them and apply them to specific situations.
Just like you need those three to have a trifle, you need all three of them to make the Australian government. This division between the three is what makes our system fairer. This is because each arm has a unique role and is always being watched by the other arm.
The parliament keeps a check on the ministers In the executive to make sure that they aren't making terrible decisions, the executive is making sure that the laws we have agreed to live by are being enforced and they also represent us and work to make life for us better, the judiciary then interprets the laws when there is a dispute.
Is the system perfect. No it isn't. Using trifle as an analogy makes it sound as if the whole system just works without any incident, and largely it does, but there are some exceptions.
I'll discuss those in another post.
If you're hungry reading this,