Separation of Judicial Power

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This topic is within Principles of Public Law.


Required Reading

Blackshield, T, Williams G, Australian Constitutional Law & Theory: Commentary and Materials (5th ed, Federation Press, 2010) pp. 8-12 (Chapter 1, section 3); 598 (last para) - 604 (end of section 1); 606-610 (chapter 13, section 3); 622-630 (Chapter 13, section 5(b)).

Separation of Powers

[1] The doctrine of the Separation of Powers purports to prevent the exercise of arbitrary or tyrannical power. It does so by dividing powers between various independent institutions. In other words, rather than one person holding all the power (like in a dictatorship), power is spread between separate people. The power of the state is usually separated into three different arms:

  • Legislative (or lawmaking) power - this is the power to pass laws. It is entrusted to Parliament.
  • Executive power - this is the power to enforce or carry out the laws passed by Parliament. It is entrusted to the government, and the public servants which the government employ (police, public teachers and doctors, the RTA, etc).
  • Judicial power - this is the power to interpret and judge according to the law made by parliament. It is entrusted to the courts and judges.

Imagine if the Police Commissioners (members of the executive) were also judges (members of the judiciary). This would mean they could arrest anyone and then convict them automatically, thus exercising arbitrary power. By keeping the executive and the judiciary separate, we limit the possibility of arbitrary use of power.

The doctrine of Separation of Powers is discussed in the following texts:

Baron de Montesquieu - The Spirit of the Laws

[2]If the legislative and executive powers are infused in the same institution, there can be no liberty. The same applies when the judiciary is not separated from the legislative and executive.

  • No separation between judiciary and legislature - citizens would be subject to arbitrary control; the judge would be then the legislator.
  • No separation between judiciary and executive - judges might behave with violence and oppression.

Owen Wood Phillips & Paul Jackson - Constitutional and Administrative Law

[3] Separation of powers can be explained as follows:

  • Legislative –
    • Making, altering or repealing laws
    • Necessary in order to create law which meets modern conditions.
  • Executive –
    • Carrying on of government according to law
    • Framing of policy
    • Choice of the manner in which the law may be made to render that policy possible.
  • Judicial –
    • Interpretation of the law
    • Its application by rule or discretion to the facts of particular cases.
  • The categories are inclined to be blurred. For example, the Constitution requires the executive to be members of the legislative.
  • Complete separation of powers would bring government to a standstill
  • What the doctrine must be taken to advocate is the prevention of tyranny by the conferment of too much power on any one person or body, and the check of one power by another.

Gerald Carney - Separation of Powers in the Westminster System

[4] There is no current constitutional system which has complete separation of powers.

  • The strict doctrine is only a theory – gives way to the realities of government where some overlap is inevitable.
  • Whilst this overlap exists, a system of checks and balances has developed
  • The naming of the three first chapters of the Australian Constitution (The Parliament, The Executive Government, The Judicature) implies this separation of powers.

The overlap mentioned is the fact that in the Westminster system, ministers (executive) are required to sit in Parliament (legislative). This is to adhere with the concept of Responsible Government. This is also present in the Australian system, as according to s 64 of the Constitution.

Separation of Federal Judicial Power

[5] Judicial review is relied upon to enforce limits on the executive and the legislature. To ensure this, courts must be entirely independent from the government and the legislature.

  • This applies in both in the state and federal level.

The separation of federal judicial power from the other branches of government was discussed in Victorian Stevedoring & General Contracting Co Pty Ltd & Meakes v Dignan[6]:

  • Dixon J suggested two principles of the separation:
    • Judicial power can only be vested in a court as per under Chapter 3 of the Constitution (s 71)
    • A court as per Chapter 3 of the Constitution can only be invested with judicial power (can’t be invested with non-judicial power)
  • This is except for those additional powers which were strictly incidental to its functioning as a court
  • Thus, judicial and non-judicial power could not be mixed up in the same court.

This suggestion was held in R v Kirby; Ex parte Boilermakers’ Society of Australia (Boilermakers’ Case):

  • Vesting of judicial power in a body which also exercises non-judicial power is unconstitutional – Arbitration court cannot enforce the no-strike clause.
  • Parliament cannot invest judicial power to anybody except a court as per s 71 and in accordance with s 72 (security of tenure).
  • There are considerations which indicate that the Constitution prohibits courts from doing functions which are not a part of judicial power.
  • Chapter 3 does not allow powers which are foreign to the judicial power to be given to the courts.
  • Courts must be entirely independent of federal government as well as state.
  • Privy Council: the express mention of one thing means the exclusion of another.
  • Applying to the text of the Constitution – Chapter 3 expressly mentions Chapter 3 courts as the only type of court invested with judicial power.
  • This excludes non-judicial power, therefore a Chapter 3 court cannot exercise such powers.

The decision in the Boilermakers Case has been seen as controversial and as “leading to excessive subtlety and technicality in the operation of the Constitution without…any compensating benefit[7]”.

However, the courts continue to affirm the Boilermakers Case. The rationale for that is to protect the individual rights and freedoms of the people.

Defining Judicial Power

Ultimately, the decision in the Boilermakers Case has often been circumvented as the definition of what exactly is ‘judicial power’ is vague enough for manoeuvrability. The classic definition was given in Huddart, Parker & Co Pty Ltd v Moorehead[8]:

  • “…power which every sovereign authority must of necessity have to decide controversies between its subjects, or between itself and its subjects, whether the rights relate to life, liberty or property.
  • The exercise of this power does not begin until some tribunal which has power to give a binding and authoritative decision (whether subject to appeal or not) is called upon to take action(1909) 9 CLR 330, 357”.

This vague definition entails that tribunals (which are considered administrative or executive institutions which are not vested with judicial power) whose functions might be considered ‘judicial’ have still been valid, if the particular grant of power can be matched with a legislative purpose. For example, in R v Trade Practices Tribunal; Ex parte Tasmanian Breweries Pty Ltd[9], it was held that the functions of the Trade Practices Tribunal did not involve judicial power.

  • Thus, the line between judicial and executive power in can blurred
  • Changing circumstances from 1900 make it harder to draw up a particular definition.
  • Keeping a broad definition of judicial power enables the courts greater leeway

The Law – A.R. Blackshield


  • “Judicial power” is controlled power - its exercise must be based on authoritative legal materials
  • Some argue that the application of “standards” exceeds the scope of judicial power because, by applying standards, the individual brings into play his subjective evaluations
  • Others argue that tightly defined legislative guidelines leave the court no leeway in its application of the predetermined law, which is also incompatible with the idea of “judicial power”
  • A court has a “duty” to act – must settle an issue that is brought up.
  • However it usually lacks discretion in two areas:
    • Cannot embark on action of its own initiative - must wait until a claim is filed or an application is made.
    • Must then determine the issues raised by that claim or application.

Persona Designata Rule

[11]The Persona Designata rule allows non-judicial functions to be assigned to particular people, regardless of whether they also happen to be vested with judicial power since they are incidentally judges as per Chapter 3.

Basically, although a Chapter 3 court cannot be endowed with non judicial functions, a federal judge may be appointed or assigned to perform non-judicial functions as long as that particular assignment is addressed to that particular person (and not the court).

This was demonstrated in Drake v Minister for Immigration & Ethnic Affairs[12]:

  • Bowen CJ and Deane J:
  • “There is nothing in the Constitution which precludes a justice of the High Court or a judge of this or any court created by the Parliament under Ch III of the Constitution from, in his personal capacity, being appointed to an office involving the performance of administrative or executive functions including functions which are quasi-judicial in their nature.[13]

This idea was reaffirmed in Hilton v Wells:

  • The requirement of the person being a Chapter 3 judge is simply reflective of the qualifications the person issuing warrants must have.

As well as Grollo v Palmer , where the court debated on the issue of whether such an executive/administrative role may be assigned to a judge even as Persona Designata:

  • 2 conditions are needed to confer non-judicial functions on judges as designated persons:
    • Consent from the judge himself.
    • Must not be incompatible with judge’s performance of judicial functions/proper discharge of judiciary responsibilities.
  • Incompatibility can consist of:
    • Such a strong commitment to the performance of non-judicial functions that it is not possible for him to exercise judicial functions
    • Nature of non-judicial functions compromise the ability of the judge to exercise judicial functions with integrity.
    • Nature of non-judicial functions diminish public confidence in the ability of the judge to exercise judicial functions with integrity.


The prohibition of assigning of non-judicial functions to bodies exercising judicial functions can be circumvented using the Persona Designata Rule, as long as they don’t compromise its integrity perceived integrity in any way.


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Textbook refers to Blackshield, T, Williams G, Australian Constitutional Law & Theory: Commentary and Materials (6th ed, Federation Press, 2014)

  1. Textbook, pp. 8-12
  2. Baron de Montesquieu, The Spirit of the Laws, (transl Thomas Nugent, Hafner Press, 1949) in Textbook, p. 9
  3. Owen Hood Phillips and Paul Jackson, Constitutional and Administrative Law, (Sweet and Maxwell, 7th ed 1987) in Textbook, pp. 9-10
  4. Gerald Carney, "Separation of Powers in the Westminster System" Legislative Studies (Vol 8, No 2, Autumn 1994), 59 in Textbook, pp. 10-1
  5. Textbook, pp. 8, 598-604
  6. (1931) 46 CLR 73
  7. R v Joske; Ex parte Australian Building Construction Employees & Builders Labourers’ Federation (1974) 130 CLR 87, 90
  8. (1909) 9 CLR 330
  9. (1970) 123 CLR 361
  10. AR Blackshield, “The Law” in Power in Australia: Directions of Change (Centre for Continuing Education, Australian National University, 1981), 171 in Textbook, pp. 608-10
  11. Textbook, pp. 622-30
  12. (1979) 46 FLR 409
  13. (1979) 46 FLR 409, 413
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