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Separation of powers and
the status of administrative review
Part 1
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Contents
Part 1
Introduction
Text of the Constitution
Historical judicial traditions
Part 2
Implied values
Independence of decision-making
Conclusion
Bibliography
Separation of powers and the
status of administrative review
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Bruce Topperwien
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As Else-Mitchell recognised in 1961, the framers of the Constitution did not have in mind the modern administrative state when they adopted a separation of powers structure. After commenting on the appropriateness of the rigid separation of powers found by the High Court in the circumstances of the Boilermakers Case, he said:
"the wisdom of separation of powers in the field of industrial relations has little relevance to one problem which the Founding Fathers hardly considered, namely the scope of administrative action and for the integration of administrative and judicial power."
Similar comments doubting the relevance of a formalist approach to separation of powers in a modern administrative state have been expressed in America. Fallon has said:
"A second objection to article III literalism arises from policy concerns of the modern administrative state. The role of federal government has expanded far beyond that contemplated by the framers. At the time of the Constitution's adoption, government enforced the system of private rights defined by the common law but otherwise had limited functions. As government has created more entitlements and assumed responsibility for enforcing a broader range of legal rights, functional concerns have supported the assignment of adjudicative responsibilities to non-article III decision-makers."
Can a practical theory of governmental structures be developed that recognises the intrinsic values of the constitutional text and separation of powers, and better accommodates existing structures in a way that supports and enhances independent administrative review, while promoting fundamental constitutional values, but without overturning too much existing authority?
This paper proposes a new approach to separation of powers under the Australian Constitution. It has not received acceptance by the High Court, but it is an approach that I consider could validly be taken, and if it were taken, would significantly strengthen and support the validity of the current system of administrative review, without radically changing accepted notions of separation of powers.
Applying a more functionalist approach to separation of powers issues, I suggest that Parliament could give powers and functions to Chapter III courts provided that those powers are not inconsistent with:
Equally, Parliament could decide to give those same powers and functions to a non-Chapter III institution provided:
The idea that government is divided into three distinct and separate functional parts has never been applied in practice in any country. This is so even in the United States of America where the notion of separation of three types of powers is often assumed to be an essential element in the fabric of government. In Australia, considerable overlap has always been permitted in the exercise of executive and legislative powers. But it is in the area of judicial power that the High Court has been concerned to make distinctions and invalidate legislation and legislative schemes, far more so than the Supreme Court has done in America. It is the approach to judicial power, and its impact on administrative review, with which this paper is primarily concerned, and in which I suggest a new paradigm for the assessment of separation of powers issues.
Because the Commonwealth is a creature of statute (the Commonwealth of Australia Constitution Act, 1900), all its powers are statutory. As the Constitution divides those powers into three, and only three, categories, every power that is exercised by a Commonwealth agency must be an exercise of one or more of those categories of powers.
While the Constitution appears to divide government into three arms associated with the three powers, I suggest that Parliament and the Executive can create, and effectively have created, a fourth arm of government, independent of, but subject to oversight by Parliament, the Executive, and the Judiciary. This fourth arm, which exercises all three types of powers (executive, legislative and judicial), comprises those independent agencies of government that are not subject to direct Ministerial (ie, Executive) or Parliamentary control-including administrative tribunals, the Ombudsman, Auditor-General, and numerous other similarly independent governmental instrumentalities and statutory office holders. Because not all of its members have the tenure of Chapter III judges, by definition, these agencies of government must exercise either, or both of, the "executive power of the Commonwealth" or the "legislative power of the Commonwealth", but not the "judicial power of the Commonwealth".
Defining the "judicial power of the Commonwealth"
The "judicial power of the Commonwealth" is not any judicial power exercised in respect of, or under, a Commonwealth law (including the Constitution), but should be taken to be a technical term, limited by:
Taking this approach, one does not have to employ the fiction, which the High Court has employed, of calling a judicial power "administrative", "executive", "arbitral", or "legislative". It has been said, "The Court looks considerably sillier when it stoutly maintains that a fish is a tree than when it explains that, under appropriate constitutional theory, it simply does not matter whether the item is a fish or a tree."
This suggested approach gives broad and flexible policy control regarding the structure and nature of governmental institutions to the Executive and Parliament, and protection of fundamental constitutional values to the Judiciary. It is consistent with a statement by Murphy J, in which he said:
"Whether adjudication is treated as part of the judicial power or not is often in practice the decision of the legislature. If it places the function with a court (within Ch. III) then in general the adjudicative power is treated by this Court as part of the judicial power of the Commonwealth, if not, it is treated as administrative adjudication. � Other functions, even with a minimal adjudicative aspect, because traditionally they have been dealt with by courts, can be regarded as part of judicial power if the legislature cares to place them with the courts."
If the Executive creates an institution using its prerogative power, that institution can only exercise the "executive power of the Commonwealth".
If the Parliament creates an institution, it can delegate to that institution part of the "legislative power of the Commonwealth", or give it part of the "judicial power of the Commonwealth", or give it part of the "executive power of the Commonwealth". If Parliament creates a Chapter III court, it must give it only "judicial power of the Commonwealth", but if it creates a non-Chapter III institution, it can give it "executive power of the Commonwealth" and/or delegate to it "legislative power of the Commonwealth".
Within each of the three "powers of the Commonwealth" there may reside elements of executive, legislative, and judicial power that can, and sometimes must, be used in order to exercise, effectively and lawfully, the relevant power of the Commonwealth by the particular institution to perform its statutory functions.
The Chapter III courts must remain separate from the other arms of government because it is the judiciary that oversees and establishes the rule of law. It is the conscience of government and final arbiter of disputes. The very notion and purpose of separation of powers is, by institutionalising separateness, to ensure that tyrannical power cannot accrete to any single institution. The Chapter III courts are given the role of invalidating action taken by any other institution of government that is inconsistent with this constitutional value. To ensure that those courts, themselves, cannot be corrupted by power, they are denied those executive powers that are not directly related to the judicial function, and the legislature can override any legislative decisions of the courts except those that relate to the continued existence of the most fundamental human rights (that is, human rights inherent in the Constitution itself that cannot be removed by legislation).
Finally, it is the trust and confidence of the people in the institutions of government that give them their validity and continued role. Whatever the constitutional structure and institutional functions, the institutions of government retain their legitimacy by the people's, and those institutions', continued acceptance of the judgments of the courts and the rule of law.
The "judicial power of the Commonwealth" can only ever be exercised if there is an "appeal" from a State Court or the Inter-State Commission (s.73); or a "matter" (ss. 73, 75, 76, 77, or 78) to be determined. By limiting the jurisdiction of Chapter III courts in this manner, the Constitution limits the nature of the "judicial power of the Commonwealth" to the power used in deciding particular sorts of controversies in particular sorts of cases. The "judicial power of the Commonwealth" includes certain executive and legislative powers (which can, and should, be described as such), but which are executive (or administrative) and legislative powers within the "judicial power of the Commonwealth," not within the "executive power of the Commonwealth" spoken of in section 61 or within the "legislative power of the Commonwealth" spoken of in section 1 of the Constitution.
Any other functions that might be said to be "judicial" in nature or character do not involve an exercise of the "judicial power of the Commonwealth," but must be characterised as an exercise of judicial powers within the executive or legislative power of the Commonwealth.
The "judicial power of the Commonwealth" is not co-extensive with judicial power exercised in execution of, or in making, Commonwealth laws, because to the extent that such exercise does not fall within sections 73 and 75 to 78 of the Constitution, it is either part of the "executive power of the Commonwealth" or the "legislative power of the Commonwealth".
Effectively, the judicial power of the Commonwealth relates only to the exercise of a power in deciding "matters", ie, controversies concerning "some right or privilege or protection given by law, or the prevention, redress or punishment of some act inhibited by law", involving "adjudication � in proceedings inter partes or ex parte", but it does not involve determining abstract questions without the right or duty of any body or person being involved (In re Judiciary and Navigation Acts (1921) 29 CLR 257 at pp. 266-267).
Section 75 confers original jurisdiction on the High Court in certain enumerated types of matters. Sections 76 and 77 permit Parliament to confer and limit the jurisdiction of the Chapter III courts in other types of matters, but these sections do not expressly state that these other types of matters can only be given to Chapter III courts. On one interpretation of these sections, it is only if the Parliament confers jurisdiction, that the adjudication of such a matter becomes an exercise of the judicial power of the Commonwealth. Unless Parliament confers such jurisdiction on a Chapter III court, it cannot be an exercise of the "judicial power of the Commonwealth". If Parliament confers it on some other body, it must be an exercise by a non-Chapter III institution (which might even be called a court) of a judicial power within the executive power or the legislative power of the Commonwealth.
Therefore, applying this approach, the terms of the Constitution and the legislation enacted under or in support of Chapter III, are the primary factors limiting and defining the scope of the "judicial power of the Commonwealth".
Historical judicial traditions
The importance of implications from historical traditions as an essential element in determining whether a particular type of decision must be made by a Chapter III court is seen when regard is paid to the fact that the only expressly essential elements of a Chapter III "court" are the tenure of its justices and the non-diminution of remuneration. Consider the following example:
The Swift and Sure Decision-making Act 1999 is passed establishing the Pensions Court as a statutory corporation, which is then 100% privatised-the Commonwealth purchases the services of this Court, not on a case-by-case basis but on a pre-arranged annual fee (the contract bases the fee on a formula reflecting the Court's previous year's claim finalisation and rejection rates). Its "justices" are appointed by the Governor-General, are given tenure until age 70, and are guaranteed salary of not less than $25,000 per annum. All that these judges do is finally decide the facts and law in each case and determine pension claims. No hearings are held, and the claims are determined on the material on files submitted to it by Centrelink. The legislation precludes appeals to the High Court under section 73 of the Constitution or to any Chapter III court under any other Commonwealth legislation (thus negating any jurisdiction under section 76 of the Constitution). The legislation deems the decisions of these justices to be decisions of the Court. The High Court has no jurisdiction under section 75�(v) because there is no "Commonwealth officer" who makes a relevant decision, merely a corporation. The Commonwealth cannot be sued in relation to any particular matter before the Court under s.�75�(iii) because the Court is a 100% privately owned corporation, and the legislation declares that the only party to any matter before the Court is the claimant and the Commonwealth shall not be a party to proceedings. Further, the legislation provides that failure of a judge to accord due weight to Ministerial guidelines constitutes misbehaviour for the purposes of section 72 of the Constitution.
On a literal reading of Chapter III of the Constitution (and for the moment disregarding the general ineffectiveness of ouster clauses), there is no reason why this scheme would not successfully remove jurisdiction for all pension decisions from any of the current Chapter III courts, including the High Court-and save the Commonwealth lots of money.
What this extreme example shows is that there must be more to a "court" than tenure and remuneration. No one would regard the way in which this "court" does its business as being court-like. No hearing is given, the funding arrangements and threat of impeachment would influence decision-making, it is not a public institution, its judges need not be legally qualified, and they are remunerated at a rate that would not attract experienced governmental decision-makers, thus promoting poor quality, unreviewable, decision-making. The cry would be, "where is the justice?"-and there wouldn't be any! But, on a strict literal reading, it is "constitutional".
The fact that there is no "justice" in this type of arrangement must be an indication that it could not be a "court" exercising the "judicial power of the Commonwealth."
One must look to the history of Anglo-Australian courts to see what must have been intended to be the fundamental matters that could not be taken away from a court exercising the judicial power of the Commonwealth. It is from that history that we get our sense of what are the essential things that courts do, and must continue to do, and which must be implied into Chapter III of the Constitution.
Bruff has said, "Separation of powers principles suggest that some 'inherent' or 'core' functions may not be taken from the constitutional courts." In Leeth v. The Commonwealth, Mason CJ, Dawson and McHugh JJ said:
"It may well be that any attempt on the part of the legislature to cause a court to act in a manner contrary to natural justice would impose a non-judicial requirement inconsistent with the exercise of judicial power, but the rules of natural justice are essentially functional or procedural and, as the Privy Council observed in the Boilermakers' Case, a fundamental principle which lies behind the concept of natural justice is not remote from the principle which inspires the theory of separation of powers."
When the Constitution came into operation, the Judiciary was given (by implication) a new power not previously held by English or Australian courts, that of judicial review of legislation for want of validity. Other than matters giving rise to such issues, the types of matters expressly given to the Judiciary by the Constitution were those traditionally dealt with by Anglo-Australian courts. While the Parliament can confer additional jurisdiction on Chapter III courts, there is nothing in the Constitution to suggest that the Judiciary was to have any different role or function from that which it ever had. Causes of action were not enlarged (other than in relation to validity of legislation) and the types of matters referred to in Chapter III reflected traditional fields of judicial activity. Thus, after 1�January 1901 one could not go to a Chapter III court to obtain any new remedies or pursue new causes of action unless the Constitution or the Parliament provided that such should be the case.
If the Parliament provided for a new remedy or new cause of action, it would be up to the Parliament to decide whether this would have to be pursued in a Chapter III court (and so Parliament could enlarge the judicial power of the Commonwealth) or in a non-Chapter III institution (by which Parliament could enlarge the executive power of the Commonwealth or delegate legislative power of the Commonwealth). If a non-Chapter III institution were given authority to administer such new remedies or causes of action it could be required to act judicially, but would not be exercising any of the "judicial power of the Commonwealth".
The types of matters that have been regarded as being essential to be heard by courts are fairly limited. They concern matters relating to:
But even in some of these matters, it has only ever been essential that courts have had supervision and ultimate control over their administration. For example, a person can lawfully be arrested by a police officer and thus lose his or her liberty, and a customs official can confiscate a person's property, without any order of a court. It is only if the person challenges the exercise of those powers that a court need get involved. In either case an aggrieved person might opt to pursue a further administrative avenue rather than take the matter directly to a court (for example complain to a more senior officer or apply for review to an administrative tribunal). The decision of that senior officer or tribunal might satisfy the person. But if not, ultimately, the matter must be brought before a court, which has the legal authority to determine finally the rights and liabilities of the person. It is that finality and authority that makes a court a court.
If a person chooses to waive the right to have such a matter determined by a Chapter�III court, then there is nothing wrong with the final decision, in their case, being made by a non-Chapter III person or institution. The notion of waiver has arisen in a number of American cases concerning separation of powers issues. It was also an element in the BIO Cases, where it was held that provided there was an alternative avenue of appeal to a Chapter III court, it was not inconsistent with the doctrine of separation of powers for the adjudication of taxation matters to be decided by an administrative tribunal, and a person could not complain that their matter had been dealt with by an administrative tribunal rather than a court when they had chosen to take that course themselves. An important issue, then becomes, what is the nature of the alternative review undertaken by a Chapter III court in those circumstances-does it have to be a de novo review or merely a review on legal issues concerning the original administrative decision?
It has been said that in taxation matters, because of the nature of tax-"a compulsory exaction of money by a public authority for public purposes, enforceable by law, and is not a payment for services rendered"-fundamental rights are involved that require the highest adjudicatory standards. Certainly, the Constitution treats taxation laws differently to other legislation, and so one might infer that such matters require a higher standard of "justice" to be applied. In MacCormick v. Federal Commissioner of Taxation, Brennan J said that where Parliament "imposes a tax by reference to prescribed criteria, it is for the courts and not for the executive to determine whether each of those criteria exists in a particular case � an opportunity to obtain a judicial determination as to the existence of the fact may be validly limited (as it is under the Income Tax Assessment Act) to judicial proceedings on appeal from disallowance of an objection to an assessment, but it cannot be wholly excluded."
Perhaps the doubts that Gummow J raised concerning the validity of the Administrative Appeals Tribunal Act 1975 are groundless given the alternative avenue in taxation matters, which is an area of public law that is sui generis. No other areas of public law traditionally were subject to de novo hearings by courts, and so it is not necessary that Chapter III courts have that jurisdiction today.
The roles and functions of courts have varied depending on the nature of the dispute. In public law matters, courts traditionally have interfered only when there has been legal error, including issues relating to procedural fairness. It is only in special public law areas, such as taxation, that courts have demanded, and traditionally been given, a greater role.
While there is no reason that the Parliament cannot give courts a greater role in areas of public law, there is no historical reason to suggest that they need have any greater role. Any other role could be given to a non-Chapter III institution, which could be called a court or tribunal and which could be required to act judicially, being, in appropriate circumstances bound by the rules of evidence, and acting, for all intents and purposes as a court would normally act. But, because its decisions would be subject to the supervision of a Chapter III court, and would not have the finality of a Chapter III court-at least in relation to questions of law-it would not be exercising the "judicial power of the Commonwealth".
While it is not possible to find any "original intention" support for a fourth arm of government, there is some support in early constitutional text books for the idea that public law matters could be decided by non-Chapter III institutions utilising judicial-type powers.
Allan Hall has also suggested that there is a historical difference between private and public rights, liabilities and privileges and the exercise of judicial power, and that, as a consequence, there is no essential requirement that they be decided by Chapter III courts.
At the time of framing the Australian Constitution, it was settled law in America that "public rights" could be decided outside constitutional courts. This originated in Murray's Lessee v. Hoboken Land & Improvement Co (1856) 59 US (18 How) 272. After stating that Congress could not withdraw from the courts any "matter which, from its nature" is judicial, the US Supreme Court noted that: "At the same time there are matters, involving public rights, which may be presented in such form that the judicial power is capable of acting on them, and which are susceptible of judicial determination, but which congress may or may not bring within the cognizance of the courts of the United States, as it may deem proper."
Harrison Moore recognised this and applied it to the Australian Constitution, saying:
"The question then is-what is 'the judicial power of the Commonwealth' within the terms of sec. 71? Even in those Constitutions in which the separation of powers has been accepted as fundamental, by no means every function which is in its nature judicial is exclusively assigned, or permitted, to the judicial organ. Therefore, although neither history nor usage nor practical convenience can determine the nature of 'judicial power', logical consistency may have to yield something to history and familiar and established practice in determining what is the judicial power of the Commonwealth committed to the Courts by sec. 71. [Footnote: See e.g, Murray v. Hoboken Land Co, 18 Howard 272, and the judgment of Cooley J in Weimer v. Bunbury, 30 Michigan 201, 212, Thayer's Cases in Constitutional Law p. 1203.]".
Quick and Garran, in 1900, also noted that executive officials would have to undertake some judicial functions and act judicially. They said:
"The distinction between judicial and executive functions is not always easy to draw. 'Doubtless the non-coercive part of executive business has no affinity with judicial business. The same may be said, for the most part, of such coercive work of the executive as consists in carrying out decisions of judges; e.g., the imprisonment or execution of a convict. But there are other indispensable kinds of coercive interference which have to be performed before or apart from any decisions arrived at by the judicial organ; and in this region the distinction between executive and judicial functions is liable to be evanescent or ambiguous, since executive officials have to "interpret the law" in the first instance, and they ought to interpret it with as much judicial impartiality as possible.' (Sidgwick, Elements of Politics, p. 358)."
� 1998 Bruce Topperwien