Page 3183 - Week 10 - Wednesday, 24 August 2005
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… appears to be an increasing tendency for the boundaries between the courts and the executive to become blurred. Courts are not, of course, part of the public service. The courts as a group constitute one of the three arms of government, the others being the legislature and the executive. The role of the courts is to see that justice is done according to law, and that frequently requires them to stand between the citizen and the other arms of government.
The Chief Justice interpolates here, “Something which you, too, as legal practitioners will participate in.” He continues:
Public confidence in the ability of the courts to dispense justice in a fair and impartial manner is largely dependent upon continuing recognition of their independence. There are obvious indications of such independence, including the fact that jurisdiction must be exercised according to law rather than government policy, and that judges and magistrates generally enjoy guaranteed tenure of office.
He then refers, in paragraphs 90 and 91, to grounds for concern, at an administrative level, that courts may be seen as sub-branches of a public service department. On page 3, he says:
It is in this court and within this tradition of separation of powers that you may be working as a legal practitioner.
He concludes with more observations about newly graduated and newly admitted practitioners. I seek leave to table the speech by the Chief Justice.
Leave granted.
MR STEFANIAK: The Chief Justice did not quote paragraphs 92 to 94 of the ruling, but that is relevant because that is where the justices talk about the issue of the separation of powers in relation to the coronial inquest. They said that the coroner did not know, and could not have known, that the two experts had, in fact, been hired by the government. That caused them some concern in terms of the separation of powers. It was not a huge issue, as it turned out, but there was a concern that, had their evidence been favourable to the government, that could have been a real bias in itself. That was the issue they seemed to speak of there.
The point is that the Chief Justice of the ACT, indeed two other learned justices, Justice Crispin and Justice Bennett, feel that there is a real problem with the separation of powers here in the ACT. A lot of lawyers feel the same way. Many members of the community are also concerned by the unprecedented action of this government getting involved in this appeal in the first place. The right thing for the Chief Minister to do is to stand aside as Attorney-General. That would be good for the legal system. I think it would be good for this government. It would be a sign that he is going to be totally at arms-length. Everyone would then have confidence that the judiciary is working independently and not at the whim of the government and the executive.
MR SPEAKER: The member’s time has expired.
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