Ok, this is going to be a really, really stupid question. Very stupid. But: I still (after a year and a half) don't get the difference between the division and separation of powers. I now the Legal Studies presentation at the beginning of the year in Sydney with Elyse briefly touched on it, but I still don't really comprehend it.
Sorry...
Hey Matilda!! First of all, no such thing as a stupid question!!
Okay, so
Division of Powers. The Division of Powers is concerned with how the law making powers are divided between the state and federal governments. This is to do with Federation, when the states agreed to turn some of their powers over to the Federal Commonwealth of Australia.
So, for example, only the Federal Government can make laws on defence, foreign affairs, trade. These are called
Exclusive Powers, since only the federal government can legislate on these issues.
For some areas, both the state and federal governments can legislate, in a sort of shared arrangement (though any federal laws automatically override state laws, according to Section 109 of the Constitution). These are called
Concurrent Powers, and include things like health and education.
Finally, there are areas of law which remain completely the responsibility of the state. These are called
Residual Powers. These include civil law, some areas of criminal law, urban planning, etc.
So, that's Division of Powers, how law making power was divided amongst the states and the federal government.
Separation of Powers is a little different, and not specifically enshrined anywhere in Australian law, though the structure of the first few sections of the constitution heavily reflects it. The Separation of Powers is a doctrine which separates government power into three separate branches; legislature (the law makers), executive (the law enactors), and the judiciary (the law interpreters). So in Australia, the House of Reps/Senate would be our legislature, the cabinet would be our executive, and the courts are our judiciary.
Now this is a doctrine that has been around longer than Australia has; rather than being a direct link to Australian law, it is an
idea that is viewed as an important aspect of responsible government. However, the doctrine is heavily enshrined in most modern government systems, particularly
Westminster Systems like ours. We don't follow it completely though. Ideally, there should be complete separation between the three branches. In Australia, the executive and the legislature overlap quite heavily (the Prime Minister votes in the House of Reps, for example). This is a notion called
responsible government, and it is quite contentious for some.
So, as summary: The division of powers is an actual, real thing that is a part of the Australian constitution. It specifies how law making powers are divided between states. The separation of powers is a doctrine, not actually found in Australian law, just reflected in its structure. The doctrine encourages separation between the three branches of government power, as a sort of checks and balances system against corrupt individuals.
I hope this helps a little! Feel free to ask for clarification, this is a really common question for a lot of people
it's annoying the two things have such a similar name, when really, they have nothing to do with each other