How about this for a take on Savannah - bush lawyer style. 1....

How about this for a take on Savannah - bush lawyer style.

1. The doctrine of separation of powers is a fundamental doctrine underpinning democracy and operates to prevent absolutism and over concentration of power (dictatorship). It refers to the separation of the legislature (law makers), the executive (government / put laws into operation eg via the police) and the judiciary (judges and courts as interpreters and appliers of the law) as the three branches of government.

2. This doctrine provides that the three branches of government should maintain their independance and each should be reluctant to interfere unnecessarily with the function of the other (though there is obviously considerable overlap at times). Granted it is applied to varying degrees in different jurisdictions - for example the US versus the Westminster style of government adopted in Australia and NZ. There is under the corresponding doctrine of responsible government expected to be an element of co-operation / interaction between the legislature and the executive.

For example, it is not for executive to criticise the judiciary and it is not for the judicuiary to usurp the power of the legislature by applying legislation other than to its intended effect (though sloppy law makers are often punished by the judiciary to the extent laws are made with ambiguity and are open to broad interpretation).

Importantly, where the legislature delegates certain decision making powers to the executive (as is the case under the Minerals Act to the Minister of Mines and Energy in the granting of licenses) it is not expected that the judiciary should be able to second guess the exercise by the executive of such delegated decision making power.

This is what Savannah seems to be asking the courts to do. Savannah's case is a difficult one to support from a constitutional perspective if the doctrine of separation is to be respected. This is another reason why I think Savannah have an uphill battle bringing a case with any real merit. Their case seems to go further than the simple issue of granting of a license. It brings into question the exercise of a discretionary power delegated to the Minister of Mines under the Minerals Act.

Notwithstanding the threat to the stability of the mining industry at large and the uncertainty it would bring with it in the context of application of the Minerals Act and validity of licenses previously granted I would be suprised if this apparent constitutional afront was readily entertained.