Australian Bar Association Conference

Paris

Wednesday, 10 July 2002

The Hon Justice McHugh AC

TENSIONS BETWEEN THE EXECUTIVE AND THE JUDICIARY*

  In common law countries, the tension between the Executive and the Judiciary is the result - I would say the inevitable result - of the doctrine of separation of powers.1 Under that doctrine, the political system of a nation divides its governmental power between a legislature, an executive and a judiciary. In theory, the doctrine constructs a system that avoids concentrating too much power in any one body of government – the three powers are separated from one another and "none is supposed to trespass into the other's province". Furthermore, no arm of government is supposed to abdicate power to another arm.2 The premise of this construct is not a harmonious relationship but a checking and balancing of power. Inevitably, the checking provides the blueprint for, and generates, tension between the three arms of government.

Many students of political theory regard this tension between the arms of power as indicating a healthy and well-oiled, working government.3 They do not see the tension as a cause for alarm.4 Writing extra-judicially, Lord Woolf has said:5

"[t]he tension … is acceptable because it demonstrates that the courts are performing their role of ensuring that the actions of the Government of the day are being taken in accordance with the law. The tension is a necessary consequence of maintaining the balance of power between the legislature, the executive and the judiciary …" Lord Woolf has also said6 that the tension between the arms of government is: "… no more than that created by the unseen chains which … hold the three spheres of government in position. If one chain slackens, then another needs to take the strain. However, so long as there is no danger of the chains breaking, the fact that this happens is not a manifestation of weakness but of strength." 1. The separation of powers in Australia

Before 1900, the United Kingdom, the United States, Canada and the Australian colonies had each adopted in varying degrees the tripartite separation of governmental power as the basis of its political system. When debating the system of government for the new Commonwealth of Australia, the founders avoided the temptation of creating a novel system of government.7 Instead, they took ideas for the Australian Constitution from the United Kingdom's Westminster style of government, the United States' constitutional design and from the semi-federal Constitution of the Dominion of Canada, each of which had distributed governmental power to three arms of government. To these forms and ideas, the founders made "such modifications as were suggested by the circumstances and needs of the Australian people".8 As a result, the doctrine of the separation of powers is entrenched in the Australian Constitution. The powers of government are segmented: Chapter I - "The Parliament" - deals with powers of the legislature; Chapter II - "The Executive Government" - provides for executive powers; and Chapter III - "The Judicature" - vests the judicial power of the Commonwealth in the High Court, federal courts and other designated courts.9 Although the content of legislative and judicial power is defined in the Constitution, the content of executive power is alluded to rather than prescribed.10

In practice, the doctrine of separation of powers has not been easy to implement.11 In Australia, the system of party politics, the doctrine of responsible government and the executive’s desire for an efficient and practical working government have combined to weaken and to some extent erode, the doctrine of separation of powers.12 If there was a pure separation of governmental power, "effective government would be impossible".13 At least since the time of George III, students of political and constitutional theory have accepted that the executive and legislative arms of government cannot operate independently of one another.14 As recent United States experience shows, when the Executive and the Legislature cannot agree, gridlock ensues. But it is the nature of legislative, executive and judicial power, more than any other factor, which has made it so difficult to maintain a strict separation between them.

Although the core natures of legislative, executive and judicial powers are clear and their ordinary applications distinct, they intersect at the margins. Courts legislate by making rules for governing their procedures; common law judges legislate by extending or modifying the principles of the common law or giving content to indeterminate statutory concepts. The Executive exercises judicial functions by deciding issues of law and fact in determining whether a statutory power or discretion should be exercised. And when Parliament punishes for contempt, determines election disputes or summons witnesses under subpoena, it demonstrates that the expression "the High Court of Parliament" remains as accurate a description today as it was in the 17th century.

A political doctrine that permits the functions of the repositories to overlap is as inefficient as it is tension ridden. But as Justice Brandeis once pointed out15 in discussing the United States position:

"The doctrine of the separation of powers was adopted by the convention of 1787 not to promote efficiency but to preclude the exercise of arbitrary power. The purpose was not to avoid friction, but, by means of the inevitable friction incident to the distribution of the governmental powers among three departments, to save the people from autocracy." Despite its inefficiencies and tensions, the distinction between the judicial and the executive powers of government in particular continues to be jealously guarded in the federal sphere16 and operates in "full vigour".17 The Privy Council emphasised the importance of the separation in the Boilermakers Case when it said18 that "in a Federal system, the absolute independence of the Judiciary is the bulwark of the Constitution against encroachment whether by the Legislature or by the Executive."

The "encroachments" referred to by the Privy Council are, in essence, the basis of the tense relations that exist between the Executive and the Judiciary when judicial review is part of the political system. Indeed, Professor Hammond has said:19

"The most insidious enemy of [the] doctrine [of the separation of powers] is excess. The doctrine depends upon the three branches of government understanding their respective spheres, and not exceeding them, or at least not exceeding them in a gross or continuous way." 2. Inevitable tensions arising from administrative law

Since Marbury v Madison,20 legislators and members of the Executive Government have accepted - although often reluctantly - that in a federal system the courts must have power to declare invalid purported exercises of legislative power invalid. As a result, courts have often invalidated legislation that gives effect to major platforms of political parties. As Professor Zines has said,21 in Australia there "has not been a governing political party that has not, at some time, had at least one of its important 'planks' knocked out by judicial decision." The decisions of the High Court invalidating the Bank Nationalisation Act22 and the Communist Party Dissolution Act23 are illustrations.

Although tensions between the Legislature and the Judiciary inevitably arise as the result of courts invalidating legislation, they are minor compared to the tensions that can arise between the Judiciary and the Executive. These tensions are "nowhere so clearly visible"24 as in the field of administrative law. This has a lot to do with the nature of judicial review25 because in that field, judicial review involves a "vindication of the legality of the administrative decision-making process".26 The Judiciary is perceived as performing a "watch-dog" role – particularly by the Executive - a notion nicely captured in the United Kingdom civil service publication - "The Judge Over Your Shoulder".27

In carrying out judicial review, the Judiciary often undermines Executive power.28 Adverse decisions impact on the legality of executive government conduct. Human nature being what it is, a member of the Executive Government may understandably take unkindly to a finding that he or she has acted unlawfully even though such a finding usually means no more than acting ultra vires. Occasionally, an exercise of judicial review may even cause animosity29 between the Judiciary and the Executive Government.

Before one criticises the reaction of many branches of the Executive Government to judicial review, one should not forget that judicial review of administrative action has developed dramatically in recent times. Lord Diplock thought that the progress towards a comprehensive system of administrative law was the greatest judicial achievement in his lifetime.30 Many developments in this branch of law have occurred in recent years. There have been significant changes in the rules of natural justice under its new name of procedural fairness, in the extension of judicial review to pure administrative decisions and not merely to quasi-judicial decisions, and in the increased willingness of the courts to intervene in administrative matters even where policy factors predominate.

The expansion of judicial review in recent decades was undoubtedly fuelled by a concern that the power and size of Executive Government was increasing and was becoming less easy to keep in check. Mr Cyrus Das, the President of the Commonwealth Lawyers Association, has said that this was a concern throughout the British Commonwealth. He commented that there was a growing concern that government was becoming "all intrusive" and was penetrating "almost all aspects of life".31 In addition, there was a general perception that "political constraints on the conduct of the executive were simply too weak to afford adequate protection to the individual".32 In his 1976 Dimbleby Lecture, Lord Hailsham of St Marylebone asserted that the powers of government within Parliament are "now largely in the hands of the government machine, so that the government controls Parliament and not Parliament the government".33 Mr Das also believes that the Executive government effectively controls the legislature.34 Gone are the days when Parliament stood between the people and the excesses of executive power. The relationship between the Parliament and the Executive is now almost the opposite of what it was during the reign of George III. Even when the government of the day does not control both Houses of a bicameral legislature, the power of Parliament to control the Executive is limited.

Justice Sackville thinks that the courts have extended judicial review because they believe that they need to fill "a gap" created by the failure of political forms of accountability to provide redress to individuals adversely affected by government decisions.35 Mr John McMillan, a leading administrative lawyer, has pointed out that many judges "speak of their role in terms of controlling the exercise of power".36 Sir Gerard Brennan has noted that "the courts have been prompted to widen the boundaries of judicial review in response to a perceived diminution of legislative control over executive power".37 Whatever the reason, the courts have significantly extended the scope of judicial review in recent decades - extended it even to areas such as the exercise of the prerogative powers of the Crown that had been "generally accepted" as not reviewable.38

Inevitably, the Executive perceived the extension of judicial review as an encroachment on its power. Tensions soon arose.39 Members of the Executive and some academic lawyers accused the courts of venturing past the borders of judicial review into the domain of merits review.40 Henry Burmester QC, Chief General Counsel at the Australian Government Solicitor, thought41 that certain judicial decisions constituted:

"aggressive and activist work, principally of the Federal Court, in curbing the excesses of the executive as they see it, by resort to reliance on the protection of individual rights, by the expansion of procedural safeguards, and by interference at the preliminary or investigative stage of the administrative process. The outcome has been to turn judicial review into a merits review exercise, to find a means, if at all possible, to overturn decisions that a judge does not like." These developments and perceptions have fuelled the tension between the Executive and the Judiciary. As Chief Justice Gleeson has commented:42 "It is self-evident that the exercise of [judicial review] will, from time to time, frustrate ambition, curtail power, invalidate legislation, and fetter administrative action. As the guardian of the Constitution, the High Court from time to time disappoints the ambitions of legislators and governments. This is part of our system of checks and balances. People who exercise political power, and claim to represent the will of the people, do not like being checked or balanced." Judicial decisions can hamper the execution of important governmental policies. Their effect can be "antithetical to administrative efficiency".43 For the public service in particular, decisions made by the Judiciary can mean that plans and timetables are thwarted,44 policy is impossible to implement45 and there is an increased expense in carrying out administrative procedures.46 It is hardly surprising then, that judicial decisions may cause "resentment"47 in the Executive and that the "principal objection voiced by the Executive to judicial decision-making is that judges pay no heed to the effect of their decisions on executive decision-making".48

Members of the Executive are especially concerned with checks on administrative decisions that have political consequences.49 Executive decisions are often made in the glare of media publicity, often with the aim of pleasing the public – and gaining popular support. Judicial review can impact on the political image and agenda of the Executive Government.50

This is one reason why the tension between the Executive and Judiciary is highest when a court sets aside a politically important decision of the Executive Government.53 In 1997, for example, members of the Executive trenchantly criticised the High Court because of its decision in Wik. These members of the Executive made it clear that they believed the Court had "gone beyond tolerable limits".54 But if the rule of law is to remain the basis of our democracy, the courts cannot be moved by the political consequences of their decisions. They must maintain an a-political stance. In contrast to the exercise of executive power, judges cannot base their decisions on, or be affected by, potential political implications and media pressures. The judges must base their decisions on the law.55

But politics aside, the basis of Judicial and Executive decisions is at odds. A principal aim of the Executive is to administer laws through the creation of consistent, efficient and economical policy. Public servants labour under such directives.56 Judicial decisions, however, are not constructed in order to promote either efficiency, support for broad-based policies or budgetary restraint. Judges must give effect to the will of the legislature even when it conflicts with the policies of the Executive government.57 The perspective of courts is "necessarily different" from that of the Executive Government. In the majority judgment in Clunies-Ross v The Commonwealth, the High Court said:

"It would be an abdication of the duty of this Court under the Constitution if we were to determine the important and general question of law … according to whether we personally agreed or disagreed with the political and social objectives which the Minister sought to achieve. … As a matter of constitutional duty, that question must be considered objectively and answered in the Court as a question of law and not as a matter to be determined by reference to the political or social merits of a particular case".58 Unsurprisingly, members of the Judiciary believe that judicial review is beneficial and are apt to view the Executive as overly reactive to, or unduly critical of, judicial review. Lord Woolf was perhaps expressing this judicial sentiment when he said59 that he would like to see: "the Government take the offensive and say that they welcome judicial guidance, since if they have gone wrong they wish to know so that they can rectify the position, possibly by paying compensation." Such a change is unlikely to occur. The view from the Executive desk is very different from the view from the judicial bench. Reliable evidence suggests that not only does the Executive frequently resent judicial review but in the past some Executive agencies have done their best on occasions to ignore or thwart judicial review of their decisions. Professor Dennis Pearce is not only a distinguished lawyer but, as Commonwealth Ombudsman, he has been in a unique position to see the reaction of the Executive Government to judicial review of Executive power and action. In an illuminating paper published in 1991 in the Public Law Review,60 he described a number of these reactions.

Professor Pearce said61 that he had encountered circumstances where Federal agencies were not prepared to follow judicial or quasi-judicial rulings and were prepared to ignore them when they were inconvenient to them. Taxation Ruling IT2612 provided a clear example. There, the Commissioner of Taxation said that he did not accept the decision in Administrative Appeals Tribunal case V135 and ruled "that where similar facts exist that decision is not to be followed".62 No doubt an Executive agency is entitled to disregard a decision where it is truly in conflict with another decision that it thinks is correct. It may sometimes also be justifiable to refuse to follow a decision that is the subject of appeal. But that has problems. Judicial decisions are not provisional rulings until confirmed by the ultimate appellate court in the system. Until set aside, they represent the law and should be followed. Moreover, the Executive can run into serious legal problems where it continues to enforce legislation that a court has ruled invalid.63 Even more difficult to justify is the refusal to follow a ruling that is not the subject of appeal merely because the agency regards it as wrong and will test it at the next opportunity. The Attorney-General's Department has said that an agency should act inconsistently with a court ruling only on the advice of the Attorney-General's Department. One hopes that this advice is followed meticulously.

Professor Pearce's experience as Commonwealth Ombudsman tends to confirm the remarks of Justice Davies in Collector of Customs v LNC (Wholesale) Pty Ltd.64 There, his Honour referred to rumours that the Collector was reluctant to give effect to the decisions of the Court and the Administrative Appeals Tribunal that were contrary to those of the Commissioner. Dahlia Mining Co Ltd v Collector of Customs65 provides a striking example of this attitude. There, the successful applicant before the Administrative Appeals Tribunal had to bring a Supreme Court action to recover customs duty that the Administrative Appeals Tribunal had held was wrongly imposed. In Professor Pearce's Commonwealth and Defence Force Ombudsman Annual Report for 1988-1989, he referred66 to a similar attitude by the Commissioner of Taxation. In one case, faced with a Federal Court decision that sales tax was not payable on goods, the Commissioner refused to refund $300,000 and sought to justify the refusal by relying on matters not raised in the Court. Later the Commissioner conceded that the money had to be re-paid.

In his article in the Public Law Review,67 Professor Pearce said that he was confident that these attitudes to judicial rulings prevailed in the State bureaucracies as well as in federal bureaucracies. There is no reason to think that some of the reactions and attitudes of the Executive have undergone any significant change since 1991. Professor Pearce pointed to at least six factors that had given rise to these attitudes.

First, the Executive believes that the Judiciary does not understand the position of the Executive and its obligations in running the country. The Executive sees the courts as a costly obstacle to the proper management of the country.68 It primarily measures efficiency by reference to output in contrast to the judicial approach that "looks more closely at individual outcomes".69 Professor Pearce saw this difference in approach as the real cause of tension between the Executive and the Judiciary.

Second, the Executive believes that it is not the role of the Judiciary to direct the expenditure of resources or to require the allocation of additional resources to an agency.70 But as Professor Pearce pointed out, this "reasoning overlooks the fact that the court is doing no more than stating the subject matter on which the law requires resources to be spent".71

Third, the Executive perceives a growing tendency by the Judiciary to interfere with policy decisions. The Executive asserts that a court is poorly qualified to decide a case, interpreting the meaning of legislation, where the decision will have wide implications for government policy. That is because a court decides the case on its particular facts and does not see the broad picture that often confronts the administration of the legislation. Professor Pearce gave as an example the High Court's decision in Chan Yee Kin v Minister for Immigration and Ethnic Affairs72 interpreting the meaning of "refugee" which had broad implications for the admission of refugees into this country. However, there is nothing to stop the Executive leading evidence as to the background and purpose of legislation, the mischief that it was designed to remedy and the way that it has been administered. All of these matters may throw light on the meaning of indeterminate expressions or ambiguously worded legislation. However, the fundamental duty of a court is to give effect to the intention of the legislation as expressed in its terms. If after considering these extra-text materials, the court concludes that the legislation has a meaning inconsistent with government policy or contrary to administrative convenience, it must give effect to that meaning. The rule of law demands nothing less.

Fourth, the Executive complains about the vagueness of grounds of judicial review, a vagueness that blurs the boundaries of judicial review. Henry Burmester QC, for example, has criticised the courts for their "willingness … to stray into areas that are not their province".73 In particular, the Executive objects to grounds such as failure to take into account relevant circumstances or taking into account irrelevant considerations.74 Over the years, these two grounds and the ground of a denial of natural justice have provided the basis for overturning most administrative decisions. In the context of administrative decision-making, it is frequently debateable whether a particular matter is so relevant that it must be taken into account by the decision-maker. Since relevancy is always a matter of judgment, it is understandable that members of the Executive believe that their judgment on these matters is no worse and often better than that of the Judiciary. The problem for the Executive is compounded by decisions that hold that relevant matters are not necessarily confined to those set out in the legislation.75 One way to overcome this problem is not only for the legislation to spell out the factors that are to be taken into account in decision-making but to declare that they are the only matters to be considered. However, this has the disadvantage from the Executive viewpoint that, while it ties down the courts, it also ties down the decision-maker.

Fifth, the Executive believes that, on occasions, courts take a pedantic attitude to the need to follow procedures. The Executive objects that, in these cases, it is not the decision that is defective but only a formality in the decision making process. Decisions then have to be re-made - invariably with the same result but involving delay and expense.76 However, if the legislation requires certain procedures to be followed, neither a court nor the Executive can ignore them merely because following them is inconvenient. Moreover, since the High Court's decision in Project Blue Sky v Australian Broadcasting Authority,77 a decision will not be set aside unless the intention of the legislation is that the failure to follow the procedure is to result in the invalidity of the decision.

Sixth, the Executive believes that judges often fail to appreciate the administrative difficulties caused by their decisions. Professor Pearce gave as an example a judgment that held invalid a regulation concerning the importation of dangerous goods into the country. Although judgment had been reserved for many months, it was delivered on 21 December, a time of the year when it was extremely difficult to convene a Federal Executive Council meeting and place a regulation before the Governor-General to overcome the invalidity.78 This is certainly a valid ground for complaint and, as far as possible, courts should avoid handing down judgments at times and places that will cause inconvenience to a co-ordinate branch of government.

3. Migration matters

In recent years, the field of immigration law has become an especially contentious area. It has caused the Executive Government to take dramatic action79 to confine the power of judicial review in immigration matters. Justice Sackville has commented80 that:

"[f]ew areas of Australian law have attracted such sustained public attention in recent years as judicial review of migration decisions. … Successive governments have either enacted, or proposed, legislation designed to curtail the power of the courts to override the determinations of administrative decision-makers ..." Friction has risen from concerns that mirror those in administrative law generally – judicial review of migration decisions conflicts with Executive goals of timeliness and efficiency.81 But a greater cause of tension is the desire of the Executive to exercise control over migration matters to the exclusion of the courts. Irrespective of what political party is in government, migration law has seen a "bipartisan governmental mistrust of the role performed by the courts in reviewing migration decisions".82 From the Executive point of view, courts have little or no business being in the migration area. Since 1998, the present Federal Government has openly stated its intention to "restrict access to judicial review in visa-related matters to all but exceptional circumstances".83

In an article published two years ago, the Minister for Immigration and Multicultural and Indigenous Affairs, Mr Phillip Ruddock, argued that the courts ought not be involved in review of migration matters because the judiciary is "ill-suited" to deal with these matters. He said that courts with their emphasis on protecting individual rights are not in a position to weigh the relative influence of other values in the refugee determination system. He said that many disciplines, such as political and organisational theory, and social psychology impinge on administrative law. Associated with these disciplines are values other than legal norms such as the rule of law. These values include public accountability, fiscal responsibility, administrative efficiency and, in the migration area, international comity. The Minister said84 that the "task of assigning priorities to the numerous competing values inherent in the refugee determination system properly falls to the Parliament." Accordingly, in recent years the Executive, with the backing of Parliament, has pursued a policy of restricting judicial review in migration cases.

In an effort to gain control of migration issues and to restrict the scope of judicial review, the Executive persuaded Parliament in 1989 to amend the Migration Act 1958 (Cth).85 According to the present Minister, the legislation was fashioned to replace "broad discretions vested in decision-makers with sets of statutory criteria for the making of decisions".86

As the Executive pursued its goal of gaining control of migration law, it became increasingly concerned about judicial review decisions in the Federal Court. The Executive perception was that its power was being undermined because non-citizens were able to engage the review process as a means of prolonging their stay in Australia.87 It argued that there was a need to bring certainty to decision-making process,88 a need to take stock of budgetary concerns89 and a need to "increase efficiency by removing delays".90 The Executive therefore persuaded Parliament in 1992 once again to amend the Migration Act 1958 (Cth).91

The Migration Act 1958 (Cth) was amended in 1992 by inserting Part 8 which excluded migration decisions from the Administrative Decisions (Judicial Review) Act 1977 (Cth). Part 8 restricted access to judicial review of migration decisions to "all but exceptional circumstances".92 The Minister has said93 that:

"Specifically, Part 8 removed the grounds of natural justice while the Act was amended to codify its principles so as to bring certainty to decision-making processes. It removed the grounds of relevant and irrelevant considerations which were largely made redundant by regulations that set out in considerable detail the criteria needed to be satisfied for the grant of a visa. The ground of Wednesbury94 unreasonableness was also removed because its uncertain scope allowed the judiciary to use it as a means of conducting merits review." The validity of Part 8 was challenged in the High Court - on the ground that the legislation was inconsistent with Chapter III of the Constitution – but it was upheld.95

Commentators such as John McMillan and Henry Burmester QC believe that the Federal Court, or at all events some sections of it, reacted to these legislative changes by expanding the remaining tools of judicial review beyond their legitimate scope.96 This caused further - perhaps greater - tension between the Executive and the Federal Court with the Executive criticising what it considered was judicial "encroachment or overreach".97 The Executive claimed that certain Federal Court decisions had "persistently and impermissibly intruded into the area of merits review of Tribunal decisions."98 The Minister said:99

"The Government's policy of providing for extensive merits review by independent statutory tribunals is impeded by the approach taken by some members of the Federal Court in the interpretation of Part 8 of the Migration Act." An associated criticism was that the legal profession was "running the refugee program".100

As a result, last year the government persuaded the Parliament to introduce further changes into the law to restrict the jurisdiction of the federal courts in migration matters. Three Acts101 amended the judicial review procedures and the powers of the courts to review migration decisions. Their effect was to repeal Part 8 of the Migration Act 1958 (Cth) and replace it with a new Part 8.

Division 1 of Part 8 of the Migration Act 1958 (Cth), as amended, provides in section 474 that a privative clause decision is final and conclusive, must not be challenged, appealed against, reviewed, quashed or called into question in any court and is not subject to prohibition, mandamus, injunction, declaration or certiorari in any court on any account. The Act defines a privative clause decision as a decision of an administrative character made, proposed to be made, or required to be made under the Act or a regulation. "Decision" includes decisions about the issuance of visas, imposition of conditions on visas, conduct preparatory to the making of a decision and a failure or refusal to make a decision. Section 474(4) lists decisions which are not privative clause decisions – these relate to the purely administrative and mechanical aspects of the migration regime.

Section 475A states that the jurisdiction vested in the Federal Court by sections 39B and 44 of the Judiciary Act 1903 (Cth) or section 39 of the Federal Magistrates Act 1999 (Cth), and similarly the jurisdiction of the Federal Magistrates Court, in relation to a privative clause decision made on a review by a tribunal is not affected. However, section 476 provides that the Federal Court and the Federal Magistrates Court do not have jurisdiction in relation to a privative clause decision that is reviewable by a tribunal or in respect of a decision of the Minister not to exercise or not to consider the exercise of his powers under certain provisions of the Migration Act 1958 (Cth).

The Revised Explanatory Memorandum stated that the intention of the privative clause was to provide decision-makers with a wider lawful operation for their decisions. If the decision is made in good faith and within the power of the decision-maker, the decision will be lawful.102 In the Second Reading Speech, the Minister said that the legislation gives "effect to the government's long-standing commitment to introduce legislation that in migration matters will restrict access to judicial review in all but exceptional circumstances. … in light of the extensive merits review rights in the migration legislation and concerns about the growing cost and incidence of migration litigation and the associated delays in removal of non-citizens with no right to remain in Australia …".103

Regrettably, in recent weeks, the tension between the Executive Government and the Federal Court has accelerated. The Minister for Immigration and Multicultural and Indigenous Affairs has twice strongly criticised members of the Federal Court over their interpretation of the amendments. The Full Court of the Federal Court called on the Minister to explain one of the Minister's statements.

4. The consequences of the tension

I do not share the belief that tension between the Judiciary and the Executive is a public good and indicative of healthy, well-oiled government. No doubt the doctrine of separation of powers makes conflict between these two arms of government inevitable. Occasional conflict may do no harm. But if tension persists, as it has done in the migration area in recent years, it damages the public interest. If the Executive Government is continually criticising the Judiciary, the authority of the courts of justice is likely to be undermined and public confidence in the integrity and impartiality of the judges is likely to be diminished. Continuing conflict is also likely to induce the Executive Government to prevail on the legislature to take the extreme step of reducing or abolishing judicial review with the result that the rule of law is undermined.

Decisions of the High Court104 show that on occasions the Federal Court has gone beyond judicial review and entered the field of merits review. But this may not occur as frequently as the Executive Government insists. Justice Sackville has shown105 that the success rate in applications for judicial review in refugee cases is low. In the 1998-1999 year, for example, the Federal Court set aside only 9 percent of decisions made by the Refugee Review Tribunal. A further 16 percent of decisions were remitted by consent - which means the Minister agreed to the decision being sent back to the Tribunal. But the remaining 75 percent of refugee decisions were either upheld by judgments of the Federal Court or withdrawn and dismissed. No doubt the Minister would respond that these figures are irrelevant. He has argued that the real problem with a system of judicial review in migration cases is that it is "vulnerable to abuse by applicants who engage the review processes in bad faith without any legitimate prospect of success".106 But even if this is so, it is not a principled basis for rejecting judicial review and making inroads into the rule of law.

Abuse of the system cannot be prevented but it can be reduced if government is prepared to give the courts sufficient resources to dispose of matters quickly and efficiently. In any event, abuse of the system by even 30 percent107 of applicants is not a reason for denying judicial review to those who could succeed in overturning decisions in migration cases - 25 percent in 1998-1999 on Justice Sackville's figures,108 15 percent on the Minister's figures.109 Even if 30 percent of applicants have commenced proceedings "as a means of prolonging their stay in Australia",110 it seems a small price for a just and prosperous country to pay for maintaining the rule of law.

The frustration of the Executive as the result of applicants abusing the judicial review system is understandable. But Parliament and the Executive should never forget the statement111 of Sir William Wade, the doyen of administrative lawyers, that "to exempt a public authority from the jurisdiction of the courts of law is, to that extent, to grant dictatorial power". Review of a public servant's decision by an administrative tribunal, whose members do not have the same security of tenure and independence as judges, is no substitute for review by a court. In principle, even a national emergency should not be a sufficient basis for refusing to permit the courts to examine the legality of the conduct of the Executive Government.

Under the separation of powers doctrine, the principal function of the judiciary is to uphold the rule of law. It is a corollary of that doctrine that the judiciary cannot be deterred from exercising that function by criticisms of the Executive branch even if the Executive's criticisms have the support of the general public. The Judiciary has to apply the law, not public opinion.

The separation of powers requires the Judiciary to enforce and protect the rule of law. It follows that, when necessary, the Judiciary must speak out publicly against any attempt by the Legislature or the Executive to undermine the rule of law. The Legislature may change the substantive rules of law. It is another question whether, consistently with the separation of powers, the Legislature can, or ought to, prevent the courts from examining the legality of the conduct of those who are bound by those rules of law.

But that said, judges, when exercising the power of judicial review, should never forget the words of Frankfurter J in Trop v Dulles:112

"All power is in Madison's phrase, 'of an encroaching nature.' … Judicial power is not immune against this human weakness. It must also be on guard against encroaching beyond its proper bounds, and not the less so since the only restraint upon it is self-restraint." Judges need to constantly remind themselves in judicial review cases that their task is to review the legality and not the merits of administrative decisions. To the extent that they do, tension between the Executive and the Judiciary will be reduced.

5. Conclusion

Tension between the Executive and the Judiciary is inevitable. It is unrealistic to think that it can be eliminated. But it can be reduced, if the Executive and the Judiciary recognise "that each has a role to perform and that each is better equipped to carry it out than the other".113 As Professor Pearce has said, "[f]or the good of our society, it is better for the combatants to realise that they are there to serve the people, not their own ends, and to adapt their conduct accordingly".114