Doctrine of Separation of Powers in Australia and Validity of Contracts

Business law

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Contents
PART A......................................................................................................................................1
PART B......................................................................................................................................5
Issue........................................................................................................................................5
Law.........................................................................................................................................5
Application.............................................................................................................................7
Conclusion..............................................................................................................................8
Bibliography...............................................................................................................................9
Case Laws..............................................................................................................................9
Books/Journals.......................................................................................................................9
Other Resources.....................................................................................................................9
PART A
The Doctrine of separation of powers is an essential part of the Constitution of Australia,
whereby the powers of the government are divided into three main categories, namely the
executive, legislative, and judicial powers1. The said doctrine is also referred to as the system
of checks and balances. This is because each of the above listed division is granted its
separate powers, which ought to be checked and must balance the other divisions.
The basic premise behind the establishment of the separation of power is that no single
person or group must be granted large amount of power, so that the same poses a danger
towards the citizens2. Thus, the separation of power is the significant means to reduce the
concentration of powers in a single hand or group. The eventual result of the same is that it
becomes more difficult to abuse the power on part of those who possess the power. As listed
above, there are three main powers of the government and three main divisions of the
1Peo.gov.au, Separation of Powers: Parliament, Executive and Judiciary,
<https://www.peo.gov.au/learning/fact-sheets/separation-of-powers.html>.
2 Civicsacademy.co.za, Separation of Powers, < http://www.civicsacademy.co.za/videos/?category=separation-
of-powers>.

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government. The rationale behind the doctrine can thus be stated to be that the powers of the
government must always be kept separate from each other and must be exercised by the
separate organ in a free democracy. The description of the powers and the department is
explained as follows.
As stated in the chapters I, II and III of the Commonwealth Constitution, the powers of the
institutions are divided into three branches namely the legislative, executive and judicial3.
One of the essential feature of the doctrine is that there must exist a government of law and
the functions must not be according to the wills and desire of the officials. Another essential
characteristic in the doctrine is the independence of judiciary. The independence of judiciary
is essential to efficient delivery of justice in a nation. In the doctrine of separation of powers,
the parliament is responsible for formulating and amending the laws. The executive
department is responsible for putting the law into action4. The judiciary is responsible for
protection of the law in the country and aids in the interpretation of the laws. It is significant
to note that there is no complete separation of powers in Australia. This is because there is an
overlapping in some of the roles of the Parliament, the Executive, and the Judiciary. The
comprehensive description of the functions and roles of the three main branches have been
described in the next segment.
Legislative Powers: There are three main characteristics of the Australian federal system.
These are the firstly the Commonwealth, secondly the state governments and territory
governments, and lastly the local government authorities5. Most Commonwealth legislative
powers are being shared between the federal and state governments. Thus, these powers
would be stated to be concurrent. The legislative powers of the parliament deal with the
3 Nicholas Aroney, Peter Gerangelos, Sarah Murray and James Stellios, The Constitution of the Commonwealth
of Australia (Cambridge University Press 2015).
4 Aph.gov.au, The Executive Power of the commonwealth: its scope and limits, <
https://www.aph.gov.au/About_Parliament/Parliamentary_Departments/Parliamentary_Library/pubs/rp/
RP9596/96rp28>.
5 Australia.gov.au, How Government Works, <https://www.australia.gov.au/about-government/how-
government-works> .

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formulation of the various laws in the state. The legislative powers of the Commonwealth are
generally limited to the matters contained in the text of the Constitution. Thus, under the
legislative powers, the federal laws and the state laws are enacted. The agenda of the law is
first decided during the elections, which is further established as a bill. The bill is further
discussed among the various members of the constitution committee and finally is presented
for the final assented to be regarded as the law. The enacted law is applicable upon the
citizens and the same are required to abide it. Thus, it can be stated that the Parliament of
Australia possesses the highest power of governance in the country.
In terms of the Australian context, the Chapter I of the Constitution set up the legislative
branch of the government. Thus, the powers of the parliament is divided into the three chief
constituents. These are the Sovereign, the Senate, and the House of Representatives. As the
senators are elected by the people of the state, the citizens do have their say in the law
making process of the country. Thus, under the legislative powers, the government enacts the
laws ad appropriates the necessary money to the respective departments.
The Executive Powers: The executive branch of the constitution is granted the responsibility
of the implementation and the administration of the public policies, which have been enacted
and funded by the legislative branch. As per the Chapter II of the constitution, the power
vests in the hands of the Queen6. The same is exercisable by the representative of the Queen,
in the form of the Governor-General. It is the responsibility of the Governor-General to
efficiently execute the Commonwealth constitutional laws and maintain the same. The
Governor does so with the aid of the advice of the members of the Council. The council is
called as the Federal Executive Council. Its members are sworn as Executive Councillors.
Some of the instances of the executive powers are the appointment of civil servants,
6 Alan Fenna, Jane Robbins and John Summers, Government Politics in Australia (Pearson Higher Education
AU 2013) 55.