Hostname: page-component-745bb68f8f-g4j75 Total loading time: 0 Render date: 2025-01-30T23:15:14.057Z Has data issue: false hasContentIssue false
  • English
  • Français

Re-Thinking the Separation of Powers

Published online by Cambridge University Press:  24 January 2025

John McMillan
John McMillan*
Affiliation:
Australian National University
Get access Rights & Permissions [Opens in a new window]

Extract

Constitutional theory and doctrine are important to our understanding and experience of government. No description of Australian government is complete without reference to representative democracy, responsible government, separation of powers and the rule of law. Those and other theories also have substantial practical impact. Courts refer to them in developing legal principle and deciding cases. Legislators are reminded of them in framing laws. They structure transactions between the different institutions of government. The community is also influenced by them in evaluating the performance of the institutions of government.

The most important doctrine in analysing government legal accountability is the separation of powers. The essence of the doctrine is that parliament makes law, the executive administers it and the judiciary – in the context of adjudicating individual disputes – decides whether the law has been correctly construed and applied. This three-way division of functions avoids the undue concentration of power in any one branch of government, enables each branch to counterbalance the others, and ensures that legal disputes about government power are conclusively resolved by an independent judiciary.

Type
Research Article
Information
Federal Law Review , Volume 38 , Issue 3 , September 2010 , pp. 423 - 443
Copyright
Copyright © 2010 The Australian National University

Access options

Get access to the full version of this content by using one of the access options below. (Log in options will check for institutional or personal access. Content may require purchase if you do not have access.)

References

1 R v Kirby; Ex parte Boilermakers’ Society of Australia (1956) 94 CLR 254 ('Boilermakers'’).

2 Brandy v Human Rights and Equal Opportunity Commission (1995) 183 CLR 245 ('Brandy’).

3 Lane v Morrison (2009) 239 CLR 230, 237, 242–3 ('Lane’)

4 Wilson v Minister for Aboriginal and Torres Strait Islander Affairs (1996) 189 CLR 1 ('Wilson’).

5 Kable v Director of Public Prosecutions (NSW) (1996) 189 CLR 51 ('Kable’).

6 Kirk v Industrial Relations Commission (2010) 262 ALR 569 ('Kirk’).

7 Ibid 598 (French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ).

8 189 CLR 1, 11 (Brennan CJ, Dawson, Toohey, McHugh and Gummow JJ).

9 W, Harrison Moore, The Constitution of the Commonwealth of Australia (2nd ed, 1910) 322Google Scholar.

10 Enid, Campbell and H P, Lee, The Australian Judiciary (2001) 50Google Scholar.

11 Boilermakers‘(1956) 94 CLR 254, 276 (Dixon CJ, McTiernan, Fullagar and Kitto JJ).

12 Wilson (1996) 189 CLR 1, 10–11, 13 (Brennan CJ, Dawson, Toohey, McHugh and Gummow JJ).

13 Paradise Projects Pty Ltd v Gold Coast City Council [1994] 1 Qd R 314, 322 (Thomas J).

14 Chief Justice Warren, ‘Unelected Does Not Equate with Undemocratic: Parliamentary Sovereignty and the Rule of the Judiciary’ (Speech delivered at the Deakin Law Oration, Melbourne, 20 August 2008).

15 SirNinian, Stephen, ‘Judicial Independence — A Fragile Bastion’ (1982) 13 Melbourne University Law Review 334Google Scholar, 338, cited approvingly by Chief Justice Warren, ‘What Separation of Powers?’ (Speech delivered at the Twelfth Lucinda Lecture, Melbourne, 20 September 2004).

16 Re Carmody; Ex parte Glennan (2000) 173 ALR 145, 147 (Kirby J).

17 See, eg, Steven, Rares, ‘Blind Justice: the Pitfalls for Administrative Decision-Making’ (2006) 50 AIAL Forum 14Google Scholar. Note also the title of a University of Melbourne Faculty of Law human rights conference in July 2006: ‘Who Best Protects Rights, Parliament or the Judiciary?'.

18 (2005) 221 CLR 99.

19 For example, Commonwealth Ombudsman, Issues Relating to Oral Advice: Clients Beware (1997)Google Scholar.

20 Anita Stuhmcke, ‘Ombudsman Research', (Paper presented at the Australasian and Pacific Ombudsman Region Conference, Canberra, 19 March 2010) 14. This criticism of an imbalance in legal scholarship is also made by Rick, Snell, ‘Towards an Understanding of a Constitutional Misfit: Four Snapshots of the Ombudsman Enigma’ in Chris, Finn (ed), Sunrise or Sunset? Administrative Law for the New Millennium (2000) 188Google Scholar.

21 Chairperson, Aboriginal and Torres Strait Islander Commission v Commonwealth Ombudsman (1995) 134 ALR 238, holding that the Ombudsman's role was to express an opinion, not reach a finding.

22 Analysis based on cases published on <www.austlii.edu.au>. Another representation of the Court's work, taken from the High Court, Annual Report 2008–09 (2009) 17, is that it dealt with 569 special leave applications; 50 per cent of the civil special leave applications involved immigration matters (63 per cent in 2007–08), and 89 per cent of those were filed by self-represented litigants.

23 Figures taken from the Federal Court of Australia, Annual Report 2008–2009 (2009).

24 Figures taken from the Federal Magistrates Court of Australia, Annual Report 2008–2009 (2009).

25 There is perhaps more diversity in State judicial review, though it too is concentrated on a few areas, such as planning and development approval, water management and parole decisions.

26 The figures in this and the following paragraph are taken from the Annual Reports for 2008–09 of Centrelink, Administrative Appeals Tribunal, Social Security Appeals Tribunal, Commonwealth Ombudsman, and from cases reported on Austlii as at May 2010.

27 Jewel Topsfield and Andra Jackson, ‘$4.5m Payout to Alvarez Solon for Wrongful Deportation', The Age (Melbourne), 1 December 2006.

28 National Alternative Dispute Resolution Advisory Council, The Resolve to Resolve: Embracing ADR to Improve Access to Justice in the Federal Jurisdiction (2009)Google Scholar.

29 Civil Dispute Resolution Bill 2010 (Cth), title to Part 2.

30 Attorney-General's Department, A Strategic Framework for Access to Justice in the Federal Civil Justice System (2009) 3.

31 Ibid 37. The net costs were $17 590 for a matter finalised in the Federal Court and $1 014 for a complaint finalised by the Ombudsman.

32 Standing Committee of Attorneys-General, Communiqué and Summary of Decisions (2009).

33 The NSW Government has been implementing ADR proposals made in a Discussion Paper issued by the State Attorney-General in 2009: eg, see, Department of Justice and Attorney-General, Parliament of NSW, ADR Blueprint Draft Recommendations Report 2: ADR in Government (2009). Reform proposals in Victoria have been made in two reports: by the Law Reform Committee, Parliament of Victoria, Inquiry into Alternative Dispute Resolution and Restorative Justice (2009), and the Victorian Law Reform Commission, Civil Justice Review: Report (2008).

34 Robert McLelland, ‘Utilising ADR — The Evolving Landscape’ (Speech delivered at the Government Law Group Forum, Canberra, 15 February 2010).

35 Robert McLelland, ‘A Strategic Framework for Access to Justice’ (Speech delivered at the Brad Selway Memorial Lecture, Adelaide, 23 September 2009).

36 David Rood, ‘Fees Drive Justice Out of Reach, says Hulls’ The Age, (Melbourne), 1 June 2008.

37 Marc, Galanter, ‘The Vanishing Trial: An Examination of Trials and Related Matters in Federal and State Courts’ (2004) 1 Journal of Empirical Legal Studies 459, 459Google Scholar.

38 Ibid 460. See also papers by Galanter and others in the ‘Vanishing Trial Symposium’ (2006) 1 Journal of Dispute Resolution 1.

39 See, eg, Justice, Kenneth Hayne, ‘The Vanishing Trial’ (2008) 9 The Judicial Review 33Google Scholar.

40 Acting Ronald, Sackville Justice, ‘Meeting the Challenges of Complex Litigation: Some Further Questions’ (2009) 9 The Judicial Review 197Google Scholar, discusses the lack of comprehensive data in Australia on litigation trends. The number of cases filed in the courts are reported, but not the percentage filed without a hearing. The Federal Court, Annual Report 2008–09 (2009) 15, reported that the number of cases filed in the Federal Court decreased by 3 per cent in the original jurisdiction, and 13 per cent overall primarily because of a decrease in migration appeals in the appellate jurisdiction. The Administrative Appeals Tribunal, Annual Report 2008–09 (2009) 127 reported that 81 per cent of the more than 7 000 cases finalised by the Tribunal that year were finalised without a hearing. One estimate is that over 90 per cent of matters filed in courts are resolved without a ‘final’ judicial decision: John, Wade, ‘Don't Waste My Time on Negotiation and Mediation: This Dispute Needs a Judge’ (2001) 18 Conflict Resolution Quarterly 259, 269Google Scholar.

41 Chief Justice Robert French, ‘The Future of Litigation: Dispute Resolution in Jurassic Park?’ (Speech delivered at the Bar Association of Queensland Annual Conference 2009, Queensland, 7 March 2009); Hayne, above n 39.

42 Hayne, above n 39, 35.

43 Galanter, above n 37, 522, 529.

44 Department of Immigration and Citizenship, Total Arrivals and Departures by State/Territory and Category of Traveller, 2008–09 <www.immi.gov.au> at 22 September 2010; Minister for Immigration and Citizenship, ‘A Simpler Visa System’ (Press Release, 4 June 2010).

45 Chris Bowen, ‘Service Delivery Reform: Designing a System That Works for You’ (Speech delivered at the National Press Club, Canberra, 16 December 2009).

46 Australian Taxation Office, Australian Government, Commissioner of Taxation Annual Report 2008–09 (2009) 5, 48–9.

47 Administrative Appeals Tribunal, Annual Report 2008–09 (2009) 20Google Scholar.

48 Social Security Appeals Tribunal Annual Report 2008–09 (2009) 23; Migration/Refugee Review Tribunal, Annual Report 2008–09 32; Veterans’ Review Board, Annual Report 2008–09 17.

49 Robin, Creyke and John, McMillan, ‘Executive Perceptions of Administrative Law — An Empirical Study’ (2002) 9 Australian Journal of Administrative Law 163Google Scholar.

50 Administrative Appeals Tribunal, Annual Report 2008–09 (2009) 31Google Scholar.

51 (1995) 184 CLR 348.

52 Attorney-General's Department, Australian Government, Telecommunications (Interception and Access) Act 1979: Annual Report for the year ending 30 June 2009 (2010) 59.

53 See, eg, Joint Select Committee on Tenure of Appointees to Commonwealth Tribunals, Commonwealth Parliament, Tenure of Appointees (1989); Administrative Review Council, Better Decisions: Review of Commonwealth Merits Review Tribunals, Report No 39 (1995) 74–7.

54 NAIS v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 228 CLR 470, 498 [91]

55 Coal and Allied Operations Pty Ltd v Australian Industrial Relations Commission (2000) 203 CLR 194, 229 [85]. See also Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507, 563 [180] (Hayne J): ‘The decision-maker has little security of tenure and, at least to that extent, may be thought to have some real stake in the outcome.'.

56 In 2007–08 the Federal Court finalised 4 913 matters at a budget cost of $78.46m; the Administrative Appeals Tribunal finalised 7 179 at a cost of $33.33m; the Social Security Appeals Tribunal, 12 343 at $26.77m; and the Migration and Refugee Review Tribunals, 7 537 at $37.82m: Attorney-General's Department, above n 30, 37.

57 High Court of Australia, Annual Report 2008–09 (2009) 39. Appeals to the High Court are heard by leave of the Court, and it is possible that the Court is disposed to grant leave if an appeal is more likely to succeed.

58 For a more detailed analysis, see John, McMillan and Ian, Carnell, ‘Administrative Law Evolution: Independent Complaint and Review Agencies’ (2010) 59 Admin Review 30Google Scholar.

59 These points are developed by the author in other articles, including ‘The Ombudsman and the Rule of Law’ (2005) 44 Australian Institute of Administrative Law Forum 1; ‘Ten Challenges for Administrative Justice’ (2009) 61 Australian Institute of Administrative Law Forum 23; and ‘Future Directions 2009 — the Ombudsman’ (2010) 63 Australian Institute of Administrative Law Forum 13.

60 Commonwealth Ombudsman, Annual Report 2008–2009 (2009) 13–15Google Scholar.

61 See Commonwealth Ombudsman, Investigation Reports 2009 <www.ombudsman.gov.au/reports/investigation/2009>.

62 Ombudsman Act 1976 (Cth) ss 3(4B), 3BA; Cf NEAT Domestic Trading Pty Ltd v AWB Ltd (2003) 216 CLR 277.

63 Commonwealth Ombudsman, Executive Schemes, Report No 12/2009 (2009) 2–3.

64 See, eg, Smith v Oakenfull (2004) 134 FCR 413.

65 Commonwealth Ombudsman, To Compensate or Not to Compensate? Report No 02/1999 (1999); Commonwealth Ombudsman, Putting Things Right: Compensating for Defective Administration, Report No 11/2009 (2009).

66 Commonwealth Ombudsman, Mistakes and Unintended Consequences — A Safety Net Approach, Issues Paper (2009).

67 Commonwealth Ombudsman, Lessons for Public Administration, Report No 11/2007 (2007); Commonwealth Ombudsman, Fact Sheet 5 Ten Principles for Good Administration (2009).

68 Commonwealth Ombudsman, Annual Report 2008–2009 (2009) 19Google Scholar.

69 See ‘Response to Ombudsman's Statement made under Section 486O of the Migration Act 1958 - Statement to the Parliament', Minister for Immigration and Citizenship, 3 June 2008.

70 See, eg, Al-Kateb v Godwin (2004) 219 CLR 562.

71 A J, Brown et al , Chaos or Coherence: Strengths, Challenges and Opportunities for Australia's Integrity Systems, National Integrity Systems Assessment Final Report (2005) 25Google Scholar.

72 See, eg, Andrew, Metcalfe, ‘Administrative Law Evolution: An Administrator's Point of View’ (2010) 59 Admin Review 42Google Scholar; Michael, D'Ascenzo, ‘Effectiveness of Administrative Law in the Australian Public Service’ (2008) 57 Australian Institute of Administrative Law Forum 59Google Scholar; Peter Shergold, ‘At Least Every Three Decades — Acknowledging the Beneficial Role of the Commonwealth Ombudsman’ (Speech delivered to the 30th Anniversary Seminar for the Commonwealth Ombudsman, Canberra, 8 August 2007).

73 See Joe, Ludwig, ‘The Freedom of Information Act — No Longer a Substantial Disappointment’ (2010) 59 Admin Review 4Google Scholar.

74 See eg, News Corporation Ltd v National Companies and Securities Commission (No 4) (1984) 1 FCR 64 (the objects clause), Re Howard and the Treasurer (1985) 7 ALD 626 (the public interest test and deliberative process documents), and McKinnon v Secretary, Department of Treasury (2006) 228 CLR 423 (review of conclusive certificates).

75 Australian Information Commissioner Act 2010 (Cth).

76 Freedom of Information Act 1982 (Cth) ss 55K, 89, 93A; Australian Information Commissioner Act 2010 (Cth) ss 7, 8.

77 Ludwig, above n 73, 13.

78 Cheryl, Saunders, It's Your Constitution: Governing Australia Today (2nd ed, 2003) 114Google Scholar.

79 James Spigelman, ‘The Integrity Branch of Government’ (2004) Australian Institute of Administrative Law National Lecture Series on Administrative Law No 2 1, 2.

80 Jeremy, Pope (ed), Confronting Corruption: The Elements of a National Integrity System (Transparency International, 2000)Google Scholar.

81 A J Brown et al, above n 71. See also Brian, Head, A J, Brown and Carmel, Connors (eds), Promoting Integrity: Evaluating and Improving Public Institutions (2008)Google Scholar; and Tim, Prenzler and Nicholas, Faulkner, ‘Towards a Model Public Sector Integrity Commission’ (2010) 63 Australian Journal of Public Administration 251Google Scholar.

82 Anna Bligh, ‘Sweeping Reforms Deliver Queensland Strong Integrity and Accountability’ (Press Release, 10 November 2009).

83 Public Sector Standards Commissioner, Review of Victoria's Integrity and Anti-Corruption System (State Services Authority, 2010)Google Scholar.

84 Spigelman, above n 79.

85 Bruce, Ackerman, ‘The New Separation of Powers’ (2000) 113 Harvard Law Review 633Google Scholar, 691–3. Another variant is that independent watchdog agencies can be given recognition as officers of parliament: Jeffrey, Bell, ‘Agents of Parliament: A New Branch of Government’ (2006) 29 Canadian Parliamentary Review 13Google Scholar.

86 Constitution Act 1975 (Vic) ss 94B, 94E.

87 Government of Western Australia, About Us, Integrity Coordinating Group <www.opssc.wa.gov.au/ICG> at 23 September 2010.

88 The Attorney-General's portfolio includes the Administrative Appeals Tribunal, Australian Commission for Law Enforcement Integrity and Australian Human Rights Commission.

89 Christine, Coumarelos, Zhigang, Wei and Albert, Z Zhou, Justice Made to Measure: NSW Legal Needs Survey in Disadvantaged Areas (Law and Justice Foundation of NSW, 2006) 73Google Scholar.

90 Ipsos Australia, Dispute Resolution in Victoria: Community Survey 2007 (Victorian Department of Justice, 2007)Google Scholar i.

91 Attorney-General's Department, above n 30, 12.

92 Ibid 2.

93 Tribunals, Courts and Enforcement Act 2007 (UK) sch 7, cl 13(4). The Act arose from a report by Sir Andrew Leggatt, Tribunals for Users: One System, One Service (2001), and a 2004 White Paper: Department of Constitutional Affairs, Transforming Public Services, Complaints, Redress and Tribunals, Command Paper Series 6243 (2004).