THE SEPARATION OF POWERS AND THE POLITICS OF KNOWLEDGE

The separation of powers is a formulation that falls within the panoply of institutional structures, which implement the essential values of constitutional democracy . In light of the doctrine’s centrality to constitutional arrangements, it is important to assess Geoffrey Marshall’s criticism of it. Rather than doubting the desirability of the policies underpinning the separation of powers, his argument goes towards the necessity to more clearly define and acknowledge these underlying policies lest the legitimacy of the doctrine and precedents it upholds be undermined. This essay seeks to support this argument by reference to the Australian federal experience.

Background

The notion that the dangers of arbitrary exercise of power would be highest if absolute power were vested in one entity, has enjoyed a distinguished history, having been developed in such seminal works as Aristotle’s Politics, Blackstone’s Commentaries, Locke’s Second Treatise of Civil Government and Montesquieu’s Spirit of Laws . It is assumed that this doctrine has been imported into the Australian Constitution, which has separate chapters devoted to Parliament (s1), the Crown (s61) and Chapter III courts (s71) ” Whether this conclusion was in fact intended by the framers of the Constitution is inconclusive, as it may have been no more than a neat arrangement without further import, however the parallels with the American Constitution are compelling .

A preliminary problem identified by Geoffrey Marshall is the ambiguity of the term “separation.” As a result, separation of powers has come to mean:
1. physical separation of the different arms of government ,
2. separation of the functions of government into the discrete notions of judicial, executive and legislative ,
3. the legal incompatibility of holding positions within more than one branch of government ,
4. the isolation, immunity and independence of the branches ,
5. a system of checks and balances between the branches , and
6. equality of branches such that they are not accountable to one another .

Evidently, aspects of the defining qualities of the doctrine are in direct conflict with one another which indicates that the doctrine may be prone to contradiction. While this is rarely acknowledged, those seeking to justify an argument based on separation of powers must often draw on some elements and ignore others.
Distinct functions

Legislation, adjudication and execution are concepts which blur at the seams and may not even adequately encompass all government powers . For instance, judicial functions and administrative adjudication have much in common which has created difficulties in defining what functions tribunals perform. The leading approach has been to classify judicial decisions as the sole which are “binding and authoritative,” but this does not fully obviate the similarities .

Even the more clearly separate functions of the legislature and judiciary have problematic border distinctions - the approach has been to recognise that some functions by their nature and historical development are established as “incontrovertibly and exclusively judicial in their character ”, such as “adjudgment and punishment of criminal guilt” and the “involuntary detention of a citizen by a State.”  Yet Dixon CJ held that separation of powers was not sufficient reason to prevent the legislature imprisoning a person, opting instead to favour United Kingdom usage . The conclusion to be drawn is that there is no clear justification for the delineation of the three functions of government which can lead to difficulties at their liminal zones .

Executive and legislative power

The separation between executive and legislative power is much more fluid and unrestrictive than is the separation of judicial power . As early as 1909, the High Court ruled that the delegatus non potest delegare principle did not apply in Australia . This position has consistently been confirmed and the separation of powers doctrine has ceded to notions of common sense, party solidarity, the maintenance of the institutional status quo, and the demands of responsible government . Australian courts acknowledge the legality of delegation where some criteria governing executive lawmaking are laid down by the legislature as opposed to an outright abdication of power .

Zines notes that it is unlikely for delegation to achieve this point of unconstitutional abdication of power due to the availability of Parliamentary and judicial review . This raises the argument that the application of the separation of powers doctrine with respect to executive and legislative power is not in fact negligible since it is regulated by the checks and balances aspect of separation of powers. Whether it is desirable to have a doctrine which is capable of justifying complete opposites is less certain.

Separation of judicial power

In contrast, the strict separation of judicial power has long been regarded in Australian courts as a vital constitutional safeguard . Pragmatism and government efficiency have been regarded as secondary to the principle that a non-Chapter III court cannot exercise judicial power . Hence bills of attainder and involuntary penal detention by the executive are denounced as an unconstitutional encroachment on judicial jurisdiction . Yet where sufficient conflicting “danger” is perceived, this principle may cease to be regarded as relevant . Policy balancing seems to be the cause, since the courts have a tendency “to be more alert to interference in the judicial process” where criminal proceedings affecting liberty are at issue .

It was held as a second principle in R v Kirby, ex parte Boilermakers’ Society of Australia (1956) 94 CLR 254 that Chapter III courts cannot exercise executive or legislative power . The “affirmative provisions stating the character and judicial powers of the federal judicature” were seen as exhaustive and did not permit any further functions.  Importantly, Chapter III courts were felt to have the responsibility of maintaining and enforcing the system of boundaries in the Constitutional structure, which strengthened the argument for the functional purity of such courts .

The minority judgment maintained the former position, which emphasised the need for “flexibility of constitutional arrangements ” – accordingly a Chapter III court could exercise non-judicial functions so long as they were not “inconsistent with the co-existence of judicial power. ” Indeed subsequent cases have largely followed this flexible approach, regarding Boilermakers as an unnecessary burden . Today, not only may a federal judge be appointed to the Administrative Appeals Tribunal , but non-judicial functions may be validly conferred on a federal judge in their personal capacity  so long as such a conferral is not incompatible with judicial functions . In contrast a State legislature could not validly transfer non-judicial power into a state court vested with Commonwealth judicial power so as not to infect it by diminishing public confidence in the integrity and impartiality of the court . It seems that whether a strict or flexible approach is adhered to is less a question of separation of powers than a function of a policy balancing act, in this case between the impartiality of judges and the competing constraint of practicality, resources and trained personnel .

The immunity of judicial personnel is another hallmark of the doctrine which sits alongside the separation of judicial power. Security of tenure is a manifestation of the doctrine of separation of powers yet there exist significant anomalies in its ability to assure immunity . The power under s72(ii) of the Constitution may be called on to terminate a Federal Court justice’s appointment for misconduct as was attempted with respect to Justice Murphy . Where the line is to be drawn and who is to determine whether immunity of the branches of government or other policies prevail remain vexed questions .

Judicial review

Judicial review is a function caught between opposing aspects of separation of powers – the need for checks and balances and the equality of the separate branches of power. This means that the separation of powers is a doctrine which can easily justify arguments for and against judicial review . Depending on which underlying policy prevails, judicial review can be seen as a dangerous encroachment on legislative and administrative functions or as a part of the judicial function itself . The question of who has a right to decide whether a law is beyond the limits of the constitution has often been justified by reference to the separation of powers but this is clearly an ambiguous authority . The tension between the arms of government is played out in a war of words – while the judiciary forays into merits review and creative canons of interpretation, the legislature and executive direct the judiciary to adopt a more deferential stance through the use of exhaustive privative clauses .

The recent constitutional rights jurisprudence has created similar dilemmas for the legitimacy of the self-proclaimed judicial role of protecting fundamental rights . Indeed a sort of circular reasoning has arisen where the courts seek to assert that judicial power in the separation of powers scheme accords the court the role of guarantor of civil rights , which in turn justifies a continuing separation of judicial power.

CONCLUSION

It is not the intention of this essay to suggest that the separation of powers is an obsolete or undesirable notion. On the contrary, the ideas behind the doctrine “remain as vital ingredients of Western political thought and practice today .” In the Australian experience, however, there is evidence in its application of the inconsistency, fuzziness and abstraction which Geoffrey Marshall perceived . Justice McHugh has argued that the tension created between the branches of government by the doctrine is not necessarily rational and inevitable but in fact undermines the legitimacy of government .

There is an inherent danger in the invocation of legal maxims as an irrefutable given, the apparent authority of which can obscure the inadequacies within . When legal ideals are revered, they become “tacitly closed to alternatives and appear binding through that default. ” The rhetoric of “separation of powers” becomes an “argument stopper…thus avoiding the substantive arguments that the ideal inevitably involves. ” Legal reasoning must be recognised as being innately political rather than scientific – the use of doctrine without a clear understanding of the doctrine’s components does not strip law of politics but merely makes for weaker reasoning . I respectfully propose that there is value in revisiting the doctrine so that some clarity can be achieved.

Bibliography
Allan, T. R. S. “The Constitutional Foundations of Judicial Review: Conceptual Condundrum or Interpretative Inquiry?” (2002) 61(1) Cambridge Law Journal 87
Bagaric, Mirko and McConvill, James, “The Australian Constitution: A Century of Irrelevance” (2002) 21(2) University of Tasmania Law Review 89
Burmester, Henry, “Commentary” in Stone, Adriene and Williams, George (eds), The High Court at the Crossroads: Essays in Constitutional Law (Leichhardt: Federation Press, 2000)
Duncanson, Ian, “Out of the Enlightenment’s Shadow: The Rule of Law in the Politics of Knowledge” (1994) 12(1) Law in Context 20
Evans, Harry, “Fitzpatrick and Browne: Imprisonment by a House of Parliament”, in Lee, Hoong Phun and Winterton, George (eds), Australian Constitutional Landmarks (Cambridge; Port Melbourne: Cambridge University Press, 2003)
Hutchinson, A. C. “The Rise and Ruse of Administrative Law and Scholarship”, (1988) in Allars, Margaret, Administrative Law: Cases and Commentary (Sydney: Butterworths, 1997).
Kirk, Linda, “Ch III and the Legislative Interference with Judicial Process: Abebe v Cth and Nicholas v The Queen”, in Stone, Adriene and Williams, George (eds), The High Court at the Crossroads: Essays in Constitutional Law (Leichhardt: Federation Press, 2000)
Lee, Hoong Phun and Winterton, George (eds), Australian Constitutional Landmarks (Cambridge; Port Melbourne: Cambridge University Press, 2003)
Lindell, Geoffrey, “The Murphy Affair in Retrospect”, in Lee, Hoong Phun and Winterton, George (eds), Australian Constitutional Landmarks (Cambridge; Port Melbourne: Cambridge University Press, 2003)
Marshall Geoffrey, Constitutional Theory (Oxford: Oxford University Press, 1971)
Mason, Sir Anthony, “A New Perspective on Separation of Powers” (1996) 82 Canberra Bulletin of Public Administration 1, in Winterton, George, Lee, Hoong Phun, Glass, Arthur, Thomson, James A., Australian Federal Constitutional Law: Commentary and Materials (Sydney: LBC, 1999)
McDonald, Leighton, “The Rule of Law” in Blackshield, Anthony, Coper, Michael and Williams, George (eds) The Oxford Companion to the High Court of Australia (South Melbourne: Oxford University Press, 2001) 610, 612
McHugh, Honourable Justice Michael H., “Tensions Between the Executive and the Judiciary” (2000) 6 The Judicial Review 111
Perry, M. A., “Chapter II and the Powers of Non-Judicial Tribunals: Breckler and Beyond”, in Stone, Adriene and Williams, George (eds), The High Court at the Crossroads: Essays in Constitutional Law (Leichhardt: Federation Press, 2000)
Stewart, Iain, “Men of Class: Aristotle, Montesquieu and Dicey on ‘Separation of Powers’ and ‘The Rule of Law’” (2004) 4 Macquarie Law Journal 187
Stone, Adriene and Williams, George (eds), The High Court at the Crossroads: Essays in Constitutional Law (Leichhardt: Federation Press, 2000)
Vile, Maurice, Constitutionalism and the Separation of Powers (1967), in Winterton, George, Lee, Hoong Phun, Glass, Arthur, Thomson, James A., Australian Federal Constitutional Law: Commentary and Materials (Sydney: LBC, 1999)
Wheeler, Fiona, “The Boilermakers Case”, in Lee, Hoong Phun and Winterton, George (eds), Australian Constitutional Landmarks (Cambridge; Port Melbourne: Cambridge University Press, 2003)
Wheeler, Fiona “The use of federal judges to discharge executive functions: the Justice Matthews Case” (1995) 82 Canberra Bulletin of Public Administration 10.
Winterton, George, “The Separation of Judicial Power as an Implied Bill of Rights” in Lindell, Geoffrey (ed), Future Directions in Australian Constitutional Law (Sydney: Federation Press in association with the Centre for International and Public Law and the Law Faculty, Australian National University, 1994)
Zines, Leslie, The High Court and the Constitution (4th ed., Sydney: Butterworths, 1997)