Ill-conceived legislation a serious threat to the separation of powers

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Freedom depends on the rule of law – not any kind of law but law that is just, general and protective of freedom. The courts play a critical role in upholding the law. Their capacity to uphold the law depends on many attributes, principally: professional competence, integrity, impartiality, commitment, independence and public confidence. They are interdependent and mutually re-enforcing, which also means that the weakening of one attribute will affect the others.

Australia is fortunate in having a strong and independent judiciary at federal and state levels. Unwise judicial appointments and instances of political pressure on courts are not unknown in this country but they are rare. The more serious threats to the separation of powers in Australia arise from ill-conceived legislation.

In a free country citizens must not be deprived of their rights and freedoms except for just cause after a fair hearing by an independent and competent court. This depends not only on judicial independence but also on the laws that demarcate rights. As John Locke famously stated, the supreme power,

is bound to govern by establish’d standing laws, promulgated and known to the people, and not by extemporary decrees; by indifferent and upright Judges, who are to decide controversies by these laws.

If the laws are uncertain and rights depend on wide discretionary powers of officials and tribunals, the role of the courts become restricted to procedural oversight. The law then is made at the point of its application because there is no general rule to limit discretion.

The Australian constitutional system departs from the classic model of the tripartite dispersal of powers in significant ways. Although the Commonwealth Parliament cannot confer federal judicial power on executive agencies it is not difficult for Parliament to circumvent this rule by clever legislative drafting.

Judicial power, according to the famed definition of Chief Justice Sir Samuel Griffith, is the authority conclusively to determine controversies between parties concerning existing rights, liberty and property. A tribunal that has power to create or modify rights will not be exercising judicial power even though its decisions defeat the settled and reasonable expectations of parties. A striking example is a body that regulates labour relations like Fair Work Australia or its predecessors that has power to make awards in disregard of existing contractual rights and duties on grounds of policy. A tribunal that must determine disputed questions of fact in a judicial manner but may base its final decision taking account of policy will not be exercising judicial power.

This is not such a bad thing provided that the tribunals act in a judicial manner. Administrative law and merits review by administrative appeals tribunals improve the judicial quality of administrative adjudication. However, the central problem resulting from the unification of powers in administrative bodies remains to be fully addressed.

The heroic efforts of administrative lawyers and judges offer only a partial solution to the constitutional problem posed by hybrid legislative–executive–judicial tribunals. A tribunal vested with broad discretion to confer benefits or impose deprivations may formally satisfy all jurisdictional, procedural and evidentiary tests and yet defeat the reasonable expectations through its capacity to create law for the particular case.

The fairness of a proceeding does not depend solely on the opportunity to present one’s case. The citizen may get a fair hearing but have no idea of how the case is decided unless the tribunal is bound to judge according to pre-established legal standards. The affected party must appeal not to the law but to the person wielding power. The rule of law is displaced by the rule of tribunal. The chief aim of the separation of powers doctrine is defeated.

This is a problem that deserves more attention by constitutionalists.

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