Separation of Powers at State Level: Going the Whole Hog Instead of Making the Dog Bark Many Times

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Abstract

According to orthodox tenets of Australian constitutional law, the
doctrine of separation of powers does not apply at State level.
Nevertheless, the decision in Kable v Director of Public
Prosecutions (NSW) had the effect of importing aspects of
separation of powers into State law. This paper argues that the
changes wrought by Kable and subsequent cases applying its rule
have so attenuated the orthodox position that the time has come
to abandon it. Furthermore, the paper argues that idea that
separation of judicial power is not a feature of State Constitutions
is at odds with the rule of law and democracy, and that fidelity to
these values, as applied in decisions on separation of judicial
power by the courts in the United Kingdom and elsewhere in the
Commonwealth, provides an alternative basis upon which to find
that separation of judicial power applies to the States.
Original languageEnglish
Pages (from-to)73-89
Number of pages17
JournalCanberra Law Review
Volume15
Issue number1
Publication statusPublished - 2018

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