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[This edited version of the newsletter has been prepared by Dr Robert N Moles]

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LEGAL EDUCATION TEACHERS ASSOCIATION OF SOUTH AUSTRALIA

ANNUAL CONFERENCE 2003

PARLIAMENT HOUSE South Australia

FRIDAY 22 AUGUST 2003

JUDICIAL INDEPENDENCE AND THE SEPARATION OF POWERS

The Hon John Doyle AC, Chief Justice of South Australia

Judicial independence and the separation of powers are principles or doctrines which are important but sometimes misunderstood. Each of them is of fundamental importance to the system by which our society is governed. Each is sometimes misunderstood, and, in public discussion, sometimes ignored.

It may be that judicial independence is not related historically to the doctrine of the separation of powers. But even if that is so, there is an intimate relationship between the two doctrines which makes it appropriate to consider them together.

The topic on which I am speaking is a vast one. I could not cover it comprehensively on this occasion. I aim to provide a survey of the field by identifying what I consider to be the key issues or aspects and by giving you a short exposition on each of them.

What is the doctrine of separation of powers?

The doctrine is generally associated with Montesquieu, a famous French thinker of the 18 century.

But before I repeat what he wrote, I need to remind you that thinkers have analysed the concept of government for hundreds and perhaps thousands of years. They have debated the difference between laws made by a ruler, and moral laws, and rules laid down by a private organisation. They have analysed the different elements of the process of government. This led to a distinction being developed between three powers or aspects that constitute government as we understand it. The first is legislative power. That is, the power to make a rule that is a law. In short the power to make law. The second is executive power, which is the entitlement and responsibility and power to conduct the business of government according to law and for the public good. The third is judicial power which is seen as conferring the power to give a binding and authoritative decision according to law upon a dispute between individuals, or between a sovereign and individuals.

A significant feature of judicial power is that it does not depend upon agreement of the parties to the dispute, but is a power that exists by law. Accordingly, judicial power is quite different from the power that an arbitrator is given, by agreement of parties, to settle a dispute between them.

Montesquieu, in his book “The Spirit of the Laws” wrote:

“There is no liberty, if the judiciary power be not separated from the legislative and executive. Were it joined with the legislative, the life and liberty of the subject would be exposed to arbitrary control; for the judge would be then the legislator. Were it joined to the executive power, the judge might behave with violence and oppression.

There would be the end of everything, were the same man or the same body … to exercise these three powers, that of enacting laws, that of executing the public resolutions, and of trying the causes of individuals.”

So Montesquieu saw it as a condition of true liberty that there be no abuse of power by those who govern. He saw the separation of the legislative, executive and judicial powers as a means of preventing abuse of power. That would set up a system of checks and balances. The judiciary could ensure that the executive government acts according to law. Likewise, because the lawmaking power is kept separate from the judicial power, people could be sure that their disputes were decided according to a separately determined law. They would not find the goal posts shifting to achieve an outcome that the lawmaker might want.

So the underlying rationale of the doctrine is a pragmatic one. The aim of this doctrine is liberty, a matter of enduring relevance. The doctrine underpins the freedom that we assume today in a modern, democratic state. The validity of the doctrine is tacitly assumed in our system of government.

Does the doctrine apply in Australia?

In the Australian system like the British system, the doctrine is well established. However, it does not apply without qualification. Whether there are any countries where it does apply without qualification may be doubted.

In our system of government it is Parliament that makes the laws. Parliament enacts statutes. But as well, judges can make the law, to a limited extent, because they have power to declare the common law. And members of the executive, exercising power delegated by Parliament, have power to make regulations which have the force of law. So, while the lawmaking function is vested primarily in Parliament, limited lawmaking powers are also exercised by the judiciary and by the executive.

The executive is separate from Parliament, but under our system government Ministers, who are the principal officers of the executive government, must be Members of Parliament.

The judiciary is separate from the legislature and from the executive. A member of the judiciary cannot be a member of either of the other bodies, at least in Australia. The famous exception to this in the British system is the Lord Chancellor, who sits in the House of Lords, is a member of the executive government and is a judicial officer. But it might be said that that is the exception that proves the rule. However, judges are appointed by the government. And in our system there is a fairly well developed system of tribunals of various kinds, established by law, which are not constituted by members of the judiciary, but do have power to decide disputes.

So the Australian system of government, and the British system from which it is derived, recognise the doctrine but do not apply it in the pure form. The same is true of most countries that have inherited the British system.

A contrast can be drawn with the United States of America. There the doctrine is applied more thoroughly. Neither the President nor other members of the executive government are members of the Congress or Senate of the United States of America. Membership of the three institutions is quite separate. But American law also recognises the concept of a common law, developed by the judges. So even there the doctrine is not applied in its pure form.

Separation of powers and judicial independence

As I observed, it may be that historically the doctrine of separation of powers is not related to judicial independence. But there is a link.

If the three arms of government are to be substantially separate, it would seem necessary for the judicial arm of government, and that is what it is, to be independent of the other two arms. If it were not independent, one wonders how there could be true separation of powers. If the judiciary were, for example, under the influence of executive, then it would not in truth be a separate and distinct power. So it is not surprising that these days the independence of the judiciary is often linked to the separation of powers.

Another rationale for an independent judiciary is found in the concept of the rule of law. Relevantly, that concept refers to the fact that we are governed under a system which rests upon the impartial application of laws, and under which citizens’ rights and obligations are regulated by those laws. The key concepts here are that there is a system for making law, the law is publicly known, and interference with our rights and obligations must be justified according to law. The meaning of that law, and its enforcement, when there is a dispute under the law, will be determined by an independent judiciary. As Sir Gerard Brennan said in his address “The State of the Judicature” at the 30^th Australian Legal Convention in l997:

“If we are to be governed by the rule of law, we must have a judicature to administer it. The characteristics of that judicature reflect the functions it is charged to perform. First, it must be a judicature that is and is seen to be impartial, independent of government and of any other centre of financial or social power, incorruptible by prospects of reward or personal advancement and fearless in applying the law irrespective of popular acclaim or criticism,”

So these are the bases upon which the independence of the judiciary is usually rested. That is, the separation of powers and the rule of law. The need for an independent judiciary can also be justified on practical grounds. First, in many cases before the courts and in all criminal eases, the state is a litigant. If those opposed to the state before a court thought that the judiciary was under the influence of government, they could have no confidence in obtaining a fair result. Likewise, people would not have confidence in the judicial system unless, as Simon Longstaff once wrote, judges are “blind to wea1th power and prejudice.” People often look to the courts to stand between them and the powerful.

Public confidence in the judicial process rightly rests upon public confidence in the independence of the judiciary.

How does judicial independence fit with the sovereignty of Parliament?

In Australia, State and Commonwealth Parliaments have power to make laws on a wide range of topics. The powers of the Commonwealth Parliament are to be found in the Commonwealth Constitution. State Parliaments have power to make laws on any topic not taken away from them by the Commonwealth Constitution, but state laws can be overridden by a valid Commonwealth law. Provided that Parliament legislates within the field of power available to it, it is for Parliament to decide the content of the law. And, because Parliament is elected in a democratic fashion, the will of Parliament is equated to the will of the people. Finally, although judges can develop the common law, a statute enacted by Parliament can override the common law.

There is no inconsistency or clash between judicial independence and the sovereignty of Parliament. A judge is appointed pursuant to law, to administer the law as enacted by Parliament. The judicial power and the legislative power are separate. If you wish, you might say that the legislative power is the greater power. But the function of the judiciary is to administer that law, and that is a function that Parliament cannot remove from the judiciary. Of course, the judiciary must loyally and faithfully interpret and apply the law as determined by Parliament.

There is simply no tension between the two doctrines. In particular, the power of Parliament to override the common law has long been understood as consistent with judicial independence, because the power to develop the common law has long been accepted as a subordinate power.

It is possible that the legislative power might be used to attack judicial independence. But the fact that legislative power could be misused in that way does not demonstrate any tension between parliamentary sovereignty and judicial independence.

There are two particular limits to the sovereignty of Parliament which are aspects of the independence of the judiciary.

Under the Commonwealth Constitution, the Commonwealth Parliament cannot exercise judicial power, because by Chapter III of the Commonwealth Constitution the judicial power of the Commonwealth is conferred on the federal judiciary, A Commonwealth law that involves an exercise of judicial power, for example, by attempting to determine the outcome of a particular case before the courts, would be an invalid law. The same is probably true in relation to State Parliaments, although because our State constitutions take a different form, the point is not so clear.

The second point is that it is for the courts to decide whether or not the Commonwealth Parliament or a State Parliament has exceeded its powers by, in either case, enacting legislation on a topic that is beyond its power by virtue of the constitution.

So the separation of powers, and the independence of the judiciary, in this sense are aspects of our federation. Our Federal Commonwealth is built on a system which divides power between States and the Commonwealth, and which invests the judiciary with the power to ensure observance of the constitutional division of power.

What are the indicators of judicial independence? What are its limits?

Judges are appointed by the government, and so the choice of a judge is made by the executive government. But, by convention, judges are chosen on the basis of their suitability for office, not on the basis of their political leanings. Once appointed, a judge holds office until retirement age. The judge has security of tenure, being able to be removed only by a resolution of Parliament, on the basis of proved misconduct or incapacity. Removal of a judge is almost unheard of. As you can guess, the procedure is one that would be implemented only in an extreme case. In their book “The Australian Judiciary” Professors Campbell and Lee have a short table that records the length of service of Australian judges as at December 1996. 26% had served for between 11 and l5years, and 16% had served for between 16 and 20 years. So 42% had served for at least 11 years, Judges tend to be in office for quite a long time, and once they are there they should be free from external influence.

Another aspect of judicial independence is the principle that while a judge is in office that judge should not suffer a reduction in salary or conditions. In times of inflation, this principle is of little value, because failing to increase judicial remuneration can be an effective sanction. But nevertheless, the principle is there. It rests on the fact that judges should not be subject to reprisals for making unpopular decisions.

Another indicator of judicial independence is one I have already touched on, that Parliament cannot usurp the judicial function. A law that attempts to do so will be invalid.

The executive government cannot manage or direct the judges. The allocation of work within a court is managed by a variety of methods from court to court but, fundamentally, it is the Chief Justice or the head of jurisdiction who is responsible for the allocation of work. The executive government has no say in this.

Neither the executive government nor Parliament exercise disciplinary powers over judges, except that Parliament has the ultimate authority to remove a judge from office.

Members of the government and Members of Parliament can comment on judicial work and can criticise it, but their comments and criticisms have the same status as a comment or criticism made by any one of you. Judges are protected from political or personal reprisals in that way.

By convention, a judge cannot accept any reward for performance of the judicial office, be it from a private person or from the government. The only exception to this is that, on occasions, a judge of one court may be promoted to a higher court. Even as to that there is an understanding that this should not happen too often.

As a matter of strong convention, and in the case of Parliament under Standing Orders, it is accepted that the Parliament and members of the executive government should show respect for the decisions of the courts. This does not prevent comment and criticism. What it requires is a recognition of the responsibility and authority of the judiciary, and respect for the office.

The judiciary is responsible for its own administration. I have referred already to the allocation of work to judges, Broadly, Parliament provides the funding for the judiciary, but the Chief Justice or head of jurisdiction is responsible for the internal organisation of the court generally. However, the extent of judicial control varies. In South Australia we have a Courts Administration Authority, a statutory authority that I chair, that is responsible for all administrative support of the courts. In some states government departments provide much of that administrative support.

Appointments to the judiciary are made from the legal profession, a profession which has a long tradition of independence from government and from clients.

On our side there are also some indicators of judicial independence. There are restraints that flow from judicial independence.

On appointment a judge ceases any involvement in political life. It is well understood that any such activity must cease, so that there is no hint of a continuing link between the judge’s judicial work and the legislature or the executive government.

A serving judge does not or should not serve on a committee established by the executive government to provide advice to it. Sometimes, if a committee is established to deal with a matter that is closely related with the administration of justice, a serving judge will provide assistance or advice to that committee. But if the committee is in truth a committee of the government, under the control of a Minister, then a judge cannot be a member of it.

Judges must keep a certain distance from those who exercise substantial financial and social power. We cannot expect people to accept that we are independent of such people if we are too close to them.

Judges have to exercise restraint when it comes to commenting publicly on public affairs, and when it comes to being involved in community activities. For example, there are difficulties about a judge being involved in an organisation that is regularly involved in lobbying politicians, or that is often involved in controversial issues.

Judges must make their decisions according to law, uninfluenced by the prospect of public praise or public criticism. This can be difficult at times. You will all be aware of the fierce criticism, on occasions, of decisions by judges when sentencing offenders. Our obligation is to proceed according to law, as we understand it, even if we believe that to do so will attract fierce public criticism. We would betray our oath if we were influenced in our decisions by the prospect of praise or criticism.

The indicators of judicial independence are a mixture of law and convention. These indicators require conscientious observance. Judicial independence lies at the heart of public confidence in the administration of justice. That independence and that confidence have endured, but public confidence is capable of being eroded by constant attacks and criticisms.

If judges are independent, are they accountable?

A judge cannot be accountable in the ordinary way. Judicial independence means that a judge cannot be told what to decide, or be rebuked or punished for a particular decision. I have no power to do that, let alone someone outside the judiciary. Security of tenure is essential to support judicial independence.

So how are judges made accountable?

First, we must sit in public, and when we do so we are open to public scrutiny and criticism. There are not many people who perform their work in public, open to public and media scrutiny in this fashion. We must publish reasons for our decisions, and these reasons are made public and are open to criticism. An incorrect decision can be taken on appeal, and can be overturned. In this respect the role of a court of appeal has no adverse affect on judicial independence. Indeed, it is part of the system of judicial independence. The system could not survive if it did not have, within it, a means of correcting error. Judges are subject to peer pressure, which can relate to the standard of their performance, judicial conduct and the like. Judges are subject to quite significant restraints on their conduct in court and outside court, in their public life and in their private life. In the interests of enhancing public understanding of these restraints, and supporting public confidence in the judiciary, the Council of Chief Justices of Australia recently arranged for the Australian Institute of Judicial Administration to publish a “Guide to Judicial Conduct” setting out the principles by which judicial conduct should be guided. This document can be found at the AHA website at www.aija.org.au.

Accordingly, judges are accountable in a number of ways. I believe that the accountability is effective.

Why don’t judges enter public debate more often?

The work of the judiciary often features in the print media and in the electronic media. Sometimes the coverage relates to controversial decisions made by the High Court of Australia, particularly on matters of constitutional law or on matters that are seen of considerable social significance, such as the recent decision of the High Court in relation to a claim for damages by a woman for the cost of raising a child whom she conceived after she thought she had been sterilised. More commonly, attention in the media is given to decisions of the criminal courts, and particularly to sentences passed on offenders. Sometimes the debate is a fierce one, and sometimes the criticism made of the judge and of the sentence is both harsh and personal. As you can imagine, sometimes the judge in question would like to reply. Often I would like to reply on behalf of the judiciary as an institution.

But there are restraints on the judiciary in this area. First, it has long been accepted that the reasons for a judge’s decision are the reasons that the judge gives in court. They are publicly available. It is unacceptable for the judge to enter public debate to explain the judge’s decision. If the judge did, inevitably things would be said that would depart from the reasons published in court, or would be thought to depart from the reasons published in court. Confusion would arise about the true reasons for the decision. For those reasons, the judge whose decision is under scrutiny cannot comment.

The same restraint applies to other judges. It is not for them to explain or to amplify the reasons of the judge who made the decision. The published reasons are the reasons. And in my case, as Chief Justice, there is the added difficulty that I might sit on an appeal. Were I to enter public debate and express a view on the decision, I would soon find myself disqualified from performing my own function, which is to be available to sit on appeal.

Sometimes the debate about a decision becomes political. When the debate becomes political, any intervention by the judge is likely to be seen as taking sides, and so as departing from the principle of non-involvement in political matters.

In many of these situations there are general principles that are relevant to the particular debate. Sometimes those general principles are overlooked in the public debate. In an ideal situation, and sometimes in practice, it is possible to enter the debate and to deal with the general principle, without descending to the particular case. But that is a difficult line to hold, and for that reason the opportunities to do so are limited.

As many of you would know, the Courts Administration Authority and the judiciary of this state make considerable efforts to inform the public about the work of the judiciary, what judges do and why they do it, I regard this as an important aspect of our work. But, unfortunately, when debate rages, we usually must remain silent. That is a problem for us. I am well aware of the corrosive effect on public confidence of these debates. While much of what is said is reasonable comment and criticism, some of what is said is unreasonable or ill informed. Some comment ignores some of the principles about which I have been speaking today. But our ability and my ability to try to remedy that is limited. Often we have to hope that the Attorney-General, or members of the legal profession, will say what needs to be said.

Conclusion

That is a quick survey of the doctrine of separation of powers and of judicial independence, and what judicial independence means in practical terms in our system of government.

There are other things that could be considered if time permitted. Why do we not elect judges? Should the system be changed? Should the public or victims have a greater role in the criminal process than they have at present? These are interesting topics but they will have to be left for another day.

A truly independent judiciary is central to the proper functioning of our system of government. An independent judiciary is very much in the public interest. It is an institution which is there to benefit all of us. We need to be aware of its importance.

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