to be notified in the Government Gazette, tabled in the Legislative Assembly, and subject to

disallowance;

· the Parliamentary Committee of Subordinate Legislation scrutinises subordinate legislation to see if it

meets certain standards and advises Parliament whether it ought to be disallowed.

Judicial Power: separation from legislative and executive power

A most important feature of the Westminster system is the principle of judicial independence. Given

prominent mention in Montesquieu's account of the "English Constitution", it is really a fundamental

component of the doctrine of separation of powers.

It is beyond the scope of this paper to undertake a detailed analysis of the various mechanisms which

support judicial independence. There is, however, the issue: to what extent is there a strict separation

between judicial power and non-judicial (legislative and executive) power.

The Westminster system clearly contemplates that the courts will exercise the judicial power subject to well

recognised exceptions in the case of Parliament's power of contempt and control of its Members, and courts

martial conducted by the military. But there is no constitutional legal restriction on Parliament which

prevents it (i) from vesting judicial power in tribunals or even officials outside the court system, or (ii) from

directly exercising judicial power itself.

As regards (i), the State Parliaments are not hampered in the same way as the Commonwealth Parliament

is and so can establish quasi-judicial tribunals to exercise powers which are of a judicial nature.

As regards (ii), probably the most significant danger of not having the doctrine as a legal restriction in

Queensland is the capacity of Parliament to directly exercise judicial power, i.e. usurp the judicial process,

either (i) by determining the guilt of a person by a bill of attainder, or (ii) by interfering in the judicial process.

I. A bill of attainder is a law which adjudges a person or a class of persons to be guilty of punishable

conduct which at the time it occurred was not prescribed by the general law as an offence or as

punishable conduct, and thereupon prescribes the punishment for that conduct.

Bills of attainder are offensive to the doctrine of separation of powers and to the rule of law for they

render what was at the time lawful conduct, retrospectively unlawful and they bypass the process of

determining criminal guilt by way of a criminal trial.

At present, there is no constitutional impediment to bills of attainder enacted by the States, but by

virtue of the doctrine of separation of powers operating at the Commonwealth level, the

Commonwealth Parliament is precluded from enacting them (see Polyvkhovich v Commonwealth

(1991 ) 101 ALR 545).

II. Laws which interfere in the judicial process have also been enacted from time to time by State

Parliaments and while upheld as valid laws they have provoked considerable criticism from the court.

In the BLF V NSW Minister for Industrial Relations (1986) 7 NSWLR 374, the NSW Court of Appeal

upheld NSW legislation which was enacted just before an appeal was to be heard, which effectively

directed the court to dismiss the appeal and make no order as to costs. Street CJ clearly disapproved

of this legislation:

...it is contrary both to modern constitutional convention, and to the public interest in the due

administration of justice, for Parliament to exercise that power by legislation interfering with

the judicial process in a particular case pending before the Court. (381)

4. THE COMMONWEALTH POSITION

A. Separation of Legislative and Executive Power

The State position outlined above in relation to the separation between legislative and executive power

applies equally at the Commonwealth level. The Westminster system here again blurs the separation

between the personnel of the Parliament and of the Executive. Section 64 of the Commonwealth

Constitution gives effect to this position by requiring Ministers to be Members of either House at least within

three months of their appointment.

Information Paper on Parliament and Government in Queensland

Parliamentary Education & Training Services, Queensland Parliament

The delegation of law-making power to the Executive is also permitted: Dignan's Case (1931) 46 CLR 73.

Extremely wide delegations of power to the Governor-General or a Minister have been upheld by the High

Court eg a power to make regulations with respect to the employment of transport workers (Dignan's Case);

a power to prohibit the importation of goods (Radio Corp v Cth) (1937) 59 CLR 170).

The legal limitations on the power to delegate are: (i) Parliament must retain the capacity to revoke the

delegation of power (as noted above for State Parliaments) and (ii) the delegation cannot be so wide as to

fail the characterisation test, ie, it is a law with respect to a Commonwealth legislative power. These

limitations impose no practical restrictions on the Commonwealth Parliament, evidenced by the fact neither

has been breached. Only if the Commonwealth delegated one of it entire powers such as its power in s.51(i)

with respect to interstate and overseas trade and commerce, would the delegation be too wide.

The controls on the exercise of the delegated power are similar to those in Queensland.

B. Separation of Judicial and Non-Judicial Power

The High Court has given legal effect to the doctrine of separation of powers in relation to the judicial power

of the Commonwealth. It is in this respect that the position at the Commonwealth level differs markedly from

that at the State level. The reasons given by the High Court for the recognition of the doctrine as a legal

restriction under the Commonwealth Constitution are: the constitutional entrenchment of the judicial power

in the High Court and the other federal courts (s.71); the prescription of the content of the judicial power in

Chapter m of the Constitution; and the critical need to maintain judicial independence in a federal system.

The doctrine has been adopted by way of two related legal principles inferred by the High Court from

Chapter III of the Constitution, and strangely they were established fifty years apart!

First, judicial power can only be vested in s.71 courts (High Court, federal courts, State courts). No other

body may be vested with judicial power (the Wheat Case (1915) 20 CLR 54). Isaacs J at 88-90 of the Wheat

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