Understanding the Doctrine of Separation of Powers in Australian Constitution

Running Head: Business Laws
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Business Laws
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1/18/2019

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Part A
The doctrine of Separation of Powers: It is a doctrine which is inserted in the constitution of
Australia where the powers are divided into three branches of the government that is executive,
legislative and judicial. The doctrine has provided separate powers to each and every branch of
the government and each branch have its own powers which cannot be exercised by the other
department or branches. The doctrine of separation of powers also represents the structure of
the Australian government. It can also be observed in Australia that the members of the
executive are also the members of the legislature. Such a doctrine is made with such an
intention where the legislative powers are not to be misused by the government of the country.
Such a doctrine has created questions in the minds of various people where the power lies in
the political system of Australia.1
It can be noted that the initial three chapters of Constitution of Australia are headed in the
name of ‘The Parliament’, ‘The Executive Government’ and ‘The judiciary’. The constitution
states their powers of all the bodies which are mentioned in the first three chapters of the
constitution. The parliament that is the legislature makes and amends laws for the country, and
the judiciary helps in interpreting laws to protect the rule of law in the country. However, it can
be noted that the powers and functions are carried by separate individuals of every department;
however, the role of each and every such branch is to ensure the rule of law and the rights of
the citizens of the country.2
1 Rosenbloom, David H., 3a. Public Administrative Theory and the Separation of Powers." The Constitutional
School of American Public Administration. (Routledge, 2016).
2 Gray, Anthony, ‘Contempt and the Australian Constitution-part I.’ (2017) 27 (1) Journal of Judicial
Administration 3-20.

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The constitution of Australia has divided the powers between the different departments in
order to prevent misuse of powers by any of the specific authority of the country. The
following are the powers provided to different branches by the Australian Constitution.3
1. The legislative and the executive powers.
2. The federal judiciary powers.
3. The separate power of the states.
4. The separate powers to territories.
The following are the three arms of the Australian Constitution:
1. Legislative: It is an assembly where the laws of the country are made by the member
of the Parliament of the country where the process of making laws takes place. Under this
process, a bill is presented by the government of the country which is according to the agenda
set by the government during the elections in the country.4 On the basis of the provisions
mentioned in the bill a detailed discussion takes place between the government and the
opposition parties, if any changes are required in the bill than the will be passed to the
3 Jones, Nicky. Reforming the Australian Constitution: an overview of recognition proposals. (Routledge, 2016).
4 Henckels, Caroline. Proportionality, the Constitution and the Separation of Powers: Examining the Role of
Judicial Deference. (Routledge, 2016).

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lawmaking committee which amends the bill as per the discussion done in the parliament and
the bill gets passed by the parliament and after the approval of the bill from the President of the
country the bill becomes law which would be applicable to each and every citizen of Australia
until and unless it is mentioned in law.
2. Executive: It is an organ of the government which helps in imposing the rule of law
in the country. The executive helps in preventing the power in hands of small groups. It is a
system which enforces the law rather than creating a new law or interpretation of laws.
However, the laws which are enforced by the executive of the country are being interpreted by
the judiciary of the country. As per the Australian Constitution, the executive plays an
important role in playing as the member of the legislature who helps in writing the laws and
such persons also helps in enforcing the laws made by the Parliament of the country. As per
the constitutional system of Australia, the President is considered as the Head of the State and
Prime Minister is considered as the Head of the government.
3. Judiciary: It is considered to be a branch of government which helps to interpret the
laws made by the government of Australia. It consists of courts, judges, magistrates and
adjudicators who help in running the judicial system of the country. The courts are one of the
most important and integral parts of the judicial system of the country where the role of the
court is to interpret the laws which are made by the legislative authority of the country. The
courts comply with the doctrine of precedent while giving their judgement which is referred to
fundamental constraint on judicial decision making in Australia. Based on this principle,
judges have to give proper respect to past judicial decision and if the facts are similar, then
previous judgement prevails. The shortcoming of this doctrine is that it constrains judicial
decisions. It forces them to impose harsher or lesser penalty on the parties based on previous
judgement. It also enshrines bad decision because judges are enforced to follow flawed
decisions. These laws are inflexible since they did not change over time which makes it