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Bruce Toppetwien* adjudicative responsibilitiesto non-article


Introduction Can a practical theory of governmental

structures be developed that recognises
As Else-Mitchell recognised in 1961, the the intrinsic values of the constitutional
framers of the Constitution did not have in text and separation of powers, and better
mind the modern administrative state accommodates existing structures in a
when they adopted a separation of way that supports and enhances
powers structure. After commenting on independent administrative review, while
the appropriateness of the rigid separation promoting fundamental constitutional
of powers found by the High Court in the values, but without overturning too much
circumstances of the Boilermakers Case,' existing authority?
he said:
This article proposes a new approach to
the wisdom of separation of powers in separation of powers under the Australian
the field of industrial relations has little Constitution. It has not received
relevance to one problem which the acceptance by the High Court,' but it is an
Founding Fathers hardly considered.
namely the scope of administrative approach that I consider could validly be
action and for the integration of taken, and if it were taken, would
administrative and judicial power.2 significantly strengthen and support the
validity or Lhe current system of
Similar comments doubting the relevance administrative review, without radically
of a formalist3 approach to the separation changing accepted notions of separation
o f p o w c r s in a m o d e r n administrative state o f powers.
have been expressed in America. Fallon
has said: A new functionalist approach

A second objection to article Ill literalism Applying a more functionalist approach to

arises from policy concerns of the separation of powers issues, I suggest
modem administrative state. The role of that Parliament could g i v e powers a n d
federal government has expanded far
beyond that contemplated by the functions to Chapter Ill courts provided
framers. At the time of the ~onstitution's that those powers are not inconsistent
adoption, government enforced . the with:
system of private rights defined by the
common law but othewise had limited
functions. As government has created the values inherent in "separation of
more entitlements and assumed powers"; and
responsibility for' enforcing a broader
range of legal rights, functional concerns the traditional role of courts.
have supported the assignment of

Equally, Parliament could decide to give

those same powers and functions to a
* non-Chapter Ill institution provided:
Bmce Topperwien is Executive Officer,
Veterans Review Board.

implied constitutional values are not powers (executive, legislative and

breached; and judicial), comprises those independent
agencies of government that are not
it is not a power or function that has subject to direct Ministerial (ie, executive)
traditinnally, and excl~~sivnly,hnen or Parliamentary control-including
exercised by couris in the Anglo- administrative tribunals, the Ombudsman,
Australian tradition. Auditor-General, and numerous other
similarly independent governmental
A fourth arm of government insttumentalities and statutory office
holders. Because not all of its members
The idea that government is divided into have the tenure of Chapter Ill judges, by
three distinct and separate functional definition, these agencies of government
parts has never been applied in practice in must exercise either, or both of, the
any country. This is so even in the United "executive power of the Commonwealth"
States of America where the notion of or the "legislative power of the
separation of three types of powers is Commonwealth", but not the "judicial
often assumed to be an essential element power of the Commonwealth".
in the fabric of government. In Australia,
considerable overlap has always been Defining the "judicial power of the
permitted in the exercise of executive and Commonwealth"
legislative powers. But it is in the area of
judicial power that the High Court has The "judicial power of the Commonwealth"
been concerned to make distinctions and is not any judicial power exercised in
lnvalldate leglslatlon and legislative respect of, or under, a Commonwealth law
schemes, far more so than the Supreme (including the Constitution), but should be
Court has done in America. It is the taken to be a technical term,7 limited by:
approach to judicial power, and its irrrpact
on administrative review, with which this The text of the Constitution-that is,
article is primarily concerned, and in which the jurisdiction given to Federal courts
I suggest a new paradigm for the by Chapter Ill of the Constitution or by
assessment of separation of powers laws of the Parliament made for the
issues. purposes of Chapter Ill;

Because the Commonwealth is a creature Historical judicial traditions-that is,

of statute (the Commonwealth of Australia the kinds of matters traditionally dealt
Constitution Act 1900). all its powers are with, and functions traditionally
~tatutory.~ As the Constitution divides exercised by, Anglo-Australian courts;
those powers into three, and only three, and
categories. every power that is exercised
by a Commonwealth agency must be an Implied values-that is, the values
exercise of one or more of those inherent in the idea of separation of
categories of powers. powers implied from the structure of
the Constitution.
While the Constitution appears to divide
government into three arms associated Taking this approach, one does not have
with the three powers, I suggest that to employ the fiction, which the High Court
Parliament and the executive can create, has employed, of calling a judicial power
and effectively have created, a fourth arm "administrative", "executiven, "arbitral", or
of government, Independent of, but "legislative". It has been said that "the
subject to oversight by, Parliament, the Court looks considerably sillier when it
executive, and the judiciary. This fourth stoutly maintains that a fish is a tree than
arm, which exercises all three types of when it explains that, under appropriate

constitutional theory, it simply does not

matter whether the item is a fish or a The Chapter Ill courts must remain
tree.n8 separate from the other arms of
government because it is the judiciary that
This suggested approach gives broad and oversees and establishes the rule of l a w
flexible policy control regarding the It is the conscience of government and
structure and nature of governmental final arbiter of disputes. The fundamental
institutions to the executive and purpose of the notion of the separation of
Parliament, and protection of fundamental powers is, by institutionalising
constitutional values to the judiciary. It has separateness, to ensure that tyrannical
some judicial support. Murphy J said: power cannot accrete to any single
institution. Chapter Ill courts are given the
Whether adjudication is treated as part of role of invalidating action taken by any
the judicial power or not is often in other institution of government that is
practice the decision of the legislature. If
it places the function with a court (within inconsistent with this constitutional value.
Ch. Ill) then in general the adjudicative To ensure that those courts cannot
power is treated by this Court as part of themselves be corrupted by power,
the judicial power of the Gommonwealth. executive powers that are not directly
If not, it is treated as administrative
related to the judicial function are deemed
adjudication. ... Other functions, even
to those courts, and the legislature can
with a minimal adjudicative aspect,
because traditionally they have been override any legislative decisions of the
dealt with by courts, can be regarded as courts except those that relate to the
part of judicial power if the legislature continued existence of the most
cares to place them with the courts?
fundamental human rlghts (that IS, human
rights inherent in the Constitution itself
If the executive creates an institution that cannot be removed by legislation).1°
using its prerogative power, that institution
can only exercise the "executive power of Finally, it is the trust and confidence of the
the Commonwealth". people in the institutions of government
that give them their validily arid continued
If the Parliament creates an institution, it role. Whatever the constitutional structure
can delegate to that institution part of the and institutional functions, the institutions
"legislative power of the Commonwealth", of government retain their legitimacy
or give it part of the "judicial power of the through the continued acceptance by the
Commonwealthn, or give it part of the people and by those institutions of the
"executive power of the Commonwealth". judgments o f t h e courts a n d t h e rule o f
If Parliament creates a Chapter Ill court, it law.
must give it only "judicial power of the
Commonwealth, but if it creates a non- Text of the Constitution
Chapter Ill institution, it can give it
"executive power of the Commonwealth" The "judicial power of the Commonwealthn
andlor delegate to it "legislative power of c a n only ever b e exercised if there is an
the Commonwealth". "appeal" from a State Court or the Inter-
State Commission" (s.73); or a "matter"
Within each of the three "powers of the (ss. 73, 75, 76, 77, or 78) to be
Commonwealth" there may reside determined. By limiting the jurisdiction of
elements of executive, legislative, and Chapter Ill courts in this manner, the
judicial power that can, and sometimes Constitution limits the nature of the
must, b e u s e d in order t o exercise, ''judicial power of the Commonwealth to
effectively and lawfully, the relevant power the power used in determining particular
of the Commonwealth by the particular sorts of controversies in particular sorts of
institution to perform its statutory cases. The "judicial power of the

Commonwealth" includes certain confers jurisdiction that the adjudication of

executive and legislative powers (which such a matter becomes an exercise of the
can, and should, be described as such), judicial power of the Commonwealth.
but which are executive (or administrative) Unless Parliament confers such
and legislative1*powers within the "judicial jurisdiction on a Chapter Ill court, it cannot
power of the Commonwealth," not within be an exercise of the "judicial power of the
the "executive power of the Commonwealth". If Parliament confers it
Cnmmnnwealth" spoken nf in section 61 nn some nther body, it must be an
or within the "legislative power of the exercise by a non-Chapter Ill institution
Commonwealth" spoken of in section 1 of (which might even be called a court) of a
the Constitution. Any other functions that judicial power within the executive power
might be said to be "judicial" in nature or or the legislative power of the
character do not involve an exercise of the Commonwealth.
"judicial power of the Commonwealth," but
must be characterised as an exercise of Therefore, applying this approach, the
judicial powers within the executive or terms of the Constitution and the
legislative power of the Commonwealth. legislation enacted under or in support of
Chapter Ill are the primary factors limiting
The "judicial power of the Commonwealth" and defining the scope of the "judicial
is not CO-extensive with judicial power power of the Commonwealth".
exercised in the execution of, or in
making, Commonwealth laws, because to Historicaljudicial traditions
the extent that such exercise does not fall
within sections 73 and 75 to 78 of the The importance of implications from
Constitution, it is either part of the historical traditions as an essential
"executive power of the Commonwealth element in determining whether a
or the "leglslatlve power of the particular type of decision must be made
Commonwealth. by a Chapter Ill court is seen when regard
is paid to the fact that the only expressly
Effectively, the judicial power of the essential elements of a Chapler Ill "court"
Commonwealth relates only to the are the tenure of its members and the
exercise of a power in deciding "matters", non-diminution of remuneration. Consider
ie, controversies concerning "some right the following example:
or privilege or protection given by law, or
the prevention, redress or punishment of The Swift and Sure Decision-makingAct
some act inhibited by law", involving 1999 is passed establishing the
Pensions Court as a statutory
"adjudication ... in proceedings inter corporation, which is then 100%
pat-tes or ex parten,but it does not involve privatised-the Commonwealth
determining abstract questions without the purchases the services of this Court, not
right or duty of any body or person being on a case-by-case basis but on a pre-
involved.13 arranged annual fee (the contract bases
the fee on a formula reflecting the
Court's prcvious ycar's claim finalisation
Section 75 confers original jurisdiction on and rejection rates). Its "justices" are
the High Court in certain enumerated appointed by the Governor-General, are
types of matters. Sections 76 and 77 given tenure until age 70, and are
yuarar~leed salary of not less than
permit Parliament to confer and limit the $25,000 per annum. All that these judges
jurisdiction of Chapter Ill courts in other do is finally decide the facts and law in
types of matters, but these sections do not each case and determine pension
expressly state that these other types of Clalms. No heanngs are held, and the
matters can only be given to Chapter Ill claims are determined on the material on
files submitted to it by Centrelink. The
courts. On one interpretation of these legislation precludes appeals to the High
sections, It IS only lf the Parllarnent Court under section 73 of the
Constitution or to any Chapter Ill court
under any other Commonwealth One must look to the history of Anglo-
legislation (thus negating any jurisdiction Australian courts t o s e e w h a t m u s t h a v c
under section 76 of the Constitution).
The legislation deems the decisions of been intended to be the fundamental
these justices to be decisions of the matters that could not be taken away from
Court. The High Court has no jurisdiction a court exercising the judicial power of the
under section 75 (v) because there is no Commonwealth. It is from that history that
"Commonwealth officer" who makes a we get our sense of what are the essential
relevant decision, merely a ~orporation.'~
The Cornmonw~althcannot be sued in thin~sthat courts do, and must c o n t i n ~ r e
relation to any particular matter before to do, and which must be implied into
the Court under S. 75 (iii) because the Chapter Ill of the Constitution.
Court is a 100% privately owned
corporation, and thc legislation declares
that the only party to any matter before Bruff has said "separation of powers
the Court is the claimant and the principles suggest that some 'inherent' or
Commonwealth shall not be a party to 'core' functions may not be taken from the
proceedings. Further, the legislation constitutional court^."'^ In Leeth v. The
provides that failure of a judge to accord
due weight to Ministerial guidelines
Commonwealth, Mason CJ, Dawson and
constitutes misbehaviour for the McHugh JJ said:
purposes of section 72 of the
Constitution. It may well be that any attempt on the
part of the legislature to cause a court to
On a literal reading of Chapter Ill of the act in a manner contrary to natural
justice would impose a non-judicial
Constitution (and for the moment requirement inconsistent with the
disregarding the general ineffectiveness of exercise of judicial power, but the rules
ouster clauses), there is n o reason why of natural justice arc cssentially
this scheme would not successfully functional or procedural and, as the Privy
Council observed in the Boilermakers'
remove jurisdiction for all pension Case, a fundamental principle which lies
decisions from any of the current Chapter behind the concept of natural justice Is
Ill courts, including the High Court-and not remote from the principle which
save the Commonwealth lots of money. inspires the theory of separation of

What this extreme example shows is that

there must be more to a "court" than When the Constitution came into
tenure and remuneration. No one would operation, the judiciary was given (by
regard the way in which this "court" does lmpllcation) a new power not previously
its business as being court-like. No held by English or Australian courts, that
hearing is given, the funding of judicial review of legislation for want of
arrangements and threat of impeachment validity." Other than matters giving rise to
would influence decision-making, it is not such issues, the types of matters
a public institution, its judges need not be expressly given to the judiciary by the
legally qualified, and Lltey are Constitution were t h o s e traditiorrally dealt
remunerated at a rate that would not with by Anglo-Australian courts. While the
attract experienced governmental Parliament can confer additional
decision-makers, thus promoting poor jurisdiction o n Chapter Ill courts, there i s
quality, unreviewable, decision-making. nothing in the Constitution to suggest that
The cry would be, "where is the the judiciary was to have any different role
justice?"-and there wouldn't be any! But, or function from that which it ever had.
on a strict literal reading, it is Causes of action were not enlarged (other
"constitutional". than in relation to validity of legislation)
and the types of matters referred t o in
The fact that there is no "justice" in this Chapter ill reflected traditional fields of
type of arrangement must be an indication judicial activity. Thus, after 1 January
that it could not be a "court" exercising the 1901 one could not go to a Chapter Ill
"judicial power of the Commonwealth." court to obtain any new remedies or

pursue new causes of action unless the that senior officer or tribunal might satisfy
Constitution or the Parliament provided the person. But if not, ultimately, the
that such should be the case. matter must be brought before a court,
which has the legal authority to determine
If the Parliament providcd for a ncw finally the rights and liabilities of the
remedy or new cause of action, it would person. It is that finality and authority that
be up to the Parliament to decide whether makes a court a court.
this would have to be pursued in a
Chapter Ill court (and so Parliament could If a person chooses to waive the right to
enlarge the judicial power of the have such a matter determined by a
Commonwealth) or in a non-Chapter Ill Chapter Ill court, then there is nothing
institution (by which Parliament could wrong with the final decision, in that
enlarge the executive power of the particular case, being made by a non-
Commonwealth or delegate legislative Chapter Ill person or institution. The
power of the Comm~nwealth'~).If a non- notion of waiver has arisen in a number of
Chapter Ill institution were given authority American cases concerning separation of
to administer such new remedies or powers issues.1QIt was also an element in
causes of action it could be required to act the B10 Cases,* where it was held that
judicially, but would not be exercising any provided there was an alternative avenue
of the ''judicial power of the of appeal to a Chapter Ill court, it was not
Commonwealth". inconsistent with the doctrine of
separation of powers for the adjudication
The types of matters that have been of taxation matters to be decided by an
regarded as being essential to be heard administrative tribunal, and complainants
by courts are fairly limited. They concern could not complain that their matter had
matters relating to: been dealt with by an administrative
tribunal rather than a court when they had
imposition of criminal penalties; chosen to take that course themselves.
An important issue then, becomes what is
loss of liberty; the nature ot the alternative review
undertaken by a Chapter Ill court in those
forfeiture of property; and circumstances--does it have to be a de
rlovo review or merely a revlew on legal
imposition of civil penalties. issues concerning the original
administrative decision?
But even in some of these matters, it has
only ever been essential that courts have It has been said that in taxation matters,
had supervision and ultimate control over because of the nature of tax-"a
their administration. For example, a compulsory exaction of money by a public
person can lawfully be arrested by a authority for public purposes, enforceable
police officer and thus lose his or her by law, and ... not a payment for services
liberty, and a customs official can renderedwz1-fundamental rights are
confiscate a person's property, without involved that require the highest
any order of a court. It is only if the person adjudicatory standards. Certainly, the
challenges the exercise of those powers Constitution treats taxatinn laws differently
that a court need get involved. In either to other legislation, and so one might infer
case an aggrieved person might opt to that such matters require a higher
pursue a further administrative avenue standard of "justice" to be applied. In
rather than take the matter directly to a MacCormick v. Federal Commissioner of
court (for example complain to a more Taxation, Brennan J said that where
senior officer or apply for review to an Parliament:
administrative tribunal). The decision of
imposes a tax by reference to prescribed While it is not possible to find any "original
criteria, it is for the courts and not for the intention" support for a fourth arm of
executive to determine whether each of
those criteria exists in a particular case government, there is some support in
... an opportunity to obtain a judicial early constitutional text books for the idea
determination as to the existence of the that public law matters could be decided
fact may be validly limited (as it is under by non-Chapter Ill institutions utilising
the Income Tax Assessment Act) to
judicial proceedings on appeal from
judicial-type powers. Allan Hall has also
disallowance ot an objection to an suggested that there is a 1histuril;dl
assessment, but it cannot be wholly difference between private and public
excluded." rights, liabilities and privileges and the
exercise o f judicial power, a n d that, a s a
Perhaps the doubts that Gummow J consequence, there is no essential
raisedz3 concerning the validity of the requirement that they be decided by
Administrative Appeals Tribunal Act 1975 Chapter Ill courts.24
are groundless given the alternative
avenue in taxation matters, which is an At the time of framing the Australian
area of public law that is sui generis. No Constitution, it was settled law in America
other areas of public law traditionally were that "public rights" could be decided
subject to de novo hearings by courts, and outside constitutional courts. This doctrine
so it is not necessary that Chapter Ill originated in Murray's Lessee v. Hoboken
courts have that jurisdiction today. Land & Improvement Co.'' After stating
that Congress could not withdraw from the
The roles and functions of courts have courts any "matter which, from its naturen
varied depending on the nature of the is judicial, the US Supreme Court noted
dispute. In public law matters, courts that:
traditionally have interfered only when
there has been legal error, including At the same time there are matters,
issues relating to procedural fairness. It is involving public rights, which may be
presented in such form that the judicial
only in special public law areas, such as power is capable of acting on them, and
taxation, that courts have demanded, and which are susceptible of judicial
traditionally been given, a greater role. determination, but which congress may
or may not bring within the cognizance of
the courts of the United States, as it may
While there is no reason that the
deem proper.2"
Parliament cannot give courts a greater
role in areas of public law, there is no
Harrison Moore recognised this and
historical reason to suggest that they need
applied it to the Australian Constitution,
have any greater role. Any other role
could be given to a non-Chapter Ill
institution, which could be called a court or
The question then is-what is 'the
tribunal and which could be required to act judicial power of the Commonwealth'
judicially, being, in appropriate within the t e n s of sec. 71? Even in
circumstances bound by the rules of those Constitutions in which the
evidence, and acting, for all intents and separation of powers has been accepted
as fundamental, by no means every
purposes as a court would normally act. function which is in its nature judicial is
But, because its decisions would be exclusively assigned, or permitted, to the
subject to the supervision of a Chapter Ill judicial organ. Therefore, although
court, and would not have the finality of neither history nor usage nor practical
convenience can determine the nature of
those of a Chapter Ill court-at least in 'judicial power', logical consistency may
relation to questions of law-it would not have to yield something to history and
be exercising the "judicial power of the familiar and established practice in
Commonwealth". determining what is the judicial power of
the Commonwealth committed to the
Courts by sec. 71.27
Quick and Garran, in 1900, also noted the Constitution. It is also that
that executive officials would have to independcncc that the lower level
undertake some judicial functions and act "independent" decision-makers in the
judicially. They said: fourth arm of government can rely upon to
validate their own actions, and assert and
The distinction between judicial and maintain their own independence from the
executive functions is not always easy to executive and Parliament.
draw. 'Doubtless the non-coercive part of
executive business has no affinity with
judicial business. ... The same may be Where an agency has statutory duties or
said, for the most part, of such coercive functions to carry out, the High Court
work of the executive as consists in insists upon the proper fulfilling of those
carrying out decisions of judges; e.g., the
imprisonment or execution of a convict.
duties and functions in accordance with,
But there are other indispensable kinds and not in excess of, the powers given to
of coercive interference which have to be that agency. While the Court will permit
performed before or apart from any discretion to be applied within the scope of
decisions arrived at by the judicial organ; the powers and nature of the function of
and in this region the distinction between
executive and judicial functions is liable the agency, there are common law rights
to be evanescent or ambiguous, since and administrative law standards that the
executive officials have to "interpret the Court will insist are not encroached upon.
law" in the first instance, and they ought Thus, the influence of the executive on
to interpret it with as much judicial such agencies IS mlnrmlsed,
impartiality as possible.' (Sidgwick,
Elements of Politics, p. 3
)' notwithstanding that the executive might
have power to dismiss the office holders.
Implied values In the end, the Chapter Ill courts set the
standard of proper functioning of such
Separation of powers has a prophvlactic agencies.
function. ~dherenceto its principles in
structuring governmental institutions A new principle that would be important to
prevents abuse of power through limiting introduce into fourth-arm-of-government
undue accretion of power in any one jurisprudence is a notion of "structuraln
organ of go~ernment.~~ Some of the procedural fairness. In Canadian Pacific
values that flow from the concept include: Ltd v. Matsqui lndian Band,3' Lamer CJ of
the Canadian Supreme Court held that the
independence of decision-making; very structure of a tribunal could constitute
a reasonable apprehension of bias at
countermajoritarian check on common law, and thus invalidate its
majoritarian institutions; decisions. In his view, the level of
structural independence that is required of
rule of law; and a tribunal depends on the nature of the
tribunal, the interests at stake, and
m prohibition of the exercise of arbitrary whatever other indicia of independence
power.30 are available, such as oaths of office. In
this matter, Lamer GJ held that the Bands'
Independence of decision-making Appeal Tribunal did not meet the requisite
standard of independence for three
Chapter Ill courts under this fourth-arm-of- reasons: the by-laws creating the tribunal
government model would remain made no provision for financial security for
independent of the executive and the tribunal members; security of tenure
Parliament. It is fundamentally important for tribunal members was either absent or
that they be so, and the judicial was ambiguous; and the Indian bands
independence is the purpose of the tenure both appoint the tribunal members and
and guaranteed remuneration clnuscs of are a party to the dispute. He held that it

was all three factors in combination that not politically accountable. The Courts
led him to his conclusion. He stated: cannot temper the true application of the
law to satisfy popular sentiment. The
Courts are bound to a correct application
[l]t is a principle of natural justice that a of the law, whether or not that leads to a
party should receive a hearing before a popular decision in a particular case and
trlbunal whlch is not only Independent, whether or not the decision accords with
but also appears independent. Where a
party has a reasonable apprehension of
executive policy. ...
bias, it should not be required to submit
to the tribunal giving rise to this [l11 1l1e Courts were to seek popular
acclaim, they could not be faithful to the
apprehension. Moreover, the principles
for judicial independence outlined in rule of law. Confidence is based on
faithful adherence to the law by the
Valente32are applicable in the case of an
administrativetribunal, where the tribunal Courts which are charged with its
declaration and application. Our
is functioning as an adjudicative body
settling disputes and determining the Constitution, rooted in the common law,
does not need to express the proposition
rights of parties. However, I recognize
that a strict application of these that the nation is under the rule of law
and that the Courts are the organ of
principles is not always warrantedr3 sovernment responsible ultimatelv for
the enforcing of ihe rule of law. hat is
By advancing such principles, the High the Constitution's fundamental postulate,
Court could influence the structure and inherent in its text, especially in Ch Ill.As
Dixon J said in the Communist Pady
independence of institutions within the Case, the Constitution 'is an instrument
fourth arm of government, ensuring that framed in accordance with many
proper standards were adopted, both traditional conceptions, to some of which
procedurally and structurally, thereby it gives effect, as, for example, in
ensuring that the exercise of judicial separating the judicial power from other
functions of government, others of which
power within the executive or legislative are simply assumed. Among these I
power of the Commonwealth was think that it may fairly be said that the
appropriate to the nature of the matters rule of law forms an as~umption.'~~
dealt with by the relevant agencies.
The same values can, and should, be
Countermajorltarian check on seen in the fourth arm of government. The
majoritarian institutions function of independent tribunals is closely
related to the operation of the rule of law.
While a fundamental value contairrad i r ~ The leglslatlon under which they operate
the Constitution is the democratic nature generally provides that their decisions are
of government-the representation of the deemed to be the decisions of the primary
people in Parliament and the sovereignty decision-rnaker. Thls has the automatic
of the people-an essential value of legal effect of imposing on the executive
separation of powers is the avoidance of agency the decision of the tribunal that
the "tyranny of t h e majority" by having t h e h a s been made independently DC that
judiciary independent of popular will. The executive agency and in accordance with
judiciary is a countermajoritarian the law as interpreted by the tribunal. The
institution, which protects individual and only way in which that decision, lawfully,
minority rights. Sir Gerard Brennan said need not be implemented is by an appeal
recently: to the judiciary. Thus the fourth arm of
government is also countermajoritarian in
Responsibilityfor the state of the law and nature, but subject to the laws of the
its implementation must rest with the
branches of government that are
democratically elected Parliament.
politically accountable to the people. The
people can bring influence to bear on the Rule of law
legislature and the executive to procure
compliance with the popular will. But a The notion of rule of law is closely linked
clamour for a popular decision must fall
on deaf judicial ears. The Judiciarj are to the separation of powers, and flows

from the fact that no arm of government court on legal and procedural issues, it
h a s total power t o d o as it might wish. would breach this important conslilutional
Each is subject to, and submits to, some value, and render the grant of power to
control by another arm, and it is the courts that institution invalid.
that authoritatively state the rules and
apply them to the agencies of Prohibition of the exercise of arbitrary
government. Sir Gerard Brennan said: power

The courts do not seek to assert some Barendt has said:

personal supremacy over the other
branches of government; they simply
the separation of powers is not in
discharge their duty of applying the law essence concerned with the allocation of
to them as they apply it to themselves.
Precedent, analogy and logic as well as
functions as such. Its primary purpose .. .
is the prevention of arbitrary govemment,
experience confine judicial decision-
or tyranny, which may arise from the
making in cases of political significance
concentration of power. The allocation of
as in cases concerning purely individual
functions belween three, or perhaps
rights and liabilities.
more, branches of government is only a
means to achieve that end. It docs not
Ihe rule of law is the cement of the matter, therefore, whether powers are
Westminster system in our federal always allocated precisely to the most
~onstitution.~~ appropriate in~titution.~'

Thus, a fundamental consideration in the If the division of powers and functions

structure of government is whether the between three arms of government works
proposed scheme promotes o r detracts to prevent t h e exercise of arbitrary power,
from the rule of law. The notion of a fourth where the division between the executive
arm of government promotes and and the legislature is not distinct (such as
enhances rule of law ideals. in Australia), the introduction of a further
semi-autonomous arm of government can
Applying the values of separation of be seen to enhance this constitutional
powers to adjudication by non-Chapter Ill value. In relation t o t h e American system,
institutions should require that such where the separation between the
jurisdiction will be validly given to such an executive and legislature is clearer than in
institution only if its decisions are subject Australia. Peter Strauss has suggested
to revlew by a Chapter Ill c ~ u r t . This
~ " was that government agencies comprise a
the principle applied by Hughes CJ of the fourth arm of government:
US Supreme Court in Crowell v. B e n ~ o n , ~ ~
where he held that Congress may give An agency is neither Congress nor
adjudicatory power to administrative President nor Court, but an inferior part
agencies if, and only if, the Article Ill of govemment. Each agency is subject
to control relationships with snme or all
courts are given adequate power t o of the three constitutionally named
control the legality of those agencies' branches, and those relationships give
exercise of these powers through judicial an assurance-functionally similar to that
review of all questions of law, including prnvirled by the separation-of-powers
the sufficiency of evidence upon which notion for the constitutionally named
bodies--that they will not pass out of
facts are found, and that the essence of control. Powerful and potentially arbiirary
federal judicial power lies in the control as they may be, the Secretary of
that the court ultimately exercises in Agriculture and the Chairman of the SEC
reviewing whether the law was correctly for this reason do not present the threat
that led the framers to insist on a splitting
applied and whether the findings of fact of the authority of government at the very
had reasonable support in the e~idence.~' top. What we have, then, are three
Thus, if Parliament gave judicial power to named repositories of authorizing power
a nonchapter Ill institution without also and control, and an infinity of institutions
glvlng an appeal right to a Chapter Ill to which patts of the authority of each
may be lent. The three must share the uncritical application of govemment
reins of control; means must be found of policy tn the facts of the particular rnattcr
assuring that no one of them becomes which represents an abdication by the
dominant. But it is not terribly important Tribunal of its functions:'
to number or allocate the horses that ~ u l l
the carrisgc of govcrnrncnt.40
Here we can see the role of the judiciary
in its oversight of the fourth arm of
The types of control exercised by the government in its decision-making. The
executive, legislature, and judiciary on the Courts will not interfere in the application
fourth arm of govemment are very by the agency of the executive's policy
different in nature and extent. The unless it appears to it that the agency has
executive can set policy objectives, but abdicated its statutory function (ie, the
once a statutory power has been granted function given to it by the Parliament) to
to an agency, that agency has authority to the executive's will.
exercise those statutory powers to their
full extent and in accordance with its own Conclusion
discretion. In Re Drake, Brennan J said:
The story has been told of former
There are powerful considerations in
favour of a Minister adopting a guiding President Harry Truman, on hearing the
policy ... Decision-making is facilitated news that General Eisenhower had been
by the guidance given by an adopted elected President, said, "lke will be very
policy, and the integrity of decision- disappointed in office. He will say, 'Do
making in particular cases is the better
assured if decisions can be tested
this, do that' and, unlike in the Army, it
against such a policy. By diminislrirly the won't happen." This clearly, is the
importance of individual predilection, an Australian executive's experience of the
adopted policy can diminish the fourth arm of government. It is not directly
inconsistencies which might otherwise under the executive a s s o m e government
appear In a senes of deClSlOnS, and
enhance the sense of satisfaction with departments might be. The executive has
the fairness and continuity of the very limited control over it. Once statutory
administrative process. powers are granted to independent
agencies of government, the courts will
Of course, a policy must be consistent ensure that they are exercised
with the statute:' independently of undue executive
In earlier proceedings before the Full
Federal Court, Bowen CJ and Deane J The rumours that have circulated, and
said: some of the issues made public by the
Government, concerning matters under
It is not desirable to attempt to frame any
general statement of the precise part
consideration by the Inter-Departmental
which government policy should Committee on Commonwealth Merits
ordinarily play in the determinations of Review Tribunals are clear indications that
the Tribunal. That is a matter for the the executive has recognised it does not
Trih~~nni itself to determine in the context nave control over the fourth arm of
of the particular case and in the light of
the need for compromise, in the interests government, and is seeking ways to bring
of good government, between, on the its tribunals under greater executive
one hand, the desirability of consistency influence. Some of the means that have
in the treatment of citizens under the law been suggested by which this might be
and, on the other hand, the ideal of
justice in the individual case. ... Such a
achieved are arguably contrary to
decision, even though it involves the separation of powers nations. Thus, it
application of govemment policy to the might (and should) be the case that the
relevant facts, is the outcome of the judiciary would promote the continued
independent assessment by the Tribunal existence of a fourth arm of government
of all the circumstances of the particular
matter. It is to be contrasted with the by adopting separation of powers values

to invalidate certain changes that would Endnotes

t e n d t o compromise the independence o f
tribunals. 1 R. v. Kirby; Ex parte Boilermakers' Society of
Australia (1956) 94 CLR 254, affirmed on
appeal by the Privy Council, Affomey-General
While the fourth-arm-of-government of the Commonwealth of Australia v. The
notion has not gained formal Queen (1957) 95 CLR 529.
acknowledgment by the courts in the 2 Else-Mitchell, R, Introduction to Essays on the
United States. in Mistretta v. United Australian Constitution, Else-Mitchell. R (Ed).
Law Book Company, 1961, p. xxxi.
States, the Supreme Court indicated the

3 The terms "formalist" and "functionalisr have

way in which it keeps agencies been applied by American theorists to
independent of the branch of government different separation of powers theories. A
in which they are said to reside: formalist theory is one that seeks to apply a
rigid separation of both powers and functions
between the three arms of govemment. A
In adopting [a] flexible understanding of
functionalist theory retains a basic separation
separation of powers, we simply have
of the functions of government, but does not
recognized Madison's teaching that the
require a strict divide between the three types
greatest security against tyranny-the
accumulation of excessive authority in a of powers of government-it permits the one
ayellcy of govemment to exercise all three
single Branch-lies not in a hermetic
powers in the exercise of its functions, but the
division among the Branches, but in a
oversight and control of the use of each type
carefully crafted system of checked and
of power ultimately resides with the relevant
balanced power within each ranch.^^ constitutionallv vested arm of aovernment.
4 Fallon, R H, Jr, "Of le5slative courts,
If a similar approach were to be adopted administrative agencies, and Article Ill",
by the High Court, the effective result (1988) 101 Harvard Law Review 915, at p
would be a recognition that there is a 5 Nevertheless, it is an approach that has been
fourth arm of government-the mentioned by Finn J as having passible
independent tribunals and similar applicatinn in Australia: Hughes Aiffimff
agencies of government-that needs the Systems Internationalv Air Services Australia
protection of a separation-of-powers (1997) 146 ALR 1,21.
6 While this view is not universally accepted, I
doctrine to maintain its checking and submit that even the prerogative and other
balancing role within government. The implied executive powers can be seen to be
fourth arm of government is under the rule statutory powers because they are included
of law because of its supervision for legal by implication within the power vested in the
Executive by section 6 1 of ttle Constltutlon.
error and adherence to constitutional George Winterton has said, "It is arguable that
values by the judiciary." It operates under the implied incorporation of the prerogative
rules made by the legislature, and pays powers of the Crown in S. 61 has converted
regard, bul 11o1 slavish adherence, to those powers into 'statutory' powers":
executive policy. Winterton, G, Parliament, the Executive and
the Governor-General, 1983, 134. This
appears to have been recognised by Btennan
Adopting this fourth-arm-of-government J in Davis v. Commonwealth (1988) 166 CLR
approach there should be no doubt 79, 108-111.
concerning the validity of the 7 Similarly, "executive power of the
administrative l a w package o f legislation Commonwealthnand "legislative power of the
Commonwealth" are technical terms.
and its institutions. Agencies within it can 8 Redish, M H, The Constitution as Political
exercise all three types of powers, but are Structure, Oxford University Press, New York,
always subject to forms of supervision and 1995, p. 102.
oversight of the three branches of 9 R. v. Hegarty; ex parte City of Salisbu~y
(1981) 147 CLR 617,632.
government named in the Constitution, 10 Toohey, J has said " w h e r e the people of
which do not unduly compromise its Auotralia, in adopting a Constituliurr, conferred
independence. power upon a Commonwealth Parliament, it is
to be presumed that they did not intend that
those grants of power extend to invasion of
fundamental common law Ilbertles." "A
government of laws and not of men", (1993) 4 amend the instrument in accordance with its
Public Law Revlew 158, 170, findings. The Federal Court, in VVAA(NSW) v.
A body rendered effectively defunct because Cohen (1996) 70 FCR 419,46 ALD 290, held
of a restrictive view of the separation of that, in performing this review function, the
powers doctrine. Council exercises legislative power. Yet, in
An example of legislative power is the power performing its task, the Council acts judicially,
of the High Court to declare the common law. and its task possibly could have been given to
Legal realism as developed by judges and a Chapter Ill court instead.
academics such as Oliver Wendell Holmes Jr For example, Commodity Futuffi Treding
held that all law is, in reality, judge-made, and Commission v. Schor (1986) 478 US 833.
thus the courts are the ultimate legislature. In British lmperial Oil v. Federal Commissioner of
Southem Pacific CO v. Jensen (1917) 244 US Taxation (1925) 35 CLR 422; Fedeml
205.221. Holrnes J said, "judges do and must Commissioner of Taxation v. Munru, Britlsh
legislate". lmperial Oil v. Federal Commissioner of
(In re Judiciary and Navigation Acts (1921) 29 Taxation (1926) 38 CLR 153 affirmed on
CLR 257,266-267). appeal by the Privy Council in Shell CO of
This was part of the ratio of Tamberlin J's Australia v. Federal Commissioner of Taxation
judgment in WAA(NSW) v. Cohen (1996) 70 (1930) 44 CLR 530.
FCR 419 as to why the Federal Court did not Matthews v. Chicory Marketing Board (1938)
have jurisdiction under section 398 of the 60 CLR 263,276 per Latham CJ.
Judicia~yAr;l 1903 In an action seeklng (1984) 158 CLR 622 at p. 658.
prerogative relief against the members of the In TNT Skypak International (Aust) Pty Ltd v.
Specialist Medical Review Council and the Federal Commissioner of Taxation (1988) 82
Repatriation Medical Authority. ALR 175, Gummow J suggested that s 44 of
BWff, H H, 'Specialized courts in the Administrative Appeals Tribunal Act 1975,
administrative law", (1991) 43 Administrative which provides for a right of appeal to the
Law Review 329 at p. 353. Federal Court only on a question of law, might
Leeth v. The Commonwealth (1992) 174 CLR be invalid on this ground
455 at p. 470. Hall, A N, "Judicial power, the duality of
Legislation can be ruled invalid on the ground functions and the Administrative Appeals
that it is either in excess of the powers of the Tribunal" (1994) 22 Federal Law Review 13.
Parliament (an implied judicial power) or it is a (1856) 59 US (18 How) 272.
State law that is inconsistent with a valid Quoted in Bruff, H H, "Specialized courts in
Commonwealth law (while this is expressly administrative law", (1991) 43 Administrative
provided for in s 109, the Constitution appears Law Review 329 at p. 354.
to be self-exscuting, and it would be open to Moore, W l lanison, The Conalitution OT the
argue that the executive or legislature could Commonwealth of Australia, 1910 edition,
declare State law to be invalid just as reprinted 1991, Legal Books, Sydney, 315-
effectively as the judiciary). While the rule in 316.
Manbuy v. Madison (1803) 1 Cranch 137 is Quick, J, and Garran, R R, The Annotated
not expressly provided for in the Constitution Constitution of the Australian Commonwealth,
and runs counter to the English doctrine of the 1901 edition, reprinted 1976, Legal Books,
supremacy of Parliament, it was accepted by Sydney, 720.
the framers of the Constitution that it would Redish, M H, The Constitution as Political
apply in Australia. However, the idea of courts Structure, Oxford University Press, New York,
invalidating legislation was not entirely 1995,114.
unknown to English law. The inclusion of Barendt, E, "Separation of powers and
s 109 of the ConStltUt~Onpermlthng a court to constitutional government",
- -
-119951 Public Law
invalidate State law that is inconsistent with 599,602.
Commonwealth law is analogous to the [l9951 1 SCR 3.
jurisdiction of Anglo-Australian courts to rule Valente v. R. 1198512 SCR 673.
colonlal laws to be invalid if they were Canadian Pacific Ltd v. Matsqui Indian Band
inconsistentwith Imperial legislation. [l9951 1 SCR 3,49.
An example of this is the Specialist Medical Brennan, Sir Gerard, The Parliament, the
Review Council, set up as a review body Executive and the Courts: roles and
under the Veterans' Entitlements Act 1986 to immunities", speech given at the School of
review the legislative decisions of the Law, Bond University, 21 February 1998,
Repatriation Medical Authority. The legislation ~http:l/
provides that a relevant person may seek (11/09/98).
review of the contents of a legislative Brennan, Sir Gerard, The Parliament, the
instrument determined by the Repatriation Executive and the Courts: roles and
Medical Authority. The Councjl must then immunities", speech given at the School of
review the contents of the legielotivc Law, Bond Unive~sity, 21 February 1998,
insttument, and may require the Authority to
Under the AD(JR) Act, extensions to the
Judiciary Act, and review by statutory right
(e.g. s.44 AAT Act), the right to Chapter Ill
review is guaranteed for most administrative
decisions, and decisions of non-Chapter Ill
tribunals and institutions. The Australian
system is unlike that which exists in the United
States, where Arucle Ill courts give deference
to the decisions on questions of law of lower
courts or tribunals by only requiring that the
interpretation be reasonable, rather than the
correct or preferable interpretation. Thus the
notion of appellate review as an element of
separation of powers theory has more
likelihood of success in Australia than in
America. Australian courts already exercise
complete control over the interpretation of
legal questions by administrative tribunals,
and it cannot be said that any suthoritotivc
discretion has been given to those tribunals
on legal questions if they are subject to
complete review and no deference given by
the reviewing court, on such matters. As
Fallon notes, There is some risk to judicial
integrity insofar as courts give their imprimatur
of validity to judgments that, but for the
agency's aeclslon, they would not have
reached.": Fallon, R H, Jr, "Of legislative
courts, administrative agencies, and Article
Ill", (1988) 101 Harvard Law Review 915, 985-
(1932) 285 US 22.
Discussed in Bator, P M, =The Constitution as
architecture: legislative and administrative
courts under Article Ill", (1990) 65 Indiana Law
Journal 233,267.
Barendt, E, "Separation of powers and
cnnstittrtional government", [l9951 Public Law
Strauss, P L, T h e place of agencies in
government: separation of powers and the
fourth branch", (1984) 84 Columbia Law
Review 573,579-580.
Re Drake and the Minister for Immigrationand
Ethnic Affairs (No. 2) (1979) 2 ALD 634,640.
Dmke v. Minister for Irrrrniyration and Ethnlc
Affairs (1979) 24 ALR 577,590-591.
(1989) 488 US 361,381.
Fallon, R H, Jr, "Of legislative courts,
admlnlstratlve agenaes, and Article Ill",
(1988) 101 Harvard Law Review 915, 947,
said: "Appellate review can provide an
effective check against politically influenced
adjudication, arbitrary and self-interested
decision-making, and other evils that the
separation of powers was designed to
prevent. It can help ensure fairness to litigants
and can be sufficiently searching to preserve
judicial integrity."