Sydney Law Review
|
|
Home
| Databases
| WorldLII
| Search
| Feedback
Sydney Law Review |
|
ELIZABETH HANDSLEY[*]
In recent years the High Court has had occasion more frequently than usual to comment on the separation of judicial power under the Commonwealth Constitution. In April 1995, Brandy v Human Rights and Equal Opportunity Commission[1] decided that the relationship between the Human Rights and Equal Opportunity Commission and the Federal Court breached that separation because it effectively allowed the Commission to exercise judicial power. In September 1995, Grollo v Palmer[2] upheld the granting to federal judges of the (executive) power to issue warrants for the installation of listening devices in the course of criminal investigation. In September 1996, two decisions came down: Kable v Director of Public Prosecutions (NSW)[3] extended the incompatibility doctrine to State judges whose courts are vested with federal judicial power, thus striking down NSW legislation which purported to give the Supreme Court power to order preventive detention, and Wilson v Minister for Aboriginal and Torres Strait Islander Affairs[4] disallowed the nomination of a federal judge to prepare a report for the Minister on the impact of a proposed land development on Aboriginal cultural heritage.
Taken together, these four cases seem to represent a considerable degree of jealousy on the part of the Court in the way in which it guards the separation between the judiciary on the one hand and the executive and legislature (the “political branches”) on the other. The Court has shown itself willing to cause governments considerable inconvenience (in the case of Brandy) and embarrassment (in the case of Kable) in order to uphold the separation. However, the line of cases on extra-judicial deployment of judicial officers requires some scrutiny, both because of inconsistencies between Grollo and the two 1996 cases and because the general theory underpinning those decisions is questionable on several grounds. Those grounds include the dubious nature of the assumptions underlying some of the factual assertions on which the Court has relied, and the Court’s apparent disregard for the traditional construction of judicial independence as a necessary bulwark against public opinion.
After briefly summarising each of the cases, this article will proceed to explain why the notion of public confidence is an unsatisfactory one to underpin the development of doctrine in this area.
In this section, I will first outline the position of state and federal judges under the Australian Constitution, and then provide a brief summary of the three cases to be analysed in this article.
The main focus of this article is the separation is judicial power at the federal level, but it makes an interesting contrast to consider the position of State judges. The State Constitutions are, subject to the entrenchment of certain key provisions,[5] ordinary pieces of legislation which can be amended through ordinary legislative processes. To a much greater extent than the Commonwealth Constitution, they are modelled on the Westminster system of government: not only are ministers responsible to the parliament, but parliament is in a real sense sovereign. The limits on parliament’s power, such as they are, refer to the manner and form of certain types of legislation, and not to the subject-matter of the law as such. Again subject to the entrenchment of certain provisions, there is no judicial review of State legislation under State Constitutions.[6]
Nor is the power of a State parliament limited by reference to the traditional division of powers into legislative, executive and judicial. Therefore, for example, the NSW parliament in 1986 validly enacted legislation ousting the jurisdiction of the Court of Appeal in an administrative law case concerning the deregistration of a union.[7] The Minister for Industrial Relations had ordered the cancellation of the registration of the Building Construction Employees and Builders’ Labourers Federation of NSW (“the BLF”) under the Industrial Arbitration (Special Provisions) Act 1984 (NSW). The BLF claimed that the Minister’s action was invalid because of failure to act in conformity with the rules of natural justice. The union was unsuccessful in the Administrative Law Division of the Supreme Court, and an appeal was pending to the Court of Appeal when the parliament enacted the Builders Labourers Federation (Special Provisions) Act 1986 (NSW). This Act declared the deregistration valid, notwithstanding anything that the Court of Appeal might have to say. The BLF then argued that this legislation was an invalid usurpation of the Court’s jurisdiction.
The Court of Appeal upheld the legislation, and in the course of doing so made it clear that there is no implication of a limitation on State legislative power by reference to the doctrine of the separation of judicial power. The Parliament can exercise any type of power it wishes, including judicial power. Kirby P (as he then was) was especially insistent on the supremacy of parliament and the absence of anything in the NSW Constitution to contradict it. There is no separate chapter entitled “The Judicature” or anything similar; nor was[8] there even any protection given to the position of State courts or judges. In both ways the State constitutional arrangements contrast markedly with those under the Commonwealth Constitution. It is not within the power of a State court to declare legislation invalid because of its content, nor because the legislation is not even legislation in the normal sense, but something more in the nature of an adjudication of a live issue between identified parties. On the other hand, either ground of invalidity is possible for Commonwealth legislation.
Contrasting markedly with State Constitutions, the Commonwealth Constitution does provide for the independence of the federal judiciary, and in two senses. First, independence is guaranteed (or at least facilitated) by the protection of some of the terms and conditions of judicial employment: section 72 protects the tenure and salaries of federal judges, who hold office until a constitutional or (in the case of courts other than the High Court) statutory retirement age, unless they are earlier removed “by the Governor-General in Council, on an address from both Houses of Parliament in the same session, praying for such removal on the ground of proved misbehaviour or incapacity”. Secondly, there is the Boilermakers’ doctrine, based on the text and structure of the Constitution, and particularly on the demands of federalism. Under a federal system it is necessary to have some division of legislative powers, and division of powers means the necessity to identify purported exercises of power which breach the division. That identification process can be undertaken effectively only by a body which is independent from those whose acts are to be evaluated. In the case of the federal governmental structure, that body is the judiciary. In recognition of these requirements, Boilermakers’ states two reciprocal propositions which serve to entrench the separation of judicial from other forms of power: (1) that federal courts and judges may not exercise non-judicial governmental power; and (2) that no-one but a federal judge may exercise the judicial power of the Commonwealth.[9]
The link between the tenure aspect of judicial independence and the second limb of the Boilermakers’ doctrine is fairly obvious: there would be little point in protecting the tenure of federal judges if their job could nevertheless be given to others who did not enjoy the same security.[10]
The link between the tenure aspect and the first limb of Boilermakers’ is not so obvious, but becomes fairly clear upon a consideration of the fundamentals of the political theory of separation of powers, upon which these arrangements are quite obviously based. The theory of separation of powers is essentially aimed at preventing the concentration of too much power in the hands of any one branch of government; it achieves this in two ways. First, it provides a clear limit on the amount of power which can be held by any one branch by insisting that there are three clearly distinguishable categories of governmental function, only one of which may be carried out by any one branch (or individual).[11] Thus, however much one area might grow, there will always be functions which fall into another category and thus no one body or individual will be able to carry out all governmental functions. The second way in which separation of powers prevents the concentration of governmental power is by allowing each of the branches to act as a check on one or both of the others. Thus, for example, the legislature can withhold money from the executive, and – crucially for the logic underlying the Boilermakers’ doctrine – the judiciary can review the actions of both the political branches for legality. This discussion makes it reasonably clear why the judiciary should not be able to exercise non-judicial power: it would create the potential for a huge concentration of power in the hands of the judiciary, and it would also compromise the ability of the judiciary to carry out its functions of checking exercises of the two other types of power, if it were the judiciary itself that were committing the acts to be reviewed.
Separation of powers theory as I have described it so far clearly depends quite heavily on the liberal assumption that small government is good government. Limiting governmental power appears as an unqualified good only from a certain ideological standpoint, so it is worth mentioning another ground on which one might insist that the judiciary should be limited to the exercise of judicial power. This ground focuses more on the fact that in a democracy one needs to be very careful about the amount of power which is given to people who have no electoral liabilities. Judges should be limited to the exercise of judicial power because they are not electorally accountable, and such a limitation is one way of ensuring that at least some power remains in the hands of the people through their elected representatives.
Viewed in this light, the separation of judicial power dovetails with traditional conceptions of judicial method (judges find the law, they don’t make it) and judicial role (if judges do make law, they should exercise the greatest restraint possible and leave the greatest possible space for the elected branches to operate). However – and this is a theme which will be developed later in this article – what is not so easily recognised is that democratic theory also requires that the government take responsibility for its decisions. It is just as objectionable for elected representatives to dodge that responsibility by leaving important issues to judicial decision as it is for the judiciary to arrogate those issues to itself for decision. Thus we need to bear in mind why the first limb of Boilermakers’ operates as a restriction on legislative and executive power as well as on judicial power: the political branches can no more confer their power on the judiciary than the judiciary can take such matters into their own hands, for there is a higher principle at stake than the simple limitation of governmental power. It is also worth mentioning that an independent judiciary is widely regarded as essential for the protection of civil liberties, minority rights and/or the rule of law. This is where the democratically-based imperatives of limiting judicial power come into tension with the counter-majoritarian imperatives of protecting individuals and minorities, along with the recognition that even a democraticallyelected government is bound by law. If the judiciary is charged with the task of ensuring that government is carried out according to law, perhaps it deserves to have the ultimate control – to be recognised as an even higher authority than the voice of the majority as expressed through elected representatives. It would be beyond the scope of this article to attempt to resolve this tension, but it will be suggested that the High Court in its recent decisions could have been more mindful of the tension.
The three cases to be discussed in this article centre on the first limb of Boilermakers’: the rule that judges may exercise only judicial power. Before proceeding to a discussion of the cases, it is worth stating in a general way the various exceptions to the rule. First – and most uncontroversially – the judiciary may exercise administrative functions incidental to the exercise of judicial power – for example, in relation to the running of the courts themselves. Second, there are certain functions which have by long tradition been carried out by judges, and these can remain in the hands of judges – for example, declarations of bankruptcy and divorces, which are best understood as legislative in that they change rather than merely declare the legal rights between individuals.[12] Third, and most important for present purposes, the government may single out a particular judge as a designated person (persona designata) to exercise a non-judicial function, provided that the exercise of that function is not incompatible with the judge’s exercise of judicial power.[13] This concept of incompatibility was developed in Grollo.
(i) Grollo v Palmer
This case involved a challenge to sections 6D and 6H and Divisions 3 and 4 of Part VI of the Telecommunications (Interception) Act 1979 (Cth). Together, those provisions set up a regime under which “eligible Judges” are empowered to grant warrants for the use of a telecommunications interception device to assist in the investigation of crime. An “eligible judge” is a judge of a court created by the federal Parliament who has consented to be nominated as such, and in respect of whom the Minister has made a declaration. The identity of eligible judges remains a secret, but we do know that “[a]s at May 1994, thirty of the thirty five judges of the Federal Court (excluding the Chief Justice) were eligible judges.”[14] Obviously it is in the nature of the power that it is exercised ex parte and in secret; moreover, eligible judges are under a duty not to reveal even a past involvement in the making of a decision under the Act.[15]
Brennan CJ and Deane, Dawson and Toohey JJ, in a joint judgment, held that this system was acceptable under the Constitution, in spite of the fact that the granting of warrants is an executive function. It is worth quoting at some length their Honours’ statement about the nature of “incompatibility”,
The incompatibility condition may arise in a number of different ways. Incompatibility might consist in so permanent and complete a commitment to the performance of non-judicial functions by a judge that the further performance of substantial judicial functions by that judge is not practicable. It might consist in the performance of non-judicial functions of such a nature that the capacity of the judge to perform his or her judicial functions with integrity is compromised or impaired. Or it might consist in the performance of non-judicial functions of such a nature that public confidence in the integrity of the judiciary as an institution or in the capacity of the individual judge to perform his or her judicial functions with integrity is diminished.[16]
In their Honours’ view, none of these conditions had been fulfilled in the instant case. Indeed, their Honours believed that it was desirable from the point of view of the individual to have judges, rather than members of the executive, making such decisions.[17] It would seem that in their Honours’ rather surprising view, judicial involvement would have a tendency to boost public confidence in the warrants, rather than bringing the judiciary into disrepute. Any difficulties arising out of the secretive nature of the process could be remedied by “the adoption of an appropriate practice. A judge who has issued a warrant can ensure that he or she does not sit on any case to which the warrant relates.”[18] Gummow J concurred in the result, but on narrower grounds.
In a strong dissent, McHugh J held the legislation unconstitutional on the grounds of both the nature of the power it purported to confer on federal judges and the manner in which the power was to be exercised. His Honour thought that in view of the fact that the power involved the judiciary in sanctioning invasions of privacy[19] and on the basis of very broad criteria,[21] its exercise by federal judges was incompatible with the exercise of the judicial power of the Commonwealth by those individuals. His Honour also drew attention to the potential for embarrassing conflicts of interest to arise when a judge who has granted a warrant in an investigation is later called upon to be involved in a prosecution arising out of the investigation,[22] and to the rising number of applications for such warrants.[23]
(ii) Wilson v Minister for Aboriginal and Torres Strait Islander Affairs
This case gave the High Court the opportunity to apply the principles laid down in Grollo. The Aboriginal and Torres Strait Islander Heritage Protection Act 1984 (Cth) authorised the Minister to nominate a person to prepare and submit to him a report in relation to the potential ramifications for Aboriginal culture of a proposed land development. Section 10(4) of the Act set out the matters to be dealt with in the report:
(a) the particular significance of the area to Aboriginals;
(b) the nature and extent of the threat of injury to, or desecration of, the area;
(c) the extent of the area that should be protected;
(d) the prohibitions and restrictions to be made with respect to the area;
(e) the effects the making of a declaration may have on the proprietary or pecuniary interests of persons other than the Aboriginal or Aboriginals [who have applied to the Minister for a declaration];
(f) the duration of any declaration;
(g) the extent to which the area is or may be protected by or under a law of a State or Territory, and the effectiveness of any remedies available under any such law;
(h) such other matters (if any) as are prescribed.
A reporter has no powers under the Act, but the Minister is required to receive and consider a report before making a declaration.[24] The development in question here was the building of a bridge from the mainland to Hindmarsh Island, or Kumarangk, in South Australia; it may be worth noting that the particular aspects of Aboriginal culture with which (it was argued) the building of the bridge would interfere were “secret women’s business”, and therefore it was important to avoid, as far as possible, the involvement of men in the establishment of relevant facts. It was also expected that parts of the report would remain confidential. The Minister nominated Justice Jane Mathews of the Federal Court, and a group of Aboriginal women applied for a declaration that her Honour’s nomination was “incompatible with her commission as a judge of the Federal Court of Australia and/or with the proper performance of her judicial functions as a judge of that Court.”[25]
It is worth pausing here to compare the facts of Wilson to those of Grollo. There, it will be recalled, 86% of the Federal Court (but exactly which judges we have no way of knowing) and presumably at least some of the judges of the other federal courts had the power to authorise an invasion of privacy under circumstances that involved those judges on an ongoing basis in the secret making of legally binding decisions and raised a strong possibility of a conflict of interests occurring further down the track, where the judge would be unable to declare the nature of the conflict. Here, a single named judge of the Federal Court was given a very limited task that involved no exercise of power other than that of persuading the Minister. Most of the product of that task would most likely be made public. Yet the majority of the High Court held the nomination of Justice Mathews unconstitutional. Brennan CJ and Dawson, Toohey, McHugh and Gummow JJ distinguished this case from what one might have thought was a comparable situation: that of a judge conducting a Royal Commission.[26] Such a judge “may have a close working connection with the Executive Government yet will be required to act judicially in finding facts and applying the law and will deliver a report according to the judge’s own conscience.”[27] Here, on the other hand, Justice Mathews’ position as a reporter gave her no real power,
A report is no more than a condition precedent to the exercise of the minister’s power to make a declaration. The function of a reporter under section 10 is not performed by way of an independent review of an exercise of the minister’s power. It is performed as an integral part of the process of the minister’s exercise of power. The performance of such a function by a judge places the judge firmly ... in a position equivalent to that of a ministerial adviser.[28]
Their Honours went on to note that the reporter’s obligation to observe the requirements of procedural fairness was “not significant”[29] and identified the task of a reporter as “essentially a political function” in so far as it involves the “determination” of “competing interests”.[30]
Gaudron J concurred in the result, on the basis of a three-pronged test,
In general terms, a function which is carried out in public, save to the extent that general considerations of justice otherwise require, which is and which is manifestly free of outside influence and which results in a report or other outcome which can be assessed according to its own terms, will not be one that gives the appearance of an unacceptable relationship between the judiciary and the other branches of government.[31]
Her Honour took the view that the function of a reporter need not be carried out in public and the report produced could not be judged according to its own terms.[32] As a result the function “gives the appearance that the judge is acting, not in any independent way, but as the servant or agent of the minister.”[33] This time, it was the turn of Kirby J to weigh in with a strong dissent. In his Honour’s view, the function of a reporter was no different from that of a Royal Commissioner, and “the use of judges, as Royal Commissioners, statutory officeholders or otherwise, to investigate sensitive and complex issues (some of them very controversial and partisan in their potential) has been a settled feature of Australian public life during the whole history of the Commonwealth.”[34] His Honour went on to state that such use of judges was “incontestably to the benefit of good government.”[35] His reasons for holding that the performance of this particular function was not incompatible with the judicial function were based on the real distinction between the facts of this case and those of Grollo: there was a “clear divorce” between her two roles and the duties of a reporter are much more similar to normal judicial duties than are those of an “eligible judge”.[36] Yet His Honour used a logic very similar to that adopted by the majority in Grollo,
the very reason for her appointment ... is clearly to utilise the particular qualities which are normal to a judge in Australia ... independence and disinterestedness in evaluating evidence and submissions; neutrality and detachment; and efficiency and skill in the provision of a conclusion. ... Far from the provision of a report damaging the judiciary, or Justice Mathews personally, I consider that the Australian community, in such an inquiry, would feel much more comfortable that the task of reporting was being performed by a judge, with nothing to gain or fear ....[37]
(iii) Kable v Director of Public Prosecutions (New South Wales)
This decision was delivered 6 days after that in Wilson and only 6 judges participated in it. The case constituted a challenge to the Community Protection Act 1994 (NSW) which purported to empower the Supreme Court of the state to order the detention of one Gregory Wayne Kable for up to 6 months “if it is satisfied, on reasonable grounds: (a) that [he] is more likely than not to commit a serious act of violence; and (b) that it is appropriate, for the protection of a particular person or persons or the community generally, that [he] be held in custody.”[38] Mr Kable had been convicted and imprisoned in 1990 for the manslaughter (by stabbing) of his wife. It was believed that he had made a practice while in prison of writing threatening letters to members of his wife’s family, and to his own children.[39] At the time the Act was passed, his release was imminent. It is therefore reasonable to conclude that the parliament, in passing the Act, was attempting to prevent Mr Kable from becoming a danger to those whom he had allegedly threatened. Criminal charges under federal law had been laid against Mr Kable for his alleged acts in sending the letters, but his incarceration after the expiration of his manslaughter sentence was conditioned only on the Act.[40]
The case raised two distinct issues: first, does the incompatibility doctrine extend to the judges of state courts? and secondly, do the facts of this case represent an incompatibility? The majority answered yes on both counts. The first question need not detain us here, other than to note that the majority’s response was clearly based on the same logic of public confidence which underpinned Grollo and Wilson. Any court exercising federal jurisdiction must have the confidence of the public, and that confidence is undermined when a court or its members are involved in activities which are incompatible with the judicial role and function. Here, the activity in question was the making of an order for preventive detention – that is, to sentence a person to a term of imprisonment based not on what the person had done, but on what the person might do in the future. Clearly this is very far removed from the usual judicial role in imprisoning people. At the same time, however, it is worth noting that proceedings under the Act were carried out in open court, and that the judge had reasonably clear criteria on the basis of which to decide. Furthermore, the judge did have an independent discretion.[41] For Toohey J, the mere fact that the Act “require[d] the Supreme Court to participate in the making of a preventive detention order where no breach of the criminal law is alleged and where there has been no determination of guilt”[42] was a sufficient ground on which to hold the Act incompatible with the judicial function. In so stating, his Honour underlined the importance of an independent judiciary for the protection of individual rights.
Gaudron J continued that theme, holding that the power the Act purported to confer on Supreme Court judges was “the antithesis of the judicial process, one of the central purposes of which is ... to protect ‘the individual from arbitrary punishment and the arbitrary abrogation of rights ...’. It is not a power that is properly characterised as a judicial function”.[43] Her Honour did, however, link these matters back to the question of public confidence which, in her Honour’s view, “cannot be maintained in the courts and their criminal processes if ... the courts are required to deprive persons of their liberty, not on the basis they have breached any law, but on the basis that ... they may do so.”[44]
McHugh J’s grounds for striking the Act down were similar to those of Gaudron J in that they focussed quite closely on the procedures the Act laid down which, in his Honour’s view, “compromise the institutional impartiality of the Supreme Court.”[45] This judgement was distinguished by its lengthy discussion explaining his Honour’s reasons for doubting that it was expected that any application for preventive detention under the Act would be refused; his Honour went on to emphasise that the validity or otherwise of the Act depended on the perceptions which might reasonably arise from the fact that the power was conferred on the Court, rather than on how any individual judge might or even did exercise that power,
At the time of its enactment, ordinary reasonable members of the public might reasonably have seen the Act as making the Supreme Court a party to and responsible for implementing the political decision of the executive government that the appellant should be imprisoned without the benefit of the ordinary processes of law. Any person who reached that conclusion could justifiably draw the inference that the Supreme Court was an instrument of executive government policy. That being so, public confidence in the impartial administration of the judicial functions of the Supreme Court must inevitably be impaired.[46]
The fourth judge making up the majority was Gummow J. His Honour took a similar line to McHugh J, emphasising what he saw as the “politically difficult choice” involved in making an order for preventive detention. Judicial involvement in such choices “saps the appearance of institutional impartiality and the maintenance of public confidence”.[47] Once again, the appearance which his Honour was concerned to avoid was that the Court had too close a relationship with the executive government. In other words, striking down this legislation recommended itself to his Honour because to do so would enhance public perceptions of judicial independence.
Brennan CJ and Dawson J both dissented. Neither judge accepted that the doctrine of incompatibility applied to State courts,[48] and therefore there was no need to address the question whether the doctrine applied in this case. Dawson J, however, did go into the question of parliamentary powers and fundamental rights, concluding that “no non-territorial restraints upon parliamentary supremacy arise from the nature of a power to make laws for peace, order (or welfare), and good government or from the notion that there are fundamental rights which must prevail against the will of the legislature.”[49] The Chief Justice expressed his general agreement with Dawson J on this point, adding a qualification[50] and a comment[51] which are of limited interest for present purposes. In any event, Dawson J expressed doubt as to whether the power which the Act conferred upon the Supreme Court was non-judicial in nature,
The issues raised are not predetermined by the legislation... . Clearly the Act does not amount to a bill of attainder or of pains and penalties. It does not involve a legislative judgment of criminal guilt and, in any event, does not have an ex post facto operation.[52]
One might conclude, therefore, that Dawson J did not see the potentially controversial nature of the decision to be made as a reason to label it non-judicial.
The reasoning of the High Court in the decisions described above is based on a misconception of the nature and purpose of judicial independence. That reasoning essentially holds that the judicial function is effectively fulfilled only if the public has confidence in the judiciary, including in the judiciary’s independence from the other branches of government. If public confidence had such importance, it would be difficult to understand why judges are not elected. Surely that would be the most effective way to ensure that they have the confidence of the public. The fact that we do not have elected judges should remind us of the real meaning of judicial independence, which is the freedom to apply the law according to established procedures and without fear or favour – even, or especially, where the result will cause serious displeasure in a substantial section of the public. The purpose of judicial independence is to ensure the rule of law, which means ensuring that judges are willing and able to stand firm against the tide of public opinion. When judges give in to public opinion, we have the rule “of men”, not the rule “of law”.[53] There may be something to be said for the proposition that in order for the rule of law to be effective, it is necessary that the public should be generally willing to accept the decisions of courts once they are made. Such willingness is more likely to be found where the public generally accepts the principles of the rule of law and generally believes that courts are operating in accordance with the law, rather than in accordance with their own whims. But before one too readily accepts these two elements of the public’s attitudes as relevant to the constitutional issue of extrajudicial deployment of judicial officers, one should bear in mind that where the courts habitually receive the explicit or implicit support of the other branches of government, the public’s beliefs about judicial role and method might be irrelevant to the public’s acceptance of judicial decisions. Where a court reaches an unpopular decision, it is not unusual for the government to send the message that it regrets the substance of the decision, but must accept the decision because it has been reached by a court. When a government grudgingly accedes to a judicial decision, it conveys the impression that the judiciary is functionally independent while at the same time supporting the work of the judiciary and making it clear that there would be no point for the average citizen in resisting judicial decisions. In such a situation, it may well be the backing of the government, and not the average person’s commitment to the rule of law, that makes all the difference for public acceptance of judicial actions.
This analysis reveals a fairly large gap in the High Court’s reasoning about the connection between extra-judicial deployment and the effectiveness of the judicial branch. The High Court sees a perception of separation between the judiciary and the rest of the government as crucial to public acceptance of judicial actions. According to the Court’s logic, extra-judicial deployment is problematic because it might affect this perception. It has just been suggested that to the contrary it is actually a perception of support by the government for the judiciary that makes people willing to accept judicial actions and therefore allows the judiciary to carry out its functions effectively. If this suggestion is accurate, extra-judicial deployment should make no difference to public acceptance of judicial actions. If anything it may be beneficial, for it could actually shore up perceptions of governmental confidence in at least some members of the judiciary.
Alternatively, we have seen on a few occasions recently attempts by politicians to distance themselves from the effect of a judicial decision by attacking the court which made it. This has been particularly noticeable in the case of Wik Peoples v Queensland.[54] In order for such attacks to serve the electoral fortunes of the politicians in question, the public must side with a politician, against a court. It is hard to imagine clearer evidence than this side-taking dynamic of a perception in the public mind of separation between the judiciary and the political branches, though the implications for the estimation in which the public holds the judiciary are presumably not those for which the High Court would hope. In such a scenario, the perception of a split between government and judiciary is likely and indeed calculated to bring the judiciary into disrepute. So much for the notion of separation of judicial power as a guarantee of public confidence in the judiciary. When politicians attack judicial decisions, they are taking advantage of the separation of powers to strengthen their own position at the expense of the courts. Separation of powers actually makes the courts vulnerable.
Of course, the kind of political ploy just described would not be nearly as effective if it were not for the notorious ignorance of the Australian public about our system of government. In 1995, George Williams reported findings of the 1994 report on citizenship by the Civics Expert Group,
only 18% of Australians have some understanding of what their Constitution contains, while only 40% can correctly name both Houses of the Federal Parliament. More than a quarter of those surveyed nominated the Supreme Court, rather than the High Court, as the ‘top court’ in Australia. ...These results should come as no surprise. A 1987 survey by the Australian Constitutional Commission found that 47% of Australians were unaware that Australia has a written Constitution.[55]
In view of the existence of figures of this kind, it is fanciful to suggest that the average Australian supports the rule of law – the average Australian has probably never heard of the rule of law, and if she has, she probably has little or no understanding of exactly what it means. Moreover, there is a distinct possibility that many law-abiding Australians would be happier with what Fairall has described “the rule of speculation, generalisation and fear.”[56] If we can take it as an observable fact that judicial decisions do not routinely lead to civil unrest in Australia, we need to find another explanation of the fact; surely the most plausible candidate is the fact that judicial decisions carry the imprimatur of the state, which carries with it the potential for state-sanctioned force in their execution. The average Australian realises there is little to be gained from resisting judicial power, once again not because it is separated from other forms of governmental power but for precisely the opposite reason: because it is supported by other forms of governmental power.
On this analysis, it looks positively ironic that the High Court should view public perceptions of the separateness of the judiciary as crucial to the success and effectiveness of the judiciary. However, what is more troubling is the Court’s reliance on a notion of public perception to inform decisions about an aspect of our governmental arrangements which is quite clearly designed to minimise the influence of public opinion.[57] Judicial independence and the rule of law are important because they tend to ensure that government is stable, fair, predictable and principled – all the things that it would not be if it were completely at the mercy of majoritarian whim. To base a constitutional theory about judicial independence on the maintenance of public confidence in the judiciary is to turn the doctrine on its head, or at least to disavow the theory upon which it has traditionally been based. That traditional theory is that public opinion is not to be trusted when it comes to implementing the rule of law, which is quite the opposite proposition from that upon which Grollo, Wilson and Kable are based. Those decisions come from a position where the effect on public opinion (or the High Court’s assumption about public opinion)[58] is the test of constitutionality for the conferral of non-judicial power on judicial officers.
An even stronger objection might be raised against the “public confidence” aspect of the Court’s reasoning if one adopts the point of view expressed by Orr, that the majority judges in Kable other than Gaudron J “are more concerned with the reputation of the courts than the liberty of subjects.”[59] Zdenkowski, too, complains of the missed opportunity in Kable to address the human rights implications of the legislation.[60] It would have been quite a different matter if the majority had reached the same conclusion on the basis that the legislation took the judiciary outside its proper role in defending human rights by involving it in an attack on those rights. On the other hand, however, it is clearly arguable that the role of the judiciary under the legislation was indeed one of protecting human rights, considering that one of the alternatives to judicial involvement was the peremptory incarceration of Mr Kable without due process of law. McHugh J confirmed that,
The Parliament of New South Wales has the constitutional power to pass legislation for the imprisonment of a particular individual. And that is so whether the machinery for the imprisonment be the legislation itself or the order of a minister, public servant or tribunal. Moreover there is no reason to doubt the authority of the State to make general laws for preventive detention ... .[61]
The result, as Zdenkowski explains, is that it is a “constitutionally safe political response” to confer similar “powers on agencies which cannot be repositories of Chapter III judicial power.”[62] As Allan points out: “It is something of a paradox that Kable’s liberty was upheld on the ground that his detention required the involvement of a court.”[63] The agencies to which Zdenkowski refers would not necessarily enjoy the same level of separation and independence from the political branches, and on this ground I have argued elsewhere that Mr Kable had more protection under the legislation than otherwise.[64] If this is true, it must be concluded that the majority in Kable derogated from the protection of an individual’s rights in the name of protecting the reputation of the judiciary. Once again, the separation doctrine seems to have been turned on its head: the doctrine is intended to protect individuals from being used as pawns in the political process, not to leave them exposed to that fate.
I have advanced elsewhere a final objection about the use of public confidence as an analytical tool in the area of separation of judicial power,
there has not been any indication that the incompatibility doctrine might also cover exercises of judicial power which might nevertheless tend to diminish public confidence in the judiciary. ...[I]t is not immediately clear why the law does not provide a comprehensive scheme for the maintenance of public confidence in the judiciary, in the name of the effective discharge of judicial power – that is, a scheme which covers matters such as individual emotional, financial, political or gender bias. The point is not an abstract one, since it is arguable that nothing in recent years has been so effective in bringing the judiciary into disrepute in the public mind as certain statements by State judges which give rise to a public perception of bias against women.[65]
Similarly, Sherman has stated,
the use of judges presiding over Royal Commissions does not seem to have led to any long-term decline in the esteem with which the community holds the judiciary. If there has been any decline it is probably due to more critical media, certain neanderthal comments by judges from time to time, and the growing concern with the inefficiency and cost of litigation.[66]
Failure to address confidence in the judiciary in a comprehensive way only lends further support to my contention that it is a red herring when it comes to separation of judicial power. We have seen that there is really no ground on which to conclude that the High Court’s assumptions about the existence, causes and significance of public confidence in the judiciary are correct and that the very concept probably has no place in such a counter-majoritarian doctrine. When we add to these considerations the fact that the bigger picture of community perceptions has not been addressed we have no choice but to conclude that the concept needs to be dropped completely from constitutional law.
There is tension in the recent High Court decisions on the question of whether independence is a salutary habit of mind which judges can (beneficially) lend to other governmental tasks, or whether it is merely a matter of perception and therefore not to be borrowed by the other branches of government in order to avoid political responsibility for their actions. The tension is summed up by the two following quotations,
the professional experience and cast of mind of a judge is a desirable guarantee that the appropriate balance will be kept between [the competing interests at stake]. It is an eligible judge’s function of deciding independently ... that separates the eligible judge from the executive function ... . It is the recognition of that independent role that preserves public confidence in the judiciary as an institution.[67]
Constitutional compatibility of function is not ... a question of the desirability of employing judicial skills in order to perform a service for the Executive Government. The Minister may consider it desirable to nominate a judge ... because he believes that the qualifications and status of the judge are needed to settle a controversy. There may well be situations ... in which there are vexed issues that can be clarified by an investigation and report made by a person who holds an independent office and who possesses the judicial skills of impartially assessing facts and applying the law. Desirability is not the point ... .[68]
The two quotations are paraphrased in such a way as to remove references to the subject matter of the two cases; the former quotation, from Grollo, has removed references to the function of issuing warrants in the course of criminal investigation, and the latter quotation, from Wilson, has removed references to the making of a report on the impact on Aboriginal heritage of a proposed land development. Once these references are removed, it is difficult to believe that the quotes come from judgments brought down within 12 months of each other, and that three High Court judges were a party to both of them.[69] Unless it be successfully argued that there is some relevant difference between the two subject matters (a point to which I return below) one must conclude that there is a grave inconsistency between the two judgments in that each one paints quite a different picture of the nature of judicial independence.
For the Grollo majority, independence is a durable, if not indelible, characteristic of Australian judges. When judges are presented with a task which is foreign to their usual role, they presumptively (or even automatically) approach that task in the same manner as that in which they would approach a judicial task. This manner has as one of its elements the exclusion of political considerations and the interests of the government generally. Thus we can be confident that any decision made by a judge was made in a judicial manner, even if it was made in secret by a judge whose name cannot ever be made public.
For the Wilson majority, judges are very easily swayed from the usual path of judicial decision-making. Even if the non-judicial task confers no real power on the judge, it can become “an integral part”[70] of an exercise of power by the political branch in question. The balancing of competing interests is an immutably political function, necessarily drawing the judge into its political nature, whereas the Grollo court treated it as a matter which counselled the involvement of a judge in order to exclude political considerations.
It is simply impossible to reconcile these two images. The problem is deepened by an apparently inconsistent approach to the issues of “good government” and pragmatism. In Grollo, the majority hinted strongly in the quote set out above that it saw a causal connection between the issue of desirability and that of permissibility – that is, the perceived potential salutary effect of judges’ involvement was a factor weighing in favour of holding that involvement permissible. If such a causal connection does exist, it is difficult to reconcile this with the proposition that the separation of judicial power is a matter of principle and of public perception. Clearly the expediency and/or potential salutary effect of judicial involvement in a controversial area does not necessarily mean that public confidence in the judiciary will be enhanced or even remain static. Quite conceivably, the salutary effect of judicial involvement depends to some extent on judges being able to “take the flak” for unpopular decisions. This might actually necessitate some lowering of public confidence in the judiciary.
In Wilson, however, once the Court disposed of any suggestion that Justice Mathews would be personally tainted by the experience of preparing her report, the analysis could have taken, but did not take, into account the good that Justice Mathews could do for the decision-making process under the Act. Indeed, it could be argued that the process in Wilson was better suited to judicial involvement than that in Grollo. The issue of the bridge at Kumarangk was not one where the interests of individuals and society were in competition, for it was in society’s interests, as well as those of the party who came out of the process in the strongest position, that the decision be based on the fullest and most accurate possible information. The real contest there was between two individuals or groups of individuals: those who supported in the building of the bridge and those who opposed it. If ever there was room for some pragmatism in the name of good government, it is here, not where the government seeks to invade a person’s privacy in the name of criminal investigation.
The confusion and contradiction revealed by the above discussion represent a disappointing state of affairs. They make it extremely difficult to predict the outcome of any particular case or to assess the constitutionality of any non-judicial deployment of a judicial office. The potential for wasteful litigation at the expense of the public purse is enormous. Sometimes such a situation is unavoidable, but it is submitted that this is not one of those situations. The matter can be clarified, and it can only be hoped that it will be at the next opportunity.
The best theory on which to base restrictions on non-judicial deployment of judicial officers is one which is grounded in democratic theory. Specifically, the electorally accountable branches of government should not be allowed to avoid political responsibility for their actions by using judges to, in effect, do their “dirty work”. The point is put very effectively and succinctly by the US Supreme Court in Mistretta v United States,
[The Judicial Branch’s] reputation [for impartiality and nonpartisanship] may not be borrowed by the political Branches to cloak their work in the neutral colors of judicial action.[71]
This passage has been repeatedly quoted with approval by members of the Australian High Court.[72] On the view the passage expresses, the independence of the judiciary – in the sense of “impartiality and nonpartisanship” – is something more ephemeral than the immutable characteristic of judges which the Grollo majority depicted. Independence is a reputation, it is a matter of perception, and so it is nothing to the point that better decisions might be reached if judges are involved in an area. Nor is it to the point that an individual judge might be able to find a way of making a decision on a politically sensitive question which leaves out of account political considerations. The doctrine of separation of judicial power is designed to ensure that political decisions are made by politically accountable decision-makers, not just to protect the reputation of the judiciary.
One might wonder how a Court which has recognised the cogency of the “neutral colors” metaphor in Mistretta could adopt the reasoning in Grollo. That reasoning effectively states that it is desirable for the political branches to tap into the impartiality of judges, thereby removing sensitive issues from the realm of public discussion, whereas the Mistretta reasoning quite clearly sees such tappingin as an undesirable and even impermissible “borrowing” of the judiciary to neutralise a political issue.
The “neutral colors” metaphor reminds us that democracy requires accountability after the fact as well as choice before the fact. Since at least 1992, it has been clear that the High Court is no stranger to that proposition, for it is exactly that logic which underlies many of the judgments in The Political Advertising Case[73] In the former case, the Court struck down legislation abolishing paid political advertising on the electronic media; in the latter case it fashioned a defence in defamation to avoid undue restriction of discussion of political figures and matters.[75] The reasoning underlying both decisions was that the Constitution impliedly requires a system of representative democracy and freedom of political communication, including the freedom to discuss the performance of political figures, is absolutely essential to democracy.[76]
One might have expected that the court of Political Advertising and Theophanous would be able to see the anti-democratic hazards associated with allowing political issues to be shunted off for decision by unaccountable judges. Indeed, if it can be accepted that measures which allow political decisions to be made by judges have a tendency to limit the occasions for, or the effectiveness of, political communication, it is not immediately obvious why they should not be struck down under the freedom of communication doctrine itself. No argument along these lines appears to have been advanced in any of the judicial independence cases, but even so, identification of the connection between democracy, accountability and limitations on judicial power should lead in the opposite direction to that taken by the majority in Grollo.
An even more telling point about the reasoning in Grollo is that it is somewhat surprising to see decisions of this kind made on the ground of a judicial conception of “good government” rather than on the basis of what is good for the judiciary’s reputation. The Grollo majority, of course, conflate the two issues, by holding that the judiciary’s good reputation can survive anything which does not amount to bad government. It is nothing new to see the High Court developing constitutional principle around expediency in government; for example, that is exactly what was happening in 1931 when the Court held that it was permissible for the legislature to delegate some of its function to the executive.[77] But the reasoning of the Grollo majority seems to go further than that, by arguing the involvement of the judiciary in the decision-making process is not just expedient, but positively beneficial, and in particular beneficial for the protection of individual rights and freedoms. The key connection here is that between the protection of judicial independence and the protection of individual rights and freedoms – a connection which has been pointed out time and time again by various judges in these cases. What is ironic here is that the majority’s decision actually takes an expansive view of the exception to separation of judicial power, in order to achieve something which is supposedly achieved by the separation of judicial power.
Thus we are faced with two seemingly irreconcilable propositions: separation of powers is about keeping government small, and separation of powers is about maximising the range of issues which are decided at the political level. The former proposition would tend to lead one to maximise judicial power and the range of issues which are resolved judicially, for that approach tends to favour the paying of attention to the interests of the individual rather than those of society as a whole. To the extent that government reflects the interests of society as a whole, such a focus would invariably have the effect of frustrating government programmes – or at least, it would rarely result in an emboldening of the government. The latter proposition would tend to lead one to limit judicial power, and would probably also counsel against constitutional entrenchment of rights and freedoms. The greater the role of the judiciary, the less is left to be decided by the people through their elected representatives.
Historically and traditionally speaking, the judiciary does have a countermajoritarian role. At the most fundamental level, the judiciary and its processes can ensure that people are not unfairly judged by those around them when they are suspected of wrongdoing. The courts represent a real alternative to lynch mobs, an effect which can only be thought of as salutary.[78] On a broader scale, the judiciary can and should act as a conduit for consideration of minority groups and interests in the development of the law. But there needs to be real consideration given to how the judicial role can be defined in such a way as to ensure that the judiciary does not leave elected governments hamstrung. As Justice French has said,
The courts in a sense walk a tightrope between the executive and the legislature, responsive to community sovereignty, endeavouring to be sensitive to community values, but not yielding to the tyranny of the majority.[79]
Nor should the judiciary be allowed to invoke its salutary counter-majoritarian function as a justification for its role in carrying out the “dirty work” of the government.
It would be useful for the High Court to openly acknowledge and examine the nature of the paradox with which it is dealing in this type of case. To further develop Justice French’s metaphor, this type of case requires the Court to steer a course between two constitutional and political truths: (1) it is good for the interests of society to be upheld, and this is best done by an electorally accountable institution; and (2) it is also good for individuals’ rights to be protected, and such protection is best provided by an institution free of electoral liabilities. The truth of these two propositions leaves the Court with no choice but to do something bad. The paradox is endemic to a system of government which relies on a sharing of power: a system which values balance cannot talk in absolutes, nor even in terms of a presumption that it is desirable to err on one side or the other. A constitutional lawyer cannot say, “When in doubt, enlarge the powers of the judiciary” or “It is always desirable to leave maximum power to the parliament”. To display either predilection is really to show one’s political colours, or at least to reflect a judgment based on what we have seen of the performance of both institutions (and, quite possibly, the relationship between that performance and our own interests). The intractability of the paradox becomes even more apparent when we realise that a similar comment can be made about just about any constitutional issue. For example, the struggle between centralism and States’ rights displays a similar pattern: textual and structural support for both, and therefore for neither, can be found in the Constitution. Federalism fundamentally requires a balancing of the two. If these issues were susceptible of resolution by a simple presumption of error on one side, we probably wouldn’t need to involve the High Court in them at all. There would be no need for judgment.
Open acknowledgment and examination of the paradox would force the members of the Court to explain and defend their underlying theories; it would also open those theories up to challenge or rational persuasion by counsel.[80] This would lead to a more sensible discourse both inside and outside the Court – more sensible in the sense that it would focus on the real issues, rather than on a red herring like public confidence. As we have seen, the Court’s assertions to date about the existence of public confidence and its relationship to the courts’ effectiveness are nothing more than guesswork. The same cannot be said of the need to balance the interests of society against those of the individual, and the respective roles of parliament and the judiciary in that process.
The most obvious place to start when one faces such a balancing process is the fundamental theory underlying the system within which one is working. This would mean returning to the counter-majoritarian role of the courts and to the need to ensure that parliaments and (especially) governments do not evade political responsibility for their acts. If the evasion of political responsibility were the test, we would of course have to have some way of determining which decisions are properly made by the non-judicial branches and which are properly left to the judiciary. It is submitted that this is exactly what the High Court has done, interstitially, in the cases under consideration in this article. My plea is for greater openness in that process so that there can be a more informed and rounded debate on the issues.
To illustrate the point, we can return to the contrast between Grollo and Wilson. In the former case, dozens of judges were permitted to remain involved in the process of granting warrants for wire-taps, and in the latter a single judge was not permitted to remain involved in the process of ascertaining certain matters of fact and formulating recommendations for the Minister about land development and Aboriginal cultural heritage. I have already argued that these outcomes are surprising when looked at together from the point of view of public confidence. My suggestion is that the real explanation for the two decisions is that the matter of wire-taps was seen as a non-political issue, and therefore one about which the government did not need to take responsibility; the matter of a bridge to Kumarangk and secret women’s business, on the other hand, was seen as a political issue and therefore one about which the government did need to take responsibility.[81] In Grollo, therefore, the government was not evading a responsibility. In Wilson, it was.
There are real pitfalls associated with any process of sorting out the “political” from the “non-political”, as the two examples above show. Until now I haven’t felt that my discussion necessitated reference to Mr Grollo’s financial position, but at this point it becomes impossible to continue to ignore the fact that he is a hugely successful and wealthy land developer, and practically a household name as such. I do not mean to suggest that this station entitles him to any less protection for his civil rights than anybody else, but it is interesting, to say the least, to note that Mr Grollo’s privacy was somewhat automatically regarded as worthy of judicial protection, even in the face of the criticisms raised by McHugh J: the secrecy, the potential for conflicts of interest, and so on. This stands in stark contrast to the protection of the cultural and possibly economic rights of a group of Aboriginal people whose financial position, it can only be assumed, would have been quite the opposite to that of Mr Grollo. The pitfalls illustrated by this contrast are those of treating the interests of marginalised groups as “political” and therefore in need of open debate throughout society, and of treating the interests of the rich and powerful as personal, private and susceptible of appropriate treatment in the narrow confines of a court. The tendency is to further marginalise the already marginalised, by diluting their voice, and to further empower the empowered, by allowing them to resolve their disputes in a narrow, controlled and predictable forum where money can easily buy the best representation. The irony, of course, is that Mr Grollo’s activities stand to affect a great number more Australians in a direct and obvious way than do those of any of the parties to the Kumarangk dispute. Moreover, the subject-matter of Grollo was a dispute between an individual and the State, whereas Wilson involved a dispute between individuals, or groups of individuals, with the State acting as an intermediary. There is a further irony in seeing the former characterised as in some sense non-political and the latter as the opposite.
My analysis so far has overlooked two important elements of the scenario: the need for secrecy in the wire-tap process and the fact that Mr Grollo was in fact arguing against the right of judges to be involved in that process. Wire-taps work only on people who don’t know they have them, and so the proceedings by which warrants for them are granted do not and cannot resemble “normal” court proceedings. A person in Mr Grollo’s position has no opportunity to argue against the granting of a warrant, and it might be objected that this constitutes a gap in my argument that the Court appears to have been very solicitous of his interests. The same goes for the second overlooked element: Mr Grollo himself clearly did not perceive the involvement of the judiciary in the granting of warrants as being in his interests. However, the response to these objections is that the Court does not need to accede to the applicant’s wishes (here, that there be no wire-taps at all) to attend to that person’s interests. There was never a serious possibility that the Court would require notice of wire-tap warrant proceedings, or simply rule wiretaps in general illegal, not least because neither of those courses was being suggested. The majority took the view that judicial involvement was a protection for Mr Grollo and people like him, and said as much.[82] The Court was therefore as solicitous of Mr Grollo’s interests as it could be under the circumstances.
A further possible objection to the above analysis is that not all those who are the subject of an application for a wire-tap warrant are wealthy and powerful. This can be taken to be true, though without seeing statistics I should be loathe to make any assumptions about the median income of the group. The decision “helped” all of them, so perhaps I am on shaky ground with an explanation of the case based on the financial position of the applicant. To this objection there are two responses. First, it cannot be assumed that the wealth and power of the applicant did not colour the proceedings to some extent. Second, and more importantly, the type of right in question – a civil right – is one which is typically of greater concern to the wealthier and more powerful elements in our society. It is only once our economic and cultural needs are met that we can really afford to start worrying about privacy. It is also, probably not coincidentally, the type of right which judges are more accustomed to protecting, for it is the type of right whose protection tends to lead to restrictions on government activity. The Australian judiciary are much more accustomed to playing a role in such a process than in a process involving the protection of economic, cultural or social rights, for the observance of these rights often involves a measure of positive activity by the government. For some reason, we have a strong tradition of judicial restraint of governmental activity and next to no tradition of imposition by the judiciary on the government of a requirement of positive action, particularly outside the procedural sphere. Understood against this traditional background, Grollo and Wilson start to make a lot more sense.
A focus on the balancing of societal and individual interests through the balancing of non-judicial and judicial power would hopefully avoid the inconsistency we can see in the cases. In Grollo, as we have just seen, the majority took the view that the legislative arrangements under challenge were desirable (and therefore permissible) because they tended to provide protection of privacy rights of individuals. In Wilson, on the other hand, the majority said it was not to the point that the involvement of a judge would tend to ensure that all interests were given a fair hearing (and therefore in a significant sense protected). In Kable, the majority took a course which appeared to be informed by a desire to protect civil liberties, but an incomplete analysis led to quite the opposite result. That is, under the BLF doctrine,[83] Mr Kable was left exposed to a peremptory parliamentary incarceration without the safeguards of judicial process or impartiality.[84] In each case, public confidence was used as the organising principle and distracted the decision-making process from the real issue, which is the balancing of the interests of society and the individual, through the powers of majoritarian and counter-majoritarian institutions. The fundamental question should not be, “Will this make the public lose confidence in the judiciary?” but “Does this give too much power to the judiciary or enable one of the political branches to avoid actions for which it should take responsibility?”
Concentration on that question would have led the Grollo court to an analysis something like this: It is not suggested that wire taps should be outlawed, so someone has to take care of the granting of warrants. It is good to have someone to grant the warrants who is not otherwise involved in the criminal investigation process or accountable for its outcomes, for a person who is so involved risks being too zealous. The granting of a particular warrant is not likely to be the subject of political controversy or to carry electoral liabilities. If anything, appearing “tough on crime” is an electoral asset,[85] and leaving these decisions to be made in a context of electoral accountability would be likely to lead to error in favour of the granting of warrants, to the detriment of civil liberties. The outcome of the case, on this analysis, would have been the same: it is permissible to involve judges in the process.
As the majority themselves noted in Wilson, the judge’s position as a reporter gave her no real power; far from seeing this as a reason to rule that position unconstitutional, the Court should have seen it as a reason to give a negative response to the first part of the question. The arrangements certainly did not give the judiciary too much power. That realisation should also lead to a negative reply to the second part of the question: the government retained all power to resolve the issues, and therefore all electoral liabilities associated with the resolution of the issues. There may be an extra willingness on the part of the public to accept governmental action which is based on facts found in a judicial inquiry, and rightly so, but this would not be an instance of the government escaping electoral flak for an otherwise unpopular action. There would still be flak, whatever the government’s ultimate decision about Kumarangk, for it was[86] a divisive issue – so divisive, in fact, that it might be impossible for the government to avoid electoral liabilities arising out of it by any means, fair or foul. The appointment of a federal judge for a limited role in the decision-making process, therefore, should be permitted.
In Kable, too, application of the test would have led the Court to the opposite conclusion. As to whether the Community Protection Act gave too much power to the judiciary, the answer must surely be no, for it was a very limited power, to be exercised in relation to only one person. Once again, it was probably the type of power that is better put in the hands of a judge than in the hands of one of the political branches. And, as in Grollo, the granting of the power to the judiciary was if anything a sacrifice by the government of the opportunity to score electoral points. Because of the pressure to be tough on crime, it could have been a feather in the government’s cap that it had taken action to incarcerate Mr Kable. As I have argued elsewhere, the passage of the Act could be seen as a rather magnanimous attempt to give Mr Kable a fighting chance of freedom.[87] Moreover, far from it being the case that, as some members of the Court suggested, it was not contemplated that a judge would not grant the order for preventive detention,[88] I would suggest that it could not be contemplated that the government would free him if the decision were left to it.[89] There can be little doubt that Mr Kable was better off with the Act in place than otherwise.[90] To address such doubt, however: if the government’s real inclination was to set Mr Kable free, the Act could be seen as an attempt by the government to avoid responsibility for such an act. However, to defy public opinion and set Mr Kable free would be a counter-majoritarian act done in the name of the rule of law and civil liberties. There is nothing wrong with passing such a responsibility on to the judiciary; at least, the responsibility is not out of keeping with the traditional role of judges.
This leads to the final issue to be discussed in this article: the relationship between judicial procedure[91] on the one hand and the separation of judicial power on the other. As discussed at the beginning of this article, judicial independence and judicial power need to be understood against the backdrop of the general imperatives of a democratic system of government. It is important, in such a system, that an electorally unaccountable institution should have only limited power. One way of limiting the power of the federal judiciary is by holding that its members can exercise no power which is not judicial. The definition of judicial power is no easy matter, but most lawyers would agree that judicial power is identified at least partly by the procedures through which it is exercised. The fundamental link between judicial power and judicial procedure is related to the limitation of judicial power: if judges are limited in the procedures they can apply, this should automatically limit the amount of power they are able to wield.[92] Moreover, as Wheeler has stated,
the Constitution allocates federal judicial power to Chapter III courts in order to promote the supremacy of law over arbitrary power but that purpose would be defeated were those courts to proceed in other than a fair and impartial manner.[93]
Some of the hallmarks of judicial procedure are: a disinterested decision-maker; openness[94] and even-handedness (for example, the provision of an opportunity to each party both to present his or her case and to rebut or challenge the case made by the other, and the presence of both parties (and/or their representatives) on any occasion when information is presented to the decision-maker in an attempt to persuade him or her);[95] reliance only on evidence that is relevant, reliable and not too prejudicial; a presumption in favour of the person who is being proceeded against;[96] and the provision of written reasons for the decision. To those considerations might be added a general expectation, straddling the procedural and the substantive, that the decision-maker will be bound by fairly strict criteria in the making of decisions.
There is a case for saying that the nature of the procedure to be adopted for a non-judicial task is relevant to the question whether that task is or is not “compatible” with the judge’s judicial station. There are some tasks which are not judicial, but which are still carried out in a judicial manner, in the sense that judicial procedure is applied. There are others where the procedure to be applied is distinctly non-judicial. It is submitted that the former should be more readily found compatible than the latter, because of the central role played by procedure in defining judicial power.[97] A non-judicial power to be exercised judicially is not so far a departure from judicial power as one to be carried out by some other kind of procedure.
Applying such a test, one would expect to see the decisions in Grollo and Wilson reversed. The activities under scrutiny in Grollo, it will be remembered, involved judges in secret, ex parte proceedings, with no written records kept, much less any written explanation of the decision given. The secrecy of the proceedings is such that the name of the judge who granted a warrant can never be known, and indeed the very fact that a particular judge is “eligible” to grant a warrant cannot be made public. One would hope that only reliable and relevant evidence would be considered, but of course we cannot know. Although eligible judges are disinterested in the relevant sense, and the criteria to be applied by them are fairly narrow, it is submitted that few acts carried out in the name of executive government resemble judicial procedure less.
In Wilson, on the other hand, Justice Mathews had undertaken a procedure which looked a lot more like a judicial one. The majority insisted, wrongly in my opinion, on her Honour’s lack of power; that lack of power may have been sufficient to support the conclusion that the activity was a non-judicial one, but then, no one was arguing that the activity was in fact judicial. The issue was whether the non-judicial task was compatible with her Honour’s exercise of judicial power. It is very difficult to see how the lack of power can be relevant to that question – if anything, one might suppose that it would make the arrangements seem more innocuous. We should recall the underlying principles of separation of powers, and note that the doctrine seeks to prevent the accumulation of too much power by any individual or institution. If a reporter holds no power, not even executive power, it is difficult to see how the arrangement presents a problem from the point of view of separation of powers. Once again, of course, the issue was compatibility, but it does seem odd to rely on lack of power at this stage when it does not or should not count at the stage of determining whether the separation of powers has been breached in the first place.
The task to be carried out by Justice Mathews carried many of the hallmarks of judicial procedure: her Honour was disinterested; all parties were to be given a hearing, or at least the opportunity to make representations;[98] most of the proceedings would be open to the public and therefore provide opportunities for rebuttal and challenge, if not prior to the report then prior to the Minister’s decision;[99] the evidence to be weighed would have been reliable and relevant, or at least her Honour would have decided how much weight to give each piece of evidence based on its relevance and reliability; and her Honour’s recommendations would have been supported by written reasons.[100] It is worth emphasising once again that the majority in Wilson were at pains to make it clear that they did not suspect Mathews J herself of non-judicial behaviour. The main consideration militating against the conclusion that the procedure was judicial is that part of the proceedings and the report were to be secret. However, it might be noted that it is not terribly unusual for part of court proceedings to be held in camera, if there is a good reason. It is difficult to imagine a better reason than the secrecy of the women’s business in Aboriginal culture for departing from the usual openness of any procedure.
In Kable, the majority’s judgments themselves insisted on the subject-matter of the decision to be made, rather than the procedure by which it was to be made, in support of the conclusion that the power was non-judicial.[101] For example, Gaudron J said,
The proceedings which the Act contemplates ... do not in any way partake of the nature of legal proceedings. They do not involve the resolution of a dispute between contesting parties as to their respective legal rights and obligations. And as already indicated, the applicant is not to be put on trial for any offence against the criminal law. Instead, the proceedings are directed to the making of a guess – perhaps an educated guess, but a guess nonetheless – whether, on the balance of probabilities, the appellant will commit an offence ... .[102]
Her Honour went on to say,
The power purportedly conferred by s5(1) of the Act requires the making of an order, if the conditions specified in s5(1) are satisfied, depriving an individual of his liberty, not because he has breached any law, whether civil or criminal, but because an opinion is formed ... that he ‘is more likely than not’ to breach a law by committing a serious act of violence as defined in s4 of the Act. That is the antithesis of the judicial process, one of the central purposes of which is ... to protect ‘the individual from arbitrary punishment and the arbitrary abrogation of rights by ensuring that punishment is not inflicted and rights are not interfered with other than in consequence of the fair and impartial application of the relevant law to facts which have been properly ascertained.’ It is not a power that is properly characterised as a judicial function ... .[103]
None of the matters addressed by her Honour relates to the matters listed above as elements of judicial procedure. They relate more to the general expectation that judicial power is directed in a retrospective way to determining the legal character and consequences of acts already committed,[104] and to the purpose or goal of judicial proceedings.[105] It may be freely conceded, on the basis of these and similar observations, that the power was not judicial in nature, but the question is whether the procedure was judicial. In other words, how was the Court to come to a conclusion as to whether “the conditions specified in section 5(1) [were] satisfied”?
In some respects the procedure was clearly judicial. There was a disinterested decision-maker, an open and orderly gathering of information and clear criteria on the basis on which to reach a decision. Written reasons were certainly provided.[106] There is, however, some doubt as to whether there was any effective opportunity to rebut or challenge the evidence that was to be relied upon. As Gaudron J pointed out, section 17(3) provided for the introduction of material which would have been inadmissible under the rules of evidence;[107] presumably some of the material referred to would have been otherwise regarded as hearsay in that it consisted of reports prepared otherwise than under oath and without (necessarily) subjecting their authors to cross-examination.[108] This is admittedly a potentially serious problem from the point of view of designating the procedure judicial, but without more it is difficult to reach a conclusion. It is not known whether any such material was in fact relied on; nor does the High Court appear to have considered the possibility of severing section 17(3) and/or reading the Act down to incorporate an implication that a more strictly judicial procedure will be adhered to. In fact, this is the one thing we know for sure: the Court did not consider the judicial or otherwise nature of the procedure under the Act in considering whether the Act breached the separation of powers doctrine. Whatever the outcome of such consideration, it would have been a preferable route to that which recommended itself to the Court, as it would have entailed reliance on matters which go to the heart of the doctrine rather than unsupported assertions and projections about public opinion, which really have nothing to do with the doctrine.
Some people might take the view that there should simply be a blanket prohibition against the exercise of non-judicial power by the judiciary. The reason why there is no prohibition presently is that our very legal system itself does not lend itself to the development or enforcement of such rules. Decisions are made in response to real-life situations with an eye to justice and practicality, and there is necessarily an inherent flexibility. The President of the National Native Title Tribunal was no doubt correct when he recently said of the separation of powers,
There is a seductive simplicity about a triune metaphor of government in which Parliament makes laws, the executive implements them and the courts interpret them. The history of the doctrine, however, is one of organic evolution, rather than a pristine logical unfolding from a Trinitarian big bang.[109]
Knowing the nature of a common law system of legal development, one could hardly expect a “big bang,” or anything other than “organic evolution,” but there is no reason why there should not be a more “logical unfolding” within that evolution. Organic evolution is inevitable in the common law system, for it responds on a case-by-case basis to particular issues as they arise; this avowed strength of the system is also a weakness in that decision-makers don’t necessarily get the opportunity to have regard to the “big picture” as they solve individual problems. However, there is nothing to stop judges as they go through that process from having regard to the underlying objectives and logic of a doctrine. In this article I have argued that this has not happened with separation of judicial power under the Australian Constitution. I have described the organising principle of “public confidence” as a red herring, in that it has an inherent tendency to distract us from the real issues we should be pursuing. Public confidence has nothing to do with the capacity of judges to perform the counter-majoritarian role ascribed to them under the separation of powers. It may contribute to the rule of law by shoring up the willingness of the general population to abide by judicial decisions, but that role should not be exaggerated, considering the competing (or complementary) explanations for that willingness. Moreover, it is inherent in the system that the exercise of judicial power should involve actions which attract criticism or dissatisfaction in the general population. It has been perhaps even more disappointing to see the High Court relying on the principle in contexts where they have no evidence as to the effect of a particular arrangement on public perceptions of the judiciary. A further criticism of the case law in this area is that it appears to suffer from a fundamental confusion about the nature of public confidence in the judiciary: at times it appears as an immutable characteristic which can lend legitimacy to an otherwise suspect act, and at other times it appears as a fragile perception which can be destroyed even by arrangements which the observer does not necessarily understand.
If public confidence is an inappropriate organising principle by which to determine the constitutionality of the extra-judicial deployment of a judicial officer, what considerations might be appropriate? It would be pleasing to see the High Court develop some sort of theory to distinguish decisions which must be made, and for which responsibility must be taken, by the political branches from those which may be made in an electorally non-accountable forum. The beauty of such a theory is that it would give voice to a fundamental principle of democracy. One way of making the distinction may be to differentiate between “political” and “non-political” matters, though there may be certain pitfalls in that approach. Another principle which has been suggested in this article is that the procedure to be used in the exercise of non-judicial power should be relevant to the decision whether that exercise is permissible or not. The greater the departure from judicial procedure, the easier it should be to conclude that the exercise is not permissable. Such a test would keep the doctrine grounded in the definition of judicial power and the recognised reasons why that power is best exercised by people without electoral liabilities. It would introduce matters of degree and judgment, so there would be no easily predictable answer to any given problem, but it would be fanciful to suggest that Australian lawyers and judges are not already fully accustomed to such a scenario.
This article has not dealt at length or in any systematic way with the human rights implications of the rules and principles under discussion, but this may be an appropriate place to express the hope that an underlying concern with those implications has been apparent as implicit throughout my discussion. Others have already dealt in an admirable way with the connection between human rights protection and separation of judicial power,[110] and I believe there remains little to be said on the subject, for the time being. I do hope, however, that my discussion will be taken as a contribution to that general discourse and maybe even provide some useful pointers for ways that that connection can be made stronger.
AustLII:
Copyright Policy
|
Disclaimers
|
Privacy Policy
|
Feedback
URL: http://www.austlii.edu.au/au/journals/SydLawRw/1998/9.html