Separation of powers and
the status of administrative review
Part 2
Implied values
Independence of decision-making
Conclusion
Bibliography
Separation of powers has a prophylactic function. Adherence to its principles in structuring governmental institutions prevents abuse of power through limiting undue accretion of power in any one organ of government. Some of the values that flow from the concept include:
Independence of decision-making
Chapter III courts under this fourth-arm-of-government model would remain independent of the Executive and Parliament. It is fundamentally important that they be so, and that is the purpose of the tenure and guaranteed remuneration clauses of the Constitution. It is also that independence that the lower level "independent" decision-makers in the fourth arm of government can rely upon to validate their own actions, and assert and maintain their own independence from the Executive and Parliament.
Where an agency has statutory duties or functions to carry out, the High Court insists upon the proper fulfilling of those duties and functions in accordance with, and not in excess of, the powers given to that agency. While the Court will permit discretion to be applied within the scope of the powers and nature of the function of the agency, there are common law rights and administrative law standards that the Court will insist are not encroached upon. Thus, the influence of the Executive on such agencies is minimised, notwithstanding that the Executive might have power of dismissal of the office holders. In the end, the Chapter III courts set the standard of proper functioning of such agencies.
A new principle that would be important to introduce into fourth-arm-of-government jurisprudence is a notion of "structural" procedural fairness. In Canadian Pacific Ltd v. Matsqui Indian Band, Lamer CJ of the Canadian Supreme Court held that the very structure of a tribunal could constitute a reasonable apprehension of bias at common law, and thus invalidate its decisions. In his view, the level of structural independence that is required of a tribunal depends on the nature of the tribunal, the interests at stake, and whatever other indicia of independence are available, such as oaths of office. In this matter, Lamer CJ held that the Bands' Appeal Tribunal did not meet the requisite standard of independence for three reasons: the by-laws creating the tribunal made no provision for financial security for the tribunal members; security of tenure for tribunal members was either absent or was ambiguous; and the Indian bands both appoint the tribunal members and are a party to the dispute. He held that it was all three factors in combination that led him to his conclusion. He stated:
"[I]t is a principle of natural justice that a party should receive a hearing before a tribunal which is not only independent, but also appears independent. Where a party has a reasonable apprehension of bias, it should not be required to submit to the tribunal giving rise to this apprehension. Moreover, the principles for judicial independence outlined in Valente are applicable in the case of an administrative tribunal, where the tribunal is functioning as an adjudicative body settling disputes and determining the rights of parties. However, I recognize that a strict application of these principles is not always warranted."
By advancing such principles, the High Court could influence the very structure and independence of institutions within the fourth arm of government, ensuring that proper standards were adopted, both procedurally and structurally, thereby ensuring that the exercise of judicial power within the executive or legislative power of the Commonwealth was appropriate to the nature of the matters dealt with by the relevant agencies.
Countermajoritarian check on majoritarian institutions
While a fundamental value contained in the Constitution is the democratic nature of government-the representation of the people in Parliament and the sovereignty of the people-an essential value of separation of powers is the avoidance of "tyranny of the majority" by having the Judiciary independent of popular will. The Judiciary is a countermajoritarian institution, which protects individual and minority rights. Sir Gerard Brennan said recently:
"Responsibility for the state of the law and its implementation must rest with the branches of government that are politically accountable to the people. The people can bring influence to bear on the legislature and the executive to procure compliance with the popular will. But a clamour for a popular decision must fall on deaf judicial ears. The Judiciary are not politically accountable. The Courts cannot temper the true application of the law to satisfy popular sentiment. The Courts are bound to a correct application of the law, whether or not that leads to a popular decision in a particular case and whether or not the decision accords with executive policy. …
"[I]f the Courts were to seek popular acclaim, they could not be faithful to the rule of law. Confidence is based on faithful adherence to the law by the Courts which are charged with its declaration and application. Our Constitution, rooted in the common law, does not need to express the proposition that the nation is under the rule of law and that the Courts are the organ of government responsible ultimately for the enforcing of the rule of law. That is the Constitution's fundamental postulate, inherent in its text, especially in Ch III. As Dixon J said in the Communist Party Case, the Constitution 'is an instrument framed in accordance with many traditional conceptions, to some of which it gives effect, as, for example, in separating the judicial power from other functions of government, others of which are simply assumed. Among these I think that it may fairly be said that the rule of law forms an assumption.' "
The same values can, and should, be seen in the fourth arm of government. The function of independent tribunals is closely related to the operation of the rule of law. The legislation under which they operate generally provides that their decisions are deemed to be the decisions of the primary decision-maker. This has the automatic legal effect of imposing on the Executive agency the decision of the tribunal that has been made independently of that Executive agency and in accordance with the law as interpreted by the tribunal. The only way in which that decision, lawfully, need not be implemented is by an appeal to the Judiciary. Thus the fourth arm of government is also countermajoritarian in nature, but subject to the laws of the democratically elected Parliament.
The notion of rule of law is closely linked to the separation of powers, and flows from the fact that no arm of government has total power to do as it might wish. Each is subject to, and submits to, some control by another arm, and it is the courts that authoritatively state the rules and apply them to the agencies of government. Sir Gerard Brennan said:
"The courts do not seek to assert some personal supremacy over the other branches of government; they simply discharge their duty of applying the law to them as they apply it to themselves. Precedent, analogy and logic as well as experience confine judicial decision-making in cases of political significance as in cases concerning purely individual rights and liabilities.
"The rule of law is the cement of the Westminster system in our federal Constitution."
Thus, a fundamental consideration in the structure of government is whether the proposed scheme promotes or detracts from the rule of law. The notion of a fourth arm of government promotes and enhances rule of law ideals.
Applying the values of separation of powers to adjudication by non-Chapter III institutions should require that such jurisdiction will be validly given to such an institution only if its decisions are subject to review by a Chapter III court. This was the principle applied by Hughes CJ of the US Supreme Court in Crowell v. Benson, where he held that Congress may give adjudicatory power to administrative agencies if, and only if, the article III courts are given adequate power to control the legality of these agencies' exercise of these powers through judicial review of all questions of law, including the sufficiency of evidence upon which facts are found, and that the essence of federal judicial power lies in the control that the court ultimately exercises in reviewing whether the law was correctly applied and whether the findings of fact had reasonable support in the evidence. Thus, if Parliament gave judicial power to a non-Chapter III institution without also giving an appeal right to a Chapter III court on legal and procedural issues, it would breach this important constitutional value, and render the grant of power to that institution invalid.
Prohibition of the exercise of arbitrary power
Barendt has said:
"the separation of powers is not in essence concerned with the allocation of functions as such. Its primary purpose … is the prevention of the arbitrary government, or tyranny, which may arise from the concentration of power. The allocation of functions between three, or perhaps more, branches of government is only a means to achieve that end. It does not matter, therefore, whether powers are always allocated precisely to the most appropriate institution."
If the division of powers and functions between three arms of government works to prevent the exercise of arbitrary power, where the division between the Executive and the Legislature is not distinct (such as in Australia), the introduction of a further semi-autonomous arm of government, can be seen to enhance this constitutional value. In relation to the American system, where the separation between the Executive and Legislature is clearer than in Australia, Peter Strauss has suggested that government agencies comprise a fourth arm of government:
"an agency is neither Congress nor President nor Court, but an inferior part of government. Each agency is subject to control relationships with some or all of the three constitutionally named branches, and those relationships give an assurance-functionally similar to that provided by the separation-of-powers notion for the constitutionally named bodies-that they will not pass out of control. Powerful and potentially arbitrary as they may be, the Secretary of Agriculture and the Chairman of the SEC for this reason do not present the threat that led the framers to insist on a splitting of the authority of government at the very top. What we have, then, are three named repositories of authorizing power and control, and an infinity of institutions to which parts of the authority of each may be lent. The three must share the reins of control; means must be found of assuring that no one of them becomes dominant. But it is not terribly important to number or allocate the horses that pull the carriage of government."
The types of control exercised by the Executive, Legislature, and Judiciary on the fourth arm of government are very different in nature and extent. The Executive can set policy objectives, but once a statutory power has been granted to an agency, that agency has authority to exercise those statutory powers to their full extent and in accordance with its own discretion. In Re Drake, Brennan J said:
"There are powerful considerations in favour of a Minister adopting a guiding policy … Decision-making is facilitated by the guidance given by an adopted policy, and the integrity of decision-making in particular cases is the better assured if decisions can be tested against such a policy. By diminishing the importance of individual predilection, an adopted policy can diminish the inconsistencies which might otherwise appear in a series of decisions, and enhance the sense of satisfaction with the fairness and continuity of the administrative process.
"Of course, a policy must be consistent with the statute."
In earlier proceedings before the Full Federal Court, Bowen CJ and Deane J, said, in Drake's Case:
"It is not desirable to attempt to frame any general statement of the precise part which government policy should ordinarily play in the determinations of the Tribunal. That is a matter for the Tribunal itself to determine in the context of the particular case and in the light of the need for compromise, in the interests of good government, between, on the one hand, the desirability of consistency in the treatment of citizens under the law and, on the other hand, the ideal of justice in the individual case. … Such a decision, even though it involves the application of government policy to the relevant facts, is the outcome of the independent assessment by the Tribunal of all the circumstances of the particular matter. It is to be contrasted with the uncritical application of government policy to the facts of the particular matter which represents an abdication by the Tribunal of its functions."
Here we can see the role of the Judiciary in its oversight of the fourth arm of government in its decision-making. The Courts will not interfere in the application by the agency of the Executive's policy unless it appears to it that the agency has abdicated its statutory function (ie, the function given to it by the Parliament) to the Executive's will.
The story has been told of former President Harry Truman, on hearing the news that General Eisenhower had been elected President, said, "Ike will be very disappointed in office. He will say, 'Do this, do that' and, unlike in the Army, it won't happen." This is clearly, the Australian Executive's experience of the fourth arm of government. It is not directly under the Executive as some government departments might be. The Executive has very limited control over it. Once statutory powers are granted to independent agencies of government, the Courts will ensure that they are exercised independently of undue Executive influence.
The rumours that have circulated, and some of the issues made public by the Government, concerning matters under consideration by the Inter-Departmental Committee on Commonwealth Merits Review Tribunals are clear indications that the Executive has recognised it does not have control over the fourth arm of government, and is seeking ways to bring its tribunals under greater Executive influence. Some of the means that have been suggested by which this might be achieved are arguably contrary to separation of powers notions. Thus, it might (and should) be the case that the Judiciary would promote the continued existence of a fourth arm of government by adopting separation of powers values to invalidate certain changes that would tend to compromise the independence of tribunals.
While the fourth-arm-of-government notion has not gained formal acknowledgment by the Courts in the United States, in Mistretta v. United States, the Supreme Court indicated the way in which it keeps agencies independent of the branch of government in which they are said to reside:
"In adopting [a] flexible understanding of separation of powers, we simply have recognized Madison's teaching that the greatest security against tyranny-the accumulation of excessive authority in a single Branch-lies not in a hermetic division among the Branches, but in a carefully crafted system of checked and balanced power within each Branch."
If a similar approach were to be adopted by the High Court, its result would be effectively to recognise that there is a fourth arm of government-the independent tribunals and similar agencies of government-that needs the protection of a separation-of-powers doctrine to maintain its checking and balancing role within government. The fourth arm of government is under the rule of law because of its supervision for legal error and adherence to constitutional values by the Judiciary. It operates under rules made by the Legislature, and pays regard, but not slavish adherence, to Executive policy.
Adopting this fourth-arm-of-government approach there should be no doubt concerning the validity of the administrative law package of legislation and its institutions. Agencies within it can exercise all three types of powers, but are always subject to forms of supervision and oversight of the three branches of government named in the Constitution, which do not unduly compromise its independence.
© 1998 Bruce Topperwien