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Separation Of Powers Notes

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3. THE SEPARATION OF POWERS


Legislative - law-making functions o Budgetary matters o Impeachment = oversight of executive o Passing of resolutions to express views, contributing to public policy Judiciary - application & interpretation o Making procedural rules - practice directions, etc Executive - investigation, enforcement o Foreign policy o Delegated legislation

Problems
 Carolan o Inoperable in practice — lines are blurred / arbitrary o Allocation of functions to institutions is circular — functions justified by procedures; procedures developed to suit functions
 BUT nothing circular about incremental development &
separation — spiral rather than circle M Vile — Elements of the doctrine
 Division of agencies into legislature, executive & judiciary
 Assertion that all government acts have a legislative, executive or judicial character
 Separation of persons conducting those functions o Most dramatic characteristic of pure doctrine o Facilitates check & balances History
 Need not necessarily be between functions — can be between interests, powers or levels of authority o EG Aristotle & historically in England — monarchical, oligarchical &
democratic — King, Lords and Commons o Locke did not address separation of executive from judiciary —
believed J to be subject to E <> Montesquieu
 Deterioration of doctrine in mid-20th century o But avoidance of tyranny necessarily involves control of behavior, which necessary entails different bodies o Blurring of the lines - quasi-judicial bodies; delegated legislation; administrative rule-making; administrative justice o Military, social, economic needs of modern societies requires more centralization of power in Executives?
o No problem of absolute monarchs - rather, sincere politicians trying to solve problems? Assumes parliamentary sovereignty is a solution to all problems?
o Negative concern for liberty - restraining governments prevents it from acting to preserve social & economic life - comes at cost of certain freedoms

Source of public authority — Principle of Institutional Settlement — Hart &
Sacks
 Procedural arrangements for how law is to be made must be institutionalised
 Decisions which are the duly arrived at result of duly established procedures of this kind ought to be accepted as binding upon the whole society unless and until they are duly changed o EG forbids courts from substituting opinion for that of the legislature
 Does not apply in respect of all decisions — only decisions of a "common concern" o IE where it is better (however defined — in absolute terms, utilitarian terms, etc), that a collective decision be reached than each individual follow his own belief
 Basis for distribution of authority between officials — B should yield to A's direction to a citizen o Cannot be in cases where A's direction will be better — because B will always believe that his direction is better — nature of authority is that B should yield despite belief that he knows better o Public authority is sui generis — established for resolution of questions of common concern — IE more important to get a resolution than to get the right answer Nature of Separation Meanings of "separation" — thin to thick

1. Differentiation of concepts — legislative, executive & judicial functions
 And if same person in same office exercises those functions, they should do so in a way that is conceptually distinct — ie make laws first, then apply them
 Functions rather than interests — cf King, Lords & Commons — eg Ashby v White, often framed as dispute between legislature & judiciary on justiciability of elections, was actually dispute between Lords & Commons
 Functions could conceivably be split further — Ackerman o Montesquieu — legislative power = lawmaking, enactment &
abrogation; subject matter | executive = domestic & international |
judicial function = facts (juries) & law (judges) o EG Judiciary in France — effectively split into civil, constitutional, administrative

2. Separation of offices — each office must exercise only one of those types of powers
 EG legislature, cabinet & judiciary
 CF rule-making & adjudicative functions held by executive
 <> Boilermakers (invalidity of Cth Court of Conciliation & Arbitration —
essentially executive court) — prevented judicial power being conferred on non-judicial bodies; Chu Kheng Lim — certain functions exclusively judicial; but has been watered down considerably eg Magaming
 <> Montesquieu — as Claus points out, Montesquieu failed to appreciate that separating the nature of powers was insufficient

3. Separation of persons — an official can only occupy one of those offices
 CF House of Lords until 19th c, some American States NY, Conct, had members of upper house sitting in highest court; Ministers in Westminster System; early US Chief Justices as persona designata ambassadors; in Australia as well (Deane to Japan)
 Claus — UK problem — Ministers & Courts (under Judicature Acts) both exercise powers delegated from parliament — both exercise rule-making powers — Ministers sit in parliament, so why should judges not?
o Especially given judges not given task of policing limits of legislative power

4. Isolation, immunity or independence of offices — persons in those offices (whether separation of persons or not) cannot be influenced, dismissed or interfered with by another
 Entry-level independence — nomination by AG <> Germany, nomination by supermajority, giving minority parties effective veto; 12 year tenure without possibility of reappointment o Makes more bipartisan exercise
 judicial independence simpliciter (capacity to hold office & exercise powers cannot be interfered with — eg tenure), or also
 functional judicial independence (scope of powers cannot be interfered with — eg S10, Anisminic, France

5. Defensive mechanisms — Checking & balancing of one branch by another —
each branch has mechanisms to ensure that scope of powers not interfered with

6. Static nature of separation of powers — prohibition on delegation
 US — delegatus non potest delegare
 EU — Meroni doctrine — delegation can circumvent procedural requirements
 UK — power frequently delegated — Hewart CJ wrote book concerned about delegation of rule-making powers to unreviewable administrative bodies o Addressed in Coughlan with substantive legitimate expectations
 Aus — law delegating whole of defence power would not be "law with respect to … defence"
 In reality — most executive power is delegated from legislature —
prerogative powers severely diminished
 And abolition of institutions/modification of own structure —
o Queensland — ability of upper house to vote itself out of existence?
 NB delegation based on agency principle — invoked also against delegation to colonial legislatures, which were not of plenary powers

7. Co-ordinate status — IE institutions have equal powers
 CF Locke believed in legislative supremacy — branches to be separate but not equal — remains true in UK o But NB Lord Hope in AXA Insurance and Lord Hodge in Moohan
 <> UK — Courts under Judicature Acts creatures of statute
 Conversely, requires supervision of courts by legislature & executive as well as vice-versa — eg reversal of decisions by supermajority, or

referendum o Claus extends this to deny value of establishment of UKSC Ambiguities
 Lack of clarity as to meaning of separation and whether in fact separated
 Lack of clarity as to nature of powers to be separated — what constitutes "judicial power" and who determines its scope
 Whether justiciable

1. Functional separation — between powers & capacities: Lockean justification
 Lawmakers should be subject to the law themselves - laws more likely to be just o Undermined by lack of generality of laws - against minorities; or fanatical legislator prepared to bear certain burdens
 Lawmakers should not be able to control application or they could effectively exempt themselves from obedience o Undermined by party politics - esp b/w legislature & executive
 Points to functional separation - not about dispersal of powers or checks &
balances
 Lockean 4th "federative" power - war & peace, leagues & alliances - should be in same hands of executive - anti-separation argument?
 Cases of separation within institution - eg Lockean executive w 4th power; trials by judge alone - cf. Hobbesian tyrannical non-differentiating ruler

Vile — Functional classification of powers o Pure doctrine of separation of powers asserts that certain functions (rule-making, judgment, adjudication, enforcement) can be neatly divided between branches o Rules made by all 3 branches; decisions affecting rights made by judiciary & administration; administrator must make rules and apply them in (necessary) exercise of discretion; policeman on the beat creates precedents, at least for those in his vicinity o To do so would result in intolerable disjuncture in actions of government o Classification can be saved by hierarchy - o Legislative power - eg legislature has supreme rule-making power, any rules created by other arms yield; executive action subject to judicial review
 What does rule-making mean?
 Objection that not all rules made by legislatures - but by advisory/administrative bodies that service them… but clearly authorized by the legislatures which is sufficient - practical question of resourcing?
 Extreme alternative that all civil servants involved in drafting elected to one enormous parliament
 Different levels of legislation - primary (concerning rights &
obligations of citizens) and secondary (institutional regulation, eg establishment of Federal Court)

o Executive power - Room for prerogative power - a 4th, discretionary power (but surely part of executive power?) Suggestion that this is unconstrained?
o Judicial power - rule-application - courts decide disputes between parties but in a different fashion to administrative bodies; courts have power to authoritatively state the content of the law o Alternative classification of functions - rule-making; discretionary power; rule-application; authoritative rule-interpretation (at 361) Models of separation Ambiguities (Marshall)
 French strict separation — offence for judges to pass judgment on administrative action <> Conseil d'Etat established within administration; Conseil Constitutionnel established within legislative framework o But separation of Conseil d'Etat from administration could only be regarded as a further separation of powers — each with attack mechanism on the other o IE "strict" separation always a fiction o 5th republic introduces separation of executive & legislature —
 Powers in art 34, 37
 cannot hold both offices, Ministers cannot sit in Assembly
 Executive not independent as in US — depend on vote of confidence o Montesquieu — arms of government should have "no partial agency in, or no control over the acts of each other"
 Madison — means only that no government should exercise all powers of the others
 EG judiciary can strike down legislative acts but not legislate; legislature can restrict jurisdiction but not decide cases; executive can veto but not propose laws
 American (and English) model — each branch with defence mechanisms to attack other's power, but only in order to preserve its own o Washington — Executive truly independent in sense that cannot influence or be dismissed by congress o Westminster — diluted separation of executive & legislature o American system had not yet emerged when Montesquieu was writing
 <> Montesquieu's view of Russia — Executive & Legislature not separate &
role of each body is only to "applaud" the decision-making supreme Soviet Self-defence mechanisms
 Nature of self-defence mechanisms o Power expressly conferred to protect the integrity of the institution against another o Power incidental to other powers or immunities that has that effect
 Negative "shield" mechanisms o Legislature

 Parliamentary privilege from defamation suit
 Immunity from judicial review for rationality o Executive
 Sovereign immunity from prosecution
 Public interest immunity from disclosure in litigation o Judiciary
 Judgments immune from scrutiny of legislature
 Legislators prevented by convention from criticising decisions of judges
 Funding protected from executive
 In some countries (eg India) succession is guarded: judges choose their own successors // elsewhere the bar association &
judges are consulted by convention Positive "sword" mechanisms o Legislature
 Controls flow of money into executive & can block supply
 Power to impeach executive
 Power of lower legislature to repeal acts of higher legislature (UK) or force reconsideration (EU) where encroaching on their area of competence o Executive
 Veto over Acts (US, UK to an extent) or power to compel reconsideration (South Africa) or refer to Constitutional Court (SA, France)
 Power to dissolve legislature (Australia, under specific circumstances)
 Power to pack court o Courts - JR — can strike down executive or legislative acts interfering with Courts or exceeding powers Instances of institutions acting wholly outside Constitution - in crisis situations can be rationalised in terms of sovereignty?
o Courts
 Judges refusing to give effect to validly enacted law: Woolf LCJ on Asylum and Immigration Bill 2004
 Courts ruling on extra-constitutional matters - eg revolution o Executive
 Refusal to apply & enforce decision - at least past the precedent it creates (Courts dependent on matters coming before them) o Justifiability - even if they cannot be justified in principle, their practical position makes them a 'self-defence' mechanism

Role of friction
 Generally - comity of aim - legislature who sets rules & judges who interpret them both aiming for best outcome for citizens o Does this misapprehend the role of judges? Second injection of policy at application level? - "comity of mechanism - with each

constitutional institution using their different capacities to advance this policy" For prevention of error o Risks of error
 Legislature - majoritarianism
 Judiciary - lack of complete information; temptation to overdecide For distribution & limitation of moral reasoning between institutions o Each institution limited in extent of moral reasoning, and sum of total produces just effect - invisible hand theory o Allows each institution to play to its strengths o Eg market - buyers & sellers pursuing own goals but in the process producing social benefit in efficiency
 Obvious differences between institutions of government and self-interested private actors…
o Concrete illustration
 Legislature gauges public interest and weighing interest groups; Courts recognise impact of individual application
 Legislature poorly equipped to consider specific application; Courts poorly equipped to consider general rules
 Reason against over-generalised rules by Courts and specific legislation (attainder, mandatory sentencing, etc) o This also assumes a certain activist role of Courts o Institutions not acting in comity, but in superficially conflicting goals that produce common good o Dworkin - legislature = policy = common good | judiciary = principle
= individual rights --- division of moral labour?
o Eoin Carolan - 'constituent perspectives'
 Broad collective good - best ascertained by legislature &
administed by legislation
 Local implications - executive (delegated legislation &
exercise of discretion)
 Fairness to individuals - courts For self-defence of institutions o Shields & swords for when friction reaches heightened levels - clear limits to powers of each institution o Exercise of those powers comes at price to legitimacy of both institutions - restraint in their exercise

PURPOSE OF SEPARATION OF POWERS

Montesquieu- Conceptual distinctions between powers would be conflated practically if placed in the same hands o Disbelief at popular calls for "King Solomon" style rule to cut through technicalities of separation of powers & achieve swift justice - if

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