The Importance of the Judicial Separation of

Powers

Lachlan Kingsford

18/11/10

"Unlimited power is apt to corrupt the minds of those who possess it"

William Pitt  (British Prime Minister, 1783)

William Pitt's expression provides a basic expression of the need for a separation
of powers, and for the independence of the judiciary from the legislature and
executive. Since being rst recognised within the British parliamentary system
by de Montesquieu1 , elements of the separation of powers doctrine have found
themselves ingrained in the legal systems of most modern democracies. As well,
their principles have found a constant place in the public conciousness, and
as such have become like morals against which most modern governments are
judged.
Due to the inevitable overlap between the executive and legislative branches
of government in the westminister system, the judiciary is seperated administra-
tively. Whilst the partial incursions between the executive and legislature are
almost inevitably tolerated within limits, most countries with a codeed sepa-
ration of powers, or even a separation of powers implied by convention strictly
separate inuence of the judiciary by the legislative bodies, and the legislative
bodies by the judiciary2 .
1 C de Montesquieu, L'esprit des lois (The Spirit of the Laws) (1748).
2 Parliamentary Education Oce, FAQ (5 June 2010) 25.2 <http://www.peo.gov.au/faq/
faq_25.html>.

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 Australia has had a long history of ensuring Judicial Independence from the
legislative bodies. Very early in Australia's constitutional history, the court
made absolutely clear that the constitution supported a separation of powers,
when it decided that it was illegal for ocers of government to be given quasi-
judicial powers3 . This position has been repeatedly enforced by the court to the
eect of limiting acts by both the states and the commonwealth  for instance,
deeming the Conciliation and Arbitration Act 1904 4 to be unconstitutional and
hence invalid owing to the created body of the Commonwealth Court of Concil-
lation and Arbitration possessing both judicial and non-judicial powers5 . This
must be contrasted starkly with the courts willingness to allow limited breaches
between the executive and the legislature. Notably, Victorian Stevedoring and
General Contracting Co. v. Dignan 6 tested the extent of the separation of
powers doctrine in relation to the executive and legislature. It was found that
the legislature can allocate powers to the executive (such as the ability to make
new laws), restrict powers to the executive and overule powers to the execu-
tive7 . Therefore, it must logically be asked why the courts are willing to so blur
the line between the executive and legislature, and yet so sharply ensure that
judicial separation is maintained.
The answer this, we must look at the roles of each branch of government.
The commonly accepted modern view is that the legislature denes the laws, the
executive executes them, and the judiciary interprets them8 . However, whilst
the judiciary has been vigilant in striking down laws as unconstitutional when
they grant judicial power to the legislative branches of government, their power
perhaps has been left less more open and less checked then the leglative branches
of government. This potential for unchecked power has been severe enough to
3 The State of New South Wales v The Commonwealth (Wheat Case) (1915) 20 CLR 54,
84.
4 Conciliation and Arbitration Act 1904 (Cth).
5 R v Kirby; Ex parte Boilermakers' Society of Australia ("Boilermakers' case") [1956]
HCA 10.
6 Victorian Stevedoring and General Contracting Co. v. Dignan (1931) 46 CLT 73.
7 Graham Spindler, Separation of Powers: Doctrine and Practice (12 February 2008)
Parliament of New South Wales <http://www.parliament.nsw.gov.au/prod/parlment/
publications.nsf/0/E88B2C638DC23E51CA256EDE00795896>.
8 Ibid.

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operate as an argument to ensure that potentially broadly lettered legislation
should not be enacted in the fear that the judiciary will use them to make laws
on controversal topics  which should be properly made by the elected legislature
and executive as not to grant a political role and quasi-legislative powers to the
judiciary9 .
The rst (and arguably most important) reason for ensuring judicial inde-
pendence is its role inside the system of checks and balances that regulates the
government. This then regulates the power of both the judiciary and legislative
bodies ensuring that no one body has absolute power over the government, and
ensures that the rule of law continues to operate. A requirement of the rule of
law is that the government rules using laws, but remains bound by the laws10 .
Judicial independence means that the judiciary is free to hold the legislative
branches accountable, and to ensure that they are abiding by the laws when
they make the laws. Another oft-mentioned requirement of the rule of law is
that the law is open, clear and stable11 . Judicial independence helps ensure
each of these requirements, however it most positively ensures the stability of
the law. This is because it ensures that the legislative branches of government
only make laws that they legally can (as bound by the constitution), and that
they can not inuence the judiciary as to how these are interpreted. One the
more important elements of the rule of law is that the law must be applied fairly
to everybody, and not be arbitrary12. The separation of the judicial and law
making bodies ensures that those who make the laws are not those who enforce
them, meaning that the laws can not be made and applied on a case by case
9 Terrence Higgens CJ, 'Australia's First Bill of Rights  Testing Judicial Independence
and the Human Rights Imperative' (Speech delivered at the National Press Club, 3 March
2004) <http://www.courts.act.gov.au/supreme/content/pdfs/HigginsCJSpeech3March04.
pdf>, 3 citing Sir Gerard Brennan The Impact of a Bill of Rights on the Role of the Judiciary:
An Australian Perspective in Alston P, Promoting Human Rights Through Bill of Rights:
Comparative Perspectives (Oxford University Press) 458.
10 Elizabeth A. Martin and Jonathan Law (eds), J, Oxford Dictionary of Law (Oxford
University Press, 6th ed, 2006) Rule of Law 475.
11 Virginia Bell J, 'The Rule of Law and Access to Justice' (Speech Delivered at the CLC
NSW State Conference 2010) <Justice Bell. V., 'The Rule of Law and Access to Justice'
(Speech Delivered at the CLC NSW State Conference 2010) <http://www.clcnsw.org.au/
cb_pages/images/Justice%20Virginia%20Bell%20Speech.pdf> citing Raz, The Rule of Law
Law Quarterly Review 195.
and its Virtue (1977) 93
12 Martin and Law (eds), above n 10.

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basis. This is primarily achieved through the tool of judicial review. It must
be noted that there are other elements of the rule of law, but these will not be
discussed13 .
The separation of powers doctrine, whilst well established as a doctrine,
continues to be controversal in its form. Some countries apply the separation of
powers doctrine in dierent manners and interpret it dierently. For instance:
De Montesque14 , dened the separation of powers in relation to the parliamentry
system of Britain at the time and in doing so presented the quite foreign (to a
modern australian) notion that the executive was not the ministry (as generally
dened in Australia15 ) but was instead the reigning monarch16 . This is in
stark comparison to the American separation of powers, where the executive
is generally regarded as the head of state (though not necessarily dened as
a single person) and is almost entirely separated from the legislature17 . Some
countries apply the doctrine (specically in regards to judicial separation) in
varying amounts from absolutely, to very weakly  if even in a manner to what
we would barely recognise as a separation of powers (China18 ).
Modern Chinese law is historically a bastardised mix of ancient, traditional
Chinese law and civil law with substantive legal elements taken from the old
soviet union. The country operates as a unitarian state with no actual separa-
tion of powers. Instead, the country operates in a similar manner to the ancient
absolute monarchies of old; choosing to delegate powers for administrative pur-
poses when necessary rather then ensuring that powers are seperated19 . If the
governmental leadership of Australia is somewhat like the leadership structure
of a company where each party has clearly denable separate roles that ensure
13 See Bell, above n 11 for more examples.
14 above n 1.
15 Australian Constitution s 62.
16 Though, this is at least partially true, as s 61 of the Australian Constitution provides
that executive power is vested in the Queen.
17 J H Killian et al (eds), The Constitution of the United States of America  Analysis and
Interpretation (U.S. Government Printing Oce, 2004), 434.
18 Donald C. Clarke, The Chinese Legal System (4 July 2005) George Washington Univer-
sity Law School <http://docs.law.gwu.edu/facweb/dclarke/public/ChineseLegalSystem.
html>.
19 Ibid.

4
that none of the roles have absolute power of the business, the governmental
leader of China is more similar to the leadership structure of the military where
subservient ocers exist for practical reasons as opposed to a desire to ensure
that a small group of people do not weild all the power. The executive and
judiciary are both clearly subservient to the legislature (The National People's
Congress) with (legally at the very least) absolute power 20 .

As a result of this, the courts have been speculated to 'forgo the enforcement
of rights when other pressing values seem to be at stake, to the point where it
might be more accurate to say that the system recognizes interests more then
rights.'21 The lack of separation means that the courts fundamentally work to
the benet of the state, and to further the state. Even traditionally, the judi-
cial systems in China have operated primarily to deal with state concerns as
opposed to the interests of individual parties. Unfortunately, the situation is
made worse by poor judicial education, frequently conicting documents detail-
ing law issued by the varying legal institutions and a court system that actively
discourages litigation22 . The practical result of a nation with almost no actual
legal separation of powers is demonstrated in China to be a country ruled by
men, and not by the law.
The separation of powers doctrine, and the judicial independence from the
law making bodies is so vital to maintain the rule of law in Australia, and most
importantly the certainties and liberties that go with it. The Chinese exam-
ple demonstrates exactly why ensuring this strict independence is so incredibly
vital. However, even within the codied and conventional constitutional legal
framework for ensuring judicial independence in Australia, there are strong pos-
sibilities that severe breaches in the separation of powers could occur now or in
the future.
These fears have recently been aired with the discussions of, and in some
20 Ibid; Clarke does note that there are 'always constraints on capacity, whether economic,
political, or social.
21 Ibid (emphasis in original).
22 Ibid.

5
states implementations of a bill of rights23 . These fears have also then been
aired in the discussions of the potential for a constitutional ammendment of a
bill of rights. To some level, the bills of rights passed by the states are of severely
less importance in relation to independence of the judiciary then a bill of right
appended to the Australian constitution, owing particularly to the fact that it
can be altered or removed at the mere insistance of the legislating bodies within
the states. As well, any fears discussed will depend (at the least in magnitude)
on the nature of the bill of rights  specically, as to whether it is a list of rights
that the parliament must abide by when legislating (for instance, the ACT bill
of rights24 ) or a bill of rights that immediately binds the actions of the entire
populous (for instance, the American Bill of Rights25 ).
The strongest fear is that a Bill of Rights would essentially open up the
possibility of judiciary gaining 'law making' power like that of the executive or
legislature as opposed to their place in interpreting, adjudicating and applying
the law26 . In an American style Bill of Rights, the judiciary would be able to
create law on controversal topics that whilst falling under the bill of rights have
not yet been fully legislated27 . It would open up incredibly broad tracts of law
to be available for unelected judical law making. Essentially, a codied Bill of
Rights opens up the possibility (but, perhaps not the probability) of extreme
judicial activism.
Judicial activism presents another (and more current) possibility for the
separation of powers to be breached. Due to the nature of common law, it is
impossible to completely regulate the manner as to which the judiciary makes
its decisions, and hence there is always a possibility for judicial activists to
exist within the legal system. Some elements or types of judicial activism are
inherently necessary for the system of checks and balances, which are a great deal
23 Terrence Higgens CJ, 'Australia's First Bill of Rights  Testing Judicial Independence and
the Human Rights Imperative' (Speech delivered at the National Press Club, 3 March 2004)
<http://www.courts.act.gov.au/supreme/content/pdfs/HigginsCJSpeech3March04.pdf>,
24 Human Rights Bill 2003 (ACT).
25 United States Constitution amends IX.
26 Higgins, above n 23, 3.
27 Ibid.

6
of the reason as to why judicial functions must be kept separate. Specically, the
power of judicial review violates some denitions of judicial activism, however
it is necessary to ensuring that the system of checks and balances, and the rule
of law continue to operate28 . However, the question of judicial activism has
arisen in the past in relation to the decision making process of some judges29 .
The Australian body of law regularly and intentionally relies on the discretion
of judges in applying the law. In addition, the way the law statute itself is
interpreted relies heavily on the discretionary powers of judges30 . Keenan Kmiec
denes ve extreme (and unethical) ways that judical activism could apply:
Kmiec denes them as:

• The invalidation of the arguably constitutional actions of other branches

[of government]

• Failure to adhere to precedent

• Judicial 'legislation'

• Departures from accepted interpretive methodology

• Result oriented judging31 .

Each of these would in some way depart from the rightful role of the judiciary,
and in the cases of all of them (potentially excluding the last) would be indicators
that the judiciary has gone beyond using its discretion and interpretive powers,
and is instead activising. This activism may very well form the creation of
laws as opposed to their mere interpretation, and violate that separation of
powers doctrine, and by extension the rule of law. Fortunately, the checks and
balances built into the Australian constitution ensure that even if a judge in the
High Court becomes a staunch activist, they can be held accountable by the
28 R S French CJ, 'Judicial Activism  The Boundaries of the Judicial Role' (Speech delivered
at the Lawasia Conference, Ho Chi Minh City, 10 November 2009) citing Galligan B, 'Judicial
Activism in Australia' in Holland KM (ed), Judicial Activism in Comparative Perspective
(Macmillan, 1991) at 71.
29 Ibid, 5.
30 Ibid.
31 French, above n 28 citing Kmiec K, 'The Origin and Current Meanings of "Judicial Ac-
tivism"' (2004) 92 California Law Review 1441.

7
legislature and executive. If the executive acts ultra vires then the legislature
can appeal to the high court or call a vote of no-condence.
As demonstrated in the Boilermakers Case 32 , breaches to judicial separation
can also occur in the other direction. Whilst this could be a direct result of the
executive or legislature intentionally interfering with the actions of the court
in ways which (at least ethically) parallel Kmiecs interference detailed earlier,
interference with the existing courts tends to be rare in Australia. Indeed, if
severe unethical interference with a decision of the judiciary was achieved, the
result would more likely be political suicide and may cause a result somewhat
akin to the events of the constitutional crisis. However, the executive has on oc-
casion assumed quasi-judicial power (for instance in the Boilermakers Case 33 ).
A more relevant example where quasi-judicial power may be seen to have been
assumed are within the alternate dispute resolution tribunals such as VCAT or
the immigration tribunals34 . The status of the tribunals in regards to the sepa-
ration of powers has been disputed35 , owing to their status as a function of the
executive. As Boilermakers demonstrated, a lack of being called a 'court' does
not necessarily exclude an oce from the judiciary36 . These tribunals swim
around the separation of powers doctrine in two ways. The Commonwealth
tribunals are limited to the review of (generally administrative) law and not
to performing actual judiciary functions37 . However, the state tribunals settle
disputes and wield actual judicial power. This is only allowed because the states
are not under the strict separation of powers doctrine that the Commonwealth
must operate under38 . This is seemingly a breach of the separation of powers,
but the cooperation of the state governments and their respective tribunals has
32 R v Kirby; Ex parte Boilermakers' Society of Australia ("Boilermakers' case") [1956]
HCA 10.
33 Ibid.
34 Specically, the Migration Review Tribunal, The Refugee Review Tribunal and Adminis-
trative Appeals Tribunal.
35 G Downes J, 'Overview of Tribunals Scene Australia' (Speech delivered to
the International Tribunal, Canberra, 5 April 2006) <http://www.aat.gov.au/
SpeechesPapersAndResearch/speeches/downes/OverviewTribunalsSceneApril2006.htm> .
36 R v Kirby; Ex parte Boilermakers' Society of Australia ("Boilermakers' case") [1956]
HCA 10.
37 Downes, above n 35.
38 Ibid.

8
helped ensure that at least in the meanwhile, lack of judicial separation has had
minimum eect.
Whilst it may be helpful at times to consider the extent of the powers of our
government and its branches, and to consider the eects when the powers over-
step their constitutional and common law boundaries, Australia fundamentally
operates under a rule of law and not of men. The separation of powers is an
essential part of ensuring that the rule of law is maintained through the system
of checks and balances it creates. Judicial independence specically ensures that
the judiciary is free to govern equally and without bias, and is perhaps the most
important part of the separation of powers. The essential role of the separation
of powers in ensuring the rule of law in Australia makes it perhaps the single
most important doctrine by which this country is run.

Bibliography
Articles, Books, Reports

• de Montesquieu, C, L'esprit des lois (The Spirit of the Laws) (1748)

• Cremean, D J, The Inter-State Commission: Rethinking the Wheat Case

(2009) 83 ALJ 765

• Martin, E A and Law, J, Oxford Dictionary of Law (Oxford University

Press, 6th ed, 2006)

• Killian, J H et al (eds), The Constitution of the United States of America

 Analysis and Interpretation (U.S. Government Printing Oce, 2004)

Cases

• The State of New South Wales v The Commonwealth (Wheat Case) (1915)
20 CLR 54, 84

9
 • R v Kirby; Ex parte Boilermakers' Society of Australia ("Boilermakers'
case") [1956] HCA 10

• Victorian Stevedoring and General Contracting Co. v. Dignan (1931) 46

CLT 73

Legislation

• Conciliation and Arbitration Act 1904 (Cth)

• Australian Constitution

• United States Constitution

Other

• Chief Justice Higgens, T , 'Australia's First Bill of Rights  Testing Ju-

dicial Independence and the Human Rights Imperative' (Speech delivered
at the National Press Club, 3 March 2004) <http://www.courts.act.
gov.au/supreme/content/pdfs/HigginsCJSpeech3March04.pdf>

• Parliamentary Education Oce, FAQ (9 June 2010) 25.2 <http://www.

peo.gov.au/faq/faq_25.html>

• Spindler, G, Separation of Powers: Doctrine and Practice (12 February

2008) Parliament of New South Wales <http://www.parliament.nsw.

gov.au/prod/parlment/publications.nsf/0/E88B2C638DC23E51CA256EDE00795896>

• Clarke, Donald C, The Chinese Legal System (4 July 2005) George Wash-
ington University Law School <http://docs.law.gwu.edu/facweb/dclarke/
public/ChineseLegalSystem.html>

• Justice Bell, V, 'The Rule of Law and Access to Justice' (Speech Delivered
at the CLC NSW State Conference 2010) <http://www.clcnsw.org.au/
cb_pages/images/Justice%20Virginia%20Bell%20Speech.pdf>

10
• Chief Justice French, R S, 'Judicial Activism  The Boundaries of the Judi-
cial Role' (Speech delivered at the Lawasia Conference, Ho Chi Minh City,
10 November 2009) <http://www.hcourt.gov.au/speeches/frenchcj
/frenchcj10Nov09.pdf>

• Justice Garry Downes, 'Overview of Tribunals Scene Australia' (Speech

delivered to the International Tribunal, Canberra, 5 April 2006) <http:
//www.aat.gov.au/SpeechesPapersAndResearch/speeches/downes
/OverviewTribunalsSceneApril2006.htm>

11