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Legislative Assembly for the ACT: 2004 Week 02 Hansard (Tuesday, 2 March 2004) . . Page.. 522 ..

The separation of judicial function from the political functions of government is a further constitutional imperative that is designed to achieve the same end, not only by avoiding the occasions when political influence might affect judicial independence but by proscribing occasions that might sap public confidence in the independence of the Judiciary.

Blackstone in this regard—a comment by Brennan J is noted elsewhere—actually talks about where political influence might affect judicial independence. I flag that we are actually legislating in this bill for interference in the court. The Attorney-General can go to the court and tell the court what he thinks; he is given a power to enter the courts and tell the judges what he thinks. The Human Rights Commissioner can do the same. Not only have we blurred it, but also we have actually given politicians an entree to the courts to tell them what to do. That, ladies and gentlemen, is a blurring of the separation of powers that just is untenable.

On page 8, the scrutiny report goes on to say:

The non-judicial function—

the non-judicial function; what we are not doing in this bill is giving judges a judicial function, which is why they are judges, to make decisions—

which this Bill would confer on the Supreme Court of the Territory is the power in clause 28 to make a non-binding declaration of the invalidity of a Territory law.

Remember, judges make binding decisions on parties. That is why they are judges. We are about to change that and make them non-judicial and non-binding. The Attorney-General should know that this erodes the very basis of our justice system. The report goes on to say:

Whether such a power may be validly vested in the Supreme Court is not the point to which the Committee now draws attention. Rather, it is that it appears arguable that this power is incompatible with the judicial function of the Supreme Court, and given that the rationale for the incompatibility theory is the protection of the liberty of the citizen, there is an issue as to whether clause 28 is an undue trespass on personal rights and liberties.

What is this bill doing? It is becoming an undue trespass on personal rights and liberties. Mr Deputy Speaker, if you go over to page 9 of the scrutiny report, you will see that it goes on to say:

It is, however, the conferral of that kind of role on the Supreme Court that is the basis for the argument—as explained above—that clause 28 might be seen as an undue trespass on personal rights and liberties.

What exacerbates the problem is the nature of the task the Supreme Court must perform when it gives assistance and advice to the legislature. Judicial review against rights standards will or may have two effects.

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