The term, and its occurrence in Australia, is due to the text and structure of the Australian Constitution, which derives its influences from democratic concepts embedded in the Westminster system, the doctrine of "responsible government" and the United States version of the separation of powers.
In Victorian Stevedoring & General Contracting Co Pty Ltd v Dignan, the High Court of Australia held that it was impossible, consistent with the British tradition, to insist upon a strict separation between legislative and executive powers.
Similarly, the legislature could restrict or over-rule some powers held by the executive by passing new laws to that effect, though these could be subject to judicial review.
On the other hand, the Senate has had the effect of restraining the power of the executive through its ability to query, amend and block government legislation.
Minor parties have gained greater representation and Senate majorities on votes come from a coalition of groups on a particular issue, usually after debate by the Opposition and Independents.
[8] As early as New South Wales v Commonwealth (The Wheat Case), the High Court decided that the strict insulation of judicial power was a fundamental principle of the Constitution.
The reasoning in the Wheat Case was taken further in Waterside Workers' Federation of Australia v J W Alexander Ltd where a decisive distinction between judicial and arbitral functions was drawn.
[10] A consequence of the Australian version of the separation of powers is its role in encouraging judicial deference to the "political" arms of government.
The normal propensity of the High Court is to recognise that separation of powers requires not only that the "political branches" should not interfere with judicial activity, but also that the judiciary should leave politicians and administrators alone.
On this basis it was held in Kable v Director of Public Prosecutions (NSW) that a State court could not be given a function inconsistent with its status as a potential repository of federal judicial power.
[5] The doctrine was rarely applied in the early years following Kable, leading Justice Kirby to describe it as "a constitutional guard-dog that would bark but once.
[18] One recent case was South Australia v Totani,[19] which involved a challenge to the validity of the Serious and Organised Crime (Control) Act 2008 (SA).
The Council, determined to exercise its scrutiny of the executive, pressed the issues and eventually adjudged the Treasurer in contempt, suspending him from the house twice.
The results upheld that principle that the Legislative Council does have the power to order the production of documents by a member of the House, including a minister, and can counter obstruction.