Seperation of Powers and the Rule of Law Essay

The Australian Constitution is a rich amalgam of various classical political principles. The concepts of the Rule of Law and the doctrine of the Separation of Powers evident in Montesquieu’s Spirit of the Laws are both salient examples of political theses that are central to Australian Constitutional Law. The structure of the Constitution itself and decisions of the High Court of Australia unequivocally validate the entrenchment of the doctrine separation of powers in the Commonwealth Constitution . In particular, the High Court has applied this with relative rigour with respect to the separation of judicial power. The separation of the judicial power is fundamentally critical to upholding the rule of law. The High Court in Wilson v Minister for Aboriginal Affairs noted that “the separation of the judicial function…advances two constitutional objectives: the guarantee of liberty and, to that end, the independence of Chapter III judges” . Kitto J in R v Davidson also identified that the judiciary should be subject to no other authority but the law itself . This is a critical aspect ensuring the concept of legal equality is upheld. Therefore, its role clearly extends to providing checks and balances on the exercise of power by the legislative and executive arms of government . This ensures the liberty of the law and limits the abuse of the judicial system. Judicial Power is defined as “the power which every sovereign must of necessity have to decide between its subjects

The power to strike down Acts of Parliament is defined as the power to declare legislation invalid because it is unconstitutional. This paper will critically assess sections 3 and 4 of the HRA 1998 by defining them, reviewing case law surrounding their use, and by evaluating the powers that they give to the judiciary. By doing so, it will demonstrate that section 3 gives judges powers that are not significantly different from the power to strike down Acts of Parliament, whereas section 4 does not.

Separation of powers, checks and balances, and federalism are ways the government doesn't have too much power. Separation of powers makes sure no one gets too much power. Checks and Balances makes sure the three branches can monitor each other. Federalism is a system of government where the states government shares power with the national government. The founders of the constitution included the principles of separation of powers, checks and balances, and federalism in order to prevent the government from being too powerful.

In 1776, the colonies wrote a Declaration of Independence that made the 13 colonies their own country, because they felt that King George III was a tyrant that abused his power too much and did not give the colonies their rights. The Articles of Confederation was the first constitution that gave the states all of the power. A new constitution was needed because the national government had no power over the states. which were out of control. In May of 1787, 55 delegates from twelve states , excluding Rhode Island, traveled to Philadelphia to fix the Articles of Confederation. When they were all gathered, the delegates decided to write a whole new constitution with a more powerful national government. The Constitution guarded against tyranny

The independence of the judiciary from the executive and legislative is said to kept by things like their fixed salaries and sub judice rule. Their salaries ‘are paid from the Consolidated Fund’ and aren’t fixed or changeable by Parliament or the government which keeps the judiciary free from political pressure in terms of finance. The sub judice rule is where the MPs in the House of Commons are unable to comment on current or pending cases. This keeps the judiciary free from political interference and prevents prejudice against judicial decisions. This rule is followed by

Another important point made by the author is, courts have stretched their impact over the official branch, with correspondingly affect controls. The present burdens of the national government have their foundations in decisions around established laws made long back. Hence, the likeliness of change is

Judicial independence requires that judges be independent of the executive and legislative branches,33 and “from other sources of influence”.34 As former Chief Justice of the High Court of Australia, Sir Gerard Brennan, explains, this includes judges being “incorruptible by prospects of reward or personal advancement and fearless in applying the law irrespective of popular acclaim or criticism”.35 Judicial independence is crucial to the maintenance of the rule of law as it is only an independent judiciary that can guarantee the equality of all parties before the law.36 As former Supreme Court Justice Debelle has acknowledged, without an independent judiciary ordinary citizens would be “seriously handicapped, if not prevented, from challenging

The citizen's right of access to the courts to challenge decisions of public authorities by judicial review is an essential feature of our legal system based on the common law. Judicial review by an independent Judiciary is fundamental to the rule of law and enables our rights and freedoms to be fully protected. It is rightly regarded as a distinctive feature of our system under one country two systems. A judicial review challenge cannot be made on political grounds. It must be made on legal grounds. These would include that the challenged decision was inconsistent with statute or the Basic Law, that there had been procedural impropriety in making it and that it was irrational in the sense that it was beyond the range of decisions open to a

The members of the government makes the laws of man, the police enforece them and the lawyers, baristers and solicitors alike practice them.

The term ‘strong judicial review’ can be understood by dividing it into two terms. The term ‘judicial review’ refers to the process that allows courts (1) to have substantial independence from other agents in political system, and (2) to be able to address and settle questions of constitutionality (in a constitutional or common law tradition). The term ‘strong’ refers to the specific type of process that holds that the provided resolutions from the courts are regarded as binding on all departments of government including legislative enactments (Michelman, 2004: pp.1407-1408). Theoretically, the ‘strong power’ of judges can be divided into two levels: the normal strong power

The landmark case of Entick v Errington marks the triumph of the principle of legality, which provides that a public body, in exercising its power endorsed by authority, must be able to identify the precise legal source of that power. The courts are vested with the duty to correct any abuse of power by the executive and the judges are free to exercise this jurisdiction independently. Since then the courts have not wavered in their effort in correcting any abuse of power by the executive . In practical terms, the courts are rather vigilant in refining the principle of judicial review, a mechanism through which compliance by public authorities with the law can be enforced. Even though judicial review is a modern invention , its effectiveness in identifying unlawfulness is too substantial to be neglected.

Judicial review is recognised as the courts’ primary check on executive and administrative decision-making. Thus the doctrine has considerable legal significance, as it directly engages with the wider constitutional structure. Due to this, to ensure its theoretical and practical legitimacy, it seems essential for judicial review to have a high level of clarity. It is here a critical issue with the current state of judicial review arises. Since its conception it has always been the case that not all decisions are capable of being reviewed, particularly those that dealt with policy or which are not of a public character. However, as the doctrine has developed the traditional New Zealand conceptualisation of judicial review as the High Court’s inherent power to check procedures adopted by public decision-makers has become distorted. The shift to the functional approach to publicness, and to a lesser extent the possible dissolution of the publicness jurisdictional requirement altogether, along with the uncertainty of the grounds of review, and the issue of the justiciability of quasi-substantive matters, have all complicated notions of what decisions made by what entities can be subject to judicial review. The conclusion to be drawn from these matters is the direction judicial review is heading in needs clarification, and the doctrine would benefit from reaffirming its roots as a check on public decision-making.

The idea of the rule of law can be traced back to at least the time of Aristotle who observed that given the choice between a king who ruled by discretion and a king who ruled by law, the later was clearly superior to the former. In more recent times, it is Albert V. Dicey who is credited with providing the logical foundation upon which the modern notion of the rule of law is based. The term ‘rule of law,’ since reformulated by A.V. Dicey in the 19th century, has traditionally meant to include such notions as supremacy of standing law over arbitrary power, equality before the law (which applies also to government officials), and a binding constitutional framework.

New Zealand 's constitution is very unique and is the base of our legal system. The constitution is unwritten allowing a variety of elements that make up our constitution some are; constitution conventions and statutes. New Zealand 's constitution structure is separated into three branches; the legislature, judiciary and the executive . The executive is the decision making branch, it is believed that the executive is where the real power of parliamentary supremacy lies, as the decisions they make influence the process of legislation . Throughout this essay I will emphasise how statutes are more important and effective in contrast to constitution conventions.

There are serval reasons why we need law in today’s society, for instance: To regulate society, as the traffic laws exist that enforce people drive in a safe manner; To protect people, as there are laws about food safety to ensure that the food we buy is safe to eat; And to enforce rights, since the criminals laws prevent or deter people from abuses other people.