Discuss about the Separation of Powers and Rule of Law.
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  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 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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