The Choice between Judicial and Administrative Tribunals and the Separation of Powers
| Date | 01 March 1981 |
| DOI | 10.1177/0067205X8101200104 |
| Published date | 01 March 1981 |
| Author | Enid Campbell |
| Subject Matter | Article |
THE CHOICE BETWEEN JUDICIAL AND
ADMINISTRATIVE TRIBUNALS AND
THE SEPARATION OF
POWERS
BY
ENID
CAMPBELL*
INTRODUCTION
In his Hamlyn Lectures1 Lord Scarman ventured to suggest that the
common law
as
developed by the judiciary had, by reason of its preoccu-
pation with the defence of private property and distributive justice as
between individuals, and its relative lack of concern with public law
(meaning the law governing the rights and obligations of the state), come
to play a diminishing role in the governance of society.2 He condemned
what he described
as
"an
influential body of legal opinion which would
confine the role of the courts and the general law to the interpretation of
the statutes and the statutory instruments which are the legal framework
of the system"; and which would exclude those courts "from reviewing the
merits of a decision".3
He
continued:
Fundamentally this way of thinking accepts that there may, indeed
that there will, exist a world of rights and obligations not amenable
to the control of the ordinary courts of the land.
It
solves the problem
of public law by the expedient of leaving it alone so long
as
it does not
trespass outside its territory. In other words,
we
have not one legal
system but two
or
more.4
All told, he maintained, "Our legal structure lacks a sure foundation on
which to build a legal control of the beneficent state activities that have
developed in this country".5
For
the remedy of these deficiencies he
recommended what he termed
"a
new constitutional
settlement"-one
which:
makes use of judicial power to keep within constitutional limits the
legislative sovereignty of Parliament and
...
[would] use the rule of
law in resolving the conflicts that will arise between the citizen and
the state in the newly developed fields of administrative-legal activity
upon which the quality of life in the society of the twentieth century
already depends.6
Lord Scarman's plea was taken up by Mr Justice F. G. Brennan in his
Wilfred Fullagar Memorial Lecture at Monash University in 1979.7 Like
Lord Scarman, Mr Justice Brennan advocated a much wider and more
active role for the courts in overseeing the activities of administrators, not
merely through the exercise of the traditional supervisory jurisdiction, but
* O.B.E., LL.B., B.Ec. (Tas.), Ph.D.
(Duke);
Sir Isaac Isaacs Professor
of
Law,
Monash University.
1 English
Law-The
New
Dimension (1974).
2Jd. 41.
3Jd. 49.
4Jd. 50.
5Jd. 71.
6Jd. 15.
7 (1979) 6 Monash Law Review 1.
24
1981] Administrative Tribunals and the Separation
of
Powers 25
through more extensive use of courts as appellate tribunals with authority
to determine cases on their merits.8
Mr
Justice Brennan recognised that
difficulties would attend the exercise by courts of a truly appellate juris-
clition in respect of administrative decisions involving the exercise of
discretion, particularly when the decision was made with reference to
considerations of policy. But he did not regard these difficulties
as
insuper-
able.
He
instanced curial jurisdictions which already involved the exercise
of discretionary authority. A court invested with power to review an
exercise of administrative discretion on its merits, he argued, would not
necessarily have to assume the role of a policy-maker, establishing policies
in opposition to and overriding policy established by or guiding adminis-
trators. The role of the court would rather be to "focus on the particular
effect of policy in a given case, not for the purpose of enquiring whether
the policy
is
good
or
desirable in some political
or
economic sense, but to
answer the question whether it
is
productive of
injustice"-injustice
in the
individual case.9 There could nonetheless be room for judicial development
of policy where there was "none to hand to solve the instant case
...
".
10
The constitutional resettlement which
Mr
Justice Brennan had in mind
would "leave to the executive so much of the policy power
as
the executive
chooses to exercise" but "would remit to the courts many of the adjudicative
tasks of administration",ll
"In
the course of exercising that jurisdiction,
the new law, meaning thereby the rules which protect against administrative
injustice, would grow and be so moulded as to cover the empty spaces of
discretionary power"
,1
2
It
is not proposed to debate the arguments of Lord Scarman and
Mr Justice Brennan
in
favour of expanding the role of the judiciary in the
oversight of administrative activity,
or
for that matter the policies and
principles according to which governmental functions should be allocated
between agencies. My brief
is
rather to present an analysis of constitutional
constraints on the allocation of functions as between courts and other
bodies, and in particular those which operate within the Australian
federation. Within the domain of federal government the constraints imposed
by the Constitution of the Commonwealth of Australia, incorporating as it
does certain precepts about the separation of powers, have had a substantial
impact on legislative choices as to who does what and how, on the functions
which federal courts have been prepared to accept and on the practice of
judicial review. Whereas the constitutional resettlement Lord Scarman
envisaged for the United Kingdom could, at least in relation to judicial
involvement in administrative decision-making processes, be accomplished
with relative ease through a combination of parliamentary and judicial
action, the constitutional resettlement proposed by
Mr
Justice Brennan for
Australia may not be capable of achievement without formal constitutional
amendment. I say "may not", rather than categorically "would not", because
the terms of the Constitution are not so clear-cut and emphatic as to
8 Id. 15-16.
9 Id. 19.
10
I
d.
21-22.
11
I d. 22.
12
Ibid.
26
Federal Law Review
[VOLUME
12
preclude its authoritative interpreter, the High Court of Australia, from
reinterpreting constitutional requirements and constraints in a way which
allows courts of federal jurisdiction to play a larger and more active role
in adjudication of disputes between citizens and administrative agencies
and between agency and agency.
In the following pages I shall first summarise the requirements of the
federal Constitution regarding the separation of judicial and non-judicial
powers of the Commonwealth,
as
those requirements have been judicially
interpreted. That summary will be followed by a consideration of the
criteria which have been applied in determining whether or not a federal
power belongs to the judicial powers of the Commonwealth, and then by
a consideration of the question of whether a federal agency which is not
a court may determine issues concerning the validity of administrative acts
or
the validity of legislation. Later on in the article I shall examine the
extent to which the federal Constitution and separation of powers doctrines
bear on the concerns of the States.
THE
SEPARATION
OF
JUDICIAL FROM NON-JUDICIAL POWERS
Section
71
of the Australian federal Constitution provides, inter
alia,
that:
The judicial power of the Commonwealth shall be vested in a Federal
Supreme Court, to be called the High Court of Australia, and in such
other federal courts
as
the Parliament creates, and in such other
courts
as
it invests with federal jurisdiction.
Section 72 (as amended in 1977) insists upon security of tenure for the
Justices of the High Court and the judges of other courts created by the
Commonwealth Parliament. Section 73 confers appellate jurisdiction on
the High Court in relation to the "judgments, decrees, orders, and sentences"
of defined institutions, subject to "such exceptions and subject to such
regulations
as
the Parliament prescribes". Section 7 5 invests the High
Court with original jurisdiction in
five
classes of "matters" and section 76
authorises the Commonwealth Parliament to invest that Court with original
jurisdiction in four additional "matters", among them matters "arising under
any laws made by the Parliament". Section 77 authorises the Parliament
to make laws:
(i) Defining the jurisdiction of any federal court other than the High
Court;
(ii)
Defining the extent to which the jurisdiction of any federal court
shall be exclusive of that which belongs to or is invested in the
courts of the States;
(iii) Investing any court of a State with federal jurisdiction.
Chapter
III
of the Constitution, in which these provisions are found, has
been judicially interpreted to mean that none of the jurisdictions encompassed
by the judicial power of the Commonwealth may be invested in or exercised
by any person or body other than the courts itemised in section 71.
If
a
body happens to be a creation of the Commonwealth Parliament, the fact
that it has been designated as a court does not conclusively establish its
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