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Separation of Powers and the Judicial Branch
... While initially the principal focus of the doctrine of separation of powers was not the judiciary, Australian Courts have survived what may be seen as a putsch in Australia for ever-closer union between the legislature and the executive, even though we have sometimes struggled to make exacting delineations between the three powers. 29 Notwithstanding any reservations any members of this Court may have about applying the law as the legislature has enacted it, it is nevertheless the role of this Court under the Australian Constitution to apply the law as we interpret that law to the facts of the cases that come before us. ...
This is the judgment that never was. The judgment in the High Court proceedings that could have followed Karam v The King (“Karam”) [2023] VSCA 318 (14 December 2023). The judgment of a brave jurisprudentes – the nonexistent eighth Justice of the High Court of Australia – Justice Phantom. If delivered, it would have been a dissenting judgment.
All seven of the actual justices of the High Court of Australia unanimously supported a blanket refusal to hear the case. They sat in secret session à huis clos at some stage and only ‘on the papers’ without a formal hearing that might have allowed the issues in the case to be fully ventilated, simultaneously rejected applications for an extension of time in which to make an application for special leave and dismissed the special leave applications (see: Karam v The King [2024] HCASL 114; Karam v The King [2024] HCASL 115).
Karam was undoubtedly a case of public importance. The fact that all seven Justices of the High Court of Australia were involved in dismissing the applications tends to suggest some form of admission by conduct to that effect. In what has become a regular routine, a full Court constituted by two justices regularly dismisses applications for special leave en bloc.
... institucionalización constitucional de un catálogo de derechos fundamentales (liberales, políticos e, incluso, sociales) es una estrategia posible -pero no necesaria-para lograr ese objetivo 40 . En fin, la puesta en funcionamiento de un mecanismo de separación de poderes permite la rendición de cuentas por parte de las autoridades políticas, a fin de asegurar que estas se comporten de acuerdo con la ley, en observancia de los derechos individuales y de las instituciones democráticas (Saunders, 2006: 337 y ss.) 41 . La concepción normativa y empírica de constitución resalta el objetivo del constitucionalismo, consiste en la institucionalización de una forma de gobierno en la que el poder del Estado es controlado, limitado y restringido, el pueblo está democráticamente facultado para controlar las fuentes del derecho y el aparato de gobierno está vinculado por las aspiraciones del pueblo (Waldron, 2009: 270 y 276). ...
This article makes a case against the wide-spread conception of the constitution-making power as constituent power. A conceptual analysis of the power to replace or revise the constitution shows that this understanding is incorrect. Instead, the article advances a socio-ontological conception of the power to replace or revise a written constitution, as a limited deontic power of citizens’ political proxy-agents, who are collectively intentionally recognized as having the status of constitu-tion-makers for performing the function of institutionalizing constitutionalism. This conception illuminates a clearer approach to understand the constitution-making power, and to evaluate the legitimacy of its exercises. © 2018, Centro Estudios Politicos Constitucionales. All rights reserved.
In late 2024, near the end of their first term in office to the sound of trumpets and including many photo-ops, the Australian Federal Labor government enacted new Federal laws criminalising ‘industrial manslaughter’. They also introduced a new Federal criminal offence of ‘wage theft’ while significantly increasing penalties for other offences. Immediately forgiven is anybody confused by the rhetoric and grandstanding who imagines this is just electioneering to lay a foundation for a second term for an Australian Labor government.
Is Australian Labor still considering ploughing ahead with an Australian Republic? If so, what is the Doctrine of the Separation of Powers likely to look like under an Australian Republic, with an all-powerful executive Prime Minister? Will the judiciary and the legislature be further reduced in power and stature until they are merely subservient apparatchiks?
O presente artigo expõe argumentos contrários à tese de que o poder de criação de uma constituição deve ser entendido como o poder constituinte, em sua acepção de poder fundacional, ilimitado e soberano. Uma análise conceitual do poder para substituir ou revisar a constituição mostra que esse entendimento é incorreto. Em seu lugar, o artigo avança uma concepção sócio ontológica do poder para substituir ou revisar uma constituição escrita, como um poder deôntico limitado, cujos titulares são os representantes políticos dos cidadãos, a quem a coletividade reconhece o status de criadores constitucionais e cuja função é institucionalizar o constitucionalismo. Esta concepção propõe um enfoque mais claro para compreender o poder de criação da constituição e para avaliar a legitimidade de seu exercício
Proportionality is used by the UK Courts when reviewing the Convention-compatibility
of the activities of the other branches of government. There are two related problems
with the current analysis of proportionality. First, there has been a heavy emphasis on
the division of constitutional space between the judiciary and the other branches of
government. This focus on spatial conceptions of institutional responsibility has
distracted attention from the structure of the relationship between proportionality and
deference. The second problem is that there has been insufficient attention paid to the
manner in which the test is affected by the distinctions between the different
governmental institutions which can be judicially reviewed under the HRA. The
individual stages of proportionality are based on certain premises about the institution
being reviewed. This needs to be explicit if a sophisticated understanding of
proportionality is to be developed.
I plan to overcome these two problems by setting out a structural, institutionally
sensitive model of proportionality and deference. The model is structural in that it takes
account of the operation of deference within the process of proportionality. The model
is institutionally sensitive in that it takes account of the differences between the
institutions which the courts can review under the HRA. The model is based on the
work of Alexy, but adapted for the UK context and developed to make it institutionally
sensitive. I trace the operation of this structural model through three institution-specific
case studies in order to establish its relevance in the UK. The case studies concern
administrative decision-making in immigration cases, rule-making in criminal justice
cases and judgments concerning both administrative decisions and legislation in
housing cases. This diverse range of subject matter provides the basis for proving the
applicability of the structural, institutionally sensitive model, which overcomes the two
related problems with the existing analysis.
This paper provides an account of the new constitutional reforms provided by the Constitutional Reform Act 2005 and discusses how they came about. It suggests that the traditional constitutional arrangements, including the role of the Lord Chancellor, have successfully protected the rule of law, evolving as the needs of society have changed, without a need for a written constitution. We have benefited from a tradition of mutual respect, restraint and cooperation between the three arms of government. There have been times of tension, but with good sense and good will on all sides they have been successfully managed. It asks whether as part of the process of change we are paying sufficient attention to retaining or replacing the checks upon which, in the past, the delicate balance of our constitution has depended.
AN inaugural lecture is the occasion when the University of Cambridge can look its gift horse in the mouth, weighing the new professor in the balance against his or her distinguished predecessors. The Rouse Ball Professorship of English Law has been held in the past by a long series of distinguished scholars, from Sir Percy Winfield to my immediate predecessor, Sir Jack Beatson whom we are delighted to welcome back today. Their work has influenced generations of lawyers. They certainly influenced me. Before I encountered Criminal Law: The General Part, a great little volume by Professor Glanville Williams, Learning the Law, was my “Guide, Philosopher and Friend” (as it still says on the cover of the latest edition, now edited by my colleague Professor Tony Smith) as I approached the study of law. Another Rouse Ball Professor, the late Sir William Wade, had a formative effect on my understanding of land law and administrative law both through his famous books, Megarry and Wade on the Law of Real Property (now edited by a former Fellow of Downing College, Dr. Charles Harpum) and Administrative Law (now in the hands of my colleague Dr. Christopher Forsyth), not to mention the lectures that I attended as an undergraduate in (softly be it said) the University of Oxford.
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
- See
Human Rights, Terrorism and Risk: The Roles of Politicians and Judges
- David Feldman
- Morrow John
Trevor Allan has argued also for a de facto institutional separation of powers that relies on the “firm conventions governing… [the] various roles
- Barendt
Federalist Paper 51 The Federalist, Everyman Library
- Alexander Hamilton
- James Madison
- John Jay
ibid) 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
- See
- Stone
General Theory of Law and State (1961), p. 269: “the judicial review of legislation is an obvious encroachment upon the principle of separation of powers
- Marshall
p. 50; see also Eric Barendt, “Separation of Powers and Constitutional Government”
- Trevor Allan
- Law
- Justice Liberty
The English Constitution
- William Blackstone
2 SCR 673 In the PEI case Lamer CJ (at para. [117]) referred to this list as “narrow”
- The Valente
- Queen