Australian Politics and Policy - Senior, 2019a

Courts
While the rule of law is a cultural commitment shared between all three arms
of government, the courts are, and see themselves as, central to its enforcement
in Australia. The courts enforce the law not only by interpreting it and issuing
authoritative and binding judgements but also by applying a process in which
the parties in dispute can be seen to have received a fair hearing. This process
culminates in written reasons. Written reasons are not only necessary for the
doctrine of precedent to operate effectively, they also ensure that the parties and
others who may be affected by the law know why the decision was reached. This,
in turn, supports the presumption that the law is being administered in an open,
publicandultimatelyfairmanner.Importantly,andentwinedwiththedoctrine
of the separation of judicial power, this judicial process is designed to ensure that
the law is administered as it exists and not as the executive government desires or
believes it should be. In this regard, the High Court has emphasised that ‘all power
of government is limited by law’ and that it is role of the judiciary to enforce the law
and the limits it imposes. 27
The separation of judicial power
A separation of powers exists when the power of government is divided between
the legislature, the executive and the courts. Generally speaking:
the legislature enacts laws; the executive applies those laws in individual cases; and
in the event that a dispute arises about the meaning or application of a law, the
dispute is resolved conclusively by the judiciary. 28
A strict separation of powers is enshrined in the US constitution, but it has never
existed in England. However, in England parliament has recognised the importance
of an independent judiciary since at least 1701. 29 Australia has adopted somewhat
of a middle ground between the US and English approaches. It only applies a strict
separation of power to federal courts (including the High Court) but still provides
the state Supreme Courts with a significant level of independence.
Federal courts owe their existence to the Constitution, which creates a strict
separationofpowerbetweenthecourtsandtheothertwoarmsofgovernment.
ThisseparationofpowersiscommonlyknownastheBoilermaker’sprincipleand
meansthatonlycourtscreatedunder,orgivenpowerthrough,ChapterIIIofthe
Constitution can exercise Commonwealth judicial power and that the same courts
arenottobegivenortoexerciseCommonwealthexecutiveorlegislativepowers,
with some established exceptions. 30 Consequently, not only is the independence of
27 Graham v Minister for Immigration and Border Protection [2017] HCA 33, [46].
28 Creyke, McMillan and Smyth 2015, 313.
29 Act of Settlement 1701 (UK).
30 RvKirby;ExpartetheBoilermakers’SocietyofAustralia(1956) 94 CLR 254.
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