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Legislative Assembly for the ACT: 2004 Week 02 Hansard (Tuesday, 2 March 2004) . . Page.. 521 ..

It is then argued that the degree of this respect—

that is, the respect that the public have for the system—

turns significantly on the extent to which the citizenry perceives the judiciary to be independent of the political branches of government. Judicial independence is not in this sense a function simply of their tenure of appointment and the extent to which their salaries are fixed (although these issues, settled in late 17th and then 18th century England are critical). Public perception of judicial independence turns on the extent to which the judges are seen by the citizenry to be doing things that are distinctly different to politicians. In particular, it is argued that judges should not become involved in the tasks of the legislature and the executive. In particular, they should have no role in determining what the law should be. That is seen as a legislative function the province of the elected parliamentarians. Nor should they give advice about the law.

Those are the traditions. Mr Stanhope has a law degree. He should know about those traditions and he should know that today he is making bad law. Page 6 of the scrutiny report goes on to say:

Thus, to the extent that judges do not play a distinctive role, and/or become involved in the work of the political branches of government, they undermine public respect for what they do in the exercise of their judicial functions. The central element of that function is of course to decide disputes by making orders binding on the parties. When public respect is undermined, the danger arises that respect for the rule of law is undermined. In turn, this has an adverse effect on the extent to which the rights of citizens are observed within the community.

(Extension of time granted.) I apologise to members. Earlier we spoke to the Chief Minister about suspending the standing orders concerning time limits so that people could speak longer on this very important bill. I suspect that I will be seeking several extensions of time.

The interesting thing is the middle sentence of that paragraph: “The central element of that function”—the judiciary—“is of course to decide disputes by making orders binding on the parties.” This law allows judges to make suggestions to the legislature that are not binding and can be ignored. In effect, this bad law places politicians and assemblies above the law. That undermines the system—the system that ultimately guarantees your rights because when your rights are violated you take them into the system. We are now saying that we can have a system that undermines that.

On page 7, the scrutiny report refers to the Trade Practices Tribunal and Blackstone and says:

The separation of the judiciary is no mere theoretical construct. Blackstone rightly perceived that liberty is not secured merely by the creation of separate institutions, some judicial and some political, but also by separating the judges who constitute the judicial institutions from those who perform executive and legislative functions…

I emphasise the word “separation”. The report continues:

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