Supreme Court of Western Australia

Separation of Powers

The judiciary is one of the three arms of government, along with parliament and the executive. The judiciary is independent of the other two arms of government. This independence is one of the most vital safeguards of a democracy and is underpinned by the rule of law.

The rule of law is the system where everyone is equal under the law and all persons are subject to the rule of law. Everyone is entitled to have an action heard by an independent and impartial court or tribunal. A judiciary which exists merely to do a government's bidding or to implement government policy provides no guarantee of liberty.

Members of the judiciary are bound by their oath and affirmation "to do right to all manner of people according to the laws and usages of the State without fear or favour, affection or ill will".

Security of tenure is an important part of judicial independence so that governments cannot influence the decisions of a judge. A judge is appointed until the age of 70, and cannot be removed from office except by the Governor following an address from both houses of parliament - the Legislative Assembly and the Legislative Council. Judges are appointed by the Governor on the recommendation of cabinet. The Chief Justice is closely consulted during the process.

Parliament's function is to enact laws. The courts are bound by statute (laws made by parliament) and by decisions made in previous cases (precedent). The courts also pronounce law in those areas where parliament has not legislated. The power of the court to pronounce law is called upon only where the authority of a statute or previous case law is lacking. Under the constitution, parliament is supreme. Parliament can change the law in any way it chooses.

The executive is constituted by the Governor General (Australia) or the Governor (State), who represents the crown, the government of the day and the public service. The role of the executive is to administer the laws enacted by parliament.

Last updated: 1-Mar-2019

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