Doctrine of Separation of Powers in Business Law

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Business Law

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Part A
The Doctrine of Separation of Powers
The doctrine of separation of powers is referred to a constitutional principle which is
introduced in order to divide the institution of government into three branches which
include legislative, executive and judiciary. As per this principle, each division has its own
powers which they can exercise, and they did not have the authority over each other. This
principle is a part of the Australia government.1 The objective of this doctrine is to ensure
that the legislative powers are not misused by the government. This principle raises the
question of where the power lies in the political system and who has the authority to
monitor these three branches of the government. The doctrine of separation of powers is
defined into two senses which include strict and liberal. As per the strict sense, the powers
are clearly divided between the three organs of the government in order to maintain
balance and keeps check on their operations.2 In this sense, there should be no overlapping
of the powers or functions of the three organs.
On the other hand, the liberal sense provides that there can be overlapping of specific
functions between the three organs; however, it is important that checks and balances are
maintained between the three organs. In the case of Australia, the first three chapters of
the Constitution are titled the ‘Parliament’, the ‘Executive Government’ and the ‘Judiciary’.3
The power of all these three organs is provided in the first three chapters of the
Constitution. The Parliament is given the right to add, remove and amend laws which apply
throughout the country. The Judiciary plays a key role in interpreting those laws in order to
protect the regulations in the country along with its citizens. The Executive Government
assists in implementing these laws in the country. Separate individuals are responsible for
exercising the powers and functions of each organ. The objective of this division is to
prevent misuse of powers by a specific authority. In Australia, the High Court provided in
the case of Victorian Stevedoring & General. Contracting Co Pty Ltd & Meakes v Dignan4 that
1 Paul Latimer, Australian Business Law 2012 (CCH Australia Limited, 2011).
2 Cheryl Saunders, The Constitution of Australia: a contextual analysis (Bloomsbury Publishing, 2010).
3 John McMillan, ‘Re-thinking the Separation of Powers’, (2010) 38 Fed. L. Rev. 423.
4 (1931) 46 CLR 73

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a strict division between the legislative and executive organ is not practical and this was
outlined by the Constitution as well.
Legislative
The legislative is referred to the assembly where the laws which are implemented on the
country are introduced by the members of the Parliament. The process of introduction of
laws begins with the introduction of a bill in the parliament which is submitted by the
government. The bill is discussed either in the Senate or the House of Representative where
the opposition and the current government parties discuss the merits and issues of the bill. 5
Based on the discussion, changes are made in the bill, and after getting approach from both
the houses, the bill is sent for the Royal Assent of the Governor General who signs the bill,
and it becomes a law.
Executive
The executive is a key organ of the government which is responsible for imposing laws in the
country. This organ helps in preventing keeping of powers in small groups, and its role is to
enforce the law rather than interpreting it. Without executive government, it is not possible
for the legislative or judiciary to ensure that the laws are enforced in the country. 6 This
avoids the misuse of powers and ensures that the powers are separated correctly between
the three organs.
Judiciary
In the judgement of New South Wales v Commonwealth7, the court provided that a
fundamental principle of the Constitution is strict insulation of the judicial power. The role
of judiciary is to interpret the laws made by the legislative. It consists of judges, courts,
adjudicators and magistrates who run its operations. The doctrine of precedent is a key part
of the judiciary organ in Australia which imposes a fundamental constraint on judicial
decisions. As per this doctrine, judges have to give appropriate respect to the decisions
made by higher courts in the previous cases. It means that if the facts of a case are similar,
5 Ian D. Loveland, Constitutional Law (Routledge, 2018).
6 Roger Masterman, The separation of powers in the contemporary constitution: Judicial competence and
independence in the United Kingdom (Cambridge University Press, 2010).
7 [1915] HCA 17