Understanding Separation of Powers and Division of Powers in the Australian Legal System

Running head: LEGAL BUSINESS ENVIRONMENT
LEGAL BUSINESS ENVIRONMENT
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Author Note

1LEGAL BUSINESS ENVIRONMENT
Question 1
The term “separation of powers” refers to a system where the government has clearly
defined wings which are tasked with separate functions. This basically means that in order to
ensure that a governmental structure does not use its powers arbitrarily it must have separate
wings without overlapping powers so that the discrepancies in one wing can be identified by the
other (Rosenbloom, 2016). This basically means that there should be a provision for oversight by
the wings of the government among themselves. The Australian government embodies the
concept of separation of powers completely in its structure by dividing the powers of the
government into three different wings, namely the legislature, the executive and the judiciary
(Michaels, 2015). The legislature consists of the parliament which formulates, codifies and
enacts laws. The executive is the enforcement wing of the government tasked with enforcement
of the law. This means that the laws enacted by the legislature are put into practicality through
the executive. The judicial wing of the government consists of the Court appointed judges and
various other judicial bodies who are tasked with interpretation of the law. Thus, the judiciary is
also tasked with determining the constitutional validity of laws which are enacted by the
legislature along with the responsibility of interpreting the intent of the legislations in case of a
dispute on any issue of law. This structure thus provides for oversight among the three wings,
especially of the legislature through the judiciary (Waldron, 2013). This ensures that the powers
conferred to the government are not used in an arbitrary or discretionary way.
“Division of powers” on the other hand refers to a system where the structure of the
government is divided into different tiers. This may be to prevent arbitrary use of powers or for
the ease of administration (Brennan, 2016). The Australian government embodies a two-tier

2LEGAL BUSINESS ENVIRONMENT
system of government this is also known as federalism. This means that the government is
stratified into a federal government, which in Australia is the Commonwealth parliament, and
state governments. The constitution of Australia confers legislative powers on both these
governments (Parker, 2014). Thus the power to enact legislations is dependent on the provisions
of the constitution and one tier cannot legislate upon matters that the other tier has exclusive
jurisdiction on. The two tiers do enjoy concurrent jurisdiction on various matters but these must
be specifically sanctioned by a provision of the constitution.
Question 2
The separation of powers between various wings of the government are mandatorily
required in a constitutional system as in the absence of such the powers conferred to the
government there is room for arbitrary use or abuse of power (Denoon, 2013). The legislature is
ideally the government wing which enacts laws whereas the executive is the wing tasked with
enforcement of those laws. This however is possible in theory and as has been held in Victorian
Stevedoring & General Contracting Co Pty Ltd v Dignan [1931] HCA 34 (Saunders & Stone,
2018). In this case, the High Court of Australia observed that, following the English
parliamentary system, it was a practical impossibility to strictly provide for separation of powers
between the legislature and the executive. The Australian legal system provides for delegated
legislation which means the powers of the legislature can be delegated to the executive (Foley,
2013). Thus this is clear overlap between two different wings of the government. In Australia the
members of the executive are appointed by the Parliament (legislature) which displays
significant control of one wing of the government over another. Such a degree of control would
invariably lead to arbitrary use of powers as the members of the executive would be dependent