The Doctrine of Separation of Powers and Legal Analysis of an Acquisition Case in Australia

The summary discusses the doctrine of separation of powers in Australia, which divides governmental powers into executive, legislative, and judicial branches. It explores the functions and significance of each branch, as well as the concept of checks and balances. The summary also highlights the weaknesses in achieving absolute separation of powers and the importance of an independent judiciary.In the second part, a memorandum addresses the analysis of an acquisition case involving Events Management Ltd and Rigby Corporate Function Planners Pty Ltd. It examines the essential elements of a valid contract, including offer, acceptance, intention to create legal relations, consideration, competence to contract, and certainty. It concludes that while there is an offer and intention to acquire, acceptance is yet to be confirmed.

Part A
The Doctrine of Separation of Powers calls for the division of the governmental powers into
three main categories that are the executive, legislative, and judicial powers. The
Commonwealth Constitution separates the power of the government with the aid of the
chapters I, II and III1. The doctrine is based on the fair and transparent principles of the
Westminster system and the doctrine as adopted by United States.
The doctrine is popularly also stated to be as the system of checks and balances. The idea
behind the establishment of the doctrine is that the powers of the government must not be
concentrated in single hands and thus, distribution of powers would enable increased
efficiency and avoidance of the abuse of the power. The doctrine forms a significant aspect of
the Australian Constitution; accordingly, the three major powers of the government are
distributed into three main divisions. The functions of each of the branches of the government
operations and their significance are described in the following segment.
The first major set of powers are known as the legislative powers, whereby the enactment of
the federal and state laws take place. The Parliament has been granted the power to formulate
the laws for the peace, order, and noble government of the Commonwealth. The matters in
which the laws can be enacted are referred to in the section 51 of the Constitution2. The
Parliament consists of Queen, the Senate, and the House of Representatives. A matter is
presented to the houses of the parliament for the discussion upon the same, in the form of a
bill. When the bill is agreed to by the houses, the same is presented for the final assent. When
the bill receives the final assent, the same becomes the law3. Thus, with the aid of the
legislative powers, the laws are enacted in the country and the money is spent for the welfare
of the citizens. Most of the legislative powers of the Commonwealth are being distributed
among the the federal and state governments of the state. As a result, this leads to the further
formulation of the federal and the state laws for the various matters stated in the constitution.
The second chief set of powers is referred to as the executive powers. The general executive
power of the Commonwealth is conferred upon by the section 61 of the Australian
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 Australian Constitution s 51.
3 Aph.gov.au, Legislation <https://www.aph.gov.au/binaries/house/pubs/practice/3rdpractice/chapter12.pdf>.

Constitution4. These comprise of the responsibility to oversee, implement, and administer the
public policies. The powers like Command of naval and military forces, and the appointment
of civil servants fall in the category of the executive powers5.
As per the Chapter II of the Constitution of Australia, the executive powers are directly
vested in the hands of Queen, as represented by the Governor-General. The Governor-
General executes the powers of the office with the aid of Federal Executive Council. The
members of the said council are referred to as the Executive Councillors. The powers like
appointing the judicial and their replacement, removing the justices also are part of the
executive powers, but the same are related to the judicial branch. Therefore, there is
overlapping of the roles and therefore the absolute separation of powers cannot be stated to
be achieved in practical terms.
The third and the last set of powers are known as the judicial powers, and the same are stated
to be vested in Federal Supreme Court. Chapter III of the Australian Commonwealth
Constitution establishes the same. The High Court of Australia has the responsibility to
interpret the laws, as enacted by the government under the legislative powers6. The powers is
further bifurcated among the civil courts, criminal courts, family courts and others. With the
judicial powers, the government aims to provide fair, equal, and just treatment to the citizens
of the state7.
Thus, it can be stated that with the distributed framework of the doctrine of separation of
powers, the large amount of powers of the government is bifurcated among the three chief
branches. Such a distribution not only makes the abuse of the power more difficult, but also
balances the other divisions. Eventually the doctrine does not enables any single power to
become supreme and exercise of powers of a single department over other and thus avoids
branches obtaining control over other branches.
4 Peter Gerangelos, ‘The Executive Power of the Commonwealth of Australia: Section 61 of the Commonwealth
Constitution, ‘nationhood’ and the Future of the Prerogative’ (2015) 12(1) Oxford University Commonwealth
Law Journal.
5 Australian Constitution s 61.
6 Peo.gov.au, Separation of Powers: Parliament, Executive and Judiciary,
<https://www.peo.gov.au/learning/fact-sheets/separation-of-powers.html>.
7 Alan Fenna, Jane Robbins and John Summers, Government Politics in Australia (Pearson Higher Education
AU 2013) 55.

However, there exist some weaknesses as well in the establishment of the Doctrine of
Separation of Powers in Australia. This is that there is no clear distinction of the roles in
certain areas and thus, the powers of the executive and legislature department certainly
overlaps at various instances. In terms of the executive branch, it is significant to note that the
ministers of the government are required to be the members of parliament. Nevertheless, the
judiciary has an implicit separation of powers, and thus is independent from the remaining
two branches. The independence of judiciary is vital to efficiently deliver the justice to the
citizens of a nation.

Part B
Memorandum
To: Ms Samantha, Departmental Manager, Events Management Ltd.
From: Legal adviser, Business Acquisition, and Development Department.
Regarding: Acquisition of Rigby Corporate Function Planners Pty Ltd.
The following memo is aimed at analysing the acquisition case of Rigby Corporate Function
Planners Pty Ltd.
Issue
The issue is to analyse whether the essential terms of the contract have been fulfilled between
the parties Events Management Ltd and Rigby Corporate Function Planners Pty Ltd.
Thereby, further analysing the legal options available to conclude the sale of the business of
Rigby Corporate Function Planners Pty Ltd.
Law
As per the contract law, an agreement, which holds the capacity to be enforced at the courts
of law, can be defined as a contract. A contract to be validly enforceable in the courts of law
must possess certain basic essential elements. As a general principle of the law, all contracts
are assumed to be valid, unless the same are proven to be invalid. In Australia, a contract
must comprise of the following significant elements to render it to be valid.
Firstly, there must be an offer and acceptance thereon. An offer to be valid must be definite
and clear. An offer is referred to as the promise to do or not to do something that may be
accepted by another party intending to enter into the contract. The significance of an offer is
that only with the acceptance of the same, the formation of the contract arises.8 This is
significant because the same can lapse or may be rejected by the parties as well. Similarly,
the acceptance is also important and the same must be unconditional. In addition to the
definite terms, the offer must be duly communicated by the offeror for the acceptance of the
same. The significance of the offer and acceptance has been widely highlighted in the case of
Crown v Clarke (1927) 40 CLR 227.9
8 Ewan McKendrick and Qiao Liu, Contract Law: Australian Edition (Macmillan International Higher
Education, 2015) 47.
9 Crown v Clarke (1927) 40 CLR 227.

Secondly, it is essential for the parties to have an intention to create binding legal relations.
This means the parties intending to form a contract must be ready and aware of the legal
consequences. It must be noted that the absence of the intention to create legal relations may
render the contract to become a mere promise. It must be noted that not every agreement
leads to a binding contract, which can be enforced by the parties through the courts of the
law.
The third essential element for the formation of the contract is the payment of the
consideration for the promise as specified in the contract. The significant characteristic of the
consideration is that it must be of some value, but not necessarily in terms of money10. A
consideration may be in the form of some property, some right, interest, or benefit for the
other party. In addition, the consideration can be an act of forbearance, responsibility given,
detriment, loss by the other party. The common element among all the types of the
consideration is that the same must be sufficient as pronounced in the case of Chappell & Co
Ltd v Nestle Co Ltd. 11.
Fourthly, in order to create a legal contract, the parties must be competent to contract in the
eyes of the law. The law states that following category of persons are not competent to enter
into a contract12.
 Individuals suffering from a mental impairment are barred. This is in the events when
the said impairment undermines their ability to understand the agreement.
 Minors who have not attained the age of majority,
 Individuals who are under the influence of drugs or alcohol,
 Individuals declared bankrupts.
It must be also noted that the corporations can enter into the contracts only as per the
constitution. In addition, the contracts can be either oral, written or a combination of both.
Lastly, to state that as per the Contract Law, there must be sufficient certainty and
completeness in the agreement with respect to the identification of the rights and obligations
of the parties' that can be enforced.
Application
On applying the law as stated in the contract law, following points must be noted. As per the
essential elements that are necessary for the regarding of an agreement to be a contract, there
10 Brian Coote, Contract as Assumption: Essays on a Theme (Bloomsbury Publishing, 2010) 61.
11 Chappell & Co Ltd v Nestle Co Ltd [1959] UKHL 1.
12 Beth Walston-Dunham, Introduction to Law (Cengage Learning, 2008) 417.

is an offer on the part of Events Management Ltd, as evident from the series of emails
exchanged and some points being agreed on. In addition, there is consideration of the
purchase price of $750,000. There is legal intention of the parties as well, and therefore the
role of the managing director is decided post acquisition. The intention to transfer the
properties and equipment is a wide evidence that there is an intention of the parties to enter
into acquisition and takeover agreement.
However, one thing must be noted that there is absence of acceptance on the part of Rigby
Corporate Function Planners. Thus, while the terms of the contracts are being discussed, the
same has not been formally accepted by the Rigby Corporate Function Planners. As stated
above, the acceptance of the agreement is necessary else, the agreement would just be a
promise.
In addition, as stated above there has to be absolute clarity and completeness in the
agreement. In order to avoid the incompleteness there should not be left any terms the
decisions of which are pending, the terms should not be vague or impossible to perform, and
the promise should not give rise to an illusion. In the agreement between the Rigby Corporate
Function Planners and the Events Management Ltd., there is no absolute clarity in the terms
of the agreement, as certain points remain to be agreed upon. Thus, while the rough draft of
the contract has been prepared, the same has not been forwarded to be accepted.
Thus, the application of the law leads to the fact that one of the essential conditions of the
formation of the contract has been missing in the case of acquisition of Rigby Corporate
Function Planners by the Events Management Ltd.
Conclusion
Thus, as per the discussions conducted in the previous parts, it can be stated that while not all
the essential elements of the contracts are present in the given case, the same cannot be
enforced by the Events Management Ltd. against the Rigby Corporate Function Planners.
While there does not exist a valid legal contract, the same cannot be stated to be breached,
and the question of remedies does not arises.
Therefore, the concluding advice is that the company Events Management Ltd. is that the
agreement between the parties is not valid and binding as per the Contract Law. Therefore,
the company Events Management Ltd has no legal remedies available for the enforcement of
the said agreement.

Bibliography
Act/ Legislation
Australian Constitution
Chappell & Co Ltd v Nestle Co Ltd [1959] UKHL 1.
Crown v Clarke (1927) 40 CLR 227.
Books/Journals
Alan Fenna, Jane Robbins and John Summers, Government Politics in Australia (Pearson
Higher Education AU 2013) 55.
Beth Walston-Dunham, Introduction to Law (Cengage Learning, 2008) 417.
Brian Coote, Contract as Assumption: Essays on a Theme (Bloomsbury Publishing, 2010) 61.
Ewan McKendrick and Qiao Liu, Contract Law: Australian Edition (Macmillan International
Higher Education, 2015) 47.
Peter Gerangelos, ‘The Executive Power of the Commonwealth of Australia: Section 61 of the
Commonwealth Constitution, ‘nationhood’ and the Future of the Prerogative’ (2015) 12(1)
Oxford University Commonwealth Law Journal.
Other Resources
Aph.gov.au, Legislation
<https://www.aph.gov.au/binaries/house/pubs/practice/3rdpractice/chapter12.pdf>.
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/>
Peo.gov.au, Separation of Powers: Parliament, Executive and Judiciary,
<https://www.peo.gov.au/learning/fact-sheets/separation-of-powers.html>.