Separation of Powers Attorney General

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					                            SEPARATION OF POWERS

1.       Introduction

    The separation of powers is a political theory which is often credited to the French
     theorist Montesquieu writing in the mid-18th century. The theory was said to have
     influenced Blackstone in Britain, and Madison in the US (who wrote supporting
     the incorporation of the separation of powers into the US Constitution).

    The classically stated principle of the separation of powers involves the separation
     of governmental powers into three arms of government: legislature, executive and

    As Tomkins explains (materials, p. 132), the theory suggests that the three arms of
     government should be separate in two senses: first that the functions that they
     perform are separate and secondly that they should be staffed by different people
     – functional and institutional separation. So, when we talk about separation of
     power, we may mean the separation of functions and/or the separation of

    In classic liberal theory, the purpose of the separation of powers is to protect

    The conventional view is that we have a separation of powers within the Australia
     Constitution. Section 1 vests Commonwealth legislative power in the Parliament;
     s 61 vests Commonwealth executive power in the Queen, exercisable by the GG; s
     71 vests Commonwealth. It is said that the vesting of these powers in different
     institutions of government creates a separation of powers.

2.       Separation of powers principles

    Two core separation of powers principles which relate to the federal judiciary:

         o Commonwealth judicial power can only be exercised by a Ch III court.

        o The High Court and federal courts created by Parliament can only exercise
            Commonwealth judicial power, or non-judicial power that is incidental to
            the exercise of Commonwealth judicial power.

   The principles are negative implications drawn from the text of Constitution: Chs
    I, II and II.

   In the words of Cheryl Saunders, ‘the implications are persuasive, but not
    necessarily compelling’ (‘The Separation of Powers’ in Opeskin and Wheeler
    (eds), The Australian Federal Judicial System (2000) 3, 9). Alternatively, the
    identification of separate powers and the repositories of those powers could have
    been put in place a ‘draftsman’s neat arrangement without any hint of further
    significance’ (Robert Garran, quoted materials p.162).

   There are other provisions in the Constitution which allow other bodies to exercise
    judicial power:

        o S 101 sets up the Interstate Commission – which is to have powers of
            adjudication and administration – a hybrid institution. Although these
            adjudicative powers have been interpreted as being quasi-judicial – it
            potentially was another federal institution that exercised judicial power.

        o Military tribunals exercise judicial power outside of the context of Ch III.
            It is said that the defence power in s 51(vi) confers that authority quite
            apart from Ch III (eg, White v Director of Military Prosecutions (2007)
            235 ALR 455).

        o Parliament itself exercises judicial power in its contempt proceedings.

        o Parliament under s 122 can confer judicial power on Territory courts.

   Thus, it was not necessarily the case that it be held that the Constitution requires a
    strict separation of judicial power. The Court may have taken the view that the
    High Court and federal courts could exercise non-judicial power provided the
    exercise of that power did not comprise their independence. And, in fact, there
    was a real chance that for some time up until the mid-1990s (Brandy v Human

    Rights and Equal Opportunity Commission (1995) 183 CLR 245), that view may
    have found favour with the Court. But, the principles are now clearly established.

   How did the core principles develop? Series of cases:

       o NSW v Commonwealth (Wheat Case) (1915) 20 CLR 54 – the Inter-State
           Commission Act 1912 (Cth) was held to invalidly vest judicial power in the
           Interstate Commission. The Court concluded that the Interstate
           Commission could not exercise judicial power – it exercised a kind of
           quasi-judicial power. The case established the proposition that Ch III
           Courts were the only bodies that could exercise Commonwealth judicial

       o Waterside Workers’ Federation of Australia v J W Alexander Ltd
           (Alexander’s Case) (1918) 25 CLR 434 – concerned the Court of
           Conciliation and Arbitration, which was established to deal with industrial
           disputes by way of conciliation and arbitration and enforcing its own
           awards. The enforcement was an exercise of judicial power. The Court
           held that the Court of Conciliation and Arbitration was not a federal court
           because the judges were appointed for 7 years and, therefore, it could not
           satisfy the tenure requirements in s 72 for federal courts. As a result, it
           could not exercise Commonwealth judicial power. The case cemented the
           proposition that Ch III Courts were the only institutions that could exercise
           Commonwealth judicial power.

       o Re Judiciary and Navigation Acts (1921) 29 CLR 257 – held that Ch III
           contains an exhaustive statement of the Commonwealth judicial power that
           could be conferred on a Ch III court.

       o R v Kirby; Ex parte Boilermakers’ Society of Australia (Boilermakers’
           Case) (1956) 94 CLR 254 – again involving the Court of Conciliation and
           Arbitration.    Amendments had been made to make sure judges’
           appointments complied with tenure requirements. Nevertheless, the High
           Court held that the Court was not a Ch III court and could not exercise
           Commonwealth judicial power to enforce its awards because most of its
           power was non-judicial (ie, conciliation and arbitration).        The case

                established the proposition that a federal court can exercise non-judicial
                power only when it is incidental to judicial power.

    What was the justification in these early cases for the recognition of a separation
     of judicial power?

         o Boilermakers’ Case (p 275-6).

         o On appeal to the PC, the PC said (p.120).

         o See also statements in Wilson (p.120).

3.       Judicial power

    What does judicial power mean?

    ‘Judicial power’ has been notoriously difficult to define, and the High Court has
     emphasised that no exhaustive definition is possible. The classic statement of
     judicial power was by Griffith CJ In Huddart, Parker & Co Pty Ltd v Moorehead
     (1909) 8 CLR 330, 357, where his Honour said that an exercise of judicial power
     involved a binding and authoritative determination of rights, duties and other
     justiciable claims, by reference to law.

    It is generally accepted that there is a core area of power that is exclusively

         o the adjudgment and punishment of criminal guilt (eg, Lim v The Minister
                for Immigration, Local Government and Ethnic Affairs (1992) 176 CLR

         o the trial of actions for breach of contract and for civil wrongs’ is
                exclusively judicial (eg, Bachrach v Queensland (1998) 195 CLR 547).

         o the exercise of judicial review (eg, Plaintiff S157/2002 v Commonwealth
                (2003) 211 CLR 476)

    However, at the margins the determination is difficult to make. The courts
     essentially weighs up a range of factors when outside the core areas of judicial

        o If the decision is to be binding – then more likely to be judicial power.

        o If there is a broad discretion which is exercised by reference to policy
              consideration rather than discernable criteria – less likely to be judicial;

        o If the power involves the creation of new rights as opposed to the
              determination of existing rights – more likely not to be judicial;

        o Where there is no dispute between parties – less likely to be judicial;

        o Whether the power is exercised historically by courts – then more likely to
              be judicial power.

        o Recent egs, Attorney-General (Cth) v Alinta Limited (2008) 242 ALR 1;
              Albarran v Members of the Companies Auditors and Liquidators
              Disciplinary Board (2007) 234 ALR 618.

    Additionally, some powers may have a chameleon-like character: when given to
     the judiciary they are judicial power, when given to another arm of government
     they are non-judicial power (Federal Commissioner of Taxation v Munro (1977)
     138 CLR 1).

    Separation of powers is not entirely strict:

        o First, the chameleon doctrine allows some flexibility.

        o Secondly, the persona designata principle allows federal court judges to
              perform some non-judicial functions.

    Although no separation at the State level, the institutional separation principle has
     had some impact – Kable line of cases.

4.      Separation of power and the protection of liberty

   In Street v Queensland Bar Association (1989) 168 CLR 461, 521 Deane J said
    (materials, p.161) that ‘the guarantee that the citizen can be subjected to the
    exercise of Commonwealth judicial power only by courts designated by Ch III is
    the most important of the guarantees of rights and immunities, express or implied,
    under the Australian Constitution’.

   It was during the Mason Court years that the separation of powers started to take
    on a life of its own as a ‘guarantee of liberty’. See Wilson (materials, p.119).

   This conception of the separation of powers has provided the foundation for the
    creation of what are loosely described as ‘due process’ rights. Here is a summary
    of these claims:
       o Parliament can’t enact bills of attainder, that is, legislation that substitutes
           a legislative judgment of guilt for the judgment of courts exercising
           Commonwealth judicial power: the determination of guilt and the
           infliction of punishment must be by judicial power;

       o Parliament can’t require a court to act contrary to natural justice;

       o Ch III courts can’t be prevented from finding the facts and applying the
           relevant law;

       o Ch III courts are to extend to parties equal justice;

       o Ch III courts must undertake an open and public inquiry, and accord a fair

       o Each party has a right to meet the case made against him or her;

       o The facts must be determined in accordance with rules and procedures
           which truly permit the facts to be ascertained;

       o There is a duty to act and to be seen to be acting impartially;

       o A court cannot be required or authorised to exercise judicial power in a
           manner which is inconsistent with the essential character of a court or with
           the nature of judicial power.

    These statements came out of a series of cases – not all are supported by a
     majority of the Court: Polyukhovich v Commonwealth (the War Crimes Act Case)
     (1991) 172 CLR 501; Lim (1992) 176 CLR 1; Leeth v Commonwealth (1992) 174
     CLR 455; Kable (1996) 189 CLR 51; Nicholas v The Queen (1998) 193 CLR 172.

    In addition to the further reading, you could also look at George Winterton, ‘The
     Separation of Judicial Power as an Implied Bill of Rights’ in Geoffrey Lindell (ed)
     Future Directions in Australian Constitutional Law (1994).

5.        Assessment of the claim that a separation of judicial power protects

    Possible bases:

             o the British system of government has a built-in separation of powers
                which reflects Montesquieu’s understanding;

             o the colonists developed a separation of powers which reflects
                Montesquieu’s understanding;

             o the framers departed from the British system of government and
                adopted the US separation of powers which reflects Montesquieu’s

             o ‘progressivist’ interpretation – use of separation of powers principle to
                inform the interpretation of the Constitution.

6.        A vision of the separation of powers under an efficiency understanding

7.        Infliction of punishment


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