Re-Thinking the Separation of Powers

Publication Date01 September 2010
AuthorJohn McMillan
John McMillan*
Constitutional theory and d octrine are important to our understanding and experience
of government. No description of Australian government is complete without
reference to representative democracy, responsible government, separa tion 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. Legislato rs are
reminded of them in framing laws. They structure transactions between t he 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 co ntext of adjudicating individual
disputes decides whether the law has been correctly construed and applied. This
three-way division of func tions avoids the undue concentration of power in any one
branch of government, enables each branch to counte rbalance the others, and ensures
that legal disputes about government power are conclusively resolved by an
independent judiciary.
The judicial role in legal accountability is prominent in Australia. Doubtless that
will co ntinue. Landmark rulings are frequent, and there is broad agreement in
government and society on the need for an independent judiciary. What has changed,
however, is that courts no longer stand alone in checking and curbing government
power. Over the last thirty years a large number of tribunals and independent
'watchdog' agencies have been es tablished by statute to review and scrutinise
government decision making and to cement public law values in government
The growth of non-judicial accountability bodies has not been constrained by the
doctrine of the separation of powers, but equally this new system of government
accountability does not fit easily within that doctrine. In a functional sense, the new
bodies a re not part of t he legislative, executive or judicial branch. There is a need to
update our constitutional thinking to take account of the more complex dispute
resolution and accountability framework that has evolved over the past thirty years.
Three emerging theories that supplement (not rep lace) the separation of powers
doctrine are discussed below. One is the concept of a 'national integrit y system', that
describes the collection of institutions (including courts) that separately play a similar
* Australian Information Commissioner; Commonwealth Ombudsman (200310); Emeritus
Professor, Australian National University.
424 Federal Law Review Volume 38
role of controlling government and ensuring integrity. Another is the concept of the
'justice system', that aga in includes all th ose bodies but focuses instead on their shared
civil law role of re solving legal disputes arising between people and with government.
The third is the concept of a 'fourth branch of government', comprising tribunals,
ombudsmen and similar non-judicial oversight agencies.
The unifying theme in each theory is that society now relies on a range of
independent institutions and mechanisms to perform the same scruti ny and
accountability role as courts. Sometimes they do this more effectively than courts. That
is w hy it is necessary to 'rethink the separation of powers', to build a more ac curate
picture of legal accountability and to question longstanding beliefs that impede a
proper appreciation of how people are protected in relation to government.
This paper starts by tracing briefly the influence of the doctrine of separation of
powers in Australian constitutional development and thinking. The paper then
examines the comparative practical importance of jud icial review, tribunal review and
Ombudsman oversight in Australian administrative law. The paper ends with a
discussion of the three alternative theories of accountability noted above.
The separation of powers doctrine is reflected in Australian constitutional theory and
practice in various ways. The first is in decisions of the High Court declaring laws to be
invalid for contravening the separation of j udicial power in Ch III of the Constitution. A
defining case was Boilermakers'1 in 1956, holding that Federal judicial power can be
conferred only on a court mentioned in Constitution s 71, and that those federal courts
can exercise judicial power only. In the result, the Court of Conciliation and
Arbitration, which had been given a mixture of judicial and arbitral (non-judicial)
functions, could not exercise the judicial power of imposi ng a fine on a union that was
in breach of an order of the Court.
One side of the Boilermakers' equation is that judicial power cannot be conferred on
a non-judicial body. Thus, in Brandy,2 the High C ourt held that the Human Rights and
Equal Opportunity Commission could not make a determination awarding
compensation for racial discrimination that was to have effect and be enforced as if it
was an order made by the Federal Court. More recently in La ne in 2009 the High Court
held that the creation of the Australian Military Court (AMC) was an impermissible
attempt to cr eate a 'legislative court' a court outside Chapter III that was exercising
the judicial power of the Commonwealth. Th is was condemned as an impermissible
'attempt by the Parliament to b orrow for the AMC the reputation of the judicial branch
of government for impartiality and non-partisanship'.3
The other side of the Boilermakers' equation is that an incompatible non-judicial
function cannot be conferred on a federal judicial officer. An example, from Wilson,4 is
that a Federal Court judge could not be appointed under Aboriginal heritage
protection legislation to conduct an inquiry and prepare a report for government on
the much-publicised Hindmarsh Island Bridge dispute in South Australia.
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, 2423 ('Lane')
4 Wilson v Minister for Aboriginal and Torres Strait Islander Affairs (1996) 189 CLR 1 ('Wilson').

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