Australian Constitution and Contract Formation

Running Head: AUSTRALIAN CONSTITUTION AND CONTRACT FORMATION
Australian Constitution And Contract Formation

AUSTRALIAN CONSTITUTION AND CONTRACT FORMATION 1
Contents
Part A...............................................................................................................................................2
Part B...............................................................................................................................................4
References........................................................................................................................................9

AUSTRALIAN CONSTITUTION AND CONTRACT FORMATION 2
Part A
The doctrine of separation of powers provides that those who are involved in making the law
should not enforce or administer that law. In Australia, the doctrine of the separation of powers is
responsible for the division of the institutions of the government in three separate branches
namely judicial, legislative and executive1. The legislature performs the function of making the
law while the function of putting the laws into operation is performed by executive branch2.
Lastly, the interpretation of law is the duty of judiciary. This doctrine is often regarded as the
keystones of fair government. However, the strict principle of separation of powers is not always
evident in Australia, however, it is a different version which combines the doctrine of
responsible government, basic democratic concepts set in the Westminster system and the
separation of powers adopted by United States.
The doctrine has been put in place in Australia for the purpose of preventing oppressive
government and therefore, different bodies are responsible for the different powers of the
government such that the balance can be maintained. The role of the three main elements of the
doctrine i.e. legislative, executive and judiciary has been discussed below:
Legislative- The legislative powers i.e. the power to make the laws are with the Parliament of
Australia and this power is provided to the Parliament by the Constitution. The legislation is
passed by the Parliament with the help of two houses of representatives and Senate along with
the Queen, who is represented by Governor- General. The law is framed when the proposed law
is agreed upon by both the Houses of Parliament. The powers of both the houses are equal,
however, there are certain restrictions on the powers associated with Senate for the introduction
and amendment of specific financial legislation. The role of the Governor- General in the
legislative process is relating to providing their assent to the acts3. The executive government is
1 Gabrielle Appleby, The separation of powers and rule of law in the Australian Constitution (14
October 2017) < https://boilingfrog.com.au/separation-powers-rule-law-australian-constitution/>
2 The Law Handbook, Elements of a contract (30 June 2017)
<https://www.lawhandbook.org.au/2018_07_01_03_elements_of_a_contract/>
3 Supreme Court of Western Australia, Separation of Powers (19 July 2012)
<https://www.supremecourt.wa.gov.au/S/separation_of_powers.aspx?uid=1910-3759-9835-

AUSTRALIAN CONSTITUTION AND CONTRACT FORMATION 3
also authorized by the Parliament for spending the public money by making an agreement to the
government proposals for taxation and expenditure, serving as a forum for debate of the public
policy and scrutinizing the government’s administrative action. Moreover, the delegation of the
legislative powers is possible to the executive and as a consequence, it upheld the delegated
legislation’s validity4.
Executive- Executive is regarded as the physical part of the legislature and is often allocated with
some of the powers by the legislature such as formulating regulations under the Act passed by
the Parliament. The power of Executive is often restricted by Senate through its ability of amend,
query and block government legislation5. The Executive power of the Commonwealth is
exercisable by the Governor- General as the representative of the Queen and therefore is vested
in the Queen. The possession of the executive power is with Cabinet (senior ministers) and the
Prime Minister. The powers of the executive cannot be restricted or over- rules by the legislature
by way of passing new laws to that effect. The decision made by the executive cannot be
substituted by the court, however, it has the power of deciding on its correctness6. The queen is
provided with the power by the Constitution to disallow any Australian Act and it has never been
done before. Before putting the laws into operation, the Council ensures that the actions of
Ministers are properly documented and are constitutionally and legally valid along with being in
accordance with the policy of the government.
2395>
4 Parliamentary Education Office, Separation of Powers: Parliament, Executive and Judiciary, <
https://www.peo.gov.au/learning/fact-sheets/separation-of-powers.html>
5 John Alvey and Neal Ryan, The separation of powers in australia: implications for the state of
queensland, <
https://www.researchgate.net/publication/27481194_The_Separation_of_Powers_in_Australia_I
mplications_for_the_State_of_Queensland>
6 Peter Gerangelos, ‘Separation of powers in the Australian constitution: Themes and reflections’
(2017) 29 SAcLJ 903, 904.