Separation of Powers and the Judicial Branch

Cheryl Saunders

A society in which the observance of the law is not assured, nor the separation of
powers defined, has no constitution at all.
1
1. Introduction
Much of the debate in this country over the changes to the office of Lord
Chancellor and the creation of a Supree Court was cast in ters of separation of
powers! although ore cautiously on the part of the governent, at least in those
ters.
"
#he purpose of this paper is to e$plore the eaning of the doctrine of separation
of powers in its application to the %udiciary in countries in the &ritish or 'perhaps
ore suitably( the Coonwealth constitutional tradition, with particular reference to
)uestions of a broadly constitutional *ind that any such countries are facing. +t is
thus intended to be coparative, rather than directed specifically to the circustances
of the ,nited -ingdo, although the topic clearly is propted by developents, here.
#he coparison ight have been less productive before these changes were set in
train. #he institutional arrangeents for the protection of %udicial independence and
the rule of law in ost Coonwealth countries are broadly siilar to the
arrangeents that were broadly assued to be in place in the ,nited -ingdo, or at
least in .ngland and /ales. 0elevantly, in ost Coonwealth countries they are
%ustified by a doctrine of separation of powers! often as a constitutional re)uireent.
+n fact, however, the arrangeents in this country were )uite different in significant
respects. #his does not ean that they were worse. +t helps to e$plain, however, why
1
2oodhart 3rofessor of Legal Science "4456"447, ,niversity of Cabridge! 3rofessor of Law,
,niversity of Melbourne
1
8eclaration of the 0ights of Man and of the Citi9en, Article 17,
http:;;www.hrcr.org;docs;frenchdec.htl
"
See for e$aple, <udges= Council, Response to the Consultation Papers on Constitutional Reform
http:;;www.dca.gov.u*;%udicial;pdfs;%cresp.pdf : >ne of the reasons given by the governent for the
abolition of the >ffice of Lord Chancellor and the creation of a Supree Court is to increase the
separation of powers, at ?@@A. See also Andrew Le Sueur, <udicial 3ower in the Changing
Constitution, in <effrey <owell and 8awn >liver 'eds( The Changing Constitution 5
th
ed, "44B, @"@,
@@7
6 1 6
the doctrine of separation of powers has had here what #revor Allan rightly describes
as unsypathetic treatent.
@
+t also e$plains why the changes that are in train align
the position of the %udiciary in this country ore closely with countries elsewhere,
reoving soe obstacles to effective coparison and bringing the ,nited -ingdo
under what + will argue is a distinctive separation of powers ubrella.
2. Separation of powers in the British constitutional tradition
#he concept of separation of powers, as used in western constitutionalis,
B

assues that there are three categories of public power, legislative, e$ecutive and
%udicial, that are vested in three distinct groups of institutions, siilarly described.
5
#here are notorious difficulties with the concept, which once led 2eoffrey
Marshall to disiss it as infected with so uch iprecision and inconsistency that it
ay be counted little ore than a %ubled portanteau of arguents for policies
which ought to be supported or re%ected on other grounds.
7
Cor present purposes the
difficulties ay be categorised in the following way.
Cirst, every constitutional syste that purports to be based on a separation of
powers in fact provides, deliberately, for a syste of chec*s and balances under
which each institution ipinges upon another and in turn is ipinged upon. #here is
an open )uestion whether this )ualifies a syste of separation of powers
D
or
copletes it by giving each departent the necessary constitutional eansEto resist
@
#revor Allan, Law, Liberty and Justice, Clarendon 3ress, >$ford, 1FF@, 54! see also .ric &arendt
Separation of 3owers and Constitutional 2overnent ?1FF5A Public Law 5FF, to uch the sae
effect.
B
Cor a general introduction see <ohn Morrow, History of Western Political Thought 3algrave, "
nd
ed
"445, chapter F
5
#he definition here is deliberately cast in general ters, for reasons that will becoe obvious. Soe,
relatively standard definitions are ore prescriptive, however. &arendt cites as the classic
forulationEthree distinct functions of governentEwhich should be discharged by three separate
agenciesEand that no individual should be a eber of ore than one of the.
7
2eoffrey Marshall, Constitutional Theory Clarendon 3ress, >$ford, 1FD1, 1"B
D
+t ight )ualify a separation of powers institutionally 'one institution affects the operations of
another( or functionally 'in doing so, the institution e$ercises a part of the power of the other(: see, on
this distinction, Marshall, op.cit., 14". Marshall also notes that the notion of chec*s and balances coes
fro the theories of i$ed governent.
6 " 6
encroachent by the others.
G
#he answer ust depend in part on the actual chec*s
and balances in each case.
Secondly, there is soe disagreeent about what is separated pursuant to the
doctrine. #he two principal options are:
A separation of institutions! which ight, for e$aple, preclude overlapping
ebership
A separation of functions, epowering each institution to e$ercise the
function for which it is designed 'and perhaps, by e$tension, no other
function(
+n reality, however, these are not utually e$clusive options. Any syste of
separation of powers ust involve at least a easure of both.
And this in turn leads to the third area of uncertainty: the degree of separation
that such a doctrine re)uires. Coplete separation is ipossible. #here ust be a
point, however, at which partial separation is not worthy of the nae. /here, then,
should the lines be drawnH And how should the lines that are drawn be enforcedH
+t is possible to approach the answers to these )uestions through a consideration of
the purposes of a separation of powers. 0eceived wisdo has it that there are two
such purposes:
>ne is to prevent the abuse of public power through the concentration of
power. #hus <aes Madison in Federalist !: #he accuulation of all
powers, legislative, e$ecutive and %udiciary, in the sae hands, whether of
one, a few, or any, and whether hereditary, self6appointed or elective, ay
%ustly be pronounced the very definition of tyranny.
#he other is to enhance the efficiency of governent. +n its original for this
rationale was used to %ustify the institution of a strong presidency in the ,nited
States,
F
but it ight be turned to ore general purposes. +t ight be argued,
for e$aple, that separation of powers in this respect recognises that each of
G
<aes Madison, Federalist Paper "# in Ale$ander Iailton, <aes Madison and <ohn <ay, The
Federalist, .veryan Library, London, "75, "77
F
2eoffrey 0 Stone, Louis M. Seidan, Cass 0. Sunstein, Mar* J. #ushnet, Constitutional Law "
nd
ed
1FF1, @7@
6 @ 6
the branches is peculiarly well e)uipped to e$ercise the particular functions
assigned to it. Alternatively, it ight be argued that the collective effect of a
particular configuration of separated powers is a for of governent with
attributes best suited to the needs of a particular state.
&oth of the two purposes traditionally assigned to a separation of powers were
originally forulated by reference to the separation of legislative and e$ecutive
power! indeed this was also the genesis of the theory in the writings of Montes)uieu
and Loc*e. &oth purposes could be adapted to the separation of the %udicial branch.
As a generalisation, however, the doctrine of separation of powers has not been well
developed in relation to the %udiciary, at least in a way that is useful here. #he
e$planation lies in the distinctive constitutional arrangeents of both the two states
that have been the flagships of the separation of powers doctrine.
>ne is the ,nited States, in which the relationship between the legislature and
the e$ecutive as part of a balanced three6way separation of powers doinates
the discourse and influences the doctrine!
14
incidentally suggesting caution in
borrowing conceptions of deference fro that source.
#he other is Crance, where the separation of powers places ephasis on the
%udiciary! but with a view to precluding it fro ipinging upon the other
branches of governent.
11

&y contrast, the constitutional arrangeents in the ,nited -ingdo are )uite
different, in *ey respects. ,nli*e the ,nited States, this country has a
parliaentary syste with at best a wea* institutional separation of the
legislative and e$ecutive branches. ,nli*e Crance, %udicial review of e$ecutive
action, at the hands of the general courts, is a core feature of the constitutional
syste.
Cor reasons that are easy to understand, oreover, the doctrine of the separation of
powers has had only uted and partial recognition in the ,nited -ingdo.
1"
#here is
14
See for e$aple, Stone et al, op.cit, where even the e$aination of the significance of the doctrine
for the rule of law is underta*en by reference to the relationship between the legislature and the
e$ecutive.
11
Marshall, op.cit. FF. Marshall also )uotes Ians -elsen: the %udicial review of legislation is an
obvious encroachent upon the principle of separation of powers, at FF, fro Ians -elsen, $eneral
Theory of Law and %tate trans. A. /edberg '1F71(, "7F
1"
3aul Craig has said that it is regarded as a central construct in our constitutional structure! in a
conte$t, however, that is confined to the scope of %udicial power vis6K6vis the other branches: 3aul
6 B 6
of course a strong tradition of %udicial independence, given teeth through a range of
guarantees enshrined in statute and long6standing constitutional convention.
1@
#here is
a long tradition of liited governent, involving the division of power in various
ways, through the i$ed and balanced constitutions.
1B
+t is even possible to argue
for a significant degree of functional separation of powers in reality, if not in outward
for.
15
And the great /illia &lac*stone hiself adapted Montes)uieu and Loc*e to
argue for a distinct and separate e$istence of the %udicial power in a peculiar body of
enEseparated fro both the legislative and the e$ecutive power.
17
&ut the interi$ture of institutions is such that it is alost ipossible to
describe it as a separation of powers, without becoing entangled in endless,
unproductive debate. #his is ost obviously the case with the relationship between
the legislature and the e$ecutive, faously claied by /alter &agehot as a fusion of
powers. Cor present purposes, however, the triple hats of the Lord Chancellor and the
dual functions of the Iouse of Lords are a further obstacle to describing the syste as
characterised by a separation of powers. +n an additional twist, it is even possible to
argue that these i$ed institutions have been *ey echaniss for protecting %udicial
independence. Clearly, such a case can be ade for the ultiple functions of the Lord
Chancellor. +n a speech in this university %ust over " years ago Lord /oolf observed
that it had not been appreciated sufficiently that the Lord Chancellor played a pivotal
role in co6ordinating the three ars of governent nor that he was able to act as a
lightening conductor at ties of high tension between the e$ecutive and the
%udiciary.
1D
+n tie it ay also coe to be appreciated that a siilar case could have
been ade for the Appellate Coittee of the Iouse of Lords.
Countries with a syste of governent ost siilar to that of the ,- are, not
surprisingly, found in the Coonwealth. Many of the have parliaentary systes.
#hese include Australia, Canada, +ndia and South Africa, which + use as occasional
Craig, Cundaental 3rinciples of Adinistrative Law, in 8avid Celdan 'ed( Public Law >,3
"44B, 7GF, D47
1@
Cor detailed description and analysis see A./. &radley, #he Constitutional 3osition of the
<udiciary in 8avid Celdan 'ed( Public Law >,3 "44B, @@@, @@F6@7@
1B
Marshall, op.cit., 141.
15
&arendt, 715. #revor Allan has argued also for a de facto institutional separation of powers that relies
on the fir conventions governingE?theA various roles of public officers: #revor Allan, op.cit 5"
17
/illia &lac*stone, The &nglish Constitution D
th
ed, 1FGB, 14, )uoted in Allan, op.cit., 54
1D
Lord /oolf, #he 0ule of Law and a Change in the Constitution, the S)uire Centenary Lecture, @
March "44B, http:;;www.dca.gov.u*;%udicial;speeches;lc%4@4@4B.ht
6 5 6
e$aples in the ne$t part. All four have a %udiciary that reviews e$ecutive action and,
for that atter, legislation as well. All place great store on %udicial independence. +n
all of the, however, the %udiciary is institutionally and to a large e$tent functionally
separate fro the other branches of governent. And in all of the, with the possible,
but by no eans certain e$ception of Canada, the relationship of the %udiciary to the
other branches is conceived in ters of the separation of powers. #raditional
echaniss for protecting %udicial independence, of which guarantees of tenure are
an e$aple, can be understood as features of the separation of %udicial power. #he
points of necessary interface with the other branches in relation to, for e$aple, the
appointent and reoval of %udges and the funding of courts can be analysed within a
fraewor* of chec*s and balances. #his is, however, a latter6day rationalisation. +n
historical reality, ost of the arrangeents in these countries for the constitution of
the %udiciary were odelled as far as possible on coparable arrangeents here.
#he liits of the possible were reached with the position of Lord Chancellor
and the institution of the Appellate Coittee of the Iouse of Lords,
1G
which could
not be replicated elsewhere. #he transforation of the first and the pending
replaceent of the second by a Supree Court thus bring &ritain closer to
Coonwealth e$perience in this regard.
1F
#here is considerable interest throughout
the Coonwealth in what has been considered necessary here to provide protection
for %udicial independence, once those two institutions are gone. Changes that attract
particular attention include the creation of a position of 3resident of the courts of
.ngland and /ales, with representational and anageent responsibilities!
"4
a
<udicial Appointents Coission! statutory protection of the principle of %udicial
independence! and the use of a concordat to record aspects of the arrangeent less
susceptible to codification, including the structures for adinistrative support.
"1

1G
Cor the role played by the Lord Chancellor in relation to %udicial appointents see Sir #hoas Legg,
<udges for the Lew Century ?"441A Public Law 7". See in particular the following: it is iportant to
understand the real nature of the present syste. >therwise, it ight stand in the catalogue as siply
appointent by the e$ecutive. Appointent is indeed on the advice and personal decision of a
governent inister. &ut he is a very unusual *ind of inisterE.: at 75.
1F
Cor a detailed e$position of the process by which the changes were ade see Lord /indlesha,
#he Constitutional 0efor Act "445 3arts 1 and ", ?"445A Public Law G47! ?"447A Public Law @5
"4
Constitutional 0efor Act "445 section D
"1
#he Concordat, <anuary "44B, http:;;www.dca.gov.u*;consult;lcoffice;%udiciary.ht
6 7 6
Many of the probles that have been anticipated in the course of negotiations
over the Constitutional 0efor Act also currently are probles elsewhere. +n
conse)uence, there will also be Coonwealth interest in the effectiveness of the
solutions that have been put in place. And the converse, presuably, also is true.
Assuing that this is so, the ne$t part canvasses soe issues that have arisen in
broadly coparable countries in connection with the separation of %udicial power,
a*ing due allowance for relevant differences including, critically in this conte$t, the
ipact of entrenched constitutions elsewhere. #hose e$periences in turn assist to
throw light on the effects and utility of the doctrine of separation of powers in its
application to the %udicial branch.

3. Commonwealth experience with the separation of judicial power
Cor convenience, + divide the issues to which + propose to draw attention into two
groups: those connected with the institutional separation of powers 'including the
ipact of chec*s and balances( and those connected with a functional separation of
powers.
a. Institutional arrangements
At one level, the iplications of an institutional separation of powers for the
constitution of the %udiciary are straightforward. <udges ay not be ebers of other
branches! ebers of other branches cannot be appointed to courts. Soe significant
)uestions nevertheless arise at the argin. >ne is whether %udges can perfor other
public functions that are not %udicial in character in their personal capacities. At the
Coonwealth level in Australia, where the separation of powers is constitutionally
protected, this )uestion has generated a substantial body of case law, distinguishing
perissible fro non6perissible functions by reference to a standard of
incopatibility and the purpose of protecting the perception of the independence of
the courts.
""
3ractice varies in the Australian states, where the doctrine receives
significantly less constitutional protection. +n at least one state, Jictoria, such
appointents will not be accepted by the %udiciary at all.
""
Wilson ' (inister for )boriginal and Torres %trait *slander )ffairs '1FF7( 1GF CL0 1
6 D 6
#he principal area of concern under the broad rubric of institutional separation
on which + wish to focus, however, arises fro the points of institutional interface
between the %udiciary and the other branches, representing chec*s on the %udicial
branch. #hese are, of course, nuerous, but + will focus on three in particular: the
appointent of %udges! %udicial reuneration! and the adinistration of courts. All
have iplications for %udicial independence. All necessarily and properly involve one
or other or both of the other branches, with their soewhat different preoccupations
and accountability echaniss. #o balance these potentially opposing interests, all
rely on inter6branch respect and self6restraint. Iope once was placed in the office of
Attorney62eneral to this end! but political realis has now prevailed. +n all three
areas there is considerable oveent, with no clear resolution in sight.
i. Appointment of judges
+n all four countries, appointent of %udges once lay with the e$ecutive
branch. .$ercised with wisdo, such a echanis is capable of producing good
results, )uestions about transparency and inclusiveness aside. ,sed as a source of
patronage, however or, worse, as a eans by which the overall predilections of a
court ight be influenced by the e$ecutive branch, it detracts fro the )uality and
independence of the courts.
Muestions about transparency and inclusiveness can no longer so readily be
put aside, however, and the gains fro patronage too often prove tepting. #he
difficulty has been to find new arrangeents that preserve at least soe of the
strengths of the old, while overcoing their wea*nesses. #here is a range of variables,
all controversial in different degrees: the institution's( through which appointent is
ade! the degree of openness in the processes of application and selection! and the
e$tent of lay involveent in the appointent process.
#he result for the oent is a sorgasbord of different procedures, on which
the Constitutional 0efor Act ay now also be placed.
"@
At one end is Australia, still
clinging to e$ecutive appointent to the %udiciary, after soe inconclusive in)uiries
"@
Cor other coon law processes, see Ministry of <ustice, Appointing <udges: A <udicial
Appointents Coission for Lew NealandH April "44B,
http:;;www.%ustice.govt.n9;pubs;reports;"44B;%udicial6appointent;inde$.htl $
6 G 6
into options for change.
"B
At the other is +ndia, where since 1FF@, as M3 <ain
describes it, in a asterly understateent: the effective power to appoint Supree
Court %udges has Epassed fro the .$ecutive to the <udiciary itself which has greatly
strengthened %udicial independence.
"5
Canada was until recently closer to Australia!
following changes announced on "4 Cebruary this year, however, noinees to the
Supree Court ust appear before a 'televised( parliaentary coittee hearing,
although the final decision reains with the 3rie Minister, in the for of advice to
the 2overnor62eneral.
"7
+n South Africa, the reconsideration de novo of the
constitutional settleent following the fall of apartheid provided an opportunity for
e$perientation with new echaniss for %udicial appointent. #he result is the
<udicial Services Coission, with a i$ed ebership of "@, which is consulted in
relation to soe *ey appointents and identifies a short list for others, fro which the
3resident ust choose.
"D
#he hearings of the <SC are public! a feature that can be seen
as iportant in principle in post6apartheid South Africa, whether or not is has the
effect of allowing South Africans to get to *now the appointees that Canadian
3rie Minister recently claied for his new appointent procedure.
"G
ii. Judicial terms and conditions
+t is a coonplace for coon law countries to adopt the Act of Settleent
guarantee against reduction of %udicial salary while in office. +t is e)ually a
coonplace that protection of this *ind is sybolically significant but practically
insufficient. +t ta*es no account of inflation or the relativities between the salaries of
"B
Attorney62eneral 3hilip 0uddoc* Selection and Appointent of <udges, " May "445,
http:;;www.ag.gov.au;agd;///;Minister0uddoc*Ioe.nsf;3age;SpeechesO"445OSpeechesO"OMayO
"445O6OSpeechO6OSelectionOandOAppointentOofO<udges . #he Attorney noted, inter alia, his
opposition to the notion of a <udicial Appointents Coission along ,nited -ingdo lines: Eit
represents an abrogation of the .$ecutive=s responsibilityEyou %ust ove the debate fro who is
being appointed to the bench to who is being appointed to the appointents coission.
"5
M3 <ain, *ndian Constitutional Law 5
th
ed "44@, /edhwa and Copany Lagpur, @@". See in
particular %C )d'ocates on Record )ssociation ' +nion of *ndia A+0 1FFB SC "7G
"7
C&C Lews, The %upreme Court http:;;www.cbc.ca;news;bac*ground;supreecourt; . #he first
Supree Court <ustice to be appointed following the process is Mr <ustice Marshall 0othstein, on 1
March "447. <ustice 0othstein appeared before an Ad Ioc Coittee, with a non6parliaentary
chair, pending finalisation of the procedures. Announcing the appointent, the 3rie Minister
observed that it ar*s an historic change in how we appoint %udges in this country. +t brought
unprecedented openness and accountability to the process. #he hearings allowed Canadians to get to
*now <ustice 0othstein through their ebers of 3arliaent in a way that was not previously
possible. http:;;p.gc.ca;eng;edia.aspHcategoryP1QidP14B1
"D
Constitution of South Africa, section 1DG and ipleenting legislation
"G
+bid
6 F 6
%udges and other public office6holders, uch less of the levels of reuneration
available at the bar. +t is abiguous in its protection of other ters and conditions of
%udicial office including pension or superannuation entitleents.
+t ay be that a ore effective guarantee can be fleshed out by reference to
broader constitutional principles, such as Canadian Charter section 11'd(, protecting a
right to a hearing by an independent and ipartial tribunal. +n this event, however,
the fleshing out is done by the %udges theselves, creating an unseely ipression of
self6interest that it is li*ely to be difficult to dispel. &ut the alternative is that the
ade)uacy of %udicial reuneration lies alost entirely in the discretion of the
governent and parliaent of the day. A failiar chec*s and balances proble thus
arises. 2ranted, these are iportant )uestions for both the independence and )uality
of the courts. &ut the provision of resources, the control of public spending and the
anageent of the econoy lie, properly, with the other branches re)uiring, once
again, a ediating principle that recognises the responsibility of the elected branches,
while eeting the appropriate needs of the courts.
>ne solution, widely adopted, is the establishent of an independent body, to
advise on %udicial salaries and other ters and conditions. Such a solution distances
deliberation on %udicial salaries fro the political process, but cannot reove it
altogether. A body of which + a a eber illustrates the point. #he <udicial
0euneration #ribunal for the Australian state of Jictoria for had authority, for a
period that proved startlingly short, to a*e deterinations about %udicial salary
increases that would coe into effect through a special appropriation unless
disallowed by either Iouse. #he first such recoended increase survived
disallowance R %ust: the second failed to do so. An event of this *ind arguably is
ore daaging to the standing of the %udiciary than leaving the decision to the noral
political process in the first place.
"F
+n the course of the furore that followed, the
authority of the <0# over salary levels was reoved, in favour of a syste that tied
"F
+n her stateent in response to the governent=s decision, the Chief <ustice of Jictoria described it
as a direct interference with the independence of the courts:
http:;;www.supreecourt.vic.gov.au;CA"57F4"444C.15B;Loo*up;Media0eleases;Sfile;Media6
StatetC<<udSalApr4B.pdf.
6 14 6
the salaries of Jictoria %udges over tie to those of their federal counterparts,
@4

theselves dependent on deterinations by the federal reuneration tribunal.
+n Canada, these issues have given rise to a significant degree of litigation,
e$ploring the liits of the Charter. +n an initial s*irish over %udges= pensions, in
which the validity of a contributory re)uireent was upheld, the Supree Court of
Canada observed that %udges ust bear their fair share of the financial burden of
adinistering the country.
@1
Shortly afterwards, the Court was as*ed to advise on the
validity of legislation reducing the salaries of provincial %udges. #he Court held the
legislation invalid, because it was ade without recourse to an independent,
ob%ective and effective process for deterining %udicial reuneration.
@"

Coissions were duly established. +n due course, however, their recoendations
for increases in salaries were not accepted and the issue returned to the Supree
Court. #he Court held that governents are not bound by the recoendations of
such Coissions as long as they %ustify their departure fro such recoendations
with rational reasons, relying on a reasonable factual foundation, in a anner that
respects the purposes of the creation of the Coissions in the first place:
preserving %udicial independence and depoliticising the setting of %udicial
reuneration.
@@
Most of the challenged provincial decisions et these criteria! but
that of the governent of Muebec did not. #here is currently soe edia interest in
whether a recent decision by the 2overnent of Canada not to accept in full the
recoendations of the federal coission ultiately will go to the Court, re)uiring
it to deterine a )uestion concerning the salaries of all federal %udges, including their
own.
@B
iii. Administering the courts
@4
Supree Court, Jictoria, )nnual Report ,--
http:;;www.supreecourt.vic.gov.au;CA"57F4"444C.15B;Loo*up;Annual0eport;
Sfile;A04"4B0eview.pdf
@1
R ' .eauregard ?1FG7A " SC0 57
@"
Reference re Remuneration of Judges of the Pro'incial Court /P0&0*0(, ?1FFDA @ S.C.0. @! for
conse)uential litigation concerning the validity of decisions ade by courts in these circustances, see
Reference re Remuneration of Judges of the Pro'incial Court /P0&0*01, ?1FFGA 1 S.C.0. @
@@
Pro'incial Court Judges2 )ssn0 of 3ew .runswic4 '0 3ew .runswic4 /(inister of Justice15 6ntario
Judges2 )ssn0 '0 6ntario /(anagement .oard15 .odner '0 )lberta5 Conf7rence des 8uges du 9u7bec '0
9uebec /)ttorney $eneral15 (inc '0 9uebec /)ttorney $eneral1, "445 SCC BB, ?"445A " S.C.0. "G7
@B
Canadian &ar Association &:3ews <une "447, http:;;www.cba.org;C&A;newsletters;newsB6
47;news.asp$
6 11 6
#he constitutional diensions of court adinistration have not, until )uite
recently, becoe apparent. Cor uch of the "4
th
century courts in coon law
countries have been funded and adinistered, ore or less effectively, through
8epartents of <ustice or their e)uivalents.
&y the end of the "4
th
century, however, e$tending into the first part of the
"1
st
, this had becoe yet another issue between the courts and the other branches,
raising )uestions about the separation of powers. #he reason for its sudden
proinence ay lie in the e)ually sudden rise of new public sector anageent
practices, with their re)uireents for productivity easures, outcoe based reporting
and efficiency dividends, with conse)uential iplications for the adinistration of the
courts. #here can be no dispute about 3arliaent=s role in appropriating funds for
court services and about the need for accountability for e$penditure. .)ually, there
can be no dispute about the interests of the e$ecutive in the efficiency and
effectiveness of court perforance. >n the other hand, as the Supree Court of
Canada has now ephasised on several occasions, adinistrative independence is a
core characteristic of %udicial independence, which ay affect either its individual or
its institutional diension.
@5
#he scope of adinistrative independence for this
purpose has not been fully e$plored. #he Court has said that it includes, at least, the
assignent of %udges, sittings of the court, and court lists T as well as the related
atters of allocation of court roos and direction of the adinistrative staff engaged
in carrying out these functions.
@7
#he issue thus is the positioning of the dividing line between the functions of the
courts and the e$ecutive branch so as to safeguard that aspect of %udicial independence
that concerns court adinistration while ensuring that the courts coply with
accountability and other public standards. Cor the oent, there is a range of
approaches to this issue, with Australia illustrating both ends of the spectru. Cor the
ost part the Australian states have retained the traditional odel. #he federal courts, on
the other hand, adinister theselves, within a fraewor* iposed by their constituent
statutes. #hus section 1D of the Iigh Court of Australia Act 1FDF epowers the court to
@5
Reference re Remuneration of Judges of the Pro'incial Court /P0&0*01, ?1FFDA @ S.C.0. @, Laer C<,
?11GA6?11FA. See also ;alente '0 The 9ueen, ?1FG5A " S.C.0. 7D@.
@7
;alente '0 The 9ueen, ?1FG5A " S.C.0. 7D@. +n the P&* case Laer referred to this list as narrow:
?11DA
6 1" 6
adinister its own affairs including the power to contract and to anage court
precincts. #he atters covered by the Court=s annual report suggests that the
anageent burden is significant.
@D
+t sees, however, to have held the line in soe
respects. +ts "44B65 report identifies for the Court a single output, Iigh Court business,
contributing towards the overall outcoe, which is Uinterpreting and upholding the
Australian Constitution and perforing the functions of the ultiate appellate Court in
Australia.
@G
#he price of the outcoe was S1B.@ illion.
An illustration of the difficulties that can arise is provided by recent events in
South Africa. Section 175 of the Constitution of South Africa relevantly provides that:
#he %udicial authority of the 0epublic is vested in the courts
#he courts are independentE
Lo personEay interfere with the functioning of the courts
>rgans of stateEust assist and protect the courts to ensure ?theirA
independence.
+n "445, e$tending into "447, the governent proposed an aendent to the
Constitution which would have added two new sub6sections, specifying that the Chief
<ustice was head of the %udicial authority and that the Cabinet eber responsible
for the adinistration of %ustice e$ercises authority over the adinistration and budget
of all courts.
@F
/hat did this ean! and did it atterH Many people thought that it
did! and their concerns were e$acerbated by the ters of a proposed Superior Courts
&ill creating, for e$aple, a position of .$ecutive Secretary to the Chief <ustice as an
officer in the departent, with general responsibility to adinister the office of the
Chief <ustice, adittedly under his direction. #he governent for its part argued that
it was doing no ore than giving effect to what it described as the Coonwealth
odel of the separation of powers between the .$ecutive and <udiciary. +n the
conte$t of court adinistration that is soething of an e$aggerated clai. Cor the
oent + a told that the proposals are shelved. +t sees li*ely however that they
will in tie re6eerge, in this or an altered for.
@D
See for e$aple the re)uireent for Monthly reporting to the 8epartent of Cinance and
Adinistration, in accordance with the &udget .stiates and Craewor* 0eview, Iigh Court of
Australia, )nnual Report ,--", @1
@G
+bid, @16@"
@F
Constitution Courteenth Aendent &ill "445
6 1@ 6
i. Conclusion
At this point soe brief concluding rear*s about institutional separation are
in order. #he sub%ect raises a wide range of issues. + have focussed only on three, in
which there is a significant interface between the %udiciary and the other branches. +n
each case the arrangeents in )uestion are long6standing. +n each, for a variety of
reasons, the traditional fors are undergoing change. #he process of change is
irreversible. +t has iplications for the coposition and operation of the courts and,
by e$tension, for %udicial independence. As ay be inevitable at such a tie, the
changes are ta*ing place in isolation fro each other. #here is a still6open )uestion
about the e$tent to which a doctrine of separation of powers can be developed to give
the direction and coherence.
!. "uestions a!out power
+ now ove to e$plore, albeit ore briefly, the issues that arise in connection
with a functional separation of powers, with its ephasis on the isolation of %udicial
power itself, rather than of the institution by which it is e$ercised.
i. Scope of judicial power
#he doctrine necessarily has two diensions. Cirst, it identifies and, under a
syste of controlled constitutionality prescribes, what courts should do 'and other
branches should not do(. Jiewed in this light, the doctrine has iplications for due
process and civil liberties. #hese can best be illustrated by e$perience in Australia,
where the doctrine of separation of %udicial power is highly developed and foral
rights protection is alost entirely absent.
B4
+t is clear in Australia, for e$aple, at
least at the federal level, that only a court can ad%udge a person guilty of an offence
and ipose punishent accordingly
B1
or e$ercise other core %udicial functions. #he
doctrine also inhibits other branches, at least to a degree fro directing the courts in
B4
<ustice 8eane once described the separation of %udicial power as the Uost iportant= of the
guarantees of rights and iunities, e$press or iplied, under the Australian Constitution: %treet '
9ueensland .ar )ssociation '1FGF( 17G CL0 B71, 5"1
B1
Polyu4ho'ich ' Commonwealth '1FF1( 1D" CL0 541, per Mason C<
6 1B 6
the anner of the e$ercise of their powers.
B"
Cor a tie, it also appeared that the
doctrine ight liit the authority of the 3arliaent to order detention without trial
'obviously e$ceptional circustances, such as )uarantine, aside( although it no longer
sees li*ely that this will prove to be so.
B@

ii. #imitations on judicial power
+n its second diension, however, a functional separation of powers serves to
identify what courts ay not do. +n a syste that recognises constitutional rather than
parliaentary supreacy, the doctrine thus precludes conferral on courts of non6
%udicial power, re)uiring soe fine lines to be drawn.
BB
More significantly, perhaps,
for present purposes, the doctrine ay be used to suggest liits that the courts should
ipose on theselves. +n Australia, for e$aple, a separation of powers arguent has
been used to e$plain why courts should hesitate to supply the deficiencies of statutes,
B5

review decisions on the erits,
B7
overturn previously established decisions,
BD
invalidate
legislation prospectively,
BG
or apply unincorporated international treaties.
BF
3aul Craig
has argued that in these respects #he concept operates as a source of %udicial
legitiacy! with the courts defending their role as the rightful interpreters of
legislation, and of the legality of e$ecutive action. +t serves also as the foundation for
%udicial restraintE
54
#his is, of course, nothing new.
51
&ut it ay have new significance, at a tie of
e$pansion in both the depth and breadth of %udicial review. .$pansion in depth tends
to brea* down the distinction between %udicial and erits review. .$pansion in
B"
Chu <heng Lim ' (inister for *mmigration '1FF"( 1D7 CL0 1, in which the a%ority of the Court
invalidated a section that they interpreted as a direction fro the 3arliaent not to release specified
persons fro custody, even if they were unlawfully held
B@
#he possibility was based on a reading of Lim0 +t finally faded with the decision in )l:<ateb '
$odwin ?"44BA ICA @D. See generally Sion .vans Australia '"447( B *nternational Journal of
Constitutional Law 51D
BB
+n Australia, for e$aple, federal courts cannot be given arbitral power, which has been held to be
non6%udicial
B5
%tric4land ' Rocla Concrete Pipes Ltd '1FD1( 1"B CL0 B7G
B7
(inister for )boriginal )ffairs ' Pe4o:Wallsend Ltd '1FG7( 17" CL0 "B
BD
9ueensland ' Commonwealth '1FDD( 1@F CL0 5G5
BG
Ha ' 3ew %outh Wales '1FFD( 1GF CL0 B75.
BF
(inister for *mmigration and &thnic )ffairs ' Teoh '1FF5( 1G@ CL0 "D@, "GD
54
Craig, op.cit., D4D
51
=uport %teels Ltd ' %irs ?1FGFA 1 All .0 5"F, 5B1! R ' %ecretary of %tate for the Home =epartment5
e> p Fire .rigades +nion ?1FF5A " AC 51@, 57D! &radley, op.cit., @B46@B1
6 15 6
breadth brings the %udiciary face to face with the e$ecutive in unfailiar and
soeties sensitive areas. &oth have the potential to lead to clais that the %udiciary
is trespassing into the sphere of the other branches. +t is possible to refute soe such
clais by reference to the separation of powers. As 8avid Celdan has recently
observed: >ne can respect the role of the e$ecutive as a*ers of policy while
upholding the obligation of the courts to ensure that the policy is not unlawfulE
5"
At
soe point, however, separation of powers places liits on %udicial review. #he
courts are unli*ely to be the only branch to have a view about where these liits are
properly drawn.

$. %aluation
A doctrine of separation of powers now provides the principal fraewor* within
which the relationship of the courts to the other branches of governent is resolved in
this and any other Coonwealth countries. #he courts were not originally the
principal focus of the doctrine! clearly enough, however, it can be adapted to the
purpose.
+n its present for, however, the doctrine is soewhat too general to provide
uch assistance in resolving a range of e$isting and eerging difficulties at the
interface between courts and the other branches. A degree of tension is inevitable,
representing chec*s and balances in action. +t ay also be that what is perceived as a
difficulty by one branch ay be viewed in a different light by others.
5@
.laboration
nevertheless would be useful, in the interests of both persuasion and prediction. At
the very least the separation of powers in relation to the %udiciary needs to be
e$plained in ters of purposes specifically applicable to the %udiciary: protecting
%udicial independence, grounding legitiacy and securing the rule of law. #hose
values in turn ight be better understood and accepted by placing %udicial review in
the conte$t of a broader constitutional vision! as an integral part of a tradition in
which the virtues of liited governent have anaged to survive an ever6closer
union between the legislative and e$ecutive branches.
5"
8avid Celdan, Iuan 0ights, #erroris and 0is*: #he 0oles of 3oliticians and <udges ?"447A
Public Law at @D7
5@
8avid Celdan, ULone, one or severalH 3erspectives on the ,-=s constitution's(= ?"445A CL< @"F
6 17 6