The Case for Constitutional Reform

The fact that the Constitution gave Australians a system of government on the British model provided a sufficient indication of an intention to reject altogether the principle of the separation of powers, notwithstanding the close resemblance between the relevant provisions of the Australian Constitution and those of the United States Constitution. – Sir Harry Gibbs (1987)^[1]

Constitutional government — government under the rule of law — requires an appropriate separation of powers. However, the Westminster style of government our Founders bequeathed to Australia provides a very weak separation of powers, especially between the legislative and executive branches of government. Under present conditions, few are the laws the Australian governments cannot create and change at pleasure. The effect is that these governments are accountable to no one except, once in every few years. at general elections. It is no wonder why so many of fundamental rights can be ignored and violated.

The primary characteristic of separation of powers is its assertion of a division of governmental agencies into three different branches: legislature, executive and judiciary. This doctrine is deemed an essential element to ensure that abuse of power is prevented. A stricter application of the doctrine can be formulated as follows:

To each of these three branches — legislature, executive and judiciary — there is a corresponding identifiable function of government, legislative, executive, or judicial. Each branch of the government must be confined to the exercise of its own function and not allowed to encroach upon the functions of the other branches. Furthermore, the persons who compose these three agencies of government must be kept separate and distinct, no individual being allowed to be at the same time a member of more than one branch. In this way each of the branches will be a check to the others and no single group of people will be able to control the machinery of the State.^[2]

The strict doctrine of separation of powers indicates that the mere separation of agencies is insufficient to secure good government. These functions must be placed in distinct hands if freedom is to be assured.

The idea rests on the premise that whenever power is concentrated in the hands of a few, the risk of arbitrariness increases. This is a problem of unchecked power and here we are reminded of the words of Lord Acton: ‘Power tends to corrupt and absolute power corrupts absolutely’.^[3] And yet, when each branch of government is placed in distinct hands, there will be a check on the exercise of power by the State. The attempt by one branch to exercise undue power over another will be restrained by those who exercise power via the other branches of government.^[4] Professor Brian Tamanaha explains the rationale for this division of governmental powers:

Freedom is enhanced when the powers of the government are divided into separate compartments — typically legislative, executive, and judicial (horizontal division), and sometimes municipal, state or regional, and national (vertical division) … This division of powers promotes liberty by preventing the accumulation of total power in any single institution, setting up a form of competitive interdependence within the government.^[5]

This idea of separating the powers of the State has a long history. Aristotle, in his Politics, advocates for a government which combines royal, democratic and aristocratic elements. The Roman statesman, Marcus Tullius Cicero, conceived a relatively democratic type of “mixed government” that is closely related to the modern doctrine of separation of powers. ^[6] Charles-Louis de Secóndat, Baron de La Brède et de Montesquieu, was inspired by these teachings. In The Spirit of the Laws (1748), he proposes a rigid separation of powers as a necessary protection against tyranny. According to him, the executive branch, being more rigidly separated from the legislative one, can check arbitrary impulses of the latter by refusing legislative enactments that violate the rule of law. Montesquieu commented:

When the legislative and executive powers are united in the same person, or in the same body of magistracy, there can be then no liberty, because apprehensions may arise, lest the same monarch or senate should enact tyrannical laws, to execute them in a tyrannical manner.^[7]

Montesquieu also explains that ‘constant experience shows us that every man invested with power is apt to abuse it, and to carry his authority as far as it will go.’^[8]  This made him argue that the protection of liberty can be better afforded if the executive and legislative branches do not repose in the same person or group of persons. With these two branches more rigidly separated, if one becomes corrupt the other should be able to check the wayward influence.^[9]

With these two branches more rigidly separated, if one becomes corrupt the other should be able to check the wayward influence.

Sir William Blackstone (1723–1780) was profoundly influenced by Montesquieu’s writings. In Commentaries on the Laws of England (1765), he describes the British monarchy as a limited government whereby the King, the Lords spiritual and temporal, and the Commons, comprise a mutual check upon each other. He stated: ‘Like three distinct powers in mechanics, they jointly impel the machine of government in a direction different from what either acting by itself would have done but at the same time in a direction partaking of each and formed out of all’.^[10] In England, Blackstone added, ‘power is divided into two branches; the one legislative, to wit, the Parliament, consisting of kings, lords, and commons; the other executive, consisting of the king alone’.^[11]

Blackstone’s view of the British monarchy as a limited government inspired the American Founders to develop their own model of separation of powers.^[12] As stated by law professor Albert Alschuler, Blackstone’s Commentaries ‘instructed the children, grandchildren, and great-great grandchildren of his initial American readers on the virtues of the English common law’.^[13] One of the most remarkable statements to be found in Commentaries reads as follows:

In all tyrannical governments the supreme magistracy, or the right both of making and of enforcing the laws, is vested in one and the same man, or one of the same body of men; and wherever these powers are united together there can be no public liberty. The magistrate may enact tyrannical laws, and execute them in a tyrannical manner, since he is possessed, in quality of dispenser of justice, with all the power which he, as legislator, thinks proper to give himself. But where the legislative and executive authority are in distinct hands, the former will take care not to intrust the latter with so large a power as many tend to the subversion of its own independence, and therewith of the liberty of the subject.^[14]

The classical view of separation of powers that historically guided England has been overturned by novel ideas that take no account the principles upon which the nation was founded. As a consequence, appreciation for separating the branches of government has diminished. As Russell Kirk once pointed out, ‘since the closing decades of the nineteenth century the English Constitution has lost many of the features that Montesquieu had praised at the middle of the eighteenth century’.^[15]

The seventeenth century was an age where monarchs turned to the doctrine of divine right of kings.^[16] The idea of ‘divine right’ received its fatal blow when the English Parliament went to war with Charles I, the second Stuart King of Great Britain, in 1625. From 1629 to 1640, Charles ruled without Parliament but a war eventually broke out, which forced him to summon the Short Parliament, in 1640, followed by the Long Parliament (1640–60). When the King tried to impeach five members of the Commons, members of that House vigorously defended their peers’ right to dissent, and the King also ordered their arrest. From this date (1642) the English Civil War became inevitable.

As history records, the forces of Parliament prevailed and Charles was executed. The execution of a monarch led to the temporary abolition of monarchy, in 1649. England, for the first and only time, became a republic. After Charles’s execution, new forms of government were tested and a document entitled the Instrument of Government enacted, in 1553. Drafted by Major-General John Lambert, the Instrument established a Protectorate under which the Executive would be vested in the ‘Lord Protector of the Commonwealth’ and assisted by a Council of State comprised of up to 21 members.

The Lord Protector was given a limited power of dissolution of Parliament and the latter had no power to alter the fundamental structure of the Instrument of Government. The Instrument became the nation’s written constitution, from December 1653 to May 1657. Since it required a special majority in Parliament to be amended, the Instrument can be regarded as the world’s first modern written constitution. However, the Instrument clashed with the doctrine of the separation of powers in that it entrusted the Council of State to the members of Parliament. The document did not prevent members of the Council from being drawn from among the parliamentarians.^[17]

The eleven years of Republican rule came to an end with the restoration of monarchy in 1660. The new King, Charles II, was the eldest surviving child of Charles I. His reign saw the re-establishment of Anglicanism. However, when Charles II died, in 1685, his younger brother, James, a Catholic, inherited the throne. On 10 June 1688, James’ son, James Edward, was born, threatening to create a Catholic dynasty that excluded his Anglican daughter, Mary, and her Protestant husband, William of Orange, from the throne. Hence, the political class staged a coup by inviting William and Mary to assume the throne. The last Stuart monarch in the direct line was deposed via the Glorious Revolution of 1688. The ‘Revolution’ consolidated the Commons as the nation’s dominant ruling class.

The ‘Revolution’ consolidated the Commons as the nation’s dominant ruling class.

In 1714, the Hanoverian succession to the throne brought about the union between Great Britain and the German electorate of Hanover. Thanks to the Act of Settlement, George, the prince of Hanover became the nearest Protestant eligible to take the Crown. George found it good to be a King but a bore to attend cabinet meetings, which, as a German, he couldn’t understand. Sir Robert Walpole then volunteered to act on his behalf, or, in effect, to become his ‘Prime Minister’.^[18]

Throughout the 18^th century, the Cabinet, now exclusively comprised of members of Parliament, became the principal feature of the U.K. system of government. In a country with no written constitution but only a collection of statutes, this meant that any law can be repealed by Parliament. The King would remain as the Head of State but his executive functions would become either ceremonial or indirectly exercised by the Ministers of the Crown who also are members of Parliament.

It is in this context that ‘Parliamentary sovereignty’ acquires paramount importance. Parliamentary sovereignty means that legislation incompatible with fundamental human rights must be enforced by the courts, even if retrospective.^[19] Parliamentary sovereignty is defined as follows: ‘Parliament is competent to make any law on any matter of its choosing and no court may question the validity of any Act that it passes.’^[20]

According to Lord Beatson, ‘under the classical model of the UK’s constitution there are thus no legal limits on what Parliament may do by primary legislation, including altering the period between general elections and amending or repealing legislation protecting individual rights’.^[21] In other words, ‘there are under the constitution of the United Kingdom no rights strictly fundamental, in the sense of entrenched (basic, inalienable), because of the supremacy of Parliament and the absence of a written constitution with entrenched provisions and judicial review of Acts of Parliament’.^[22]

Due to Parliamentary sovereignty, under no circumstance can the judiciary hold an Act of Parliament to be invalid. Sir Edward Coke did, of course, comment in the Dr Bonham’s Case, in 1610, that ‘a statute contrary to common right and reason would be void’.^[23] However, this comment has never been entirely accepted, and not even at the time it was proclaimed. In fact, this statement was one of the reasons for Coke’s dismissal as Chief Justice of the Court of Common Pleas.^[24]

The Court of Queen’s Bench declared, in 1872: ‘There is no judicial body in the country by which the validity of an act of parliament could be questioned. An act of the legislature superior in authority to any court of law … and no court could pronounce a judgment as to the validity of an act of parliament’.^[25] This implies that there is no fundamental right that government cannot abrogate. The problem is confirmed by Sir Thomas Bingham KG, PC, FBA, a judge who was the Master of the Rolls, Lord Chief Justice and Senior Law Lord in England. Lord Bingham commented:

The courts have no inherent powers to strike down, supersede or disregard the provisions of an unambiguous statute duly enacted by the Queen in Parliament, and indeed, an extremely limited power to enquire whether a statute has been duly enacted. For Parliament may under our constitution enact any legislation it chooses, and no court has any power to annul or modify such enactment, it necessarily follows that Parliament can legislate so as to abrogate or infringe any human right, no matter how fundamental it may be thought to be.^[26]

Lord Bingham was one the greatest lawyers of his generation. His statement confirms the absence of legal-institutional mechanisms for holding Parliament to account, the effect being that government is accountable to no one, except once in a couple of years at general elections.^[27] Presently, the ‘subjects’ of the Crown live under a constitutional model that makes government entirely ‘sovereign’. In his 2006 Hamlyn Lectures, Sir Francis Jacobs QC stated:

Legally, it is difficult, if not impossible, to identify today a State which ‘sovereign’ legislature is not subject to legal limitations on the exercise of its powers. Moreover, Parliamentary sovereignty is incompatible with another concept which also has a lengthy history, but which today is widely regarded as a paramount value: the rule of law.^[28]

Due to the enormous power accumulated by the Commons, the present constitutional framework facilitates arbitrariness, or as Lord Hailsham put it, ‘elective dictatorship’.^[29] And even if Hailsham’s warning appeared to be an overstatement in the 1990s, now many commentators agree with him. During the alleged pandemic, writes Jonathan Sumption, a legal historian who served the UK Supreme Court,

[T]he British state has exercised coercive powers over its citizens on a scale never previously attempted. It has taken effective control, enforced by the police, over the personal lives of the entire population: where they could go, whom they could meet, what they could do even within their own homes. For three months it placed everybody under a form of house arrest, qualified only by their right to do a limited number of things approved by ministers. All of this has been authorised by ministerial decree with minimal parliamentary involvement. It has been the most significant interference with personal freedom in the history of our country.^[30]

Sir Jack Beatson, who served at the English High Court between 2003 and 2013, and then as Lord Justice of Appeal between 2013 and 2018,^[31] is fully convinced that separation of powers is not recognised as a constitutional principle in the United Kingdom. The functions of the legislative and executive branches are now intimately related. Lord Justice Beatson comments:

Ministers are also members of Parliament and, save in the rare case of a ‘hung’ Parliament, a coalition or a minority government, or acute internal divisions within the majority party, the executive controls the House of Commons. And, since the Parliament Act 1911 the House of Lords has no veto over legislation, only a delaying power shortened by the Parliament Act 1949 to one year or, in the case of money bills, one month, the executive generally controls the legislative process. Our institutions and the principle of Parliamentary sovereignty have therefore created what Hailsham described as a ‘elective dictatorship’.^[32]

The overall effect of the Parliamentary Acts of 1911 and 1949 was to aggravate the problem by further eroding checks and balances. When the Crown, Lords and Commons were independent, checks and balances still existed but the abolition of the Lords’ veto on legislation, in 1949, while justified by its unelected nature, left the Commons as the unconstrained power of the State. This erosion of checks and balances strengthens the case for constitutional change, although, perhaps not surprisingly, reforms initiated by the Commons have never occurred.^[33]

No Separation of Powers in Australia

The Westminster System is a model of parliamentary government whereby the executive ministers are invariably members of Parliament (as required under s64 of the Australian Constitution). This system envisages a Head of Government and a Ministry comprised of members exclusively drawn from the legislative. For a period of time, executive ministers were appointed by the Crown and responsibility was enforced through impeaching by Parliament. These days, however, by convention the King (or his representative) appoints executive ministers on the strict recommendation of the Prime Minister, a leading member of the Lower House. Under ‘responsible government’, ministers who lose the confidence of Parliament will have to resign. And yet, as properly noted by Emeritus Professor Suri Ratnapala,

The logic of this view is seriously weakened by the fact that in parliamentary systems, the legislature obeys the executive which is in office precisely because it commands the loyalty of a majority in parliament. In unicameral parliamentary systems the will of parliament is mostly the will of the executive. In bicameral parliamentary systems, upper houses may check executive ambitions from time to time but they have little time or capacity to police the vast amounts of discretionary power accumulated by the executive under permissive legislation. Therefore, parliamentary democracies rely heavily on judicial oversight of executive action. Courts and administrative review tribunals remedy individual grievances but cannot address the general problem of the systematic arbitrariness of government.^[34]

Accountability, a central element of representative government, is not achievable when too much power is concentrated in the hands of a few. In Australia, however, ‘there is a tendency for both executive and legislative power to be concentrated effectively in a very small group of senior ministers, dominated by the prime minister or premier.’^[35] This allows the executive to create policy outside the legislative branch by means of delegated legislation.^[36]

Australia was originally under ‘the Crown of the United Kingdom of Great Britain and Ireland’.

Australia was originally under ‘the Crown of the United Kingdom of Great Britain and Ireland’.^[37] Legally, the government is comprised of the Governor-General in Council. In reality, collective decisions are made by the Cabinet and not the constitutionally designed Executive Council, which serves only as a rubber stamp for decisions taken elsewhere. The vast majority of the Governor-General’s powers are either ceremonial duties or exercised on the advice of the government of the day, instead of personal discretion.

Section 5 of the Australian Constitution states that ‘[t]he Governor‑General may appoint such times for holding the sessions of the Parliament as he thinks fit, and may also from time to time, by Proclamation or otherwise, prorogue the Parliament, and may in like manner dissolve the House of Representatives.’ However, the High Court has decided that such discretion vested in the Governor-General concerning her decision to dissolve Parliament must be exercised at the behest of the Prime Minister, the leader of the majority in the Lower House.^[38] Although the Governor-General may ask the Prime Minister to reconsider the advice the latter is tendering, ultimately, effect must be given to such advice.

One of the powers the Governor-General theoretically exercises under s 59 of the Constitution is that of disallowing legislation. This power has been made redundant at least since 1926, when the Dominion Conference established that the power to disallow legislation must never be used by the Head of State. The power of disallowance is among the inoperative sections of the Constitution.^[39]

Of course, s60 still allows the Head of State to reserve a bill passed in Parliament for a decision on assent directly by the King. This would be a possibility only with respect to abolishing appeals to the Privy Council under s 74. Subsequent to the enactment of the Privy Council (Appeals from the High Court) Act 1975 (Cth), which was assented to by the Queen following reservation, these appeals are only possible through a certificate issued by the High Court, which the Court has made clear it will never issue.^[40]

What is more, the Governor-General apparently can dismiss a Prime Minister if he no longer has the confidence of the Lower House, but refuses to resign and persists in the action. The chances of this happening are extremely low because the Governor-General is appointed by the King on the advice of the Prime Minister.

It is also important to consider that ‘Parliamentary sovereignty’ ensures that legislation always prevails over case law. The power to make law in Australia is limited only by the division of legislative power between the Commonwealth and the States. When acting within the federal-constitutional limits, each Parliament (federal and state) is sovereign within its own sphere of power. To the extent that it can vary or repeal any law or a rule of equity, an Act of Parliament is the superior source of law and it prevails over the common law.

The imperfect implementation of separation of powers in Australia enables a powerful executive to rule with very minimal parliamentary oversight. Of course, this has the potential to undermine the realisation of the ideal of legality known as the rule of law.^[41] The rule of law values legal certainty and predictability. Accordingly, ‘[t]he public must not be vulnerable to interference by public officials acting on any personal whim, caprice, malice, predilection or purpose other than that for which the power was conferred’.^[42] This also means that any legal discretion granted to the executive cannot be expressed in terms of unfettered power.^[43]  Unfortunately, however, Lord Justice Beatson comments:

Discretionary power became much more pervasive during the twentieth century as the modern state (to a greater or lesser extent) regulated the economy and provided social services. These involved the delegation to ministers and officials of side powers including the ability to make policy choices limited only by an increasingly skeletal legislative framework.^[44]

The Executive Legislator

Under the usual type of delegation of legislative power to the executive, a regulation must be consistent with the empowering Act. A Henry VIII clause, however, authorises legislative amendment by means of executive regulation. The High Court of England and Wales has defined a Henry VIII clause as ‘a power granted by Parliament to the Executive to make subordinate legislation which itself counts as if it were primary legislation’.^[45] By enacting a Henry VIII clause, Parliament delegates its own legislative power to the executive.^[46] These clauses give executive ministers the power to amend or repeal any Act of Parliament with little or no parliamentary scrutiny. Of course, ‘broad framework provisions coupled with power to repeal or amend primary legislation for a wide range of purposes does not foster certainty’^[47].

The Australian Parliaments have enacted numerous Henry VIII clauses authorising the amendment of Acts of Parliament via executive regulation.^[48] These clauses were named after Henry VIII due to his autocratic reputation as an absolute monarch whose arbitrary will acquired the force of law via proclamations. Henry VIII was ‘the impersonation of executive autocracy and his preference was to legislate by proclamations made under the Statute of Proclamations 1539 rather than through Parliament’.^[49] Henry VIII clauses are a constant ‘temptation to seize authority which properly belongs to Parliament’.^[50] They push the boundaries of the principle that only the legislative may amend or repeal primary legislation.^[51]

Unfortunately, the High Court has not questioned the constitutionality of Henry VIII clauses.^[52] In the Dignan case, in 1931, the Court held that ‘the Executive, through a Henry VIII clause, can override Acts of Parliament itself.^[53] As a consequence, broader delegations of legislative power to the executive in the form of power to make regulations were upheld.^[54] More recently, pressures of putting in place legal structures for dealing with a pandemic led to a significant increase in the use of Henry VIII clauses, with very real dangers for the operation of the rule of law.^[55]

Of course, judicial independence is one of the essential principles of constitutional government.

Of course, judicial independence is one of the essential principles of constitutional government. An independent judiciary may ensure that no one disrespects laws with impunity, not even the government itself. As noted by Sir Gerard Brennan, ‘judicial independence does not exist to serve the judiciary; nor to serve the interests of the other branches of government. It exists to serve and protect not the governors, but the governed’.^[56]  However, judicial independence in itself is not enough to deliver impartial law enforcement. Without strict impartiality, independence can make judges a law unto themselves.^[57]

Under s72 of the Australian Constitution, federal judges are appointed by the Governor-General in Council, although the choice is actually made by the Cabinet. Likewise, state judges are appointed by the Governor in Council on the “advice” of the state Cabinet. Given the notorious incapacity of the judiciary to limit executive discretion, it should not come as a surprise that, in Kassam v Hazzard; Henry v Hazzard (2021)^[58], Chief Justice Beech-Jones of the NSW Supreme Court summarily dismissed the plaintiffs’ challenge that executive (public health) orders had violated the Australian Constitution.^[59]

In Victorian Stevedoring and General Contracting Co Pty Ltd and Meakes v Dignan (1931), the Court held that, within the limits of delegated legislation, the power of the executive to legislate is “unregulated” and its discretion is “unguided”. Despite having full judicial power to do so, ‘the High Court has declined to impose on Parliament any significant constraint on its competence to delegate its legislative power to the executive’.^[60] As noted by Sir Harry Gibbs, ‘the Court has paid no more than lip service to that principle when it has come to consider the separation between legislative and executive power’.^[61] The courts have accorded to Parliament ‘a virtually unfettered power to delegate to the executive the power to make laws’.^[62] These courts, Gibbs writes, ‘have held that such a delegation will be valid even though the Parliament does not prescribe any principles or standards to govern the exercise of the powers’.^[63] Insofar as separation of powers is concerned, Gibbs concluded:

There is no constitutional impediment to the exercise by one branch of government of the powers of another. No statute can be held invalid because it confers powers of one kind on an instrumentality of another kind … The executive and the legislature are closely connected; one the one hand, ministers retain office only so long as they have the confidence of a majority of the House …, while on the other hand the cabinet will normally control the workings of the legislature by means of the majority which it commands.^[64]

Suri Ratnapala argues that ‘the rule against the delegation of wide law-making power to the executive is a major component of the classical doctrine of ‘separation of powers’. Of course, ‘when officials can both legislate and execute their legislation, they have the potential to place themselves above the law, for the ‘law’ is what they command’.^[65] Ratnapala thus laments the fact that the Australian courts  have chosen not to draw any clear line in the sand against excessive delegation of legislative power to the executive, despite parliamentary democracies relying on judicial oversight of executive action.^[66] And yet, the Australian courts have accepted that a legislative power of the executive to be ‘exercised in disregard of other existing statutes, the provisions of which concerning the same subject matter  may be overridden’.^[67] This indicates that, in Australia, the executive branch is endowed with a function that is essentially legislative in nature.^[68]

Naturally, the delegation of uncontrolled legislative power to the executive – and its potential for violating human rights – may lead to arguments in favour of a bill of rights.^[69] This concern about the lack of protection to fundamental rights is understandable. As law academics we are appalled to see how the Australian political class endeavours to so often abuse their powers. However, the tendency of governments to acquire ever increasing power is better curtailed not by a bill of rights but through a well-designed system of checks and balances. According to Sir Harry Gibbs,

The most effective way to curb political power is to divide it. A Federal Constitution, which brings about a division of power in actual practice, is a more secure protection for basic political freedoms than a bill of rights … Anyone who has seen the film ‘The Killing Fields’ will know that the fact that Khmer Republic had adopted a bill of rights did not assist the inhabitants of that unhappy country. We are all familiar with the abuses that have occurred in Uganda: that country had a bill of rights on the European model, and had judges that bravely tried to enforce it, but were unable to resist the forces of lawlessness.^[70]

The delicate balance of power between the judiciary and the legislature that is basic to a functioning democracy can be compromised by a bill of rights.^[71] The decision-making rule in the top courts is that 5 votes beat 4. This process reduces the size of the franchise by giving judges the power to decide on moral-political issues by invalidating legislation. Arguably, ‘those who favour a bill of rights may delight in the vagueness of these documents, for they sometimes assume that its very ambiguity will enable them to achieve through judicial decision, what they have been unable to achieve though Parliament.’^[72] According to law professor Jeffrey Goldsworthy,

in countries such as Britain, Canada, Australia and New Zealand, a substantial proportion of the tertiary-educated, professional class has lost faith in the ability of their fellow citizens to form opinions about public policy in a sufficiently intelligent, well-informed, dispassionate and carefully reasoned manner. They may be attracted to the judicial enforcement of rights partly because it shifts power to people (judges) who are representative members of their own class, and whose educational attainments, intelligence, habits of thought and professional ethos are thought more likely to produce ‘enlightened’ decisions.^[73]

There is also a real possibility that, despite their superficial attraction, a federal bill of rights would become a factor in further depriving Australia of separation of power and, accordingly, depriving Australians of their democratic rights.

There is also a real possibility that, despite their superficial attraction, a federal bill of rights would become a factor in further depriving Australia of separation of power and, accordingly, depriving Australians of their democratic rights.^[74] By providing a small legal elite such a powerful interpretative tool by which they can force their own moral biases upon the reluctant majority, Goldsworthy comments:

The traditional function of the judiciary does not sit altogether comfortably with the enforcement of a bill of rights. In effect, it confers on judges a power to veto legislation retrospectively on the basis of judgements of political morality. … This involves adding to the judicial function, a kind of power traditionally associated with the legislative function, except that the unpredictability inherent in its exercise is exacerbated by its retrospective nature. That is why, on balance, it may diminish rather than enhance the rule of law.^[75]

Jeremy Waldron contends that judicial enforcement of a bill of rights is entirely inconsistent with the ability of citizens to influence decisions via the democratic process.^[76] As Professor Waldron explains, the enactment of a bill of rights basically amounts to ‘voting democracy out of existence, at least so far as a wide range of issues of political principles is concerned.’ ^[77] This is especially so in the context of controversial social issues where there is no moral-political consensus across the general public. As noted by law professor James Allan,

What a bill of rights does is to take contentious political issues – … issues over which there is reasonable disagreement between reasonable people – and it turns them into pseudo-legal issues which have to be treated as though there were eternal, timeless right answers. Even where the top judges break 5-4 or 4-3 on these issues, the judges’ majority view is treated as the view that is in accord with fundamental rights. The effect, as can easily be observed from glancing at the United States, Canada and now New Zealand and the United Kingdom, is to diminish the politics (over time) to politicize the judiciary.^[78]

Concluding Remarks

The American Founders regarded the doctrine of separation of powers as one of the most important principles of constitutional government. However, as Sir Harry Gibbs properly reminded us more than 30 years ago, there is no real separation of powers in Australia.[79] For instance, s 64 of the Australian Constitution requires executive ministers to be members of Parliament. This provision is in sharp contrast to Art 1, § 6, cl 2 of the United States Constitution.

Of course, these ministers have the power to legislate so as to further undermine the doctrine of separation of powers.  The rise to dominance in Australia of the executive ruler confirms the massive shift of power away from the legislative to the executive branch of government. This process allows Crown ministers (who are also MPs) to intervene on every single aspect of our lives without any accountability. This concentration of powers is aggravated via delegated legislation which confers to the executive a power to legislate that can set aside any fundamental right of the citizen. In Australia, Professor Ratnapala writes,

The executive has become the master of the legislative agenda, gaining a degree of power over the legislature not enjoyed even by the Tudor monarchs … In one of the great ironies of political history, the growth of Parliament’s legal power to remove a government from office actually reduced its political power to hold a government to account.^[80]

Australians would do well with a constitutional reform providing a more rigid separation of powers. Crown Ministers, for example, should never be MPs but always appointed by merit and impeachable by Parliament on the grounds of serious misconduct. The idea of a bill of rights is totally undesirable as a solution to the problem because such abstract documents give unelected judges the power to act as legislators. And since, reminded us Lord Acton, ‘power corrupts and absolutely power tends to corrupt absolutely’, any constitutional reform must provide for a more rigid separation of powers between the branches of government, having as its foundation stone the ideal manifested in the Charter of Bakery Hill, proclaimed at Ballarat in 1854: ‘The people are the only legitimate source of all political power’.^[81]

Prof. Augusto Zimmermann is head of law at Sheridan Institute of Higher Education, in Perth, Western Australia. He is also a former member of the Law Reform Commission in Western Australia and a former associate dean (research) at Murdoch University, School of Law. During his time at Murdoch, Professor Zimmermann was awarded the Vice Chancellor’s Award for Excellence in Research, in 2012. Professor Zimmermann is the author, together with Emeritus Professor Gabriël A. Moens AM, of several books about Australian law, government and society, including ‘The Unlucky Country’ (Locke Press, 2024) and ‘Foundations of the Australian Legal System: History, Theory and Practice’ (LexisNexis, 2023).

[1] Sir Harry Gibbs, ‘The Separation of Powers – A Comparison’ (1987) 17 Federal Law Review 151, 154.

[2] M.J.C. Vile, Constitutionalism and the Separation of Powers (2^nd ed., Liberty Fund, 1998) 14.

[3] Patrick O’Brien, ‘The Real Politics of the West Australian Constitution and the Executive State’, in: Patrick O’Brien and Martyn Webb, The Executive State: WA Inc & The Constitution (Constitutional Press, 1991) 2.

[4] Ibid 19.

[5] Brian Z Tamanaha, On The Rule of Law: History, Politics, Theory (Cambridge University Press, 2004) 35.

[6] Cicero, Republic, II, 23

[7] Charles Louis de Secóndat, Baron de Montesquieu, The Spirit of the Laws [1748] (Prometheus Books,  2002) 151-152

[8] Ibid, Bk XI, Ch V.

[9] David Barton, Original Intent: The Courts, the Constitution & Religion (Wallbuilders, 2005) 215.

[10] Sir William Blackstone, Commentaries on the Laws of England [1765] (21^st ed, London) 146.

[11] Ibid, 147.

[12] Thomas Jefferson, The Works of Thomas Jefferson: Correspondence and Papers, 1808–1816 (Cosimo Classics, 2009) 23.

[13] Albert W Alschuler, ‘Rediscovering Blackstone’ (1996) 145 University of Pennsylvania Law Review 1, 2.

[14] Blackstone (n 10) 146–7.

[15] Russell Kirk, Rights and Duties: Reflections on Our Conservative Revolution (Spence Publishing Co, 1997) 8.

[16] Malcolm N Shaw, International Law (Cambridge University Press, 4^th ed, 1997) 25.

[17] Vile (n 2) 53.

[18] See Sir Ivor Jennings, The Queen’s Government (Penguin Books, 1954) 98.

[19] Jack Beatson, The Rule of Law and Separation of Powers (Hart Publishing, 2021) 26.

[20] United Kingdom, ‘Rights Brought Home: The Human Rights Bill’ (Cm 3782, 1997) para 2.13. Quoted from Tom Bingham, The Rule of Law (Penguin Books, 2010) 165.

[21] Beatson (n 19) 6-7.

[22] O. Hood Phillips and Paul Jackson, O Hood Phillips’ Constitutional and Administrative Law (Sweet & Maxwell, 7^th ed, 1987) 423.

[23] (1610) 8 Co Rep 113 b, 118a; 77 ER 646, 652.

[24] Bingham (n 27) 163.

[25] Ex parte Canon Seluryn (1872) 36 JP 54 (Cockburn CJ and Blackburn J).

[26] Bingham (n 27) 162.

[27] Jonathan Sumption, Law in a Time of Crisis (Profile Books, 2021) 220.

[28] Francis Jacobs. The Sovereignty of Law: The European Way (Cambridge University Press, 2007) 5.

[29] Q. Hogg, A Sparrow’s Flight (HarperCollins, 1990) 318.

[30] Sumption (n 27) 218.

[31] The Rt. Hon Sir Jack Beatson was a High Court Judge between 2003 and 2013 and a Lord Justice of Appeal between 2013 and 2018. He was previously a Law Commissioner and Rouse Ball Professor of English Law at the University of Cambridge, and is now Visiting Professor at Oxford University.

[32] Beatson (n 19) 6.

[33] Ibid, 9.

[34]  Suri Ratnapala, ‘Separation of Powers: The Cornerstone of Liberty under Law’, in: Suri Ratnapala and Gabriël A Moens, Jurisprudence of Liberty (LexisNexis, 2^nd ed, 2011) 55.

[35] Nicholas Aroney, ‘Bicameralism and Representations of Democracy’ in Nicholas Aroney, Scott Presser, and JR Nethercote (eds), Restraining Elective Dictatorship (University of Western Australia Press, 2008) 29.

[36] Ibid.

[37] Preamble to the Commonwealth of Australia Constitution Act 1900 (UK)

[38] Western Australia v Commonwealth (1975) 134 CLR 201 (‘First Territorial Senators Case’) and Victoria v Commonwealth (1975) 134 CLR 81 (‘PMA Case’).

[39] Gabriël A Moens and John Trone, The Constitution of the Commonwealth of Australia Annotated (LexisNexis, 8^th ed, 2012) 252.

[40] Kirmani v Captain Cook Cruises Pty Ltd (No 2) (1985) 159 CLR 461.

[41] See: Augusto Zimmermann and Gabriël Moens, Foundations of the Australian Legal System: History, Theory and Practice (LexisNexis, 2024), Ch 5.

[42] R (Gillan) v Metropolitan Police Commissioner [2006] UKHL 12 at [34].

[43] Malone v UK (1984) 7 EHRRR 14 at [67]-[68].

[44] Beatson (n 19) 25.

[45] Oakley Inc v Animal Ltd [2005] RPC 3o (p 713), para. 79: [2005] EWHC 210 (Ch)

[46] Thoburn v Sunderland City Council [2003] QB 151, para. 13; [2002] EWHC 195.

[47] Beatson (n 19) 25.

[48] Ibid 133.

[49] Beatson (n 19) 69.

[50] Beatson (n 19) 25.

[51] Ibid 25.

[52] Gabriël A Moens and John Trone, ‘The Validity of Henry VIII Clauses in Australian Federal Legislation’ (2012) 24 Giornale di Storia Costituzionale 133, 135.

[53] P.H. Lane, ‘Lane’s Commentary on the Australian Constitution (2^nd ed., LBC Information Services, 1987) 429.

[54] Victorian Stevedoring & General Contracting Co Ltd v Dignan (1931) 46 CLR 73, 83-86; Attorney-General (Cth) v R: Ex parte Boilermakers’ Society of Australia (1957) 95 CLR 529, 545; Radio Corporation Pty Ltd v Commonwealth (1938)  59 CLR 170, 179, 186, 193; Plaintiff S157/2022 v Commonwealth (2003) 211 CLR [102].

[55] Ibid. 25.

[56] Sir Gerard Brennan, ‘Judicial Independence’. Speech at the Australian Judicial Conference, Canberra/ACT, 2 November 1996.

[57] Pasquale Pasquino, ‘One and Three: Separation of Powers and the Independence of the Judiciary in the Italian Constitution’, in: J Ferejohn, JN Rakove and J Riley (eds), Constitutional Culture and Democratic Rule (Cambridge University Press, 2001) 211.

[58] Kassam v Hazzard; Henry v Hazzard [2021] NSWSC 1320

[59] Ibid [275]

[60] Suri Ratnapala, ‘Sri Lanka at the Constitutional Crossroads: Gaullist Presidentialism, Westminster Democracy or Tripartite Separation of Powers’ (2003/2004) LAWASIA Journal 33, 55.

[61] Gibbs (n 1) 154.

[62] Ibid 155.

[63] Ibid.

[64] Ibid, 152.

[65] Ratnapala (n 60) 49.

[66] Ibid.

[67] The Victorian Stevedoring and General Contracting Company Proprietary Limited v Dignan (1931) 46 CLR 73.

[68] Gibbs (n 1) 155.

[69] Michelle Elias, ‘Craig Kelly is out: From the fringes of the Liberal Party to the UAP captain’s pick’, SBS News, 21 May 2022 (Web Article).

[70] Sir Harry Gibbs, ‘A Constitutional Bill of Rights’, in: K. Baker (ed), An Australian Bill of Rights: Pro and Contra (Institute of Public Affairs, 1986) 325-340.

[71] John Gava, ‘We Can’t Trust Judges Not To Impose Their Own Ideology’, The Australian, December 29, 2008 (Web Article)

[72] Ibid, 238.

[73] Jeffrey Goldsworthy, ‘Losing Faith in Democracy’, Quadrant Magazine, 25 May 2015 (Web Article).

[74] Dred Scott v Sandford, 60 U.S. (19 How.) 393, 407 (1957)

[75] Jeffrey Goldsworthy, ‘Legislative Sovereignty and the Rule of Law’, in: T. Campbell, K.D. Ewing and A. Tomkins (eds), Sceptical Essays on Human Rights (Oxford University Press, 2001) 75.

[76] ‘If we are going to defend the idea of an entrenched Bill of Rights put effectively beyond revision by anyone other than the judges, we should…think [that]….even if you….orchestrate the support of a large number of like-minded men and women and manage to prevail in the legislature, your measure may be challenged and struck down because your view of what rights we have does not accord with the judges’ views’. – Jeremy Waldron, ‘A Rights-Based Critique of Constitutional Rights’ (1993) 13 Oxford Journal of Legal Studies 18, 50-51.

[77] Ibid, 46.

[78] James Allan, ‘Why Australia Does Not Have, and Does Not Need, a National Bill of Rights’ (2012) 24 Journal of Constitutional History 35, 40.

[79] Gibbs (n 1) 154.

[80] Ratnapala (n 60), 79.

[81] John Molony, ‘Eureka and the Prerogative of the People’, Parliament of Australia (Web Article).