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

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

BUSINESS LAW 2
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/>

BUSINESS LAW 3
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>.