Tension between the legislative and judicial arms of government would appear to be an inevitable consequence of the doctrine of separation of powers. This has evolved as a key tenet of most modern democracies and is designed to safeguard the population against autocratic or dictatorial rule. The separation of powers is a functional dimension of the Australian Constitution designed to divide power between the legislative, executive and judicial arms of government, and to assign areas of responsibility. These responsibilities, to put it simply, are:1.Legislative-The power to make laws;2.Executive-The power to carry the laws into effect; and3.Judicial-The power to interpret or discover the law .
In theory, the doctrine provides a system in which power cannot be concentrated in to any one governmental or political arm. It presents a system of checks and balances and provides a method of accountability given the interdependence of roles. But the fundamental element of the doctrine that gives rise to considerable tension between the arms of government is the ability for one arm of government to restrain the actions of another.
For example, the legislative arm can restrain the executive by refusing to pass proposed legislation or initiating investigations against the executive. The executive can restrain the legislature by calling for elections to replace the parliament or by refusing to enforce certain laws. The courts can restrain both the legislature and executive by nullifying laws and preventing them from acting unless they are in accordance with fundamental laws. The Executive and Legislative arms can restrain the Courts by overturning judge-made law and, in extreme cases, by removing particular judges from the bench .
It is due to both the threat to use these checks and balances and the system of accountability, and occasional confronting actions, that tension is generated between the arms...