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Three Arms of Government and the Separation of Powers

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The three arms of government and the separation of powers

• What are the three arms of government?
• Explain the meaning of the doctrine of the separation of powers, and its rationale.
• Discuss the extent to which the doctrine of the separation of powers is followed in practice in Australia.

• 3 arms of govt: legislature (parliament), executive (“government”) and the judiciary
• Parliament/legislature – makes laws (legislation / statutes / Acts of Parliament)
• Executive/ government – formulates policy, “manages the country”; they do administer the law through government departments (e.g. Dept of Immigration applies The Migration Act to specific cases); collect taxes (revenue), and provide essential services (e.g. hospitals, roads, education)
• Judiciary = courts/judges; apply and interpret the law (judges do make law but most of the time this is a slow, evolutionary process)
• Rationale / justification for the separation of powers doctrine is that a concentration of power in one person (or one group of people) is likely to lead to corruption (an abuse of power).
• Is the separation of powers doctrine observed in practice in Australia?
• There is no true separation between the executive and legislative branches – as the party holding a majority of seats in the House of Reps is entitled to form government (and in practice, government is “in control” of Parliament, at least the House of Reps).
• There is a true separation between the judiciary and the other two branches, i.e. judges in Australia are truly independent of Parliament, and government/Executive.

Native title

• The High Court’s 1992 decision in Mabo is a very significant event in the history of the nation. Discuss what the High Court judges decided in Mabo.

[useful reference: pp22-25 of Gibson & Fraser, 6th ed]

Mabo (1992) recognized that Aboriginal and Torres Strait Islander people are able to assert a special form of land interest – “native title” – and this is based on their occupation of land (themselves and their ancestors); it is necessary to show a continuous connection with the land to bring a claim for native title.
“Terra nullius” (empty land) as a legal concept was held to be no longer part of Australian law. HC in Mabo recognized that Australia was an occupied land (not an empty land), and that the pre-existing land interests had to be recognized.

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