Page 3185 - Week 10 - Wednesday, 24 August 2005
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law society president reaffirmed his consistent public position that this is not a separation of powers issue. In fact, when the government joined the application to the Supreme Court, it signalled that it accepted the separation of powers and was prepared to work within the existing judicial framework.
Further, two acknowledged experts in the law—unlike Mr Stefaniak’s anonymous legal practitioners—Hugh Selby and Dr Ian Freckleton from the ANU have said that arguments that the government is politically interfering in the coroner’s inquiry are baseless and that claims that a breach of the separation of powers is occurring are nothing more than a red herring or a furphy. Dr Freckleton said, on or about 1 February 2005, that an attorney-general had a right to ensure that justice was not only being done, but being seen to be done and to have a decision in a lower court tested in a higher court.
In addition, before the application went before the full bench of the Supreme Court, an order nisi, that is, an interim order calling upon the coroner to answer the case being made against her, was granted by a single judge, Justice Crispin. Before Justice Crispin could grant that order, he had to be satisfied that there were serious issues to be tried. Obviously he was satisfied, because he granted the order. In delivering the judgment, Justice Crispin said, “Having regard to the material annexed to the affidavits that have been filed in the proceedings, I have concluded that there are serious issues to be tried.” In the light of these comments from the president of the law society, two expert and notable lawyers and the ruling of Justice Crispin, how can it be said that I interfered in the administration of justice or that I somehow threatened the doctrine of the separation of powers? It is absolutely ludicrous, Mr Speaker.
In his speech to newly admitted legal practitioners on Friday, the Chief Justice repeated his concerns that, in some jurisdictions, the courts may be seen as mere sub-branches of a public service department. This is a repetition of part of the report by the Australian Institute of Judicial Administration entitled The governance of Australian courts: a managerial perspective. There has been a longstanding debate about how the governance of courts can best reflect the independence of the judiciary, but still hold the courts accountable for the expenditure of public funds. The AIJA report, which was published in 2004, in part, says:
… there are at least three major patterns … within which are variations from system to system ... Specifically, in South Australia and the Commonwealth, there is a clear line at the point where basic resources are handed over by the Executive, with the judiciary clearly an administrative authority over the remaining activities. Among the remaining systems, New South Wales and Western Australia go further than the other States in the extent to which the Executive controls court staffing and infrastructure. In Victoria, Tasmania and Queensland, by contrast, authority over these functions, as with court operations, is shared in one form or another between the Executive and the judiciary. The major difference between, on the one hand, South Australia and the Commonwealth and the remaining States on the other, is the clarity of the line between the authority of the Executive and that of the judiciary. In the former, it is relatively clear; in the remaining States, the line is quite variable from one jurisdiction to another.
In other words, there is no one way of administering courts or recognising the distinction between the executive, legislature and judiciary. The way that has been adopted in the ACT since self-government, when Mr Stefaniak was Attorney General, and, before that,
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