Abstract: The Australian Constitution has been interpreted by the High Court of Australia as implying a legal separation of powers. However, although it has been possible to apply this doctrine rigorously to maintain a separation of judicial power from the political branches, it sits uneasily within a constitutional framework which also provides for responsible government and a parliamentary executive pursuant to the Westminster model, especially as regards the separation of legislative and executive power inter se. So long as the general executive power of the Commonwealth was limited in ambit by the non-statutory executive powers recognised by the common law, generally referred to as the prerogative, an accommodation could be reached between those underlying constitutional principles. This has now been upset by the recent recognition by the High Court of an inherent executive power residing in s.61 of the Constitution defi ned rather imprecisely by “national” considerations. This article examines and discusses these developments in attempting to understand the extent to which it is possible to maintain a legal separation between executive and legislative power in Australia.
Keywords: separation of powers; responsible government; parliamentary supremacy; common law executive powers; inherent executive power; “nationhood” executive power; executive prerogatives and capacities
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