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pursue new causes of action unless the that senior officer or tribunal might satisfy
Constitution or the Parliament provided the person. But if not, ultimately, the
that such should be the case. matter must be brought before a court,
which has the legal authority to determine
If the Parliament providcd for a ncw finally the rights and liabilities of the
remedy or new cause of action, it would person. It is that finality and authority that
be up to the Parliament to decide whether makes a court a court.
this would have to be pursued in a
Chapter Ill court (and so Parliament could If a person chooses to waive the right to
enlarge the judicial power of the have such a matter determined by a
Commonwealth) or in a non-Chapter Ill Chapter Ill court, then there is nothing
institution (by which Parliament could wrong with the final decision, in that
enlarge the executive power of the particular case, being made by a non-
Commonwealth or delegate legislative Chapter Ill person or institution. The
power of the Comm~nwealth'~).If a non- notion of waiver has arisen in a number of
Chapter Ill institution were given authority American cases concerning separation of
to administer such new remedies or powers issues.1QIt was also an element in
causes of action it could be required to act the B10 Cases,* where it was held that
judicially, but would not be exercising any provided there was an alternative avenue
of the ''judicial power of the of appeal to a Chapter Ill court, it was not
Commonwealth". inconsistent with the doctrine of
separation of powers for the adjudication
The types of matters that have been of taxation matters to be decided by an
regarded as being essential to be heard administrative tribunal, and complainants
by courts are fairly limited. They concern could not complain that their matter had
matters relating to: been dealt with by an administrative
tribunal rather than a court when they had
imposition of criminal penalties; chosen to take that course themselves.
An important issue then, becomes what is
loss of liberty; the nature ot the alternative review
undertaken by a Chapter Ill court in those
forfeiture of property; and circumstances--does it have to be a de
rlovo review or merely a revlew on legal
imposition of civil penalties. issues concerning the original
administrative decision?
But even in some of these matters, it has
only ever been essential that courts have It has been said that in taxation matters,
had supervision and ultimate control over because of the nature of tax-"a
their administration. For example, a compulsory exaction of money by a public
person can lawfully be arrested by a authority for public purposes, enforceable
police officer and thus lose his or her by law, and ... not a payment for services
liberty, and a customs official can renderedwz1-fundamental rights are
confiscate a person's property, without involved that require the highest
any order of a court. It is only if the person adjudicatory standards. Certainly, the
challenges the exercise of those powers Constitution treats taxatinn laws differently
that a court need get involved. In either to other legislation, and so one might infer
case an aggrieved person might opt to that such matters require a higher
pursue a further administrative avenue standard of "justice" to be applied. In
rather than take the matter directly to a MacCormick v. Federal Commissioner of
court (for example complain to a more Taxation, Brennan J said that where
senior officer or apply for review to an Parliament:
administrative tribunal). The decision of
AlAL FORUM No 20
imposes a tax by reference to prescribed While it is not possible to find any "original
criteria, it is for the courts and not for the intention" support for a fourth arm of
executive to determine whether each of
those criteria exists in a particular case government, there is some support in
... an opportunity to obtain a judicial early constitutional text books for the idea
determination as to the existence of the that public law matters could be decided
fact may be validly limited (as it is under by non-Chapter Ill institutions utilising
the Income Tax Assessment Act) to
judicial proceedings on appeal from
judicial-type powers. Allan Hall has also
disallowance ot an objection to an suggested that there is a 1histuril;dl
assessment, but it cannot be wholly difference between private and public
excluded." rights, liabilities and privileges and the
exercise o f judicial power, a n d that, a s a
Perhaps the doubts that Gummow J consequence, there is no essential
raisedz3 concerning the validity of the requirement that they be decided by
Administrative Appeals Tribunal Act 1975 Chapter Ill courts.24
are groundless given the alternative
avenue in taxation matters, which is an At the time of framing the Australian
area of public law that is sui generis. No Constitution, it was settled law in America
other areas of public law traditionally were that "public rights" could be decided
subject to de novo hearings by courts, and outside constitutional courts. This doctrine
so it is not necessary that Chapter Ill originated in Murray's Lessee v. Hoboken
courts have that jurisdiction today. Land & Improvement Co.'' After stating
that Congress could not withdraw from the
The roles and functions of courts have courts any "matter which, from its naturen
varied depending on the nature of the is judicial, the US Supreme Court noted
dispute. In public law matters, courts that:
traditionally have interfered only when
there has been legal error, including At the same time there are matters,
issues relating to procedural fairness. It is involving public rights, which may be
presented in such form that the judicial
only in special public law areas, such as power is capable of acting on them, and
taxation, that courts have demanded, and which are susceptible of judicial
traditionally been given, a greater role. determination, but which congress may
or may not bring within the cognizance of
the courts of the United States, as it may
While there is no reason that the
deem proper.2"
Parliament cannot give courts a greater
role in areas of public law, there is no
Harrison Moore recognised this and
historical reason to suggest that they need
applied it to the Australian Constitution,
have any greater role. Any other role
saying:
could be given to a non-Chapter Ill
institution, which could be called a court or
The question then is-what is 'the
tribunal and which could be required to act judicial power of the Commonwealth'
judicially, being, in appropriate within the t e n s of sec. 71? Even in
circumstances bound by the rules of those Constitutions in which the
evidence, and acting, for all intents and separation of powers has been accepted
as fundamental, by no means every
purposes as a court would normally act. function which is in its nature judicial is
But, because its decisions would be exclusively assigned, or permitted, to the
subject to the supervision of a Chapter Ill judicial organ. Therefore, although
court, and would not have the finality of neither history nor usage nor practical
convenience can determine the nature of
those of a Chapter Ill court-at least in 'judicial power', logical consistency may
relation to questions of law-it would not have to yield something to history and
be exercising the "judicial power of the familiar and established practice in
Commonwealth". determining what is the judicial power of
the Commonwealth committed to the
Courts by sec. 71.27
AlAL FORUM No 20
Quick and Garran, in 1900, also noted the Constitution. It is also that
that executive officials would have to independcncc that the lower level
undertake some judicial functions and act "independent" decision-makers in the
judicially. They said: fourth arm of government can rely upon to
validate their own actions, and assert and
The distinction between judicial and maintain their own independence from the
executive functions is not always easy to executive and Parliament.
draw. 'Doubtless the non-coercive part of
executive business has no affinity with
judicial business. ... The same may be Where an agency has statutory duties or
said, for the most part, of such coercive functions to carry out, the High Court
work of the executive as consists in insists upon the proper fulfilling of those
carrying out decisions of judges; e.g., the
imprisonment or execution of a convict.
duties and functions in accordance with,
But there are other indispensable kinds and not in excess of, the powers given to
of coercive interference which have to be that agency. While the Court will permit
performed before or apart from any discretion to be applied within the scope of
decisions arrived at by the judicial organ; the powers and nature of the function of
and in this region the distinction between
executive and judicial functions is liable the agency, there are common law rights
to be evanescent or ambiguous, since and administrative law standards that the
executive officials have to "interpret the Court will insist are not encroached upon.
law" in the first instance, and they ought Thus, the influence of the executive on
to interpret it with as much judicial such agencies IS mlnrmlsed,
impartiality as possible.' (Sidgwick,
Elements of Politics, p. 3
5
8
)' notwithstanding that the executive might
have power to dismiss the office holders.
Implied values In the end, the Chapter Ill courts set the
standard of proper functioning of such
Separation of powers has a prophvlactic agencies.
function. ~dherenceto its principles in
structuring governmental institutions A new principle that would be important to
prevents abuse of power through limiting introduce into fourth-arm-of-government
undue accretion of power in any one jurisprudence is a notion of "structuraln
organ of go~ernment.~~ Some of the procedural fairness. In Canadian Pacific
values that flow from the concept include: Ltd v. Matsqui lndian Band,3' Lamer CJ of
the Canadian Supreme Court held that the
independence of decision-making; very structure of a tribunal could constitute
a reasonable apprehension of bias at
countermajoritarian check on common law, and thus invalidate its
majoritarian institutions; decisions. In his view, the level of
structural independence that is required of
rule of law; and a tribunal depends on the nature of the
tribunal, the interests at stake, and
m prohibition of the exercise of arbitrary whatever other indicia of independence
power.30 are available, such as oaths of office. In
this matter, Lamer GJ held that the Bands'
Independence of decision-making Appeal Tribunal did not meet the requisite
standard of independence for three
Chapter Ill courts under this fourth-arm-of- reasons: the by-laws creating the tribunal
government model would remain made no provision for financial security for
independent of the executive and the tribunal members; security of tenure
Parliament. It is fundamentally important for tribunal members was either absent or
that they be so, and the judicial was ambiguous; and the Indian bands
independence is the purpose of the tenure both appoint the tribunal members and
and guaranteed remuneration clnuscs of are a party to the dispute. He held that it
AiAL FORUM No 20
--P
was all three factors in combination that not politically accountable. The Courts
led him to his conclusion. He stated: cannot temper the true application of the
law to satisfy popular sentiment. The
Courts are bound to a correct application
[l]t is a principle of natural justice that a of the law, whether or not that leads to a
party should receive a hearing before a popular decision in a particular case and
trlbunal whlch is not only Independent, whether or not the decision accords with
but also appears independent. Where a
party has a reasonable apprehension of
executive policy. ...
bias, it should not be required to submit
to the tribunal giving rise to this [l11 1l1e Courts were to seek popular
acclaim, they could not be faithful to the
apprehension. Moreover, the principles
for judicial independence outlined in rule of law. Confidence is based on
faithful adherence to the law by the
Valente32are applicable in the case of an
administrativetribunal, where the tribunal Courts which are charged with its
declaration and application. Our
is functioning as an adjudicative body
settling disputes and determining the Constitution, rooted in the common law,
does not need to express the proposition
rights of parties. However, I recognize
that a strict application of these that the nation is under the rule of law
and that the Courts are the organ of
principles is not always warrantedr3 sovernment responsible ultimatelv for
the enforcing of ihe rule of law. hat is
By advancing such principles, the High the Constitution's fundamental postulate,
Court could influence the structure and inherent in its text, especially in Ch Ill.As
Dixon J said in the Communist Pady
independence of institutions within the Case, the Constitution 'is an instrument
fourth arm of government, ensuring that framed in accordance with many
proper standards were adopted, both traditional conceptions, to some of which
procedurally and structurally, thereby it gives effect, as, for example, in
ensuring that the exercise of judicial separating the judicial power from other
functions of government, others of which
power within the executive or legislative are simply assumed. Among these I
power of the Commonwealth was think that it may fairly be said that the
appropriate to the nature of the matters rule of law forms an as~umption.'~~
dealt with by the relevant agencies.
The same values can, and should, be
Countermajorltarian check on seen in the fourth arm of government. The
majoritarian institutions function of independent tribunals is closely
related to the operation of the rule of law.
While a fundamental value contairrad i r ~ The leglslatlon under which they operate
the Constitution is the democratic nature generally provides that their decisions are
of government-the representation of the deemed to be the decisions of the primary
people in Parliament and the sovereignty decision-rnaker. Thls has the automatic
of the people-an essential value of legal effect of imposing on the executive
separation of powers is the avoidance of agency the decision of the tribunal that
the "tyranny of t h e majority" by having t h e h a s been made independently DC that
judiciary independent of popular will. The executive agency and in accordance with
judiciary is a countermajoritarian the law as interpreted by the tribunal. The
institution, which protects individual and only way in which that decision, lawfully,
minority rights. Sir Gerard Brennan said need not be implemented is by an appeal
recently: to the judiciary. Thus the fourth arm of
government is also countermajoritarian in
Responsibilityfor the state of the law and nature, but subject to the laws of the
its implementation must rest with the
branches of government that are
democratically elected Parliament.
politically accountable to the people. The
people can bring influence to bear on the Rule of law
legislature and the executive to procure
compliance with the popular will. But a The notion of rule of law is closely linked
clamour for a popular decision must fall
on deaf judicial ears. The Judiciarj are to the separation of powers, and flows
AlAL FORUM NO20
from the fact that no arm of government court on legal and procedural issues, it
h a s total power t o d o as it might wish. would breach this important conslilutional
Each is subject to, and submits to, some value, and render the grant of power to
control by another arm, and it is the courts that institution invalid.
that authoritatively state the rules and
apply them to the agencies of Prohibition of the exercise of arbitrary
government. Sir Gerard Brennan said: power
~http:Nwww.hcourt.gov.aulbond2.htm~
1109/98)
(l
Under the AD(JR) Act, extensions to the
Judiciary Act, and review by statutory right
(e.g. s.44 AAT Act), the right to Chapter Ill
review is guaranteed for most administrative
decisions, and decisions of non-Chapter Ill
tribunals and institutions. The Australian
system is unlike that which exists in the United
States, where Arucle Ill courts give deference
to the decisions on questions of law of lower
courts or tribunals by only requiring that the
interpretation be reasonable, rather than the
correct or preferable interpretation. Thus the
notion of appellate review as an element of
separation of powers theory has more
likelihood of success in Australia than in
America. Australian courts already exercise
complete control over the interpretation of
legal questions by administrative tribunals,
and it cannot be said that any suthoritotivc
discretion has been given to those tribunals
on legal questions if they are subject to
complete review and no deference given by
the reviewing court, on such matters. As
Fallon notes, There is some risk to judicial
integrity insofar as courts give their imprimatur
of validity to judgments that, but for the
agency's aeclslon, they would not have
reached.": Fallon, R H, Jr, "Of legislative
courts, administrative agencies, and Article
Ill", (1988) 101 Harvard Law Review 915, 985-
986.
(1932) 285 US 22.
Discussed in Bator, P M, =The Constitution as
architecture: legislative and administrative
courts under Article Ill", (1990) 65 Indiana Law
Journal 233,267.
Barendt, E, "Separation of powers and
cnnstittrtional government", [l9951 Public Law
599,606.
Strauss, P L, T h e place of agencies in
government: separation of powers and the
fourth branch", (1984) 84 Columbia Law
Review 573,579-580.
Re Drake and the Minister for Immigrationand
Ethnic Affairs (No. 2) (1979) 2 ALD 634,640.
Dmke v. Minister for Irrrrniyration and Ethnlc
Affairs (1979) 24 ALR 577,590-591.
(1989) 488 US 361,381.
Fallon, R H, Jr, "Of legislative courts,
admlnlstratlve agenaes, and Article Ill",
(1988) 101 Harvard Law Review 915, 947,
said: "Appellate review can provide an
effective check against politically influenced
adjudication, arbitrary and self-interested
decision-making, and other evils that the
separation of powers was designed to
prevent. It can help ensure fairness to litigants
and can be sufficiently searching to preserve
judicial integrity."