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 Supreme Court was cast in terms of separation of
powers; although more cautiously on the part of the government, at least in those
terms.2

The purpose of this paper is to explore the meaning of the doctrine of separation
of powers in its application to the judiciary in countries in the British or (perhaps
more suitably) the Commonwealth constitutional tradition, with particular reference to
questions of a broadly constitutional kind that many such countries are facing. It is
thus intended to be comparative, rather than directed specifically to the circumstances
of the United Kingdom, although the topic clearly is prompted by developments, here.

The comparison might have been less productive before these changes were set in
train. The institutional arrangements for the protection of judicial independence and
the rule of law in most Commonwealth countries are broadly similar to the
arrangements that were broadly assumed to be in place in the United Kingdom, or at
least in England and Wales. Relevantly, in most Commonwealth countries they are
justified by a doctrine of separation of powers; often as a constitutional requirement.
In fact, however, the arrangements in this country were quite different in significant
respects. This does not mean that they were worse. It helps to explain, however, why


Goodhart Professor of Legal Science 2005-2006, University of Cambridge; Professor of Law,
University of Melbourne
1
Declaration of the Rights of Man and of the Citizen, Article 16,
http://www.hrcr.org/docs/frenchdec.html
2
See for example, Judges’ Council, Response to the Consultation Papers on Constitutional Reform
http://www.dca.gov.uk/judicial/pdfs/jcresp.pdf : “One of the reasons given by the government for the
abolition of the Office of Lord Chancellor and the creation of a Supreme Court is to increase the
separation of powers”, at [33]. See also Andrew Le Sueur, “Judicial Power in the Changing
Constitution”, in Jeffrey Jowell and Dawn Oliver (eds) The Changing Constitution 5th ed, 2004, 323,
336

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the doctrine of separation of powers has had here what Trevor Allan rightly describes
as “unsympathetic treatment”.3 It also explains why the changes that are in train align
the position of the judiciary in this country more closely with countries elsewhere,
removing some obstacles to effective comparison and bringing the United Kingdom
under what I will argue is a distinctive separation of powers umbrella.

2. Separation of powers in the British constitutional tradition

The concept of separation of powers, as used in western constitutionalism,4

assumes that there are three categories of public power, legislative, executive and
judicial, that are vested in three distinct groups of institutions, similarly described.5

There are notorious difficulties with the concept, which once led Geoffrey
Marshall to dismiss it as “infected with so much imprecision and inconsistency that it
may be counted little more than a jumbled portmanteau of arguments for policies
which ought to be supported or rejected on other grounds”.6 For present purposes the
difficulties may be categorised in the following way.

First, every constitutional system that purports to be based on a separation of

powers in fact provides, deliberately, for a system of checks and balances under
which each institution impinges upon another and in turn is impinged upon. There is
an open question whether this qualifies a system of separation of powers7 or
completes it “by giving each department the necessary constitutional means…to resist

3
Trevor Allan, Law, Liberty and Justice, Clarendon Press, Oxford, 1993, 50; see also Eric Barendt
“Separation of Powers and Constitutional Government” [1995] Public Law 599, to much the same
effect.
4
For a general introduction see John Morrow, History of Western Political Thought Palgrave, 2nd ed
2005, chapter 9
5
The definition here is deliberately cast in general terms, for reasons that will become obvious. Some,
relatively standard definitions are more prescriptive, however. Barendt cites as the “classic
formulation…three distinct functions of government…which should be discharged by three separate
agencies…and that no individual should be a member of more than one of them.”
6
Geoffrey Marshall, Constitutional Theory Clarendon Press, Oxford, 1971, 124
7
It might qualify a separation of powers institutionally (one institution affects the operations of
another) or functionally (in doing so, the institution exercises a part of the power of the other): see, on
this distinction, Marshall, op.cit., 102. Marshall also notes that the notion of checks and balances comes
from the theories of mixed government.

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encroachment by the others”.8 The answer must depend in part on the actual checks
and balances in each case.

Secondly, there is some disagreement about what is separated pursuant to the

doctrine. The two principal options are:
 A separation of institutions; which might, for example, preclude overlapping
membership
 A separation of functions, empowering each institution to exercise the
function for which it is designed (and perhaps, by extension, no other
function)
In reality, however, these are not mutually exclusive options. Any system of
separation of powers must involve at least a measure of both.

And this in turn leads to the third area of uncertainty: the degree of separation
that such a doctrine requires. Complete separation is impossible. There must be a
point, however, at which partial separation is not worthy of the name. Where, then,
should the lines be drawn? And how should the lines that are drawn be enforced?

It is possible to approach the answers to these questions through a consideration of

the purposes of a separation of powers. Received wisdom has it that there are two
such purposes:

 One is to prevent the abuse of public power through the concentration of

power. Thus James Madison in Federalist 47: “The accumulation of all
powers, legislative, executive and judiciary, in the same hands, whether of
one, a few, or many, and whether hereditary, self-appointed or elective, may
justly be pronounced the very definition of tyranny”.
 The other is to enhance the efficiency of government. In its original form this
rationale was used to justify the institution of a strong presidency in the United
States,9 but it might be turned to more general purposes. It might be argued,
for example, that separation of powers in this respect recognises that each of
8
James Madison, Federalist Paper 51 in Alexander Hamilton, James Madison and John Jay, The
Federalist, Everyman Library, London, 265, 266
9
Geoffrey R Stone, Louis M. Seidman, Cass R. Sunstein, Mark V. Tushnet, Constitutional Law 2nd ed
1991, 363

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 the branches is peculiarly well equipped to exercise the particular functions
assigned to it. Alternatively, it might be argued that the collective effect of a
particular configuration of separated powers is a form of government with
attributes best suited to the needs of a particular state.

Both of the two purposes traditionally assigned to a separation of powers were

originally formulated by reference to the separation of legislative and executive
power; indeed this was also the genesis of the theory in the writings of Montesquieu
and Locke. Both purposes could be adapted to the separation of the judicial branch.
As a generalisation, however, the doctrine of separation of powers has not been well
developed in relation to the judiciary, at least in a way that is useful here. The
explanation lies in the distinctive constitutional arrangements of both the two states
that have been the flagships of the separation of powers doctrine.
 One is the United States, in which the relationship between the legislature and
the executive as part of a balanced three-way separation of powers dominates
the discourse and influences the doctrine;10 incidentally suggesting caution in
borrowing conceptions of “deference” from that source.
 The other is France, where the separation of powers places emphasis on the
judiciary; but with a view to precluding it from impinging upon the other
branches of government.11
 By contrast, the constitutional arrangements in the United Kingdom are quite
different, in key respects. Unlike the United States, this country has a
parliamentary system with at best a weak institutional separation of the
legislative and executive branches. Unlike France, judicial review of executive
action, at the hands of the general courts, is a core feature of the constitutional
system.

For reasons that are easy to understand, moreover, the doctrine of the separation of
powers has had only muted and partial recognition in the United Kingdom.12There is
10
See for example, Stone et al, op.cit, where even the examination of the significance of the doctrine
for the rule of law is undertaken by reference to the relationship between the legislature and the
executive.
11
Marshall, op.cit. 99. Marshall also quotes Hans Kelsen: “the judicial review of legislation is an
obvious encroachment upon the principle of separation of powers”, at 99, from Hans Kelsen, General
Theory of Law and State trans. A. Wedberg (1961), 269
12
Paul Craig has said that it is “regarded as a central construct in our constitutional structure”; in a
context, however, that is confined to the scope of judicial power vis-à-vis the other branches: Paul

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of course a strong tradition of judicial independence, given teeth through a range of
guarantees enshrined in statute and long-standing constitutional convention.13 There is
a long tradition of limited government, involving the division of power in various
ways, through the “mixed” and “balanced” constitutions.14It is even possible to argue
for a significant degree of functional separation of powers in reality, if not in outward
form.15 And the great William Blackstone himself adapted Montesquieu and Locke to
argue for a “distinct and separate existence of the judicial power in a peculiar body of
men…separated from both the legislative and the executive power”.16

But the intermixture of institutions is such that it is almost impossible to

describe it as a separation of powers, without becoming entangled in endless,
unproductive debate. This is most obviously the case with the relationship between
the legislature and the executive, famously claimed by Walter Bagehot as a fusion of
powers. For present purposes, however, the triple hats of the Lord Chancellor and the
dual functions of the House of Lords are a further obstacle to describing the system as
characterised by a separation of powers. In an additional twist, it is even possible to
argue that these mixed institutions have been key mechanisms for protecting judicial
independence. Clearly, such a case can be made for the multiple functions of the Lord
Chancellor. In a speech in this university just over 2 years ago Lord Woolf observed
that it had not been “appreciated sufficiently that the Lord Chancellor played a pivotal
role in co-ordinating the three arms of government” nor that he “was able to act as a
lightening conductor at times of high tension between the executive and the
judiciary”.17 In time it may also come to be appreciated that a similar case could have
been made for the Appellate Committee of the House of Lords.

Countries with a system of government most similar to that of the UK are, not
surprisingly, found in the Commonwealth. Many of them have parliamentary systems.
These include Australia, Canada, India and South Africa, which I use as occasional
Craig, “Fundamental Principles of Administrative Law”, in David Feldman (ed) Public Law OUP
2004, 689, 706
13
For detailed description and analysis see A.W. Bradley, “The Constitutional Position of the
Judiciary” in David Feldman (ed) Public Law OUP 2004, 333, 339-363
14
Marshall, op.cit., 101.
15
Barendt, 615. Trevor Allan has argued also for a de facto institutional separation of powers that relies
on the “firm conventions governing…[the] various roles” of public officers: Trevor Allan, op.cit 52
16
William Blackstone, The English Constitution 7th ed, 1984, 10, quoted in Allan, op.cit., 50
17
Lord Woolf, “The Rule of Law and a Change in the Constitution”, the Squire Centenary Lecture, 3
March 2004, http://www.dca.gov.uk/judicial/speeches/lcj030304.htm

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examples in the next part. All four have a judiciary that reviews executive action and,
for that matter, legislation as well. All place great store on judicial independence. In
all of them, however, the judiciary is institutionally and to a large extent functionally
separate from the other branches of government. And in all of them, with the possible,
but by no means certain exception of Canada, the relationship of the judiciary to the
other branches is conceived in terms of the separation of powers. Traditional
mechanisms for protecting judicial independence, of which guarantees of tenure are
an example, can be understood as features of the separation of judicial power. The
points of necessary interface with the other branches in relation to, for example, the
appointment and removal of judges and the funding of courts can be analysed within a
framework of checks and balances. This is, however, a latter-day rationalisation. In
historical reality, most of the arrangements in these countries for the constitution of
the judiciary were modelled as far as possible on comparable arrangements here.

The limits of the possible were reached with the position of Lord Chancellor
and the institution of the Appellate Committee of the House of Lords,18 which could
not be replicated elsewhere. The transformation of the first and the pending
replacement of the second by a Supreme Court thus bring Britain closer to
Commonwealth experience in this regard.19 There is considerable interest throughout
the Commonwealth in what has been considered necessary here to provide protection
for judicial independence, once those two institutions are gone. Changes that attract
particular attention include the creation of a position of President of the courts of
England and Wales, with representational and management responsibilities;20 a
Judicial Appointments Commission; statutory protection of the principle of judicial
independence; and the use of a “concordat” to record aspects of the arrangement less
susceptible to codification, including the structures for administrative support.21

18
For the role played by the Lord Chancellor in relation to judicial appointments see Sir Thomas Legg,
“Judges for the New Century” [2001] Public Law 62. See in particular the following: “it is important to
understand the real nature of the present system. Otherwise, it might stand in the catalogue as simply
appointment by the executive. Appointment is indeed on the advice and personal decision of a
government minister. But he is a very unusual kind of minister….”: at 65.
19
For a detailed exposition of the process by which the changes were made see Lord Windlesham,
“The Constitutional Reform Act 2005” Parts 1 and 2, [2005] Public Law 806; [2006] Public Law 35
20
Constitutional Reform Act 2005 section 7
21
The Concordat, January 2004, http://www.dca.gov.uk/consult/lcoffice/judiciary.htm

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 Many of the problems that have been anticipated in the course of negotiations
over the Constitutional Reform Act also currently are problems elsewhere. In
consequence, there will also be Commonwealth interest in the effectiveness of the
solutions that have been put in place. And the converse, presumably, also is true.
Assuming that this is so, the next part canvasses some issues that have arisen in
broadly comparable countries in connection with the separation of judicial power,
making due allowance for relevant differences including, critically in this context, the
impact of entrenched constitutions elsewhere. Those experiences in turn assist to
throw light on the effects and utility of the doctrine of separation of powers in its
application to the judicial branch.

3. Commonwealth experience with the separation of judicial power

For convenience, I divide the issues to which I propose to draw attention into two
groups: those connected with the institutional separation of powers (including the
impact of checks and balances) and those connected with a functional separation of
powers.

a. Institutional arrangements

At one level, the implications of an institutional separation of powers for the

constitution of the judiciary are straightforward. Judges may not be members of other
branches; members of other branches cannot be appointed to courts. Some significant
questions nevertheless arise at the margin. One is whether judges can perform other
public functions that are not judicial in character in their personal capacities. At the
Commonwealth level in Australia, where the separation of powers is constitutionally
protected, this question has generated a substantial body of case law, distinguishing
permissible from non-permissible functions by reference to a standard of
incompatibility and the purpose of protecting the perception of the independence of
the courts.22 Practice varies in the Australian states, where the doctrine receives
significantly less constitutional protection. In at least one state, Victoria, such
appointments will not be accepted by the judiciary at all.

22
Wilson v Minister for Aboriginal and Torres Strait Islander Affairs (1996) 189 CLR 1

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 The principal area of concern under the broad rubric of institutional separation
on which I wish to focus, however, arises from the points of institutional interface
between the judiciary and the other branches, representing checks on the judicial
branch. These are, of course, numerous, but I will focus on three in particular: the
appointment of judges; judicial remuneration; and the administration of courts. All
have implications for judicial independence. All necessarily and properly involve one
or other or both of the other branches, with their somewhat different preoccupations
and accountability mechanisms. To balance these potentially opposing interests, all
rely on inter-branch respect and self-restraint. Hope once was placed in the office of
Attorney-General to this end; but political realism has now prevailed. In all three
areas there is considerable movement, with no clear resolution in sight.

i. Appointment of judges

In all four countries, appointment of judges once lay with the executive
branch. Exercised with wisdom, such a mechanism is capable of producing good
results, questions about transparency and inclusiveness aside. Used as a source of
patronage, however or, worse, as a means by which the overall predilections of a
court might be influenced by the executive branch, it detracts from the quality and
independence of the courts.

Questions about transparency and inclusiveness can no longer so readily be

put aside, however, and the gains from patronage too often prove tempting. The
difficulty has been to find new arrangements that preserve at least some of the
strengths of the old, while overcoming their weaknesses. There is a range of variables,
all controversial in different degrees: the institution(s) through which appointment is
made; the degree of openness in the processes of application and selection; and the
extent of lay involvement in the appointment process.

The result for the moment is a smorgasbord of different procedures, on which

the Constitutional Reform Act may now also be placed.23 At one end is Australia, still
clinging to executive appointment to the judiciary, after some inconclusive inquiries
23
For other common law processes, see Ministry of Justice, “Appointing Judges: A Judicial
Appointments Commission for New Zealand?” April 2004,
http://www.justice.govt.nz/pubs/reports/2004/judicial-appointment/index.html x

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into options for change.24 At the other is India, where since 1993, as MP Jain
describes it, in a masterly understatement: “the effective power to appoint Supreme
Court judges has …passed from the Executive to the Judiciary itself which has greatly
strengthened judicial independence”.25 Canada was until recently closer to Australia;
following changes announced on 20 February this year, however, nominees to the
Supreme Court must appear before a (televised) parliamentary committee hearing,
although the final decision remains with the Prime Minister, in the form of advice to
the Governor-General.26 In South Africa, the reconsideration de novo of the
constitutional settlement following the fall of apartheid provided an opportunity for
experimentation with new mechanisms for judicial appointment. The result is the
Judicial Services Commission, with a mixed membership of 23, which is consulted in
relation to some key appointments and identifies a short list for others, from which the
President must choose.27 The hearings of the JSC are public; a feature that can be seen
as important in principle in post-apartheid South Africa, whether or not is has the
effect of allowing South Africans to “get to know” the appointees that Canadian
Prime Minister recently claimed for his new appointment procedure.28

ii. Judicial terms and conditions

It is a commonplace for common law countries to adopt the Act of Settlement

guarantee against reduction of judicial salary while in office. It is equally a
commonplace that protection of this kind is symbolically significant but practically
insufficient. It takes no account of inflation or the relativities between the salaries of

24
Attorney-General Philip Ruddock “Selection and Appointment of Judges”, 2 May 2005,
http://www.ag.gov.au/agd/WWW/MinisterRuddockHome.nsf/Page/Speeches_2005_Speeches_2_May_
2005_-_Speech_-_Selection_and_Appointment_of_Judges . The Attorney noted, inter alia, his
opposition to the notion of a Judicial Appointments Commission along United Kingdom lines: “…it
represents an abrogation of the Executive’s responsibility…you just move the debate from who is
being appointed to the bench to who is being appointed to the appointments commmission”.
25
MP Jain, Indian Constitutional Law 5th ed 2003, Wedhwa and Company Nagpur, 332. See in
particular SC Advocates on Record Association v Union of India AIR 1994 SC 268
26
CBC News, The Supreme Court http://www.cbc.ca/news/background/supremecourt/ . The first
Supreme Court Justice to be appointed following the process is Mr Justice Marshall Rothstein, on 1
March 2006. Justice Rothstein appeared before an “Ad Hoc Committee”, with a non-parliamentary
chair, pending finalisation of the procedures. Announcing the appointment, the Prime Minister
observed that it “marks an historic change in how we appoint judges in this country. It brought
unprecedented openness and accountability to the process. The hearings allowed Canadians to get to
know Justice Rothstein through their members of Parliament in a way that was not previously
possible.” http://pm.gc.ca/eng/media.asp?category=1&id=1041
27
Constitution of South Africa, section 178 and implementing legislation
28
Ibid

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judges and other public office-holders, much less of the levels of remuneration
available at the bar. It is ambiguous in its protection of other terms and conditions of
judicial office including pension or superannuation entitlements.

It may be that a more 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 impartial tribunal”. In this event, however,
the fleshing out is done by the judges themselves, creating an unseemly impression of
self-interest that it is likely to be difficult to dispel. But the alternative is that the
adequacy of judicial remuneration lies almost entirely in the discretion of the
government and parliament of the day. A familiar checks and balances problem thus
arises. Granted, these are important questions for both the independence and quality
of the courts. But the provision of resources, the control of public spending and the
management of the economy lie, properly, with the other branches requiring, once
again, a mediating principle that recognises the responsibility of the elected branches,
while meeting the appropriate needs of the courts.

One solution, widely adopted, is the establishment of an independent body, to

advise on judicial salaries and other terms and conditions. Such a solution distances
deliberation on judicial salaries from the political process, but cannot remove it
altogether. A body of which I am a member illustrates the point. The Judicial
Remuneration Tribunal for the Australian state of Victoria for had authority, for a
period that proved startlingly short, to make determinations about judicial salary
increases that would come into effect through a special appropriation unless
disallowed by either House. The first such recommended increase survived
disallowance – just: the second failed to do so. An event of this kind arguably is
more damaging to the standing of the judiciary than leaving the decision to the normal
political process in the first place.29 In the course of the furore that followed, the
authority of the JRT over salary levels was removed, in favour of a system that tied

29
In her statement in response to the government’s decision, the Chief Justice of Victoria described it
as “a direct interference with the independence of the courts”:
http://www.supremecourt.vic.gov.au/CA256902000FE154/Lookup/MediaReleases/$file/Media-
StatetCJJudSalApr04.pdf.

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the salaries of Victoria judges over time to those of their federal counterparts,30
themselves dependent on determinations by the federal remuneration tribunal.

In Canada, these issues have given rise to a significant degree of litigation,

exploring the limits of the Charter. In an initial skirmish over judges’ pensions, in
which the validity of a contributory requirement was upheld, the Supreme Court of
Canada observed that judges must “bear their fair share of the financial burden of
administering the country.”31 Shortly afterwards, the Court was asked to advise on the
validity of legislation reducing the salaries of provincial judges. The Court held the
legislation invalid, because it was made “without recourse to an independent,
objective and effective process for determining judicial remuneration”.32
Commissions were duly established. In due course, however, their recommendations
for increases in salaries were not accepted and the issue returned to the Supreme
Court. The Court held that governments are not bound by the recommendations of
such Commissions as long as they justify their departure from such recommendations
with “rational reasons”, relying on a “reasonable factual foundation,” in a manner that
respects the purposes of the creation of the Commissions in the first place:
“preserving judicial independence and depoliticising the setting of judicial
remuneration”.33 Most of the challenged provincial decisions met these criteria; but
that of the government of Quebec did not. There is currently some media interest in
whether a recent decision by the Government of Canada not to accept in full the
recommendations of the federal commission ultimately will go to the Court, requiring
it to determine a question concerning the salaries of all federal judges, including their
own.34

iii. Administering the courts

30
Supreme Court, Victoria, Annual Report 2004
http://www.supremecourt.vic.gov.au/CA256902000FE154/Lookup/AnnualReport/
$file/AR0204Review.pdf
31
R v Beauregard [1986] 2 SCR 56
32
Reference re Remuneration of Judges of the Provincial Court (P.E.I.), [1997] 3 S.C.R. 3; for
consequential litigation concerning the validity of decisions made by courts in these circumstances, see
Reference re Remuneration of Judges of the Provincial Court (P.E.I.), [1998] 1 S.C.R. 3
33
Provincial Court Judges' Assn. of New Brunswick v. New Brunswick (Minister of Justice); Ontario
Judges' Assn. v. Ontario (Management Board); Bodner v. Alberta; Conférence des juges du Québec v.
Quebec (Attorney General); Minc v. Quebec (Attorney General), 2005 SCC 44, [2005] 2 S.C.R. 286
34
Canadian Bar Association E-News June 2006, http://www.cba.org/CBA/newsletters/news4-
06/news.aspx

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 The constitutional dimensions of court administration have not, until quite
recently, become apparent. For much of the 20th century courts in common law
countries have been funded and administered, more or less effectively, through
Departments of Justice or their equivalents.

By the end of the 20th century, however, extending into the first part of the
21st, this had become yet another issue between the courts and the other branches,
raising questions about the separation of powers. The reason for its sudden
prominence may lie in the equally sudden rise of new public sector management
practices, with their requirements for productivity measures, outcome based reporting
and efficiency dividends, with consequential implications for the administration of the
courts. There can be no dispute about Parliament’s role in appropriating funds for
court services and about the need for accountability for expenditure. Equally, there
can be no dispute about the interests of the executive in the efficiency and
effectiveness of court performance. On the other hand, as the Supreme Court of
Canada has now emphasised on several occasions, “administrative” independence is a
core characteristic of judicial independence, which may affect either its individual or
its institutional dimension.35 The scope of administrative independence for this
purpose has not been fully explored. The Court has said that it includes, at least, “the
assignment of judges, sittings of the court, and court lists — as well as the related
matters of allocation of court rooms and direction of the administrative staff engaged
in carrying out these functions”.36

The issue thus is the positioning of the dividing line between the functions of the
courts and the executive branch so as to safeguard that aspect of judicial independence
that concerns court administration while ensuring that the courts comply with
accountability and other public standards. For the moment, there is a range of
approaches to this issue, with Australia illustrating both ends of the spectrum. For the
most part the Australian states have retained the traditional model. The federal courts, on
the other hand, administer themselves, within a framework imposed by their constituent
statutes. Thus section 17 of the High Court of Australia Act 1979 empowers the court to

35
Reference re Remuneration of Judges of the Provincial Court (P.E.I.), [1997] 3 S.C.R. 3, Lamer CJ,
[118]-[119]. See also Valente v. The Queen, [1985] 2 S.C.R. 673.
36
Valente v. The Queen, [1985] 2 S.C.R. 673. In the PEI case Lamer referred to this list as “narrow”:
[117]

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“administer its own affairs” including the power to contract and to manage court
precincts. The matters covered by the Court’s annual report suggests that the
management burden is significant.37 It seems, however, to have held the line in some
respects. Its 2004-5 report identifies for the Court “a single output, High Court business,
contributing towards the overall outcome, which is ‘interpreting and upholding the
Australian Constitution and performing the functions of the ultimate appellate Court in
Australia”.38 The price of the outcome was $14.3 million.

An illustration of the difficulties that can arise is provided by recent events in

South Africa. Section 165 of the Constitution of South Africa relevantly provides that:
 The judicial authority of the Republic is vested in the courts
 The courts are independent…
 No person…may interfere with the functioning of the courts
 Organs of state…must assist and protect the courts to ensure [their]
independence.

In 2005, extending into 2006, the government proposed an amendment to the

Constitution which would have added two new sub-sections, specifying that the Chief
Justice was “head of the judicial authority” and that the “Cabinet member responsible
for the administration of justice exercises authority over the administration and budget
of all courts”.39 What did this mean; and did it matter? Many people thought that it
did; and their concerns were exacerbated by the terms of a proposed Superior Courts
Bill creating, for example, a position of Executive Secretary to the Chief Justice as an
officer in the department, with general responsibility to administer the office of the
Chief Justice, admittedly under his direction. The government for its part argued that
it was doing no more than giving effect to what it described as “the Commonwealth
model of the separation of powers between the Executive and Judiciary”. In the
context of court administration that is something of an exaggerated claim. For the
moment I am told that the proposals are shelved. It seems likely however that they
will in time re-emerge, in this or an altered form.

37
See for example the requirement for “ Monthly reporting to the Department of Finance and
Administration, in accordance with the Budget Estimates and Framework Review”, High Court of
Australia, Annual Report 2005, 31
38
Ibid, 31-32
39
Constitution Fourteenth Amendment Bill 2005

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 iv. Conclusion

At this point some brief concluding remarks about institutional separation are
in order. The subject raises a wide range of issues. I have focussed only on three, in
which there is a significant interface between the judiciary and the other branches. In
each case the arrangements in question are long-standing. In each, for a variety of
reasons, the traditional forms are undergoing change. The process of change is
irreversible. It has implications for the composition and operation of the courts and,
by extension, for judicial independence. As may be inevitable at such a time, the
changes are taking place in isolation from each other. There is a still-open question
about the extent to which a doctrine of separation of powers can be developed to give
them direction and coherence.

b. Questions about power

I now move to explore, albeit more briefly, the issues that arise in connection
with a functional separation of powers, with its emphasis on the isolation of judicial
power itself, rather than of the institution by which it is exercised.

i. Scope of judicial power

The doctrine necessarily has two dimensions. First, it identifies and, under a
system of controlled constitutionality prescribes, what courts should do (and other
branches should not do). Viewed in this light, the doctrine has implications for due
process and civil liberties. These can best be illustrated by experience in Australia,
where the doctrine of separation of judicial power is highly developed and formal
rights protection is almost entirely absent.40 It is clear in Australia, for example, at
least at the federal level, that only a court can adjudge a person guilty of an offence
and impose punishment accordingly41 or exercise other “core” judicial functions. The
doctrine also inhibits other branches, at least to a degree from directing the courts in

40
Justice Deane once described the separation of judicial power as the ‘most important’ of the
guarantees of rights and immunities, express or implied, under the Australian Constitution: Street v
Queensland Bar Association (1989) 168 CLR 461, 521
41
Polyukhovich v Commonwealth (1991) 172 CLR 501, per Mason CJ

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the manner of the exercise of their powers.42 For a time, it also appeared that the
doctrine might limit the authority of the Parliament to order detention without trial
(obviously exceptional circumstances, such as quarantine, aside) although it no longer
seems likely that this will prove to be so.43

ii. Limitations on judicial power

In its second dimension, however, a functional separation of powers serves to

identify what courts may not do. In a system that recognises constitutional rather than
parliamentary supremacy, the doctrine thus precludes conferral on courts of non-
judicial power, requiring some fine lines to be drawn.44 More significantly, perhaps,
for present purposes, the doctrine may be used to suggest limits that the courts should
impose on themselves. In Australia, for example, a separation of powers argument has
been used to explain why courts should hesitate to supply the deficiencies of statutes,45
review decisions on the merits,46 overturn previously established decisions,47 invalidate
legislation prospectively,48 or apply unincorporated international treaties.49 Paul Craig
has argued that in these respects “The concept operates as a source of judicial
legitimacy; with the courts defending their role as the rightful interpreters of
legislation, and of the legality of executive action. It serves also as the foundation for
judicial restraint…”50

This is, of course, nothing new.51 But it may have new significance, at a time of
expansion in both the depth and breadth of judicial review. Expansion in depth tends
to break down the distinction between judicial and merits review. Expansion in
42
Chu Kheng Lim v Minister for Immigration (1992) 176 CLR 1, in which the majority of the Court
invalidated a section that they interpreted as a direction from the Parliament not to release specified
persons from custody, even if they were unlawfully held
43
The possibility was based on a reading of Lim. It finally faded with the decision in Al-Kateb v
Godwin [2004] HCA 37. See generally Simon Evans “Australia” (2006) 4 International Journal of
Constitutional Law 517
44
In Australia, for example, federal courts cannot be given arbitral power, which has been held to be
non-judicial
45
Strickland v Rocla Concrete Pipes Ltd (1971) 124 CLR 468
46
Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24
47
Queensland v Commonwealth (1977) 139 CLR 585
48
Ha v New South Wales (1997) 189 CLR 465.
49
Minister for Immigration and Ethnic Affairs v Teoh (1995) 183 CLR 273, 287
50
Craig, op.cit., 707
51
Duport Steels Ltd v Sirs [1989] 1 All ER 529, 541; R v Secretary of State for the Home Department;
ex p Fire Brigades Union [1995] 2 AC 513, 567; Bradley, op.cit., 340-341

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breadth brings the judiciary face to face with the executive in unfamiliar and
sometimes sensitive areas. Both have the potential to lead to claims that the judiciary
is trespassing into the sphere of the other branches. It is possible to refute some such
claims by reference to the separation of powers. As David Feldman has recently
observed: “One can respect the role of the executive as makers of policy while
upholding the obligation of the courts to ensure that the policy is not unlawful…”52 At
some point, however, separation of powers places limits on judicial review. The
courts are unlikely to be the only branch to have a view about where these limits are
properly drawn.

4. Evaluation

A doctrine of separation of powers now provides the principal framework within

which the relationship of the courts to the other branches of government is resolved in
this and many other Commonwealth countries. The courts were not originally the
principal focus of the doctrine; clearly enough, however, it can be adapted to the
purpose.

In its present form, however, the doctrine is somewhat too general to provide
much assistance in resolving a range of existing and emerging difficulties at the
interface between courts and the other branches. A degree of tension is inevitable,
representing checks and balances in action. It may also be that what is perceived as a
difficulty by one branch may be viewed in a different light by others.53 Elaboration
nevertheless would be useful, in the interests of both persuasion and prediction. At
the very least the separation of powers in relation to the judiciary needs to be
explained in terms of purposes specifically applicable to the judiciary: protecting
judicial independence, grounding legitimacy and securing the rule of law. Those
values in turn might be better understood and accepted by placing judicial review in
the context of a broader constitutional vision; as an integral part of a tradition in
which the virtues of limited government have managed to survive an ever-closer
union between the legislative and executive branches.

52
David Feldman, “Human Rights, Terrorism and Risk: The Roles of Politicians and Judges” [2006]
Public Law at 376
53
David Feldman, ‘None, one or several? Perspectives on the UK’s constitution(s)’ [2005] CLJ 329

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