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The Integrity Branch of Government and the Separation of Judicial Power

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The Integrity Branch of Government and the Separation of Judicial Power AIAL FORUM No. 70 THE INTEGRITY BRANCH OF GOVERNMENT AND THE SEPARATION OF JUDICIAL POWER Joseph Wenta* The influence of the separation of judicial power on the development of Australia’s governmental institutions is widely recognised. The generally strict approach to the separation of federal judicial power has both facilitated and constrained the continued development of the institutions and processes of government and of administrative law. Institutions which test the boundaries of the Constitution continue to be designed; the various accountability mechanisms of the ‘new’ administrative law provide relevant examples.1 The identification of a ‘fourth’ or ‘integrity’ branch of government represents one attempt to conceptualise and explain the wider range of accountability mechanisms comprising contemporary Australian government. This paper examines the relationship between the judicial branch and the ‘fourth arm’ of government, and explores the potential impact of established constitutional principles on the development and operation of the integrity branch. This paper argues that the range of integrity functions performed by the judicial branch of government and its members extends beyond judicial review of governmental action. While judicial review of administrative action no doubt constitutes a significant proportion of the integrity activity of the judicial branch, members of the judiciary are often asked to engage in a wider range of integrity functions and processes. This activity often involves extra-judicial functions. However, the constitutionality of extra-judicial activity remains unclear, and the desirability of extra-judicial activity is contestable; this casts some doubt on the capacity of the judiciary and its members to participate in the further development and operation of the integrity branch of government. The paper begins with an exploration of the concept of the integrity branch of government and established constitutional principles affecting the interaction of the integrity branch and the judiciary. Part I of the paper examines the nature of the integrity branch of government, and identifies as ‘integrity functions’ a number of activities and processes performed by members of the judiciary as extra-judicial activities. Part II outlines the development of the separation of judicial power in the Australian context, with an emphasis on the development and operation of the persona designata exception and the incompatibility condition. The paper suggests that any interference with the decisional independence of judicial officers performing functions as designated persons is likely to raise questions of incompatibility, and will potentially compromise extra-judicial participation in the integrity branch. Part III considers the extent to which established principles of Australian constitutional law may permit members of the judiciary to perform a wider range of integrity functions. The paper argues that participation of judicial officers in the operation of the integrity branch is potentially accommodated by the persona designata exception to the strict separation of judicial power. Further, the paper suggests that integrity functions and processes are not necessarily incompatible with judicial office; careful attention must be paid to the nature and mode of performance of each integrity function in order to ensure that an assessment of * Joseph Wenta is Sessional Academic, Newcastle Law School, University of Newcastle, NSW. This paper was presented at the AIAL 2012 National Administrative Law Conference, Adelaide, 19 July 2012. 42 AIAL FORUM No. 70 incompatibility is accurate. Part IV of the paper evaluates briefly factors affecting the desirability of extra-judicial participation in the operation of the integrity branch. While many of the objections to extra-judicial activity have merit, this paper argues that extra-judicial involvement in the performance of integrity functions is, on balance, an acceptable element of modern government. While the separation of judicial power necessarily controls judicial participation in the development and operation of the integrity branch, the paper concludes that the separation of judicial power does not prohibit the participation of judicial officers in a range of integrity activities and processes. Part 1 The integrity branch of government The ‘integrity branch’ is the most recent manifestation of a ‘fourth arm’ of government,2 intended to both interact with and supervise each of the legislative, executive and judicial branches of government. Chief Justice Spigelman (as he then was) identified the core responsibility of the integrity branch as ‘ensur[ing] that each governmental institution exercises the powers conferred on it in the manner in which it is expected and/or required to do so and for the purposes for which those powers were conferred, and for no other purpose’.3 A wide range of institutions, including the executive, legislature and judiciary, the public service, the Auditor-General, ombudsmen, ‘watchdog’ agencies (such as the Independent Commission Against Corruption, the Police Integrity Commission and the Crime Commission in the New South Wales context), civil society, the media and international agencies have been included within the family of bodies that comprise the integrity branch.4 Early contributions to exploration of the integrity branch attributed a ‘semi-constitutional’ status to the fourth arm.5 However, integrity branch scholarship has increasingly recognised the wider range of bodies and process that perform integrity functions. The integrity branch has more recently been characterised as an ‘integrity system’, ‘[consisting] of the broad range of institutions, processes, people and attitudes working to ensure integrity in the exercise of our society’s many different forms of official power’.6 The concept of an integrity system extends beyond institutions contemplated by the ‘semi-constitutional’ foundation to include private sector bodies.7 The wide range of institutions, functions and process comprising the integrity system has seen the integrity branch described as a ‘bird’s nest’,8 in order to demonstrate that it is the combined effect of those institutions, functions and processes which comprise the integrity branch that is of greatest significance. While some institutions are no doubt quintessentially ‘fourth arm’, it is the totality of the integrity branch that is most important. Although this paper may appear to favour the ‘semi-constitutional’ conception of the integrity branch by virtue of its subject-matter, the arguments canvassed are intended to apply equally to the wider notion of an integrity system.9 Neither the ‘semi-constitutional’ nor the ‘integrity system’ account of the integrity branch is superior; each is developed with a foundation in the same principles and ideas. Both constructions accept the significance of a wider range of functions (extending beyond those performed by the traditional institutions of government) in the operation and maintenance of a democratic system of government which observes the rule of law. It is in this context that the arguments in this paper are developed. Integrity functions and the judiciary Integrity branch scholarship has long recognised that the judicial and integrity branches intersect.10 However, the full range of integrity functions performed by the judiciary has not been explored in detail. This section of the paper considers the relationship between the integrity and judicial branches, both identifying the wider range of integrity functions performed by judicial officers, and exploring the extent to which judges are in fact involved in the performance of those functions. 43 AIAL FORUM No. 70 The integrity functions performed by the judicial branch and its members can be divided into three categories. Judicial review of both legislative and administrative action forms the first and most widely recognised integrity function performed by the judiciary.11 The availability of an independent judiciary with powers to examine the legality of legislative and executive activity is a core feature of the Australian integrity system. The second integrity function performed by the judicial arm of government is the supervision of the institutions and processes comprising the integrity system. An exercise of power to engage in judicial review for the purpose of monitoring the integrity branch is arguably of a unique character; the judiciary performs an essential integrity task by ensuring mutual accountability within the integrity system.12 The extra-judicial13 performance of public functions by judicial officers should also be recognised as a third broad category of integrity function. Examples of these functions include participation in quasi-judicial review bodies; the conduct of quasi-judicial investigations; and supervision or oversight of executive activity.14 Quasi-judicial review bodies Judges often participate in the operation of quasi-judicial review bodies. A body or function may be described as ‘quasi-judicial’ either where it is performed in a ‘judicial’ or ‘judicial-like’ manner or where it does not clearly involve the exercise of judicial power.15 Merits review tribunals (such as the Administrative Appeals Tribunal (AAT)) are a prominent example of a quasi-judicial review body.16 The task of a merits review tribunal is to ‘stand in the shoes of the original decision maker’17 and to identify the ‘correct or preferable’ exercise of administrative power.18 The AAT is then empowered
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