After the death of a Hells Angel member at Kingsford Smith airport in 2009, then premier Nathan Rees introduced legislation within 10 days to declare gangs of bikies “criminal”. The first application using that legislation is currently before Court. This is a good time to be reminded of the “separation of powers” doctrine.
Separation of powers is a doctrine that was established well before Australia was settled. In Australia there are the legislature, the executive and the judiciary.
The legislative branch is the politicians of the House of Representatives and the Senate. The executive is all of the various government departments, public servants and Ministers appointed to oversee the branches of the Public Service and we deal with. The judiciary is our Court system, Judges, Magistrates Tribunal members and staff of the Courts and Tribunals.
The legislature makes laws, the executive administers the law, and the Courts interpret the law.
This was all set out by our Constitution over 100 years ago. Obviously in Australia, the executive is to an extent drawn from the legislature, so the separation is not obvious. The separation that is clear and distinctive is that between the executive and the judicial system.
The two arms have had some memorable clashes. The dam on the Franklin River in Tasmania, Mabo, immigration, Dr Haneef to name just a few. The judiciary enjoys their independence. Put simply, the executive make the laws, and then the judiciary decide if those laws abide by the Constitution.
The concept of the Police be able to designate any group or club as criminal a gang and put members in gaol just for being associated with that group seems to have similarities to other legislation attempted in the past which has seen both sides, the executive and the judiciary, dig their heels in and test the power of each other.
This is why the separation of powers exists. A system of checks and balances to allow us to continue to live in the free society in which we do.
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This is intended for general information and does not constitute legal advice and should not be relied upon as such. Formal legal advice should be sought.