Understanding the Doctrine of Separation of Powers in Australia and Contract Law

This article discusses the doctrine of separation of powers in Australia and contract law. It explains the legislative, executive and judicial powers, and the essentials of a valid contract. It also highlights the shortcomings of the doctrine of separation of powers in Australia. The article is suitable for law students and professionals.

Business Law
Running head: BUSINESS LAW 0
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BUSINESS LAW 1
Contents
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Contents...........................................................................................................................................1
PART A...........................................................................................................................................2
PART B...........................................................................................................................................6
Issue.............................................................................................................................................6
Rules.............................................................................................................................................6
Application...................................................................................................................................9
Conclusion.................................................................................................................................10
Bibliography..................................................................................................................................11
Case Laws..................................................................................................................................11
Books/Journals...........................................................................................................................11
Other Resources.........................................................................................................................12

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PART A
The doctrine of separation of powers is a concept of constitutional law. The doctrine envisages a
tripartite system1. The doctrine believes that the developers of the law should not enforce the
same. The constitution of Australia divides the powers into three branches mainly. These three
branches are legislative, judicial, and executive. The doctrine of separation of powers is also
known as the check and balance system. The logic behind this is that each branch has its own
separate powers but the same must check as well as to maintain a balance with the functions and
powers of other branches. If to check the reasoning behind the development of separation of
power concept, this is to state that a single person/authority can do the wrong with the citizens if
granted all the powers. This is the reason that constitution distributes the powers among three
different authorities. This reduces the monopoly in the field of powers and rights. Under the
subjective doctrine, powers of different branches do not overlap to each other.
In Australia, also the objective of the introduction of this doctrine was to prevent the abusive use
of powers by a single authority. The powers divided among three authorities are mentioned
under chapters I, II and III of the Commonwealth Constitution. In general, the doctrine of
separation of powers keeps the working of all three bodies different but In Australia; sometimes
the role and functions of parliament overlap the functions of judiciary, legislative or executive
branch. In the following part, the detailed description of the role and functions of different
authorities is discussed. In addition to this, the shortcomings of studied doctrine in Australia are
also discussed.
Legislative Powers
1 Lawctopus.com, Doctrine Of Separation Of Powers < https://www.lawctopus.com/academike/doctrine-of-
separation-of-powers/>

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Legislative powers refer to the authority to make laws. Chapter I of the constitution of Australia
details the legislative powers. This chapter provides consist of 5 parts and provides the
provisions related to the powers of parliament as well as elements thereof. As per this chapter,
legislative powers are vested in the parliament of the nation. It means parliament of Australia is
entitled to develop the laws for the nation. The Governor General represents the queen. This
queen, houses of representative and Senate pass a law. These three bodies constitute the
parliament. When both the houses of parliament agree upon a proposed bill, the same becomes a
law. Governor General being the representative of queen gives the approval or refusal to a
proposed bill. If to talk about the powers of the house of parliaments, this is to mention that in
general both of the houses have equal powers. Further in cases of conflict between the two
houses of parliament i.e. Senate and house of representative, Governor-General has the power to
dissolve both of the houses simultaneously. The overall legal system of the country is mainly
divided into three parts, which are a commonwealth, state government, and territory
government2. Accordingly, these three different governments have the power to make laws on
different subjects.
Executive Powers
Chapter II of the constitution of Australia detailed the executive powers. It means this chapter
prescribes that who has the executive powers in addition to the scope of the same. In addition to
the executive powers, the chapter also states the number, appointment, and salaries of the
ministers3. According to this chapter, Queens owes such power in Australia. The executive
power refers to the ability to implement and administer the laws prepared by the legislative
2 Australia.gov.au, How Government Works, <https://www.australia.gov.au/about-government/how-government-
works>.
3 Aph.gov.au, Chapter II. The Executive Government.<
https://www.aph.gov.au/About_Parliament/Senate/Powers_practice_n_procedures/Constitution/chapter2>.

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branch. In order words, this branch is responsible to put the law in operation. As the executive
power is vested in the queen, the governor general who represent the queen exercise such
powers. In addition to this Governance General is responsible to ensure the application of
constitutional law in an effective manner. In the course of performing his obligation, the
governor general takes the help of the federal executive council. This council is a body, which is
established by the virtue of section 62 of the Australian constitution. Here this is to mention that
the legislative branch cannot limit the powers of the executive branch by making new legislation.
Judicial Powers
The judicial powers are vested in the Federal Supreme Court, which is popularly known as the
high court of the nation4. These courts have the power to make the interpretation of the law and
to use the same while hearing different cases. Constitution of Australia provides judicial power
to these courts. Chapter III of this constitution has granted the judicial powers. According to this
chapter, the high court shall consist one chief justice and as many justices as the parliament
prescribes (not less than two). Chapter III of the constitution of Australia is exclusively focused
on judicial powers and prescribes the rules and provisions related to appointment, remuneration,
and tenure of the judges, original jurisdiction, appellate jurisdiction, proceedings against state
and so on. As mentioned above the main work of high court is to interpret the law and in the
course of doing so, the same can held a law unconstitutional. The parliament in such a situation
has the power to amend the interpretation of any ordinary law by high court via developing a
new law or making the amendments in current law.
Shortcomings
4 Law.justia.com, Section V-1, Power vested in courts; Chief Justice; powers <
https://law.justia.com/constitution/nebraska/c0105001000.html>.

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In Australia, the doctrine of separation of powers has certain shortcomings. This has been
reviewed that the powers are not separated properly and therefore the three branches often
interrupt in the sectors of each other. Further, because of the same, the executive branch
dominates the other two branches i.e. the legislative branch and the judicial branch. In Australia,
the doctrines and powers among these three branches still need to be refined. Further, on federal,
commonwealth and state level there is a lack of separation of powers. For instance, the executive
is made out of the legislative branch and therefore the personnel has the role of the member of
the legislature as well as of government. This would not be wrongful to state the doctrine is not
properly implied in Australia.

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PART B
Memorandum of advice
To: The Departmental Manager, Events Management Ltd.
From: Legal adviser
Date: 27 January 27, 2019
Re: Advice on the matter of acquisition of Rigby Corporate Function Planners Pty Ltd.
Respect Ma’am,
As asked, the presented memorandum of advised will make the focus on applicable law and by
considering the presented situation, the asked issue would be resolved. The discussion is given
hereunder and this is to hope that after reading, the same CEO of the company will be able to
understand the whole scenario and all the queries would receive the answer of all the asked
issues.
Issue
Mainly two issues are needs to be check in this situation. The first issue is to check that whether
the company has developed a contract with Rigby Corporate Function Planners Pty Ltd.
(hereinafter referred as Rigby Corporate Function Planners). Another issue is to check the status
of the contract.
Rules
A contract is the set of promises, which are enforceable by law. Under contract law, some factors
are mention which necessarily to be there in each contract. These factors are the essentials of the

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contract. It means if any one or more than one factor would be missing then a valid contract
would not be there. In this manner, all these factors have their huge significance. The validity of
the contract is required for the enforcement of the same. In other words to say an agreement
cannot be enforced until the same becomes a valid contract. These essentials of a valid contract
are mentioned hereunder:-
Ability to enter into a contract: - This is also an important element of a contract.
According to this element, the parties to the contract must have the ability to develop the
contract. It is necessary that the parties to the contract must have the eligibility to
understand the terms and consequences of a contract and the same must not be of
unsound mind and Insolvent.
Offer: - This is a very first and basic element of a contract. If there would be no offer then
all the other elements will also not be there. As the name implies an offer can be
understood as a promise to do something or not to do something by a person in exchange
of a promise made by another person5. Only preparation of offer is not enough but the
same must be informed to the offeree. The communication of the offer is required to
make the offeree enable to accept the same. It was held in the case of Harvey v
Facey6 that an offer must contain an intention to bound the parties to the contract.
Further, an offeror can withdraw an offer any time before the acceptance. It was given in
the decision of the case of Goldsbrough Mort and Co v Quinn7 (1910), that an offer can
be rejected/withdrawn any time before the acceptance.
5 Andrew Burrows, A Casebook on Contract (Bloomsbury Publishing 2013).
6 Harvey v Facey [1893] UKPC 1
7 Goldsbrough Mort and Co v Quinn (1910)

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Acceptance: - After the offer, another important element of the valid contract is
acceptance. Acceptance refers to the consent to the offer made by the offeror. Three rules
are there for valid consent. These are mentioned hereunder:-
 Offeree must inform his/her consent to the offeror8
 Acceptance must not alter any terms of the original offer
 The agreement needs to be certain9
The decision given in the case of Felthouse v Bindley10 is important to review. It was
given in the decision of this case that silent cannot be treated as acceptance under a
contract. In addition to this, the consent given by the offeree is also required to be an
independent one. It means the consent must not be influenced by coercion, undue
influence, misrepresentation or any other similar factors.
Consideration: - Consideration is the motivation to enter into a contract for each of the
parties. It means this is the promise, which is mentioned under the offer. Under contract
law, it is mentioned that the consideration needs to be legal as well as valid. According to
the decision given in the case of Chappell v Nestle11, the consideration should be
sufficient and the same need not to be adequate12. Consideration can be anything that has
some values in the eyes of law13. In interpretation, this is to say that a contract cannot be
held invalid because the consideration was less according to the nature of the transaction.
8 MacRoberts, MacRoberts on Scottish Construction Contracts (John Wiley & Sons 2014) 67.
9 E-lawresources.co.uk, Contractual agreement - offer and acceptance < http://e-lawresources.co.uk/Offer-and-
acceptance-contract.php>.
10 Felthouse v Bindley [1862] EWHC CP J35
11 Chappell v Nestle [1960] AC 87
12 Webstroke.co.uk, Chappel v Nestle [1960] < https://webstroke.co.uk/law/cases/chappel-v-nestle-1960>.
13 Carron Ann Russell, Opinion Writing In Contract Law (Routledge 2012) 18.

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Further, this is also necessary to mention that consideration is not required to be in money
always.
Intention to create legal relation: - Until unless the parties to the contract would not have
the intention to develop a legal relationship in mutual, a contract cannot expect to be
there. It was held in the case of Jones v Padavatton14 that a family agreement does not
have the capacity to be developed in a contract, as parties to the transaction do not have
the intention to bind each other in a legal manner15. However, in the commercial
contracts, there is a presumption of the existence of an intention to create a legal
relationship.
E-mail rules: - According to the provisions of Electronic Transactions Act 199916, a
transaction including an offer and acceptance cannot be held invalid only because of the
reason that the same is made via e-mail mode. By using the e-mail mode, a contract can be
developed but for the same too a valid acceptance to the offer should be there. While
discussing the e-mail rules, the case of Masters v Cameron17 is necessary to discuss.
According to the decision of this case, three scenarios can be there in respect to a written
agreement and the same are mentioned as under:-
 Firstly, there will be a binding contract if parties agree and intend to bind each other
immediately but decide to make a more detailed contract, which would have no
different effect.
14 Jones v Padavatton [1969] 1 WLR 328
15 Brainscape.com, Intention to create legal relations Flashcards Preview <
https://www.brainscape.com/flashcards/intention-to-create-legal-relations-3705447/packs/5546208>.
16 Electronic Transactions Act 1999
17 Masters v Cameron (1954) 91 CLR 353

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 Secondly, there will be a binding contract, if all the terms are agreed between the
parties yet they let the performance of one or more term to be decide on the execution
of a formal contract.
 No binding contract would be there if parties of a transaction do not have the
intention to conclude bargain in the absence of a formal contract.
All the above-mentioned elements together develop a valid contract. In case of the absence of
any one or more than one element, a valid contract will not be there and therefore parties to the
contract shall not have any right in against of each other.
Application
In order to check the presence of a valid contract, all the elements are required to be check in the
given situation. The lead two parties to the contracts are Event Management and Rigby
Corporate Function Planners. Both of the parties were an independent body corporate and
solvent. In such a manner, these companies had the legal capacity to enter into the contract
Firstly; Rigby Corporate Function Planners has made an offer to the Event management. In this
manner, the basic elements of the contract were there. It was a valid offer as the same was clear
and did not contain any illegal term. Consideration has also been decided between both of the
parties, which is $750,000. Applying the provisions of the case of Chappell v Nestle, this seems
to be a valid consideration as the same was sufficient. Further, the same was also a legal
consideration and has a certain value in the eyes of law. However, the consideration is a future
consideration. In addition to this, parties have also decided to transfer the business assets such as
plant, machinery, intellectual property, and others. Both the parties to the case have decided
certain acts to do and these were the terms to the contract. After looking up the same, one may
see that there is was an intention of the parties to create the legal relationship and to bind each

BUSINESS LAW 11
other legally. The elements such as the capacity of the parties, offer, consideration, and intention
to create legal relationship were there. One of the lead element i.e. acceptance was missing in the
whole transaction. Event Management did not send the draft agreement to the other party and in
such a manner acceptance cannot expect to be there. Further, this is to say that the exchange of e-
mails will also not develop any binding contract as neither first nor the second scenario of
Masters v Cameron is there. Nevertheless, in the e-mails, nothing such as “subject to formal contract”
was mentioned and therefore the second scenario of the stated case could be applicable but some terms
were pending to be decided and hence these e-mails will not have a binding impact.
As no acceptance is there hence applying the provisions of Goldsbrough Mort and Co v Quinn, Rigby
Corporate can withdraw the proposed offer.
Conclusion
This is to conclude, that as appetence of the offeree is missing in the whole transaction, a
contract was not there. In the absence of a valid contract, parties do not have any legal rights in
against of each other.

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Bibliography
Case Laws
Chappell v Nestle [1960] AC 87
Felthouse v Bindley [1862] EWHC CP J35
Goldsbrough Mort and Co v Quinn (1910)
Harvey v Facey [1893] UKPC 1
Jones v Padavatton [1969] 1 WLR 328
Masters v Cameron (1954) 91 CLR 353
Books/Journals
Burrows Andrew, A Casebook on Contract (Bloomsbury Publishing 2013).
MacRoberts, MacRoberts on Scottish Construction Contracts (John Wiley & Sons 2014) 67.
Russell Carron Ann, Opinion Writing In Contract Law (Routledge 2012) 18.
Legislation
Electronic Transactions Act 1999

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Other Resources
Aph.gov.au, Chapter II. The Executive Government.<
https://www.aph.gov.au/About_Parliament/Senate/Powers_practice_n_procedures/Constitution/
chapter2>.
Australia.gov.au, How Government Works,
<https://www.australia.gov.au/about-government/how-government-works>.
Brainscape.com, Intention to create legal relations Flashcards Preview <
https://www.brainscape.com/flashcards/intention-to-create-legal-relations-3705447/packs/
5546208>.
E-lawresources.co.uk, Contractual agreement - offer and acceptance < http://e-
lawresources.co.uk/Offer-and-acceptance-contract.php>.
Law.justia.com, Section V-1, Power vested in courts; Chief Justice; powers <
https://law.justia.com/constitution/nebraska/c0105001000.html>.
Lawctopus.com, Doctrine Of Separation Of Powers <
https://www.lawctopus.com/academike/doctrine-of-separation-of-powers/>
Webstroke.co.uk, Chappel v Nestle [1960] < https://webstroke.co.uk/law/cases/chappel-v-nestle-
1960>.