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

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.