Business Law Assignment: Separation of Powers and Rule of Law

This essay explores the fundamental principles of the Australian Constitution, focusing on the doctrines of Separation of Powers and the Rule of Law. It begins by outlining the historical context, including the influence of the British and American systems, and the establishment of a federal system. The essay then defines the Rule of Law according to A.V. Dicey, emphasizing the supremacy of law and equality before the law, and discusses its application in the Australian legal system, referencing key constitutional cases. The doctrine of Separation of Powers, dividing governmental authority among the legislature, executive, and judiciary, is examined, including its historical influences and its specific application in the Australian context, highlighting the differences between the federal and state sectors, especially regarding judicial independence. The essay underscores the significance of these doctrines in ensuring good governance, protecting citizens' rights, and maintaining an impartial justice system.

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The doctrine of Separation of Powers and Rule of Law are the foundation stone of the Australian
Constitution which established the federalist system that governs the Australian citizens (Pozen 2014).
The Australian Constitution embraced the features of the American as well as the nuances of the British
Colonial System that was brought to the Australian shores upon colonization. The federal system of
states is a feature that is analogous to the federal system that is incorporated in the United States.
The fathers of the Federation retained the appliance of the Rule of Law to this Constitutional
Monarchy with incorporation of the separation of powers incorporated in the Constitution. The concept
of the Rule of Law states that every citizen is subject to the laws that are enacted by the legislature. The
principle was described by A V Dicey according to which Rule of Law states that there is an absolute
dominance of law as opposed to the influence of subjective power. The people are ruled by law and law
alone; a person shall be penalized for violating the law and for nothing else and this principle was also
supported in the decision in Chu Kheng Lim v Minister for Immigration. The rule further states that
every person is equal before the law and there shall be no exemption of officials or others from obeying
the law that governs the other citizens (Michaels 2015).
In the context of the Australian legal system, the Dicean Rules of Law are incorporated in clause
5 of the Commonwealth of Australian Constitution Act (Imp) 1900) according to which the Act and the
laws made by the Parliament under the Constitution shall have a binding effect on the courts, judges and
people of every state and of every part of the Commonwealth. Further, the significance of Rule of Law is
demonstrated in the constitutional case of S & Others v Hayden & Others [1984] where Justice Murphy
J noted that the Federal Executive Council, The Governor-General and every officer of the
Commonwealth are bound to follow the laws of the land.
The principle that government is ruled by law and not by men can be explained through the
definition given by Aristotle. According to him, government can be of three forms and they are
distinguished according whether such government is by one, by a few or by many, that is, monarchical,
aristocratic and constitutional. All the forms of government aim at common good. Aristotle asserts that
whoever fears monarchy would prefer for the law to rule instead of any citizens as law is rational
(Bellamy 2017). Unlike men, law is wisdom without desire and when men seek for what is just, they
usually seek for what is impartial as well. Under the constitutional form of government, written laws
would have more significance as the government must proceed in an organized form. The laws regulate
the manner magistrates should govern and safeguard citizens against those who contravene them.
Hence, if there is a coincidence of the rational, divine and the just, it is usually found in the Constitution.
The doctrine of Separation of Powers is fundamental to the Rule of Law in the Constitutional
system of Australia. Dicey, gave more importance to the three features that is essential to the Rule of
Law: the need to curtail the discretionary powers that are conferred upon the government officials in
the interests of certainty; the significance of equality before the law and the capability to seek remedy in
independent courts if the government acts unconstitutionally. The doctrine of separation of powers
states that the government has three essential branches- the legislature, the executive and the judiciary
that must function separately and their respective powers should be mutually exclusive. This Federal
concept of separation of powers was influence by Locke and Montesquieu who differentiated between

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these powers and played a significant role in developing the Constitution of the United States. Article
XXX in the first part of the Constitution of Massachusetts 1780 states that in the Commonwealth
government, the powers of the legislative, the executive and the judiciary are separate and one branch
cannot exercise the power of other two branches (Nonet 2017).
The need of controlling the wide powers conferred on the executive is dealt with under
delegated legislation. It is obvious that the legislature must be able to delegate legislative power to the
executive because of convenience and reasonability. For instance, if the executive is given a blank
cheque to determine the fundamental policy, the government under the law shall be threatened. It is a
fact that executive and legislature in a parliamentary system of government cannot be completely
separated but the scope of the doctrine states that there must be a limit on the extent to which the
legislative power may be exercised by the executive.
If law must restrain power, it is not sufficient that the authorized statutory rules exercise power
and the government officials abide by the rules enacted by the Parliament. The courts must ensure that
it enforces the statutory limits that govern the exercise of executive power. In the context of the
Australian legal system, there are differences in the recognition and application of the doctrine of
separation of powers between the state sector and the federal sector. In the federal sector, there is a
separation between the Judiciary and the Executive which is enshrined in the Australian Constitution
under Chapter III. According to Chemerinsky (2016), High Court, federal courts have discretionary
powers and are strongly recognized for its association with the High Courts of Australia. Under Chapter
III, the Australian Constitution have safeguarded the judicial independence whenever the Executive and
the Legislature considers reforms that have an impact on the judicial liberty.
However, there are strong constitutional differences between the state and federal sectors
where the Constitution guarantees judicial independence of federal judges under section 72 that is
supported by section 128 that requires a double majority in a referendum to alter a position in the
Constitution. But the judicial independence of state judges does not have any such analogous support .
Judicial independence entails a stringent interpretation of the constitution where the judges decide
cases fearlessly, impartially and fairly. However, the judges believe that the Executive branch plays a
significant part in ensuring delivering of judicial independence. The executive perceives the judiciary as a
means that creates certainty within the state by resolving disputes between individuals ( Watts 2015).
The legislature perceives the judiciary as the statutory interpreter of the laws enacted by the
parliament.
Since the judiciary safeguards the right of the citizens and maintaining impartiality is essential
for the role played by the judges while administering justice, it is highly imperative that the powers
exercised by the judiciary remains to be exclusive unlike the legislature and the executive branch,
judiciary is not about populism (Barnett 2014). When citizens require protection from the acts o the
state or have a dispute with another citizen, it is the fearless and impartial decision-maker that treats
every individual equally before the law as contemplated under the Rules of Laws and administers
justice.

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Reference List
Barnett, R.E., 2014. The structure of liberty: Justice and the rule of law. OUP Oxford.
Bellamy, J.A. and Brown, A.J., 2013. Federalism and Regionalism in Australia: New Approaches, New
Institutions? (p. 229). ANU Press.
Bellamy, R. ed., 2017. The rule of law and the separation of powers. Routledge.
Chemerinsky, E., 2016. Constitutional law. Wolters Kluwer Law & Business.
Chohan, U.W., 2017. What is a Charter of Budget Honest? The Case of Australia. Canadian Parliamentary
Review, 40(1).
Douglas, J., Atkins, E. and Clift, H., 2015. Judicial Rulings with Prospective Effect in Australia.
In Comparing the Prospective Effect of Judicial Rulings Across Jurisdictions (pp. 349-358). Springer
International Publishing.
Gaze, B. and Smith, B., 2016. Equality and Discrimination Law in Australia: An Introduction. Cambridge
University Press.
Gil-Garcia, J.R., Zhang, J. and Puron-Cid, G., 2016. Conceptualizing smartness in government: An
integrative and multi-dimensional view. Government Information Quarterly, 33(3), pp.524-534.
Michaels, J.D., 2015. An Enduring, Evolving Separation of Powers. Colum. L. Rev., 115, p.515.
Nonet, P., 2017. Law and society in transition: Toward responsive law. Routledge.
Pozen, D.E., 2014. Self-Help and the Separation of Powers. Yale LJ, 124, p.2.
Watts, R.L., 2015. Comparing Federal Political Systems. Understanding Federalism and Federation, p.11.

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