Page 3189 - Week 10 - Wednesday, 24 August 2005
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and that Chief Justice Higgins’s speech reported in that article was based on the Supreme Court’s rejection of the legal action against the coroner on grounds of apprehension of bias. We have, in my office, looked at the Supreme Court’s decision carefully. Much of the recent argument to censure the Attorney-General and now the call for him to step aside has centred on an accusation that he has transgressed the boundary between the courts and the executive, one of the separation of powers upon which our system of democracy has been built, by directing the ACT government to join the action against the coroner.
There were two substantive discussions of the issues of separation of powers in the judgment of the full bench delivered recently and then summarised in the Canberra Times article. Neither involved the Attorney-General, members of the cabinet or, indeed, the specific actions of chief executives. They are concerns, rather, about the blurring of distinctions between the department and the courts at a much more prosaic level. Indeed, they are concerns that are reflected more widely in the community which, to put it simply, demonstrate a public service which is used to more or less running the shop and failing to properly respect or be bothered with some of the finer distinctions about the courts, the parliament and the government.
This is not intended as a slur on the people in the ACT’s public service who need to manage wide-ranging responsibilities on a fairly small scale; but, indeed, it is the very wide range and the small scale that give rise to some of the problems I am alluding to. Dan Stubbs, the immediate past director of the ACT Council of Social Service, made the point when he resigned from that position that policy decisions and ministerial responsibility are at times usurped by public servants. I would argue that this happens in part because the ministers are spread so thinly, in part because the matter at hand may appear to be a minor one and the solution might seem obvious, and in part because Canberra until fairly recently was run more or less exclusively by a government department.
I would also add that it does not appear that the courts are held in great esteem by the public service in the ACT. Again, I would say that this is in part the consequence of size and familiarity. Sometimes it seems familiarity can breed contempt, which is not always helpful.
I would like to remind the Assembly that in this case the court found it was a real problem that the coroner adopted independent experts that were, unbeknownst to her, appointed by the government and that, while that distinction was perhaps seen as of no great moment by government officers involved, it is indeed an important distinction. After some discussion on the importance of the courts being independent of the government’s administration and being seen to be independent as well, the court went on to make the comment:
There are some grounds for concern that, at least on an administrative level, courts in some jurisdictions may be seen as mere sub-branches of a public service department.
Later, in a discussion about the dissemination of copies of submissions by a court officer, the court came back to “the potential for public confidence in the independence, and hence impartiality of courts to be undermined by administrative arrangements which
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