Essay Sample on Law in Australia: The Separation of Powers

Posted on September 20, 2011

Argumentative Essay on the Separation of Powers:
In most nations, the concept of separation of powers is a dominant factor despite the system of government of a country. This concept insists that the judiciary, the legislature and the executive branches of the government be separated from each other in terms of their day to day functioning. Separation of powers is a doctrine that was institutionalized many centuries ago, and it became strictly functional. In the modern day however, some nations tend to ignore it and this results to disputes. In Australia for instance, this concept has been extremely compromised to the extent that it no longer exists. This ignorance to separation of powers is witnessed between and among the three arms of government and between the commonwealth level and the state level of Australia. This paper will underline examples of cases that prove that indeed; there failure in separation of powers in Australia (Gelber, 2006).

The commonwealth and the state level

Australia has two levels of government, the federal government, which is the overall government of the land, and the state governments, which are independent and have their own premiers. The state governments thus rule themselves without any interference from the federal government. However, there are instances when the federal government interferes with the activities of the state governments. In the 2008 court ruling of the Betfair Pty Limited Vs Western Australia, the high court ruled that Western Australia had discriminatory rules against businessmen. This shows a violation of separation of powers of the state since its own courts had ruled against the Betfair case, (Kirk, 2011). Moreover, in the 2004 Fardon Vs Attorney general dispute, the Queensland high court ruled that Fardon be continually imprisoned because he was a potential threat to the public. In its judgment, the high court ruled against this decision, and thus overriding the powers of the supreme court of Queensland (HCA, 2005).

The legislature and the Executive
The legislative arm of the government is charged with making laws of the land while the executive oversees the implementation of these laws. The Prime Minister is in charge of the executive and is also the chief of the government. Australian lawmakers have had an extraordinarily stern and negative opinion against war and immigration into Australia. Thus, the laws they make and implement is extremely against these two aspects. In the 200 Egan Vs Willis case, disputed against parliamentary affairs at the commonwealth and the state level (Griffith, 1999). In this case, it was disputed that parliament had no obligation to scrutinize the functions of the executive. The decision reached by the high court was a ruling against this. The high court emphasized that as long as the law still applied, the executive must be under strict scrutiny by the parliament. This is to ensure that the rule of law is upheld (Mantziaris, 1999).

The legislature and the judiciary
The main role of the judiciary is to solve disputes and to ensure that there is no breaking of the law. The main court of the judiciary is the high court. In 1997, the Queensland premier, Bob Borbidge publicly proclaimed that the judiciary was in need of a constitutional surgery. In this, he meant that the decisions of the court were not binding and that the court needed serious changes. This is a show of the intrusion into the powers of the judiciary. In the same year, the high court demanded that it be given the function of making laws, as opposed to the legislature. This saw a strong opposition from the legislature. The prime minister also stated that it is only the legislature that is granted powers to make laws and no one else. This certainly shows that there has been erosion to the concept of the separation of powers (Patapan, 1999).

The executive and the judiciary
Australia has always maintained an unaccommodating nature on asylum seekers. In 2011 for instance, the Prime Minister Julia Gillard ordered the deposition of asylum seekers to Malaysia, as it was proved to be safe for them (Gemma & Alison, 2011). Contrary to this decision, the high court issued orders that the deposition of asylum seekers to Malaysia be stopped, saying that there is no prove that the place is safe for human life. This shows a lack of separation of powers between the judiciary and the executive. The judiciary failed to respect the decision of the prime minister, and this shows a direct violation of the separation of powers (Joe, 2011). In the 2005 Combet Vs Commonwealth case, it was proclaimed that the federal government was using excess public funds to advertise the new work choices law. The court ruled in favor of the government, stating that all government expenditures were lawful unless they were unaccounted for (Williams, 2005).

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