Canherra Bulletin of Public Administration

970606012
A New Perspective on Separation of Powers
The constitutional principle of separation of
powers can safeguard citizens against abuses by
the state. But hvw does it work in practice'
Sir Anthony Mason* notes that the
Australian Parliament delegates law-making power
to the Executive on a large scale, and that federal
judges play an important part in
executive government.
My principal achievement as Chief achieve-
ment steadfastly ignored by the my
development of the doctrine of the Chief Justice's
infallibility. The doctrine, more functional and less
doctrinal than Papal infallibility, can be simply stated:
Never confess to error and make no apology.
No longer Chief Justice, like the Emperor unclothed, I
can confess to error. In this instance, my error was to
agree, at the suggestion of Professor John Braithwaite, to
speak on the separation of powers. It is an arid and
grinding topic, which has generated some less than
inspiring jurisprudence, both in the Supreme Court of the
United States and in the High Court of Australia. For
that, I do not seek to blame others. In my new confessional
mode, I am prepared once again to acknowledge error.
This lecture, and the two lectures which are to follow, I
are addressed to institutional aspects of our constitutional
arrangements. The lectures do not attempt to predict the
decisions which the courts will make in the future. They
are simply my reflections on how things presently stand
and on future consequences and possibilities.
INTRODUCTION
Our treatment of the doctrine of the separation of powers
has been contradictory. On the one hand, in the context
of the relationship between Parliament and the Executive,
we have ignored the doctrine, allowing Parliament not
only to delegate subordinate law-making power to the
Executive, but also to delegate it on a very large scale.
2
* The Hon. Sir Anthony Mason AC, KBE has just taken up a position
as Anhur Goodhart Professor of Legal Science at Cambridge
University. He is Chancellor of UNSW, National Fellow, RSSS,
ANU, and Chairman of the National Library 'of Australia. Appointed
a QC in 1964, he was Commonwealth Solicitor-General ! 964-69;
Justice of the NSW Court of Appeal 1969-72; Justice of the High
Court of Australia 1972-87 and Chief Justice 1987-95. Text of an
ANU Public Lecture in the "Reshaping Australian Institutions"
series, delivered on 25 July 1996. Sir Anthony wishes to acknowledge
the valuable contribution to this lecture made by Ms Fiona Wheeler
in the course of discussions with her about aspects of the separation
of powers.
No 82. December 1996, 1-9.
On the other hand, subject to one notable and unsatisfac-
tory exception relating to Parliament's power to convict
and punish for contempt of Parliament,
3
and the exercise
of jurisdiction by service tribunals,4 we have enforced a
relatively strict application of the separation doctrine by
insisting that only federal courts and courts exercising
federal jurisdiction can exercise the judicial power of the
Commonwealth. Some commentators would cavil at my
words "relatively strict" and point to the array of
administrative tribunals which dispense administrative
justice,
At the same time, we have insulated the federal courts
from the exercise of legislative and executive functions
by insisting that they cannot undertake non-judicial
functions unless they are incidental to the exercise of
judicial power. Yet we have allowed federal judges to
participate in a variety of functions of an administrative
character which are not incidental to the exercise of
judicial functions. Sir John Latham and Sir Owen Dixon,
while holding office as Chief Justice and a Justice of the
High Court of Australia, served respectively as Minister
Plenipotentiary to Japan in 1940 and to the United States
from 1942 to 1944.
5
Federal judges have conducted royal
commissions and other executive inquiries. A federal
judge acted as Director-General of Security for five years.
Other federal judges have been appointed to administrative
tribunals, the most significant instance being the appoint-
ment of judges of the Federal Court as President of the
Administrative Appeals Tribunal. Recently the most
contentious instance of judicial participation in executive
activity has been the issue of warrants by Federal Court
judges authorising the interception of telephonic
communications.
Justification for judicial participation in this array of non-
judicial functions unrelated to the work of the courts has
been found in two different notions. One is the proposition
that what a judge does in his personal capacity, otherwise
than in his character as a judge, cannot amount to an
infringement of the doctrine. The other is the more
dubious proposition that a judge may be entrusted in
virtue of his qualification as a judge with a non-judicial
function, such as the issue of a warrant authorising
interception of a telephonic communication, as a desig-
nated individual on the footing that he is not acting as a
member of a court, notwithstanding that he is appointed
Page 2
because he is a judge and that he deals with the application
in a court or his chambers, availing himself of his judicial
staff and court facilities.
Another and less central aspect of the separation doctrine
arising from the entrenchment of the judicial power in
federal courts and courts exercising federal jurisdiction
affected by Chapter III of the Constitution, is that Chapter
III has become the source of constitutional rights of a
fundamental kind related to the curial process. In some
respects, the reasoning which underlies this approach to
the entrenchment of the judicial power in the courts is
purposive in character and, to that extent, contrasts with
the fonnalist conceptual reasoning which pervades much
of the learning in the United States as well as Australia in
relation to the separation of powers. The distillation of
entrenched characteristics of judicial power, by conceptual
or purposive interpretation or a combination of both, will
protect the essential integrity of the judicial process from
legislative encroachment and distortion. But, if taken too
far, the identification of those characteristics may inhibit
the potential development of the judicial p r ~ s s in ways
that would enhance the resolution of controversies arising
for curial detennination.
The lesson of history is that the
separation of powers doctrine serves a
valuable purpose in providing safeguards
against the emergence of arbitrary or
totalitarian power. The lesson of
experience is that the division of powers
is artificial and confusing because the
three powers of government do not lend
themselves to definition in a way that
leads readily to a classification of
functions.
The lesson of history is that the separation of powers
doctrine serves a valuable purpose in providing safeguards
against the emergence of arbitrary or totalitarian power.
The lesson of experience is that the division of powers is
artificial and confusing because the three powers of
government do not lend themselves to definition in a way
that leads readily to a classification of functions.
The difficulty of precise definition arises from the
impossibility of defining each of the three powers in a
way that reveals them as mutually exclusive concepts. As
well as legislators, judges make law, if only in a minor
way. The Executive also makes law pursuant to statutory
authority. Judges and courts, other than federal courts,
exercise administrative functions. Legislatures convict and
punish for contempt. And administrators and administrative
tribunals detennine a range of disputes.
This problem, arising from the inherent absence of mutual
exclusivity in the three powers, has become more acute as
the processes of government have become more complex.
A specialist tribunal, such as the Australian Broadcasting
Authority, which is primarily an administrative authority,
may be authorised to issue prescriptive
Canberra Bulletin of Public Administration
rulings and to conduct hearings in relation to alleged
violation of conditions of licences or prescriptive codes
of conduct. In the interests of efficiency, good administra-
tion and infonned decision-making a combination of
functions may be highly desirable. Even in the conduct
of hearings, particularly in relation to specialist and
technical subjects, much is to be gained from the strong
participation of experts who have a mastery of those
subjects.
In the light of these problems, a purposive functional
approach to the separation of powers provided for by the
Australian Constitution has much to commend it. The
doctrine should operate to maintain and enhance the
system of representative and responsible government
brought into existence by the Constitution and to ensure
the maintenance of the rule of law by an independent
judiciary whose responsibility it is to determine justiciable
controversies. Apart from creating a federal system under
the Crown and providing for a separation of powers, the
principal objects of the Constitution were to provide for a
system of representative and responsible government and
the maintenance of the rule of law by an independent
judiciary.
THE SEPARATION OF POWERS-
HISTORY AND DEVELOPMENT
Although the separation doctrine has earlier origins,
English public law was strongly influenced by Montes-
quieu's The Spirit of the Laws, which speaks of the
doctrine as being the essence of democracy in eighteenth
century England
6
There is an irony in this description of
the English system of government because, as we see it,
the separation of powers in England was, and still is, far
from complete. The Lord Chancellor, the head of the
English judiciary, is a member of the Legislature, as
indeed are the Law Lords who constitute the United
Kingdom's ultimate court of appeal. The Lord Chancellor
is a member of Cabinet. Unlike the United States, in the
United Kingdom and Australia, where the system of
responsible government prevails, the members of the
Ministry are members of the Legislature. That has led to
a much closer relationship between Parliament and the
Executive than would arise if the composition of each
institution were distinct, and it hls also led to the
Executive making subordinate legislation on a large scale.
The virtue which Montesquieu perceived in the separation
of powers was that it provided a safeguard against the
centralisation of power in the hands of a single individual
or institution. It therefore provided an important protection
against the exercise of absolute power by an individual or
group of individuals. In more recent times, it was the
failure to insist on a separation of powers in constitutions
containing a bill of rights that led, in some cases, to those
constitutions not ensuring the protection of individual
rights. The Weimar Constitution of post-World War I
Geffilany, which did not provide for such a separation,
enabled Hitler to take up at the same time the offices of
Chancellor and President.
To Montesquieu, the separation of powers was a diffusion
or dispersion of powers,7 rather than a division of
functions. However, once the concept came to be translated
into constitutional and legal terms, it was transfonned into
Canberra Bulletin of Public Administration
a division of functions. To the legal mind, the transfor-
mation was a natural one. A division of powers was a
logical way of giving effect to a diffusion of powers and
a division of powers separating the legislature, the
Executive and the judiciary corresponded to the broad
separation of powers, as it existed in England in
Montesquieu's time.
The problem with the transformation from a diffusion to
a division of powers is that it calls for a classification of
functions. Yet Madison himself noted that it was
impossible to define, with sufficient certainty, the three
provinces of government,S a view which has been endorsed
by the Supreme Court of the United States' and the High
Court of Australia. 10 In conformity with Madison's views,
in the United States the separation doctrine is applied in
accordance with the statement:
While the Constitution diffuses the powers the belter
to secure liberty, it also contemplates that practice will
integrate the dispersed powers into a workable govern-
ment. It enjoins upon its branches separateness but
interdependence, autonomy but reciprocity.l!
In Australia, we have not expressly adopted this flexible
approach.
It is significant that, at the Philadelphia Convention,
before the adoption of the United States Constitution, a
proposal for the inclusion of a Bill of Rights in the
Constitution was rejected on the ground that the rights of
the individual were sufficiently protected by the incorpo-
ration of the separation of powers in the Constitution.
The rejection is significant for two reasons. The first is
that the framers of the Constitution perceived that the
principal threat to the rights of the individual lay in the
exercise of arbitrary power. The framers did not consider
that protection in the fonn of recognition of specific
individual rights was necessary. According to Hamilton,
the Constitution was itself, in every rational sense and to
every useful purpose, a Bill of Rights.
12
The second reason is that the subsequent adoption of an
express Bill of Rights was a natural extension of the
reasoning which led to the incorporation of the separation
of powers. But that does not mean that, absent the Bill of
Rights provisions, the Constitution would have been
interpreted on the footing that similar rights would have
been implied.
THE INCORPORATION OF THE
SEPARATION DOCTRINE IN THE
AUSTRALIAN CONSTITUTION
The framers of the Australian Constitution, without
perhaps perceiving precisely what they were doing or the
difficulties inherent in the exercise, adopted the separation
framework contained in the United States Constitution.
However, they departed from that framework by providing
for responsible government according to the Westminster
model, thereby compromising the separation of legislative
and executive powers. It is likely that the Convention
delegates did not appreciate that there was great difficulty
in classifying governmental functions according to the
tripartite division demanded by the separation doctrine.
Page 3
Their ignorance in this respect may have been due to the
fact that in Great Britain, owing to the supremacy of the
legislative power, there had been no occasion for the
courts to distinguish between the functions.
13
Likewise, the framers of the Constitution did not perceive
that a strict separation of powers might, on top of the
federal distribution of powers, result in an unacceptable
fragmentation of the powers of government. Such a
fragmentation could lead to weak. inefficient government,
a complaint sometimes voiced in the United States.
Contrast what actually happened in Australia during the
Second World War when under the National Securiry Act
1939 (Cwlth) the Executive made wide-ranging regulations
for the government of the country in wartime.
The significance of what the delegates did in incorporating
the separation doctrine was noted after Federation by
Professor Harrison Moore. He stated:
In the British colonies this fundamental separation of
powers has not existed ... [O]ur political doctrine is
not that of a sovereign people committing limited
powers of government to their agents. Self-government
has been parliamentary government, and consequently
the disposal of executive and judicial duties, as well as
of subordinate powers of legislation, has devolved upon
the organ with the general power to make laws; the
model of the Colonial Legislature has been the Imperial
Parliament, as has been affinned on every opportunity
by the Privy Council
14
But Professor Harrison Moore entertained no doubt that
the constitutional separation was intended to establish
legal limitations on the organs of government and it was
for the courts to define the relevant functions. IS
THE NON-RECOGNITION OF
SEPARATION DOCTRINE IN THE
UNITED KINGDOM AND ITS
INFLUENCE IN AUSTRALIA
Despite the independence exhibited by the High Court of
Australia in areas of constitutional interpretation not
subject to the Privy Council appeal, the Australian
Constitution was interpreted on the footing that it was a
statute enacted by the Imperial Parliament and Australian
judges were greatly influenced by prevailing English legal
thinking, particularly by the doctrine of parliamentary
sovereignty. Overshadowed by Dicey's view of British
constitutional law, the separation of powers doctrine has
played a minor part in the development of the principles
of English public law. Dicey's strong emphasis on
parliamentary sovereignty was accompanied by only a
cursory reference to the separation of powers.
Dicey considered that federation was inconsistent with
parliamentary sovereignty.l6 That was because a federal
constitution necessarily imposed limits on the legislative
powers conferred on legislatures. For a like reason, a
constitution which imports a separation of powers imposes
limits on legislative powers. Such a constitution gives the
courts jurisdiction to declare ultra vires legislation invalid.
Page 4
DELEGATED LEGISLATION
Accordingly, it is surprising that, in Australia, the influence
of Dicey's doctrine of parliamentary sovereignty (in the
sense of omnicompetence) has been so strong and that,
conversely, the separation doctrine has not achieved greater
recognition. Reliance on parliamentary sovereignty has
been talismanic and it has resulted in the separation
doctrine having no application to the legislative power.
Another factor was Sir Owen Dixon's low opinion of that
doctrine, except in so far as it protected the exercise of
judicial power by the courts. He excluded the doctrine
when he came to identify the three cardinal features of our
constitutional law-the supremacy of the law, the suprem-
acy of the Crown and the supremacy of Parliament-in
his well-known address "The Law and the Constitution",17
Sir Owen spoke of "the artificial and almost impracticable
classification" 18 'demanded by the doctrine, and states that
it "was opposed to both British theory and practice"19 in
the context of delegating legislative powers to the
Executive. He refers to the failure of the doctrine to
achieve a full legal operation in Australia as "probably
fortunate" .20 Significantly, he comments: "Legal symmetry
gave way to common sense. But the supremacy of the law,
at the same time, suffered a reverse"." In 1942, he went
further, saying that there was "no reason in the fonn or
text of the Australian Constitution why the legal implica-
tions of the separation of powers should not have been as
full as they have been in [the United StatesJ".22
The exercise of wide-ranging subordinate
law-making authority by the Executive
has contributed to the decline in the
vitality of parliamentary government by
leaving matters of legislative principle
and policy in the hands of the Executive.
The exercise of this authority by the
Executive has contributed to the view
that the Executive now controls
Parliament. That view, which originated
in the United Kingdom, has less validity
in Australia given the difficulties which
the Executive has experienced in
Australia with the Senate over the past 20
years.
In deciding that Parliament can grant to the Executive
substantial subordinate law-making authority,2' the High
Court departed from the approach taken by the Supreme
Court of the United States. The Supreme Court has only
sanctioned subordinate law-making activity by the Execu-
tive in filling in the details pursuant to general provisions
enacted by Congress,24 so long as it prescribes "an
intelligible principle" according to which the subordinate
law-making body is directed to conform." This approach
is based not only on the separation of powers but also on
the American non-delegation doctrine, which arises from
Canberra Bulletin of Public Administration
the grant by the sovereign people of authority to its agents
the respective organs of government.
The delegation upheld by the High Court in Dignan's
Case illustrates the difference between the American and
Australian approach. The delegation was in exceptionally
wide terms. The Act authorised the making of regulations,
not inconsistent with the Act, notwithstanding anything in
any other Act, with respect to a very wide subject matter
concerning transport workers and for the protection of
transport workers. The delegation prescribed no rule,
framework or criteria; it simply remitted the entire subject
matter, including policy and principle, to the Executive.
Yet it was upheld.
In Dignan's Case, the practical justification for upholding
the delegation was found by Dixon J. and Evatt J. in the
history and usages of British legislation which allowed
legislatures to authorise the making by the Executive of
subordinate legislation.
26
The theoretical justification was
found by Evatt J. in the notion that "legislative power"
connoted "power to delegate legislative power because
this was implied in the idea of parliamentary sovereignty
itself" 27 The theoretical justification advanced by
Dixon J., as he explained in 1942, was that subordinate
legislation, however wide the discretion under which it
was made, "could not be considered as an exercise of
legislative power" ,28 a view which is difficult to accept.
Evatt J.'s reliance on parliamentary sovereignty does not
directly respond to the separation argument.
Yet there can be little doubt that the framers of the
Constitution assumed that Parliament could delegate
subordinate law-making functions to the Executive.
Delegation of such functions had been a characteristic of
the Westminster model of responsible government and it
was supported by the doctrine of parliamentary sover-
eignty. However, the fact that the consequences of the
separation doctrine were not fully perceived does not
mean that it should not influence the scope of legislative
delegation of subordinate law-making.
The exercise of wide-ranging subordinate law-making
authority by the Executive has contributed to the decline
in the vitality of parliamentary government by leaving
matters of legislative principle and policy in the hands of
the. Executive. The exercise of this authority by the
Executive has contributed to the view that the Executive
now controls Parliament. That view, which originated in
the United Kingdom, has less validity in Australia given
the difficulties which the Executive has experienced in
Australia with the Senate over the past 20 years. But, as
the High Court has itself noted," the Executive controls
the House of Representatives. If the Executive were
unable to exercise a subordinate law-making authority,
that might well enhance the status and authority of
Parliament vis-a-vis the Executive. However, in the light
of Australian history and established practice, it would be
impractical and ahistorical now to insist on a separation
which would exclude the Executive from substantial
subordinate legislative activity, it would further fragment
the exercise of powers of government, already fragmented
by the federal distribution of powers, and lead to
inefficiency.30
Nonetheless, we can insist, in closer confonnity with the
separation doctrine, on a delegation of legislative authority
Canberra Bulletin of Public Administration
to the Executive within a suitable legislative framework
set by Parliament. Decision-making by Parliament itself
on significant issues of policy and principle is the central
and indispensable element of modem democratic govern-
ment. Our insistence on the virtues of representative
government and on deliberative democracy count for little
unless Parliament applies itself to that task rather than
confines itself to scrutiny by Parliament and review of
executive decision-making and succumbs to the politics
of electoral survivaL A failure by Parliament to devote
itself assiduously to that task can compromise the standing
of the political process in the eyes of the electorate. To
the extent that decision-making, at least on issues of
policy and principle, is delegated to the Executive,
Parliament should prescribe procedures to ensure that
interested parties are able to participate in the decision-
making process. The Legislative Instruments Bill 1996
addresses this problem in the context of the making and
scrutiny of delegated legislation. It does not address the
major proposition, namely that statute should deal with
significant issues of policy and principle.
31
EXERCISE OF JUDICIAL POWER BY
PARLIAMENT
Just as Dignan's Case marked a refusal to accept a
separation between the executive and legislative powers,
so the decision in R v Richards; Ex parte Browne and
Fitzpatrick
32
sanctioned the exercise by Parliament of
judicial power. That decision is perhaps a more startling
departure from the separation doctrine because the High
Court, except perhaps in relation to the exercise of
jurisdiction by service tribunals, has otherwise insisted on
the separation of the judicial power from other powers.
According to Browne and Fitzpatrick, section 49 of the
Constitution which declares that the privileges of the
House of Representatives shall be those of the House of
Commons at 1901, until they are declared by Parliament,
conferred power on the House to convict and punish for
contempt and without any antecedent trial by a court.
The facts of the case illustrate why the right to a fair trial
before a court is an indispensable element in the judicial
process which culminates in conviction and punishment.
The two men were convicted and imprisoned by
Parliament for contempt of Parliament without being
given an opportunity to address Parliament on the question
of their guilt or innocence. They were convicted in
absentia in the absence of any specification in the warrant
of commitment of the nature of the breach of privilege of
which they were convicted and after they were denied
representation by counsel who was to appear on their
behalf in the Committee of Privileges and in the House.
As counsel who was refused leave to appear, my sense of
outrage over Parliament's denial of due process and
natural justice remains undimmed after the lapse of 40
years.
Mr Geoffrey Lindell has recently suggested
33
that the
constitutional issue might be decided otherwise today. He
notes that, on similar questions, the Supreme Court of
Ireland
34
and the European Court of Human Rights
35
have
reached a conclusion contrary to that reached by the High
Court. He points out that the exercise by a House of
Parliament of the power to convict and punish for
contempt could contravene article 14 of the International
Page 5
Covenant on Civil and Political Rights and generate a
complaint to the UN Human Rights Committee under the
First Optional Protocol to the Covenant.
THE INSULATION OF JUDICIAL POWER
One implication to be drawn from the separation of
powers is that no organ of government shall exercise a
power other than the power vested in it by the Constitution.
While that implication has been disregarded in the case
of legislative and executive powers, it has been applied to
the judicial power, subject to section 49, on the ground
that the Constitution makes special provision for the
exercise of judicial power. So, in the Boilermakers Case,36
it was decided that the Commonwealth Court of Concili-
ation and Arbitration could not validly engage in industrial
conciliation and arbitration and exercise judicial power,
even though it was established as a federal court in
confonnity with the Constitution.
The basic reason for this conclusion was that Chapter 1Il
of the Constitution does not allow "powers which are
foreign to the judicial power to be attached to the courts"
exercising the judicial power of the Commonwealth.
37
In
other words, non-judicial functions could be reposed in
Chapter III courts only if they were incidental to the
exercise of judicial power. That proposition was not
consistent with the earlier decision in Lowenslein's Case,38
where the Court held that non-judicial functions could be
reposed in a federal court unless they were incompatible
with the functions of a court.
39
In the Boilermakers Case,
the Privy Council considered that the incompatibility test
was "vague and unsatisfactory" .40
Incompatibility has been applied as a criterion in a
different context where judges of the Federal Court have
been entrusted with the non-judicial function of issuing
warrants authorising telephonic interceptions. The giving
of this function to a judge as persona designata has been
upheld on two conditions, namely (I) that no non-judicial
function that is not incidental to a judicial function can
be conferred without the judge's consent; and (2) no
function can be conferred that is incompatible with the
judge's performance of the judicial function or with the
proper discharge by the judiciary of its responsibilities as
an institution exercising judicial power.
4
!
The concept of persona designata has a distinctly artificial
flavour about it. The concept, which would have appealed
to mediaeval schoolmen, has been criticised
42
on the
ground that it contemplates the judge acting in his
character at large, detached from the court of which he is
a member. The concept has little to commend it.
Rationality would be advanced if the concept were
jettisoned and replaced by the incompatibility test.
The incompatibility test does not deserve the epithets
"vague and unsatisfactory" aimed at it by the Privy
Council.
43
It is a matter of identifying the purpose or
purposes intended to be served by the separation of
judicial power, particularly from executive power. Once
this is done "incompatibility" has a natural place in the
scheme of things.
The Boilermakers doctrine has two considerable shoI1com-
ings. First, its application hinges on the classification of
functions according to the concept of judicial power. Yet
Page 6
judicial power is not susceptible of precise definition.
44
The definitional difficulty stems from our inability to
identify a distinctive essential constant characteristic of the
power.
45
At ODe time, it seems to have been thought that
the presence of an element of discretion in the decision-
making process marked the decision as one not involving
judicial power. But the exercise of a judicial discretion is
a not uncommon element in judicial decision-making.
46
And policy may be a relevant consideration in shaping
legal principle
4
' The second shortcoming of the Boiler-
makers doctrine is that it prevents a federal court from
exercising a function which might conveniently be
undertaken by a court and is not necessarily incompatible
with the exercise of judicial power.
There is a public interest in having a
judge perform some administrative
functions, such as an inquiry involving
evidence and fact-finding, because the
judge brings authority as well as
expertise to the task. The judge's report
will probably be more influential in the
public mind simply because a judge is the
author.
On the other hand, there is an
institutional risk to the standing of the
judiciary arising from the possibility that
the minister or the Government will
reject the judge's findings or his
recommendation. That risk becomes
greater when a judge (or retired judge)
undertakes an inquiry into a party
political issue and is attacked or derided
by politicians as happened in the Carmen
Lawrence inquiry. One is tempted to ask:
how many people do make a connection
between the judge's non-judicial activity
and the administration of justice? We do
not know the answer.
The inability to offer a distinctive definition of judicial
power has naturally resulted in the recognition that some
functions may be capable of being classified according to
the way in which they are to be handled. However, some
functions are inescapably exercises of judicial power. That
proposition was central to the recent decision Brandy v
Human Rights and Equal Opportunity Commission,48 in
which the High Court held certain sections of the Racial
Discrimination Act 1975 (Cwlth) invalid. In conformity
with earlier decisions, the Coun considered that the
punishment of criminal offences and the trial of actions
for breach of contract and for wrongs are exercises of
judicial power.
49
Because the registration provisions made
the detennination of the Commission binding on the parties
and enforceable as an order of the Federal Court, they
were invalid.
5u
To constitutional lawyers, the Brandy
Canberra Bulletin of Public Administration
decision came as no surprise. And I am sure that the
architects of the invalidated legislation contemplated the
possibility that their offspring was destined to an early
demise.
Whether functions given to other Commonwealth tribunals
are also obnoxious to section 71 of the Constitution is
another question. Outside the traditional heartland of
judicial power-where the courts grant or refuse historic
remedies and fonns of relief-the nature of the orders
made by a tribunal and the way in which a tribunal is to
reach its decision should detennine whether it exercises
judicial power or not. How closely do its procedures,
remedies and methodology follow the essential character-
istics of the courtS?5!
That is an inexact but flexible standard which allows
room for administrative tribunals so long as they are not
closely modelled upon courts and are not called upon to
provide court-type remedies in accordance with adversarial
procedures and judicial methodology. 52 Those conditions
may not appeal to politicians and administrators who
might favour court-type jurisdiction exercised by decision-
makers less influenced by the traditions of judicial
reasoning. That goal is inconsistent with the constitutional
requirement that judicial power be exercised by Chapter
III courts and those courts alone, and by the purposes
served by the separation of judicial power.
THE PARTICULAR PURPOSES SERVED
BY THE SEPARATION OF JUDICIAL
POWER
The great importance attached to mallltallllllg an inde-
pendent judiciary and government according to law
explains the strong emphasis given to the separation of
judicial power. The separation of judicial power is not
only protection against the exercise of arbitrary power,
but it also assists in maintaining the independence of the
judiciary and contributes to public confidence in the
administration of justice.
Recognition of these two purposes as being the objects to
be served by the separation of the judicial power, coupled
with the incompatibility test, would provide a more
convincing and functional test than the reliance on the
abstract classification test which Boilermakers demands.
Not that the approach suggested would overcome all the
difficulties. The question would be whether a function
given to a judge or court is incompatible with the judge's
judicial functions, the proper discharge of the court's
responsibilities, the independence of the judiciary or the
maintenance of public confidence in the administration of
justice.
The old difficulties, though remaining, would be judged
from a different perspective. Would particular executive
functions, previously undertaken by judges and mentioned
at the beginning of this lecture, be incompatible with
judicial independence or public perceptions of it to the
detriment of public confidence in the system? The
question needs to be approached with some caution. There
is a public interest in having a judge perfonn some
administrative functions. such as an inquiry involving
evidence and fact-finding, because the judge brings
authority as well as expertise to the task. The judge's
Canberra Bulletin of Public Administration
report will probably be more influential in the public
mind simply because a judge is the author.
On the other hand, there is an institutional risk to the
standing of the judiciary arising from the possibility that
the minister or the Government will reject the judge's
findings or his recommendation. That risk becomes greater
when a judge (or retired judge) undertakes an inquiry into
a party political issue and is attacked or derided by
politicians as happened in the Cannen Lawrence inquiry,
One is tempted to ask: how many people do make a
connection between the judge's non-judicial activity and
the administration of justice? We do not know the answer.
Although the problem is one which would be better
understood if we had the benefit of some research into it,
public reaction may well vary from case to case. 53
THE CONSTITUTION, CHAPTER III, AS
A SOURCE OF IMPLICATIONS
Chapter III has been a fertile breeding ground for
constitutional implications, much more so than any other
part of the Constitution. Chapter III is a source of
implications concerning curial process, implications which
assist in maintaining aspects of the rule of law and protect
the rights and interests of parties to litigation. The judicial
separation of power would invalidate a law which attempts
to impose punishment upon persons without an antecedent
trial by court. Such a law would involve a usurpation of
judicial power.
54
Indeed, it has been suggested that a
retrospective law making past conduct an offence, when
that conduct did not amount to an offence when it was
engaged in, would be inconsistent with Chapter Ill. ss
Likewise, a law which provides that a court shall not
release a person from custody is inconsistent with the
Constitution. 56
Just how far the process of implication might go remains
to be seen. It is generally accepted that Chapter III
preserves essential characteristics of the judicial process.
Thus, Chapter III would require compliance with the rules
of natural justice or procedural fairness. The right to a
fair trial may well be an essential characteristic of the
judicial process. If so, then two judgments in Dietrich v
The Queen
5
? seem to indicate that the Constitution
entrenches the trial judge's power to adjourn a criminal
trial to enable an indigent person who is charged with a
serious criminal offence and is, through no fault of his
own unable to obtain legal representation, to obtain such
legal representation at the expense of the State. Likewise,
the jurisdiction to stay a prosecution for an offence against
a Commonwealth law on the ground of abuse of process
might also be entrenched. The exercise of that jurisdiction
has been recognised as a characteristic of a superior
court.
58
Of greater significance from a practical point of view is
the suggestion, which has some judicial support, that
Chapter III entrenches both traditional judicial procedures,
remedies and methodology'9 and, in the context of the
criminal law, "traditional curial standards".
This suggestion, if correct, raises interesting questions.
The Australian Law Reform Commission is undertaking
a Review of the Adversarial System of Litigation. To
what extent then does Chapter III limit the capacity of
Page 7
Parliament to provide for changes to that system? Could
Parliament provide for a system which takes on some
characteristics of the civil law system? What are the
Parliament's powers to abrogate or modify traditional
procedures (cross-examination, oral argument), traditional
remedies and the principles on which they are based"
Could Parliament alter the criminal onus or standard of
proof?60
These questions raise a critical tension between the
paramount view of parliamentary supremacy and the
separation of the judicial power. It is possible that a
distinction needs to be made between legislative provisions
which are enabling and legislative provisions which are
mandatory. And it is conceivable that procedure stands in
a special position in the sense that it could be for the
federal courts themselves exclusively to determine what
procedures are necessary or desirable in the interests of
justice. That suggestion has been decisively rejected by
the Supreme Court of the United States.51
The suggestion that Chapter III entrenches traditional
judicial methodology has significance for those who
would advocate radical change in the methods by which
courts reach decisions. There is an initial problem: what
do we mean by traditional judicial methodology? That
term includes adjudication by reference to "a recognized
body of rules in a manner consistent with fairness and
impartiality",62 and it invites attention to the difference
between questions of "principle" and "policy", emphasi-
sed by Professor Dworkin
63
That has been described as
the difference between "competing rights of individuals
and groups" and the "competing views of the collective
good of the community as a whole",64 Compare the
comment made by the minority in Environment Protection
Authority v Caltex Refining Co. Pty Ltd,65 that the case
for denying the privilege for self-incrimination was based
more on pragmatism than principle and was therefore a
matter for the legislature.
Judicial methodology cannot be confined to the notions
of "strict and complete legalism" and "high technique
and strict logic of the common law" of which Sir Owen
Dixon spoke
66
The judicial process extends to the
discretionary exercise by federal courts of jurisdiction
under modem statutes such as section 79 of the Family
Law Act 1975 (Cwlth) which provides for a weighing of
prescribed factors in property adjustment claims. Nor can
judicial methodology be confined to questions of principle
as distinct from questions of policy, even in the sense
described above. Accepting that judicial methodology
includes resort to judicial discretion and to policy, where
appropriate, Parliament cannot direct a court to disregard
the law and substitute for it what simply the court
considers desirable in the public interest.
67
The answers to some of the questions I have just raised
are complicated by another problem: at what time do we
identify, for constitutional purposes, the essential charac-
teristics of judicial power or of a court? There are
indications that we should look to the characteristics of
the power or of a court as they existed in 1900. That is
how the High Court identified the essential characteristics
of trial on indictment by jury for the purposes of section
80 of the Constitution, holding that it called for a
unanimous rather than a majority verdict.
68
The fact that,
Page 8
since 1900, legislation had been introduced in a number
of States providing for majority verdicts was irrelevant.
If the same approach were to be adopted, the essential
characteristics of judicial power or a court would likewise
be identified as at 1900. However, judicial power is a
concept. In elucidating a concept, should we confine
ourselves to conceptions which then existed? Maybe we
should take account of conceptions which have developed
or gained acceptance subsequently. So understood, judicial
power can embrace characteristics of judicial determina-
tions which have developed since 1900; conversely perhaps,
characteristics as they existed in 1900 might not be
regarded as essential characteristics.
THE INFLUENCE OF THE SEPARATION
OF POWERS IN JUDICIAL REASONING
Quite apart from the Constitution itself, the doctrine of the
separation of powers has been extremely influential in
shaping judicial approaches and in formulating legal
principle. Nowhere has this been more evident than in the
realm of public law. Judicial deference to legislative
judgment-the refusal of the High Court to substitute its
opinion for that of Parliament on the question whether a
law will achieve the legitimate end in view, ultimately
rests on the separation of powers rather than on
parliamentary supremacy. Thus, it is enough that a law is
reasonably capable of being considered to be appropriate
and adapted to protect or enhance an end within a head of
constitutional power, for example the implementation of
an international treaty.69
Again, in the field of administrative justice, many
illustrations might be given of the shaping of legal
principle so that the courts do not unjustifiably trespass on
the preserves of the legislature and the executive. Judicial
deference to government policy is a constant theme in
Anglo-Australian public law. Just how separation of powers
thinking influences respect for government policy and the
reluctance of the courts to substitute their own opinion for
that of the administrative decision-maker on the merits ha.s
many illustrations.
7o
The suggested limitation of the well-
known ground for judicial review of an administrative
decision, "Wednesbury unreasonableness", so that it is
confined to a purported exercise of the power which is so
unreasonable that no reasonable decision-maker could
make it, was strongly influenced by the need to respect
the discretion vested in the decision-maker by Parliament.
71
CONCLUSION
Notwithstanding our contradictory approach to the separa-
tion of powers, stemming from our treatment of it as a
classification of functions, closer attention to the doctrine
might enhance the role and standing of Parliament. At the
same time, closer attention to the purposes which the
separation of judicial power serves may throw light on
what is legitimate and permissible in terms of executive
functions undertaken by courts and judges. The separation
doctrine will protect individual legal process rights and,
operating as a guide or influence, it can play a useful part
in shaping public law principles and the role of the courts.
Yet. the very abstraction of the concepts involved in the
doctrine which are elements in the doctrine. will continue
Canberra Bulletin of Public Administration
to create problems for judges and lawyers whose task it
is to expound the Constitution.
NOTES
1. "The Internationalisation of Domestic Law" (delivered 2 August
1996) and "Rights. Values and Institutions" (13 August 1996).
2. Baxter \' Ah Way (1909) 8 CLR 626; Roche l' Kronheimer (1921)
29 CLR 329; VIctorian Stevedoring & General Contracting Co. Pty
Ltd & Meakes 'I'Dignan (1931) 46 CLR 73; Radio Corporation Pty
Lld v Commonwealth (1938) 59 CLR 170.
3. Reg. l' Richards; Ex parte Browne and Fitzparrick (1955) 92 CLR
157; afld. 92 CLR t71.
4. See, for example, Re Trace)'; Ex parte Ryan (1989) 166 CLR 518.
5. Sir Dwen Dixon held other wartime administrative appointments as
well. For these and other instances of federal judges holding
administrative appointments: see AJ. Brown "The Wig or [he
Sword: Separation of Powers and the Plight of the Australian
Judge" (1992) 21 Federal Law Review 48.
6. I do not overlook John Locke. However, I doubt that his discussion
in Two Treatises on Government (P. Laslett ed. 1970) 341 et seq.
has had such a direct impact upon our public law.
7. P. Peuit, Republicanism: A Theory of Freedom and Government
(Ch. 6), Oxford University Press (forthcoming).
8. The Federalist No. 37 at 228 (Mod. Library ed. 1937).
9. See, for example, Springer \. GO\-ernment of the Philippine Islands
(1928) 277 U.S. 189 at 211 per Holmes and Brandeis 11 dissenting.
10. Precision Data Holdings Pty Lld I' Wills (1991) 173 CLR 167.
11. YounxsTOwn Sheet & Tube Co. v Sawyer (1952) 343 US 579 al 635;
Buckley v Valeo (1976) 424 US 1 at 121; Mistrerta v US (1988)
488 US 361 at 380-384.
12. The Federalist No. 84 at 536 (B. Wright. ed. 1961) (Hamilton).
13. Quick and Garran, The Annotated Constitution of the Australian
Commonwealth (1901) 720.
14. The Constitution of the Commonwealth of Australia, 2nd ed. (1910)
95.
15. ibid. at 97.
16. Dicey. Introduction TO the Srudy of the Law of the Constitution, 9th
ed., 1939, 158 et seq.
17. (1935) 51 La..,: Quarterly Review 590.
18. ibid. at 605.
19. ibid.
20. ibid. Note, however, in his submission to the Royal Commission on
the Constitution (1929) he had favoured insistence on the doctrine.
2J. ibid.
22. "The Separation of Powers in the Australian Constitution", an
address delivered at the Lawyers' Club, New York, 3 December
1942, published in American Foreign Law Association, Proceedings
No. 24, December 1942.
23. Baxter \. Ah Way (1909) 8 CLR 626; Roche \. Kronheimer (1921)
29 CLR 329: Victorian Stevedoring & General Contracting Co. Pty
Ltd & Meakes r Dignan (1931) 46 CLR 73; Radio Corporation Pty
Ltd ,. Commonwealth (1938) 59 CLR 170.
24. Wayman \' Southard (1825) 23 V.S.1.
25. 1. W. Hampron & Co. \' United Slates (1928) 276 V.S. 394 at 409;
Misrreua v US (1988) 488 US 360 at 371-374. 378-379; see
Rebecca L. Brown "Separated Powers and Ordered Liberty" (1991)
139 University of Pennsylvania Law Review 1513 at 1553-1556.
26. Victorian Stevedoring & General Contracting Co. Pt)' Lld & Meakes
\' Dignan (931) 46 CLR at 101-102 per Dixon J.; 117-118 per
Evatl J.
27. ibid. at 1 17 per Evalt J.
28. Quick and Garran, The Annotated Constitution of the Australian
Commonwealth (1901) 720.
29. Brown \' West (1990) 169 CLR 195 al 201.
30. Myers \' United States (1926) 272 US 52 (where Brandeis J. pointed
OUI that the separation doctrine was adopted "nol to promote
efficiency but to preclude the exercise of arbitrary power").
31. See Administrative Review Council, "Rule Making by Common-
wealth Agencies". Report No. 35, 26 March 1992.
32. (1955) 92 CLR t57; ,Ifd. 92 CLR 171.
33. "Parliamentary Inquiries and Government Witnesses". (1995) 20
Melrourne University Law Review 383 at 4J4-415.
34. In re Haughey (1971) Irish Reports 217.
35. Demicofi I' Malta (1991) 14 EHHR 47.
36. The Queen \' Kirby; E.x parte Boilermakers Society of Australia
(1956) 94 CLR 254; affirmed Altorney-General for the Common
wealth \' The Queen (957) 95 CLR 529.
37. ibid. (1956) 94 CLR al 289.
"......-------------------
Canberra BuLletin of Public Administration
38. (1938) 59 CLR 556.
39. As Williams J. (dissenting) pointed out In Boilermakers (1956) 94
CLR at 313.
40. 95 CLR at 542-543.
41. Grollo v Commissioner of Australian Federal Police (1995) 131
ALR 225 at 235.
42. Hilton v Wells (1985) 157 CLR 57 at 81, per Mason and Deane JJ
dissenting.
43. The irony is that the House of Lords now declares UK legislation
incompatible when it conflicts with EC law: see Reg. v Employment
Secretary: Ex parte Equal OpP0rfuniry' Commission (994) 2 WLR
409.
44. Precision Data Holdings Pty Lld v Wills (1991) 173 CLR 167.
45. Brandy v Human Rights and Equal Opportunity Commission (1995)
183 CLR at 267.
46. See Grollo v Commissioner of Australian Federal Police (1995) 131
ALR at 258, per Gummow 1. But note that Gummow J. in referring
to judicial discretion as an element of judicial power found it
necessary to say "where appropriate".
47. Precision Data Holdings Pry Lld v Wills (1991) 173 CLR at 189.
48. (1995) 183 CLR 245.
49. ibid. at 258, 269.
50. ibid. at 259-260, 264, 270.
51. See Polyukovich v Commonwealth ("The War Crimes Act Case")
(1991) 172 CLR 501 per Deane 1. at 614.
52. See Reference re Residential Tenancies Act 1981, 123 DLR (3d)
554 per Dickson J. at 571.
53. Since this lecture was delivered, the High Court handed down on
6 September 1996 its important judgment in Wilson v Minister for
Aboriginal and Torres Strait Islander Affairs in which it held invalid
Justice Mathew's appointment to conduct an inquiry into the
Hindmarsh Island Bridge affair. The consequences of the decision
are significant and deserve comprehensive consideration. It is
sufficient for present purposes to say that the appointment by
ministers of federal judges to conduct inquiiies in which they are,
or appear to be, subject to ministerial direction or influence is not
consistent with Chapter III (Ed.: See article by Fiona Wheeler in
this issue of CSPA, 10--16.).
54. Polyukovich v Commonwealth (The War Crimes Act Case) (1991)
!72 CLR SOI. The proposition corresponds with the similar
Page 9
proposition enunciated in Brandy v Human Rights and Equality
Opporrunity Commission (1995) 183 CLR 258, and with the
statement in Re Tracey: Ex parte Ryan (1989) 166 CLR 518 at 580,
"[t]he power to adjudge guilt of, or determine punishment for,
breach of the law. falls within the concept of judicial power".
See also Chu Kheng Um v Minister for Immigration (1992) 176
CLR I at 27.
55. Polyukovich v Commonwealth (The War Crimes Act Case) at 627-
63 I per Deane J.; 704-708 per Gaudron J. That proposition did not
have majority endorsement; Toohey 1. left the question open: see
689-{;90.
56. Chu Kheng Urn v Minister for Immigration (1992) 176 CLR 1 at
27 (where s. 54R of the Migration Act 1958 (Cth), which so
provided, was held invalid).
57. (1992) 177 CLR 292 at 326, 362.
58. See Jago v Disrrict Court (NSW) (1989) 168 CLR 23 at 25-26;
Polyukovich v Commonwealrh (199l) 172 CLR at 703.
59. Polyukovich v Commonwealth ibid. at 614.
60. Woolmington v Director of Public Prosecutions (1935) AC 462 at
481-482.
61. Sibbach v Wilson & Co_ (1941) 312 US I at 9-l0; Mistretta v US
(1988) 488 US 361 at 386-388.
62. See Reference re Residential Tenancies Act 1981, 123 DLR (3d)
554 per Dickson J. at 571-572.
63. Taking Rights Seriously, Duckworth 1977,82-90.
64. See Reference re Residential Tenancies Act 1981, 123 DLR (3d)
554 per Dickson J. at 572.
65. (1993) 178 CLR 477 at 534 per Deane, Dawson and Gaudron n.
66. "Concerning Judicial :\1ethod", (1956) 29 Australian Law Journal
468 at 471.
67. Polyukovich v Commonwealth (War Crimes Act) (1991) 172 CLR
501 at 607.
68. (1993) 177 CLR 541 at 552.
69. Commonwealth v Tasmania (The Franklin Dam Case (1983) 158
CLR I.
70. See, for example, Atrorney-General (NSW) v Quin (1990) 170 CLR
I (where the High Court upheld the State Government's refusal to
appoint serving magistrates to a new court set up to replace the
court to which they had been appointed).
71. ibid. at 36-37.
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