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Separation of Powers and the Judicial Branch

Cheryl Saunders

“A society in which the observance of the law is not assured, nor the separation of powers defined, has no constitution at all.”1 1. Introduction Much of the debate in this country over the changes to the office of Lord Chancellor and the creation of a Supreme Court was cast in terms of separation of powers; although more cautiously on the part of the government, at least in those terms.2 The purpose of this paper is to explore the meaning of the doctrine of separation of powers in its application to the judiciary in countries in the British or (perhaps more suitably) the Commonwealth constitutional tradition, with particular reference to questions of a broadly constitutional kind that many such countries are facing. It is thus intended to be comparative, rather than directed specifically to the circumstances of the United Kingdom, although the topic clearly is prompted by developments, here. The comparison might have been less productive before these changes were set in train. The institutional arrangements for the protection of judicial independence and the rule of law in most Commonwealth countries are broadly similar to the arrangements that were broadly assumed to be in place in the United Kingdom, or at least in England and Wales. Relevantly, in most Commonwealth countries they are justified by a doctrine of separation of powers; often as a constitutional requirement. In fact, however, the arrangements in this country were quite different in significant respects. This does not mean that they were worse. It helps to explain, however, why

Goodhart Professor of Legal Science 2005-2006, University of Cambridge; Professor of Law, University of Melbourne 1 Declaration of the Rights of Man and of the Citizen, Article 16, 2 See for example, Judges’ Council, Response to the Consultation Papers on Constitutional Reform : “One of the reasons given by the government for the abolition of the Office of Lord Chancellor and the creation of a Supreme Court is to increase the separation of powers”, at [33]. See also Andrew Le Sueur, “Judicial Power in the Changing Constitution”, in Jeffrey Jowell and Dawn Oliver (eds) The Changing Constitution 5th ed, 2004, 323, 336


102. Marshall. to much the same effect. executive and judicial. 4 For a general introduction see John Morrow.6 For present purposes the difficulties may be categorised in the following way. on this distinction. for a system of checks and balances under which each institution impinges upon another and in turn is impinged upon. 1971. however. -2- . see also Eric Barendt “Separation of Powers and Constitutional Government” [1995] Public Law 599. which once led Geoffrey Marshall to dismiss it as “infected with so much imprecision and inconsistency that it may be counted little more than a jumbled portmanteau of arguments for policies which ought to be supported or rejected on other grounds”. History of Western Political Thought Palgrave.the doctrine of separation of powers has had here what Trevor Allan rightly describes as “unsympathetic treatment”. 2. Liberty and Justice. as used in western constitutionalism. Marshall also notes that the notion of checks and balances comes from the theories of mixed government. chapter 9 5 The definition here is deliberately cast in general terms. There is an open question whether this qualifies a system of separation of powers7 or completes it “by giving each department the necessary constitutional means…to resist 3 Trevor Allan. deliberately. that are vested in three distinct groups of institutions.cit. 1993. Oxford.” 6 Geoffrey Marshall. op. for reasons that will become obvious. Oxford. Law. Constitutional Theory Clarendon Press. the institution exercises a part of the power of the other): see. every constitutional system that purports to be based on a separation of powers in fact provides.5 There are notorious difficulties with the concept. 2nd ed 2005. Barendt cites as the “classic formulation…three distinct functions of government…which should be discharged by three separate agencies…and that no individual should be a member of more than one of them. Separation of powers in the British constitutional tradition The concept of separation of powers. First..3 It also explains why the changes that are in train align the position of the judiciary in this country more closely with countries elsewhere. 50. Some.4 assumes that there are three categories of public power. 124 7 It might qualify a separation of powers institutionally (one institution affects the operations of another) or functionally (in doing so. Clarendon Press. removing some obstacles to effective comparison and bringing the United Kingdom under what I will argue is a distinctive separation of powers umbrella. similarly described. legislative. relatively standard definitions are more prescriptive.

Seidman. Sunstein. Cass R. at which partial separation is not worthy of the name. executive and judiciary. James Madison and John Jay. Complete separation is impossible. that separation of powers in this respect recognises that each of 8  James Madison. Secondly. in the same hands. there is some disagreement about what is separated pursuant to the doctrine. It might be argued. however. empowering each institution to exercise the function for which it is designed (and perhaps. Tushnet. The Federalist. Where.encroachment by the others”.9 but it might be turned to more general purposes. And this in turn leads to the third area of uncertainty: the degree of separation that such a doctrine requires. these are not mutually exclusive options. or many. Received wisdom has it that there are two such purposes: One is to prevent the abuse of public power through the concentration of power. preclude overlapping membership  A separation of functions. for example. may justly be pronounced the very definition of tyranny”.8 The answer must depend in part on the actual checks and balances in each case. Thus James Madison in Federalist 47: “The accumulation of all powers. Constitutional Law 2nd ed 1991. for example. In its original form this rationale was used to justify the institution of a strong presidency in the United States. then. self-appointed or elective. London. which might. Federalist Paper 51 in Alexander Hamilton. legislative. a few. The two principal options are:  A separation of institutions. Any system of separation of powers must involve at least a measure of both.  The other is to enhance the efficiency of government. no other function) In reality. 266 9 Geoffrey R Stone. should the lines be drawn? And how should the lines that are drawn be enforced? It is possible to approach the answers to these questions through a consideration of the purposes of a separation of powers. Everyman Library. Louis M. by extension. however. and whether hereditary. 363 -3- . There must be a point. whether of one. Mark V. 265.

cit. Unlike France.12There is 10 See for example.the branches is peculiarly well equipped to exercise the particular functions assigned to it. but with a view to precluding it from impinging upon the other branches of government. 11 Marshall. 99. The explanation lies in the distinctive constitutional arrangements of both the two states that have been the flagships of the separation of powers doctrine. judicial review of executive action. this country has a parliamentary system with at best a weak institutional separation of the legislative and executive branches. where even the examination of the significance of the doctrine for the rule of law is undertaken by reference to the relationship between the legislature and the executive. it might be argued that the collective effect of a particular configuration of separated powers is a form of government with attributes best suited to the needs of a particular state.11  By contrast. the constitutional arrangements in the United Kingdom are quite different. op. where the separation of powers places emphasis on the judiciary. at 99. moreover. A. in key respects. is a core feature of the constitutional system. Stone et al. indeed this was also the genesis of the theory in the writings of Montesquieu and Locke. the doctrine of the separation of powers has had only muted and partial recognition in the United Kingdom. For reasons that are easy to understand. in a context. Both of the two purposes traditionally assigned to a separation of powers were originally formulated by reference to the separation of legislative and executive power. at least in a way that is useful here. that is confined to the scope of judicial power vis-à-vis the other branches: Paul -4- .  The other is France.10 incidentally suggesting caution in borrowing conceptions of “deference” from that source. As a generalisation. Unlike the United States. Both purposes could be adapted to the separation of the judicial branch. in which the relationship between the legislature and the executive as part of a balanced three-way separation of powers dominates the discourse and influences the doctrine. however. the doctrine of separation of powers has not been well developed in relation to the judiciary. from Hans Kelsen. however.cit. at the hands of the general courts. 269 12 Paul Craig has said that it is “regarded as a central construct in our constitutional structure”. Wedberg (1961). Alternatively.  One is the United States. Marshall also quotes Hans Kelsen: “the judicial review of legislation is an obvious encroachment upon the principle of separation of powers”. General Theory of Law and State trans. op.

involving the division of power in various ways. 15 Barendt. in David Feldman (ed) Public Law OUP 2004. 706 13 For detailed description and analysis see A.htm -5- . given teeth through a range of guarantees enshrined in statute and long-standing constitutional convention.dca. India and South Africa. For present purposes. however. the Squire Centenary Lecture. which I use as occasional Craig. The English Constitution 7th ed. quoted in Allan. 333.W. 689. op. 3 March 2004. Countries with a system of government most similar to that of the UK are. In an additional twist. Canada.17 In time it may also come to be appreciated that a similar case could have been made for the Appellate Committee of the House of Lords. Trevor Allan has argued also for a de facto institutional separation of powers that relies on the “firm conventions governing…[the] various roles” of public officers: Trevor 10. unproductive debate. through the “mixed” and “balanced” constitutions.cit.15 And the great William Blackstone himself adapted Montesquieu and Locke to argue for a “distinct and separate existence of the judicial power in a peculiar body of men…separated from both the legislative and the executive power”. it is even possible to argue that these mixed institutions have been key mechanisms for protecting judicial independence.. 50 17 Lord Woolf.. without becoming entangled in endless. 339-363 14 Marshall. These include Australia. 1984. This is most obviously the case with the relationship between the legislature and the executive. “The Constitutional Position of the Judiciary” in David Feldman (ed) Public Law OUP But the intermixture of institutions is such that it is almost impossible to describe it as a separation of powers. the triple hats of the Lord Chancellor and the dual functions of the House of Lords are a further obstacle to describing the system as characterised by a separation of powers. famously claimed by Walter Bagehot as a fusion of powers.cit 52 16 William Blackstone.14It is even possible to argue for a significant degree of functional separation of powers in reality. In a speech in this university just over 2 years ago Lord Woolf observed that it had not been “appreciated sufficiently that the Lord Chancellor played a pivotal role in co-ordinating the three arms of government” nor that he “was able to act as a lightening conductor at times of high tension between the executive and the judiciary”. 615. “Fundamental Principles of Administrative Law”.13 There is a long tradition of limited government. http://www. found in the Commonwealth. if not in outward form.cit. “The Rule of Law and a Change in the Constitution”. Bradley. 101. not surprisingly. op. op. Many of them have parliamentary systems. such a case can be made for the multiple functions of the Lord Chancellor.of course a strong tradition of judicial independence. Clearly. however. however. Changes that attract particular attention include the creation of a position of President of the courts of England and Wales. Appointment is indeed on the advice and personal decision of a government minister. http://www. the appointment and removal of judges and the funding of courts can be analysed within a framework of checks and balances. January 2004. 19 For a detailed exposition of the process by which the changes were made see Lord Windlesham. of which guarantees of tenure are an example. most of the arrangements in these countries for the constitution of the judiciary were modelled as far as possible on comparable arrangements here.21 18 For the role played by the Lord Chancellor in relation to judicial appointments see Sir Thomas And in all of them. for that matter. The limits of the possible were reached with the position of Lord Chancellor and the institution of the Appellate Committee of the House of Lords. But he is a very unusual kind of minister…. All place great store on judicial independence. with the possible. In historical reality.htm -6- . “The Constitutional Reform Act 2005” Parts 1 and 2. legislation as well. statutory protection of the principle of judicial independence. In all of them. Traditional mechanisms for protecting judicial independence. [2005] Public Law 806. [2006] Public Law 35 20 Constitutional Reform Act 2005 section 7 21 The Concordat. it might stand in the catalogue as simply appointment by the executive. but by no means certain exception of Canada. including the structures for administrative support.dca. the relationship of the judiciary to the other branches is conceived in terms of the separation of powers. a latter-day rationalisation.19 There is considerable interest throughout the Commonwealth in what has been considered necessary here to provide protection for judicial independence. with representational and management responsibilities. This is. The points of necessary interface with the other branches in relation to. the judiciary is institutionally and to a large extent functionally separate from the other branches of government. once those two institutions are gone.”: at 65.examples in the next part. and the use of a “concordat” to record aspects of the arrangement less susceptible to codification. The transformation of the first and the pending replacement of the second by a Supreme Court thus bring Britain closer to Commonwealth experience in this regard.20 a Judicial Appointments Commission. can be understood as features of the separation of judicial power. “Judges for the New Century” [2001] Public Law 62. See in particular the following: “it is important to understand the real nature of the present system.18 which could not be replicated elsewhere. All four have a judiciary that reviews executive action and. for example.

presumably. distinguishing permissible from non-permissible functions by reference to a standard of incompatibility and the purpose of protecting the perception of the independence of the courts.22 Practice varies in the Australian states. In at least one state. also is true. the implications of an institutional separation of powers for the constitution of the judiciary are straightforward. 22 Wilson v Minister for Aboriginal and Torres Strait Islander Affairs (1996) 189 CLR 1 -7- . In consequence. I divide the issues to which I propose to draw attention into two groups: those connected with the institutional separation of powers (including the impact of checks and balances) and those connected with a functional separation of powers. such appointments will not be accepted by the judiciary at all. where the doctrine receives significantly less constitutional protection. Victoria. At the Commonwealth level in Australia. the next part canvasses some issues that have arisen in broadly comparable countries in connection with the separation of judicial power. And the converse. there will also be Commonwealth interest in the effectiveness of the solutions that have been put in place. the impact of entrenched constitutions elsewhere. members of other branches cannot be appointed to courts. Assuming that this is so. a. 3. One is whether judges can perform other public functions that are not judicial in character in their personal capacities. this question has generated a substantial body of case law. Commonwealth experience with the separation of judicial power For convenience. Some significant questions nevertheless arise at the margin. critically in this context.Many of the problems that have been anticipated in the course of negotiations over the Constitutional Reform Act also currently are problems elsewhere. making due allowance for relevant differences including. Institutional arrangements At one level. where the separation of powers is constitutionally protected. Those experiences in turn assist to throw light on the effects and utility of the doctrine of separation of powers in its application to the judicial branch. Judges may not be members of other branches.

such a mechanism is capable of producing good results. it detracts from the quality and independence of the courts. The difficulty has been to find new arrangements that preserve at least some of the strengths of the old. “Appointing Judges: A Judicial Appointments Commission for New Zealand?” April 2004. all rely on inter-branch respect and self-restraint. however.html x -8- . with their somewhat different preoccupations and accountability mechanisms. as a means by which the overall predilections of a court might be influenced by the executive branch. i. The result for the moment is a smorgasbord of different procedures. however or. arises from the points of institutional interface between the judiciary and the other branches.govt. the degree of openness in the processes of application and selection. however.The principal area of concern under the broad rubric of institutional separation on which I wish to focus. Hope once was placed in the office of Attorney-General to this end. http://www. To balance these potentially opposing interests. Exercised with wisdom. still clinging to executive appointment to the judiciary. and the administration of courts. All have implications for judicial independence. Questions about transparency and inclusiveness can no longer so readily be put aside. on which the Constitutional Reform Act may now also be placed. There is a range of variables. and the extent of lay involvement in the appointment process. appointment of judges once lay with the executive branch. These are. and the gains from patronage too often prove tempting. representing checks on the judicial branch. but political realism has now prevailed. while overcoming their weaknesses. questions about transparency and inclusiveness aside. judicial remuneration. but I will focus on three in particular: the appointment of judges. Appointment of judges In all four countries. of course. All necessarily and properly involve one or other or both of the other branches. with no clear resolution in sight. numerous.23 At one end is Australia. In all three areas there is considerable movement. see Ministry of Justice. all controversial in different degrees: the institution(s) through which appointment is made. Used as a source of patronage. after some inconclusive inquiries 23 For other common law processes.

in a masterly understatement: “the effective power to appoint Supreme Court judges has …passed from the Executive to the Judiciary itself which has greatly strengthened judicial independence”. his opposition to the notion of a Judicial Appointments Commission along United Kingdom lines: “…it represents an abrogation of the Executive’s responsibility…you just move the debate from who is being appointed to the bench to who is being appointed to the appointments commmission”. The hearings allowed Canadians to get to know Justice Rothstein through their members of Parliament in a way that was not previously possible. Announcing the appointment.gc. from which the President must choose. in the form of advice to the Governor-General.25 Canada was until recently closer to Australia.26 In South Africa. following changes announced on 20 February this year. It takes no account of inflation or the relativities between the salaries of 24 Attorney-General Philip Ruddock “Selection and Appointment of Judges”. 2 May 2005.27 The hearings of the JSC are public. inter alia. Indian Constitutional Law 5th ed 2003. 332. The first Supreme Court Justice to be appointed following the process is Mr Justice Marshall Rothstein. It brought unprecedented openness and accountability to the process. The Attorney noted. Wedhwa and Company The result is the Judicial Services Commission. 25 MP Jain. with a mixed membership of 23. which is consulted in relation to some key appointments and identifies a short list for others. where since 1993. nominees to the Supreme Court must appear before a (televised) parliamentary committee hearing.nsf/Page/Speeches_2005_Speeches_2_May_ 2005_-_Speech_-_Selection_and_Appointment_of_Judges .ca/news/background/supremecourt/ . Justice Rothstein appeared before an “Ad Hoc Committee”. pending finalisation of the procedures. the reconsideration de novo of the constitutional settlement following the fall of apartheid provided an opportunity for experimentation with new mechanisms for judicial appointment.asp?category=1&id=1041 27 Constitution of South Africa. on 1 March 2006. although the final decision remains with the Prime At the other is India. section 178 and implementing legislation 28 Ibid -9- .28 ii. The Supreme Court http://www. It is equally a commonplace that protection of this kind is symbolically significant but practically insufficient. the Prime Minister observed that it “marks an historic change in how we appoint judges in this country. with a non-parliamentary chair. http://www. whether or not is has the effect of allowing South Africans to “get to know” the appointees that Canadian Prime Minister recently claimed for his new appointment procedure. however.” a feature that can be seen as important in principle in post-apartheid South Africa.into options for change. See in particular SC Advocates on Record Association v Union of India AIR 1994 SC 268 26 CBC News. Judicial terms and conditions It is a commonplace for common law countries to adopt the Act of Settlement guarantee against reduction of judicial salary while in office. as MP Jain describes it.

widely adopted. protecting a right to a hearing by “an independent and impartial tribunal”.au/CA256902000FE154/Lookup/MediaReleases/$file/MediaStatetCJJudSalApr04. for a period that proved startlingly short. much less of the levels of remuneration available at the bar.judges and other public office-holders. The Judicial Remuneration Tribunal for the Australian state of Victoria for had authority. . a mediating principle that recognises the responsibility of the elected branches. A body of which I am a member illustrates the point. with the other branches requiring. But the provision of resources. The first such recommended increase survived disallowance – just: the second failed to do so. to make determinations about judicial salary increases that would come into effect through a special appropriation unless disallowed by either House. A familiar checks and balances problem thus arises.pdf. One solution. But the alternative is that the adequacy of judicial remuneration lies almost entirely in the discretion of the government and parliament of the day. these are important questions for both the independence and quality of the courts. such as Canadian Charter section 11(d).gov. It may be that a more effective guarantee can be fleshed out by reference to broader constitutional principles. however. An event of this kind arguably is more damaging to the standing of the judiciary than leaving the decision to the normal political process in the first place. but cannot remove it altogether. Granted. the authority of the JRT over salary levels was removed.10 - . properly. creating an unseemly impression of self-interest that it is likely to be difficult to dispel. In this event. while meeting the appropriate needs of the courts.vic.29 In the course of the furore that followed. to advise on judicial salaries and other terms and conditions. the Chief Justice of Victoria described it as “a direct interference with the independence of the courts”: http://www. the control of public spending and the management of the economy lie. the fleshing out is done by the judges themselves. Such a solution distances deliberation on judicial salaries from the political process. is the establishment of an independent body. once again. It is ambiguous in its protection of other terms and conditions of judicial office including pension or superannuation entitlements. in favour of a system that tied 29 In her statement in response to the government’s decision.supremecourt.

30 themselves dependent on determinations by the federal remuneration tribunal. for consequential litigation concerning the validity of decisions made by courts in these circumstances. the Court was asked to advise on the validity of legislation reducing the salaries of provincial judges. Bodner v. but that of the government of Quebec did not. Annual Report 2004 http://www. Quebec (Attorney General).34 iii. including their own. Conférence des juges du Québec v. Ontario (Management Board).E. requiring it to determine a question concerning the salaries of all federal judges.aspx . however.R. relying on a “reasonable factual foundation. 286 34 Canadian Bar Association E-News June 2006. There is currently some media interest in whether a recent decision by the Government of Canada not to accept in full the recommendations of the federal commission ultimately will go to the Court. see Reference re Remuneration of Judges of the Provincial Court (P. The Court held the legislation invalid.R. The Court held that governments are not bound by the recommendations of such Commissions as long as they justify their departure from such recommendations with “rational reasons”.au/CA256902000FE154/Lookup/AnnualReport/ $file/AR0204Review. [1998] 1 S. the Supreme Court of Canada observed that judges must “bear their fair share of the financial burden of administering the country. 3 33 Provincial Court Judges' Assn. New Brunswick (Minister of Justice).I.11 - .R. Ontario Judges' Assn.the salaries of Victoria judges over time to those of their federal counterparts. objective and effective process for determining judicial remuneration”. Minc v.supremecourt. their recommendations for increases in salaries were not accepted and the issue returned to the Supreme Administering the courts 30 Supreme Court.33 Most of the challenged provincial decisions met these criteria. these issues have given rise to a significant degree of litigation. of New Brunswick http://www. because it was made “without recourse to an independent.C. In an initial skirmish over judges’ pensions. 2005 SCC 44. Alberta.).I.). in which the validity of a contributory requirement was upheld.”31 Shortly afterwards.pdf 31 R v Beauregard [1986] 2 SCR 56 32 Reference re Remuneration of Judges of the Provincial Court (P.E. [1997] 3 S.C. Quebec (Attorney General).32 Commissions were duly established. [2005] 2 S.C.vic. v.” in a manner that respects the purposes of the creation of the Commissions in the first place: “preserving judicial independence and depoliticising the setting of judicial remuneration”. In Canada. In due course. exploring the limits of the Charter. Victoria.

R. extending into the first part of the 21st. with consequential implications for the administration of the courts. By the end of the 20th century. this had become yet another issue between the courts and the other branches. through Departments of Justice or their equivalents. “the assignment of judges. Thus section 17 of the High Court of Australia Act 1979 empowers the court to 35 Reference re Remuneration of Judges of the Provincial Court (P. more or less effectively. there is a range of approaches to this issue. See also Valente v.C.12 - . [1985] 2 S. The Queen. For much of the 20th century courts in common law countries have been funded and administered. In the PEI case Lamer referred to this list as “narrow”: [117] . [1997] 3 S.35 The scope of administrative independence for this purpose has not been fully explored. on the other hand.R. as the Supreme Court of Canada has now emphasised on several occasions. 3. There can be no dispute about Parliament’s role in appropriating funds for court services and about the need for accountability for expenditure. raising questions about the separation of powers. On the other hand. “administrative” independence is a core characteristic of judicial independence. [118]-[119].E.). 36 Valente v.I. which may affect either its individual or its institutional dimension. 673. within a framework imposed by their constituent statutes. administer themselves. and court lists — as well as the related matters of allocation of court rooms and direction of the administrative staff engaged in carrying out these functions”. with their requirements for productivity measures. with Australia illustrating both ends of the spectrum. Equally.R.C. at least. The Queen. sittings of the court. 673. there can be no dispute about the interests of the executive in the efficiency and effectiveness of court performance.The constitutional dimensions of court administration have not. [1985] 2 S. For the moment. however. until quite recently. Lamer CJ. The federal courts. outcome based reporting and efficiency dividends. The reason for its sudden prominence may lie in the equally sudden rise of new public sector management practices. become apparent. The Court has said that it includes.36 The issue thus is the positioning of the dividing line between the functions of the courts and the executive branch so as to safeguard that aspect of judicial independence that concerns court administration while ensuring that the courts comply with accountability and other public standards.C. For the most part the Australian states have retained the traditional model.

In the context of court administration that is something of an exaggerated claim. 37 See for example the requirement for “ Monthly reporting to the Department of Finance and Administration. and did it matter? Many people thought that it did. specifying that the Chief Justice was “head of the judicial authority” and that the “Cabinet member responsible for the administration of justice exercises authority over the administration and budget of all courts”.37 It seems. Its 2004-5 report identifies for the Court “a single output. for example. An illustration of the difficulties that can arise is provided by recent events in South Africa. with general responsibility to administer the office of the Chief Justice.3 million.13 - . extending into 2006. High Court business.“administer its own affairs” including the power to contract and to manage court precincts. and their concerns were exacerbated by the terms of a proposed Superior Courts Bill creating. High Court of Australia. In 2005. a position of Executive Secretary to the Chief Justice as an officer in the department. 31 38 Ibid. the government proposed an amendment to the Constitution which would have added two new sub-sections. For the moment I am told that the proposals are shelved.38 The price of the outcome was $14. contributing towards the overall outcome.39 What did this mean. The matters covered by the Court’s annual report suggests that the management burden is significant. which is ‘interpreting and upholding the Australian Constitution and performing the functions of the ultimate appellate Court in Australia”. Section 165 of the Constitution of South Africa relevantly provides that:     The judicial authority of the Republic is vested in the courts The courts are independent… No person…may interfere with the functioning of the courts Organs of state…must assist and protect the courts to ensure [their] independence. however. to have held the line in some respects. in accordance with the Budget Estimates and Framework Review”. The government for its part argued that it was doing no more than giving effect to what it described as “the Commonwealth model of the separation of powers between the Executive and Judiciary”. admittedly under his direction. It seems likely however that they will in time re-emerge. in this or an altered form. 31-32 39 Constitution Fourteenth Amendment Bill 2005 . Annual Report 2005.

First. 521 41 Polyukhovich v Commonwealth (1991) 172 CLR 501. at least at the federal level. b.14 - . The process of change is irreversible. the changes are taking place in isolation from each other. where the doctrine of separation of judicial power is highly developed and formal rights protection is almost entirely absent.40 It is clear in Australia. Conclusion At this point some brief concluding remarks about institutional separation are in order. It has implications for the composition and operation of the courts and. rather than of the institution by which it is exercised. the doctrine has implications for due process and civil liberties. what courts should do (and other branches should not do). Viewed in this light. albeit more briefly. per Mason CJ . for a variety of reasons. The doctrine also inhibits other branches. by extension. the traditional forms are undergoing change. in which there is a significant interface between the judiciary and the other branches. for example. express or implied. it identifies and. i. for judicial independence. As may be inevitable at such a time. There is a still-open question about the extent to which a doctrine of separation of powers can be developed to give them direction and coherence. The subject raises a wide range of issues. that only a court can adjudge a person guilty of an offence and impose punishment accordingly41 or exercise other “core” judicial functions.iv. Scope of judicial power The doctrine necessarily has two dimensions. with its emphasis on the isolation of judicial power itself. These can best be illustrated by experience in Australia. under the Australian Constitution: Street v Queensland Bar Association (1989) 168 CLR 461. under a system of controlled constitutionality prescribes. I have focussed only on three. at least to a degree from directing the courts in 40 Justice Deane once described the separation of judicial power as the ‘most important’ of the guarantees of rights and immunities. In each. In each case the arrangements in question are long-standing. Questions about power I now move to explore. the issues that arise in connection with a functional separation of powers.

however. even if they were unlawfully held 43 The possibility was based on a reading of Lim. 287 50 Craig. See generally Simon Evans “Australia” (2006) 4 International Journal of Constitutional Law 517 44 In Australia.44 More significantly.42 For a time.46 overturn previously established decisions. In a system that recognises constitutional rather than parliamentary supremacy. a separation of powers argument has been used to explain why courts should hesitate to supply the deficiencies of statutes. 49 Minister for Immigration and Ethnic Affairs v Teoh (1995) 183 CLR 273. requiring some fine lines to be drawn. nothing new. such as quarantine. Expansion in 42 Chu Kheng Lim v Minister for Immigration (1992) 176 CLR 1. for present purposes. 541..49 Paul Craig has argued that in these respects “The concept operates as a source of judicial legitimacy.48 or apply unincorporated international treaties.15 - .51 But it may have new significance.. the doctrine may be used to suggest limits that the courts should impose on themselves. it also appeared that the doctrine might limit the authority of the Parliament to order detention without trial (obviously exceptional circumstances. aside) although it no longer seems likely that this will prove to be so. It finally faded with the decision in Al-Kateb v Godwin [2004] HCA 37. In Australia. Bradley. R v Secretary of State for the Home Department. and of the legality of executive action.cit. 567. Limitations on judicial power In its second dimension. op. a functional separation of powers serves to identify what courts may not do. op. perhaps. 340-341 . in which the majority of the Court invalidated a section that they interpreted as a direction from the Parliament not to release specified persons from custody. federal courts cannot be given arbitral power.the manner of the exercise of their powers. 707 51 Duport Steels Ltd v Sirs [1989] 1 All ER 529. Expansion in depth tends to break down the distinction between judicial and merits review. ex p Fire Brigades Union [1995] 2 AC 513.43 ii. of course. with the courts defending their role as the rightful interpreters of legislation. for example. the doctrine thus precludes conferral on courts of nonjudicial power. which has been held to be non-judicial 45 Strickland v Rocla Concrete Pipes Ltd (1971) 124 CLR 468 46 Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 47 Queensland v Commonwealth (1977) 139 CLR 585 48 Ha v New South Wales (1997) 189 CLR 465. at a time of expansion in both the depth and breadth of judicial review.cit.45 review decisions on the merits.47 invalidate legislation prospectively. for example. It serves also as the foundation for judicial restraint…”50 This is.

as an integral part of a tradition in which the virtues of limited government have managed to survive an ever-closer union between the legislative and executive branches. It is possible to refute some such claims by reference to the separation of powers. The courts are unlikely to be the only branch to have a view about where these limits are properly drawn. Terrorism and Risk: The Roles of Politicians and Judges” [2006] Public Law at 376 53 David Feldman. It may also be that what is perceived as a difficulty by one branch may be viewed in a different light by others. ‘None. however. In its present form. The courts were not originally the principal focus of the doctrine. representing checks and balances in action. 52 David Feldman. grounding legitimacy and securing the rule of law. it can be adapted to the purpose. however. As David Feldman has recently observed: “One can respect the role of the executive as makers of policy while upholding the obligation of the courts to ensure that the policy is not unlawful…”52 At some point.breadth brings the judiciary face to face with the executive in unfamiliar and sometimes sensitive areas. one or several? Perspectives on the UK’s constitution(s)’ [2005] CLJ 329 . in the interests of both persuasion and prediction. separation of powers places limits on judicial review. however. At the very least the separation of powers in relation to the judiciary needs to be explained in terms of purposes specifically applicable to the judiciary: protecting judicial independence. the doctrine is somewhat too general to provide much assistance in resolving a range of existing and emerging difficulties at the interface between courts and the other branches. Evaluation A doctrine of separation of powers now provides the principal framework within which the relationship of the courts to the other branches of government is resolved in this and many other Commonwealth countries. “Human Rights. 4. Both have the potential to lead to claims that the judiciary is trespassing into the sphere of the other branches. A degree of tension is inevitable.16 - . Those values in turn might be better understood and accepted by placing judicial review in the context of a broader constitutional vision.53 Elaboration nevertheless would be useful. clearly enough.