Parliament and the courts: Separation of powers

The three videos in this series feature extracts from a panel conversation on 2 March 2023, hosted by the Parliament of Victoria and Victoria Law Foundation.

• Introducing the separation of powers
• The evolution of the separation of powers
• Accountability and the separation of powers

Participants included the Hon. Judge Elizabeth Brimer KC from the County Court of Victoria, Matt Fregon MP, Member for Ashburton and Deputy Speaker in the Legislative Assembly, and Robert McDonald, Clerk of the Legislative Council.

The videos consider the separation between the legislative, executive and judicial branches of Victoria’s democratic system, including:

• the responsibilities of each branch
• how each branch may interact with each other
• the different accountability functions
• the strengths and challenges of this system
• the implications when making and applying the law.

These videos are not intended to serve as a definitive resource for the topics covered, however, they do offer useful insights into the perspectives of the experts who took part in this conversation.

• Discussion questions

  Introducing the separation of powers

  1. Explain the differences, similarities and interactions between the Executive (government), Legislative (parliament) and Judicial (courts) branches?
  • You may like to consider a Venn diagram that demonstrates the different roles and responsibilities, accountability measures and interactions between the branches.
  2. How does the Victorian Constitution support the separation of powers?
  3. Using the concept of the separation of powers, explain the difference between governance and government. 
  4. How does the process of emergency powers (for example Covid-19 emergency powers discuss) demonstrate how the separation of powers work? Supporting material that may be useful include:
  • COVID-19 Omnibus (Emergency Measures) Act 2020, commencement 25 April 2020
  • Public Health and Wellbeing Amendment (State of Emergency Extension) Act 2021, commencement 11 March 2021 (Sections 2A, 2B and 3A commenced on 20 April 2021)
  • Public Health and Wellbeing Amendment (Pandemic Management) Act 2021, commencement 8 December 2021 (however, several sections were scheduled to commence within 12 months of Royal Assent to allow for implementation
  • Cotterill v Romanes Judgment. 

  Accountability and the separation of powers

  1. Why are the separation of powers important?
  2. How does the separation of powers contribute to effective governance?
  3. What changes would you make, and why, to strengthen the transparency and accountability of each branch?
  • How might these changes affect the way the separation of powers works?
  4. What are some of the systems and conventions that support the separation of powers?
  • What are some of the consequences (ramifications) of these systems and conventions either breaking down or not being followed?
  5. What processes are there for the laws and the application of laws to be reviewed so that laws continue to meet society’s expectations?
  • How does the separation of powers support these processes of law-making and law reform?
  6. What other models of separation of powers exist?
  • What can we learn from these systems?
  • What aspects of these other models could be applied in Victoria and how might they strengthen the separation of powers?
  • What might be some consequences of the changes/additions that you propose?

  The evolution of the separation of powers 

  1. What are the strengths and weaknesses of the separation of powers in Victoria?
  2. How might the roles and responsibilities of each branch change if Australia was to become a republic?
  3. The Governor plays a key role in both Royal Assent and in the ability to hold both the executive and legislature to account. If Australia was to become a republic, what changes would you make to the position of Governor of Victoria? Consider:
  • Would you consider keeping the position of Governor or would you create a different position? How would either position be appointed?
  • What powers would you give the new Governor's role and how would these powers support holding the executive and the legislature to account?
  • What accountability measures or limitations of power would you place on the new role of Governor?
• Classroom connections

  These videos are useful as either an introduction, consolidation or refresher to the concept of separation of powers, especially for VCE Legal Studies. However, the videos can be used across multiple year levels and can be used in conjunction with a number of different resources.

• Related resources

  A closer look at the separation of powers

  An education blog article produced after the 2 March 2023 panel event provides a brief overview of each branch of government included in the separation of powers, and. the various checks and balances that are in place to ensure accountability and transparency.

  Separation of powers summary notes

  This PDF download provides a more detailed summary of the 2 March 2023 panel event, including some scenarios and examples that were explored throughout the course of this discussion. It also provides some additional information about the panel members who participated.

  Separation of powers digital posters

  Download and print your own set of colourful classroom posters. Designed as a simple visual tool to reinforce awareness of the separation of powers and its three component parts, or as a prompt for class discussion.