Common Law and the Separation of Powers

It is a well known fact that the doctrine of the separation of powers is an essential part of the common law and that because of this principle; the modern forms of democracy have developed. The common law is part of the guiding principle behind the separation of powers and as such has had a strong influence over the years concerning the development of new ideas that have led to the radical changes to the legal system of the country. While it is a fact that the doctrine of the separation of powers is an essential part of the legal system of the country, there have recently developed the idea that radical changes to the legal system can best be carried out by experienced politicians who have the knowledge concerning whether the public would be for or against such changes. While this may be the case, it is important to note that the interpretation of the laws of the country is the preserve of the judiciary and the purpose of the legislature is to only create the said laws. One would even go as far as to state that once the legislature has passed laws, it should have no further business attempting to make any changes or interpreting the said laws because of the fact that it does not have the powers to do so. If it gets involved in such a direct way, then it is possible that it would be infringing on the powers vested on the judiciary, hence undermining the need for the separation of powers, which is an essential part for a strong democracy such as Australia.

Despite this, the statement that legislators, rather than the courts, have the most experience that can be used to ensure that they would know what the public reaction would be if radical changes to laws were made, can be considered to be pertinent and worthy of further discussion. It is a fact that politicians, especially legislators, have more experience in dealing with the public and would have better success in convincing it about any changes that are made to the laws. This is because they tend to be in more contact with the public than the judiciary and this may help them in dealing with it with little or no resentment from the latter (Clarkson, 235). It has become the norm for politicians to use the internet for their campaigns for those laws that they would like to pass because it has many users and such use enable them to garner public support for the laws or changes to it that they are trying to pass. The power that has been vested on the legislature, that of making laws, can be considered an essential factor for its having the right to make radical adjustments to the said laws, because it is where the laws originate. It is perhaps the legislature which has the most understanding of the laws it creates and for what purpose it has been created. This makes the legislators the most qualified people to make the changes to the laws which they deem necessary to ensure that they are in compliance with the desirable way of life.

That said, however, it leaves the question of what the role of the judiciary should be in the making of adjustments to laws to suit the current way of life. While it is true to say the the legislators have the most experience and that they would know how the public would react to any changes to laws, it should be considered that the members of the judiciary have made a study of the law, as is their duty. In such studies, they would have seen how the different laws affect the lives of individuals and may have considered the way any changes to the said laws will affect any laws of similar value in the society. One would argue that the judiciary also has a stake in the making of radical changes to laws because it is well versed in the study of the development of such laws and the precedence that has been set in previous court rulings (Flanagan and Ahern, 6). Therefore, the need to ensure that the power of the judiciary to interpret the law, according to the common law, is preserved has become essential because without this power, it would mean that the legislature will be usurping the role of the judiciary. The role of the legislators in the making of radical changes to laws should be minimal at best because while these legislators might make these changes to the law, they may be influenced by the need to take advantage of it to maintain their own order in power. Adjustments made by the judiciary, however, have the potential of lasting a long time because this arm of government does not make changes out of selfish interests and instead makes them for the purpose of making the laws serve the legal system better (Taksa, 82).

The fear that radical changes to the law might end up serving the interests of some specific groups is a reason for such changes to be left to the courts because any changes made by the latter have the potential of not being biased towards any particular group. While it is important for experienced legislators to be involved in the making of radical changes to laws, it is equally important for there to be regulations in their involvement so that they do not take complete control of the process. It is a fact that there are some politicians who tend to propagate agendas which may be harmful to other people either within their own countries or without and these can be achieved through radical changes to laws (Pastore, 615). An example of this is when some politicians propagate racist views and the creation of laws which can be considered to be racist, claiming that their own race or ethnic group is far more superior to all the others in the country. If a legislator in a multiethnic and multicultural society such as Australia does this, then there is a possibility that any changes to laws that he institutes dealing with the racial relations will most likely cause friction between the ethnic groups in this society. To prevent this, it is necessary to put very strict restrictions on the role of legislators in the making of radical changes to laws so that the general public interest is protected against any such individuals who may have some personal interest in the making of these changes.

The capability of legislators to self regulate when making changes to laws is very much open to question because their influence is so widespread throughout the country that if they convince the public to accept the changes they make and things do not turn out as expected, then there might be chaos. There are, however, some countries that use the common law, such as the United Kingdom, where there has developed a system of checks and balances that ensures that while parliament has the sole responsibility of making laws, the judiciary has also been given the responsibility of interpreting the said laws, and at times making adjustments to it to suit the general constitutional needs (Hocking and Scott, 76). An example of this, in the case of the United Kingdom, is in laws that deal with the European Convention where it has become the norm for the courts to make independent decisions especially when making judgements concerning those laws that are in contravention with the said Convention. This idea should also be applied in Australia so that the judiciary, instead of the legislature, should have the freedom to make radical changes to laws so that they not only suit whatever unique situations that have arisen in cases, but also ensure that the human rights of individual Australians are protected from any form of abuse. Ethics have to play a great role in influencing the process of making any radical changes to laws since the people involved in the making of such changes do so for the sake of what they believe to be for the good of the public. Those laws that are, however, proven to have been wrongfully changed, because of the consideration of ethics, have to be returned to their previous form because to do otherwise would be a breach in the ethical values of either the legislators or the courts involved in the process (Sim, 102). Ethics act as a guide when it comes to making a decision about the laws which should be radically changed and which should not to suit the social situation at hand and this is done to ensure that there is fairness in the process.

It can be argued that the main function that should be given courts when making changes to laws should be the power to deduce legislation so that it is in compatibility with the human rights of the people of the country and this should not mean that the legislation is invalidated, but should ensure that the court swiftly makes amendments to the legislation so that it is in accord with the desired status. The amendment to laws made by courts, however do not necessarily remain permanent, and, in fact, it has been known for courts of appeal to overturn decisions made by lower courts in these matters. Courts should be given wide powers to ensure that they are able to interpret both principal and subsidiary legislation so that these laws can be made to achieve the desired effect (Appleby, 265). The interpretation of these powers should go beyond the normal statutory interpretation because they are likely to involve the interpretation of legislation made in the past as well as those which are to be made in future. Any changes that are made to laws by courts can be done by following three extraordinary different procedures, the first of which is the insertion of words into a statute if it is found that there is none which appear in it. The second procedure that can be used when making changes is by having words omitted from a statute if they are found to be contravening the rights of individual Australians. Finally, there are times when changes to legislation is not necessary as long as a court declares that the said legislation is in compliance with the needs of all individuals in the society.

It is, however, a fact that the current Australian legal system has been developed in such a way as it has come to embrace the opinions of those individuals, mostly legislators, whose main purpose is to ensure that changes are made to laws in order to serve their own political needs. Some of the most radical changes to laws that have been made in recent years have been made despite their being no sufficient proof from the legislators involved to show that the said law has in any way been detrimental to the wellbeing of the public. While the separation of powers as well as the common law is still one of the most paramount in the system of Australian government (Weiden, 335), it has come to be put aside in many cases because of the fact that many of the courts have been under immense pressure to preside over the making of radical changes to legislation in the shortest time possible and this has ensured that the quality of the laws that have resulted tend to be questionable because of the lack of serious consideration of the consequences that they may have in the public domain. It has, therefore, become necessary for there to be cooperation between the various arms of government because this is the only way through which individual laws can either be amended or changed radically in order to conform to the contemporary way of life. It is indeed essential to not only involve the legislature in the amendment of laws but also the judiciary because these two arms are, out of necessity, obliged to work together so that there might be harmony in the Australian society.