SEPARATION OF POWERS: 20 YEARS OF THE COMMONWEALTH LATIMER HOUSE PRINCIPLES
WHAT WERE THEY THINKING? DEFINING PARLIAMENTARY INTENTION AND PURPOSE: AN AUSTRALIAN PERSPECTIVE A former Chief Justice of Australia writes about the separation of powers. I am grateful for the opportunity to contribute to this celebration of the 20th anniversary of the Commonwealth (Latimer House) Principles on the Three Branches of Government in this issue of The Parliamentarian. I do so from an Australian perspective on the separate but interacting functions of the Parliament and the Judiciary in making laws and interpreting them. Principle II of the Commonwealth Latimer House Principles states: a) ‘Relations between Parliament and the Judiciary should be governed by respect for Parliament’s primary responsibility for law making on the one hand and for the Judiciary’s responsibility for the interpretation and application of the law on the other hand. (b) Judiciaries and Parliaments should fulfill their respective but critical roles in the promotion of the rule of law in a complementary and constructive manner.’ Under the Australian Constitution, Parliament makes the laws, the Executive government carries them out and the courts interpret and apply them in deciding cases brought before the courts. Chapter III of the Constitution provides for the federal court system, comprising the High Court, Federal Courts created by the Parliament, and State and Territory courts, which are given federal jurisdiction by the Parliament. At the federal level, there is a clear separation of powers between the Legislature and the Executive on the one hand, and the Judiciary on the other. That separation is defined by a boundary between law making and adjudication which involves interpretation and application of the law. That boundary is not precisely defined. In the interpretation of laws, the courts are often required to make choices between available readings. The making of those choices can be seen as a species of interstitial law making.1 However, the range of those choices is confined by rules of interpretation, institutional restraint, and respect for the constitutional function of the Parliament. The interpretation of statutes is the core business for Australian courts in almost every kind of case they hear. In cases involving the exercise of challenges to official powers, the courts may have to determine the extent and limits of the powers which Parliament has conferred upon officials. The official whose decision is under judicial review may be a Minister of the Crown or a public officer or a body given statutory powers. The courts may have to interpret the conditions which Parliament has prescribed must be satisfied before the decision-making power
can be exercised. The courts may have to determine whether the conditions have been satisfied. It is central to the Rule of Law in Australia that there is no such thing as unlimited official power. Official action must be authorised by statute or directly from the Constitution. This is consistent with Principle VII(c) of the Commonwealth Latimer House Principles under the heading ‘Judicial review’ which states: ‘Best democratic principles require that the actions of governments are open to scrutiny by the courts, to ensure that decisions taken comply with the Constitution, with relevant statutes and other law, including the law relating to the principles of nature justice.’ What does a court do when it interprets a law? When contested questions of the interpretation of an Act of Parliament come before the courts, there is often more than one possible interpretation reasonably open. A provision of an Act may present ‘constructional choices’ - different but reasonably arguable ways of reading the provision. In deciding which construction to choose, Australian courts look first to the text of the Act - the words it uses. They also look to the context of those words - including the part of the Act in which the words are found, the other provisions of the Act and the overall legislative scheme of which they are part. They will also look to the purpose of the Act. In Australia, the Acts Interpretation Act 1901 (Cth) requires the courts, interpreting Commonwealth statutes, to prefer ‘the interpretation that would best achieve the purpose or object of the Act whether or not that purpose or object is expressly stated in the Act.’2 The purpose of an Act or a provision of an Act may be stated in the Act itself. It may be unstated but apparent from the Act read as a whole or from the terms of the particular provision. It may appear from the Minister’s Second Reading Speech and perhaps the Explanatory Memorandum for the Bill that becomes the Act. It may be that the Act gives effect to a recommendation of the Australian Law Reform Commission or a Royal Commission - a background which makes clear the legislative purpose. Sometimes the purpose of a provision of an Act is obvious. Sometimes it is not. Sometimes the provisions of an Act reflect a political compromise between competing interests. That is democracy at work. However, it may make it difficult to determine a
Hon. Robert French, AC served as Chief Justice of Australia from 1 September 2008
until 29 January 2017. He is a graduate of the University of Western Australia in science and law. He served as a Judge of the Federal Court of Australia from November 1986 until his appointment as Chief Justice of the High Court. Since his retirement as Chief Justice, he has been appointed as a Non-Permanent Justice of the Hong Kong Court of Final Appeal (May 2017), as an International Judge of the Singapore International Commercial Court (January 2018) and as a Judge of the Court of Appeal of the Dubai International Financial Centre (June 2019). He was elected as Chancellor of the University of Western Australia in December 2017.
294 | The Parliamentarian | 2023: Issue Four | 100 years of publishing
