Sunday, November 21, 2004

Piddington Ponders: Fourth Branch Redux

Piddington has also been reading the latest edition of the Australian Law Journal [ed: see post below on private law], and he was most intrigued to find an article by his second-favourite current Chief Justice, Jim Spigelman, entitled "The Integrity Branch of Government". The author proposes that those aspects of the Legislative, Executive and Judicial branches of government that are concerned with maintaining integrity should be conceptualised as a "Fourth Branch" of government: a coherent body of principle directed towards maintaining the integrity of government as a whole. The author concludes:

There is, I believe, utility in identifying the common function performed by the institutions to which I have referred: Parliament when not acting as a legislature; the head of state; the courts by judicial review; Auditors-General; corruption commissions; royal commissions etc. Whilst also performing other functions, from legislation in the case of Parliament to resolving individual disputes in the case of the judiciary, it is possible to identify a distinctive function which can be categorised as maintaining the integrity of government in the manner I have identified, that is, ensuring that powers are exercised for the purposes and in the manner envisaged. [(2004) 78 Australian Law Journal 724, 737]

As a denizen of the original Fourth Branch, Piddington is intrigued by this suggestion, but is not yet wholly convinced. At base, it might amount to nothing more extraordinary than the proposition that the institutions of state exist to ensure sound public administration within the limits set by the political community. Thus, one might summarise Spigelman CJ’s proposition as being: “all institutions of government have a role in propagating the rule of law”.

On the other hand, Piddington wonders whether there is also a more radical suggestion in Spigelman CJ’s remarks: namely, that the separation of powers is not an intrinsic good, but rather serves as a means to an end. Hence, the CJ’s invocation of the ancient Chinese Imperial government -- in which a “censorial” branch of government served to ensure the integrity of the other branches -- serves as a reminder that government can in fact be arranged in other ways, and that there is nothing inherently ‘good’ about Montesquieu’s three-fold organisation.

Given the High Court’s fetishism over the past few years about the need for a strict separation of judicial power from the other branches of government, Piddington thinks that Spigelman CJ’s suggestions will at least provide food for thought for a more integrated vision of governmental power. Piddington also speculates that while the separation of powers may set boundaries between the various branches of government, it does not actually say much about the extent of government power as a whole.

While Spigelman CJ never says so in as many words, Piddington suspects that we must look elsewhere than the separation of powers to find a true protection for liberty against the scope of government power.