FEDERAL COURT OF AUSTRALIA		

The Relationship between Parliament, the Judiciary and the Executive (“The Latimer House Principles”)
delivered at the 
27th Commonwealth Parliamentary Seminar
Parliament House 
Brisbane Queensland
Australia
Thursday, 9 June 2016
___________________________________________________________________________

The Honourable Justice Logan RFD
A Judge of the Federal Court of Australia
Within the Commonwealth, our shared understanding as to what is best conducive to the appropriate relationship between Parliament, the Judiciary and the Executive for which national constitutional arrangements provide has come to be known as “The Latimer House Principles”. That understanding is not an academic construct and, especially before an audience of legislators whose task is to give practical voice to those principles, it would be quite wrong, in my view, to approach it as if it were.
It is usual for the constitution of a Commonwealth country to distribute the power of government between three branches:
•	a parliament comprised of elected members;
•	 a Ministry, which is responsible to that parliament and controls a civil service and a Defence Force (the Executive); and
•	 an independent, tenured judiciary.  
Put generally, this distributes and separates the powers of government such that the parliament makes laws by statute, the Ministry, assisted by the civil service, administers those laws, including by the making under statute of regulations and a judiciary, independent of both parliament and that Ministry, resolves controversies which arise in the circumstances of a particular case about the lawfulness of the actions of the other branches of government or under the general or statute law of the nation. 
That the powers of government came to be distributed and separated in this way was not happenstance.  Rather, the origin of that distribution and separation lies in how, in 17th and early 18th century England, great conflicts entailing civil war, military dictatorship and much suffering and loss of life, liberty and property came to be resolved. The reason for the continued retention and wider adoption of this system lies in the realisation that the human motivations, tendencies and behaviours which led to such conflicts when the exercise of the powers of government was neither checked nor balanced are timeless. Those great conflicts and their resolution are subjects to which I shall shortly return in depth.
The experience of the ages is that this distribution and separation of the powers of government best achieves national peace, order and good government, including the promotion and protection of human rights. In modern times, guidelines have been developed within the Commonwealth concerning practices with respect to relations between the three branches of government which best promote these ends. They are the product of the collective wisdom and experience of Commonwealth nations large and small, developed and developing.
That these guidelines have come popularly to be called the “Latimer House Principles” is because the initiative for their adoption may be traced to a conference sponsored by the Commonwealth Parliamentary Association, the Commonwealth Legal Education Association, the Commonwealth Magistrates’ and Judges’ Association and the Commonwealth Lawyers’ Association, which was held in the United Kingdom at Latimer House, Buckinghamshire, in June 1998.  The product of that meeting was considered by a working group of Law Ministers drawn from Commonwealth member countries, adopted by Commonwealth Law Ministers and then, at their meeting in Abuja, Nigeria, in December 2003, endorsed by Commonwealth Heads of Government. 
The text of the Latimer House Principles is readily accessible via the Commonwealth Secretariat’s website.  I provide in this paper some examples of the application and breach of these principles, particularly with respect to the judiciary.
These principles are best understood against the background of how and why, historically, legislative, executive and judicial power came to be separately distributed under our system of government.  For it was not always so. 
A consequence of the Norman invasion of England in 1066 was that all aspects of sovereign power, legislative, executive and judicial, came to repose in the monarch. By the early 17th century, the exercise, in practice, of that power had come to be undertaken not just by the monarch and his or her councillors but also by a parliament and by a judiciary drawn from those learned in the law. But the view persisted under the early Stuart kings, King James I (in Scotland, King James VI) and his son, King Charles I that the holding of kingship was a Divine Right, which necessarily conferred monarchical supremacy such that a monarch could, if so disposed, dispense at will with either parliament or judges and govern alone. 
From these times, the judiciary throughout the Commonwealth, and also in the United States of America, has cause to remember Sir Edward Coke for a series of cases decided following his appointment as Chief Justice of the Common Pleas in the reign of King James I. 
In 1607, King James purported himself to adjudicate and pronounce upon a controversy between parties. That controversy and the King’s ability himself to resolve it came before Coke in the Court of Common Pleas in what is known as the Case of Prohibitions. Coke overturned the King’s judgement, holding, “The King in his own person cannot adjudge any case, either criminal or betwixt party and party; but it ought to be determined and adjudged in some Court of Justice, according to the law and custom of England.”
In 1610, Chief Justice Coke was summoned to appear before the King’s Privy Council. There he was requested to furnish a legal opinion on the subject of whether the King might, by proclamation, as opposed to Act of Parliament, prohibit new buildings in London, or the making of starch or wheat. This subject had been referred to the King by the House of Commons as a grievance and as supposedly against law. Coke requested and was granted time to consult his fellow judges, such was the importance of the question.
Coke’s answer, which represented the collective view of the judges, has come to be known as the Case of Proclamations.  That answer included the following pronouncements:
•	“the King by his proclamation of other ways cannot change any part of the common law, or statute law, or the customs of the realm” and
•	 “the King cannot create any offence by his prohibition or proclamation, which was not an offence before, for that was to change the law, and to make an offence which was not”.
These and other pronouncements as to the role and independence of the judiciary did not endear Coke to King James I.  At that time, judges did not enjoy security of tenure.  They served at the pleasure of the King. Initially, Coke was transferred from the Court of Common Pleas to be the Chief Justice of the Court of King’s Bench.  That was probably because the jurisdiction of the latter court was concerned with individual rights whereas that of the former was with the rights of the Crown.  The transfer, so it was thought, gave Coke less opportunity to vex the King by his assertions of judicial independence. 
In 1616, came the Case of Commendams.  The name of that case is taken from the use by the King of an in commendam writ as a means of transferring income producing ecclesiastical property belonging to a bishophric to a Bishop while at the same time relieving the holder of that office from having in person to perform the duties of that office and allowing another to perform them in place of the bishop.  The writ was a convenient means of rewarding those who deferred to the King. King James used such a writ to allow one Richard Neile to hold office as the Bishop of Coventry and enjoy the income from two properties associated with that bishophric without performing personally the duties of that office.  The grant of the property to Bishop Neile by the King was contested before the Court of King’s Bench by two individuals who claimed that the property in question belonged to them.  The case touched on the King’s prerogative to issue in commendam writs.
Coke and his fellow King’s Bench judges were about to hear the case when, on behalf of King James, his Attorney-General, Francis Bacon, appeared to assert the prerogative of Rege inconsulto [that the King has the power to advise judges before they rule] and ordered them to stay the proceedings until His Majesty advised them.  Instead, the judges proceeded to hear and determine the case, holding that the in commendam writ procedure was illegal.  The judges thereafter sent a letter to King James in which they stated “in case any letters come unto us contrary to law, we do nothing by such letters, but certify your Majesty thereof, and go forth to do the law notwithstanding the same”.  The judges were then summoned before the King who ripped up their letter in front of them, stating that “I well know the true and ancient common law to be the most favourable to Kings of any law in the world, to which law I do advise you my Judges to apply your studies”.  While all the other judges were repentant, Coke maintained the position stated in the letter, informing the King “When the case happens I shall do that which shall be fit for a judge to do”.  For this defiance of Royal authority, Coke was dismissed from his office as Chief Justice of the Court of King’s Bench.
These events occurred 400 years ago. What relevance are they to the modern Commonwealth? 
Yet are the behaviours of King James towards Chief Justice Coke any different in substance from those of President Robert Mugabe towards Chief Justice Gubbay and the judiciary of Zimbabwe last decade?  In December 2000, the Supreme Court of Zimbabwe struck down as unconstitutional the key elements of the Mugabe government’s “Fast Track” land reallocation programme.  The reaction of President Mugabe and his henchman was to intimidate and in March 2001 hound into resignation from office Zimbabwe’s Chief Justice, the Honourable Anthony Gubbay.
The misunderstanding that the role of the judiciary is not to support the policy of the Executive is by no means confined to leaders of developing nations.
In 2011, the High Court of Australia struck down as unlawful the Gillard Government’s scheme to transfer to Malaysia, without prior assessment of their claims for refugee status, up to 800 asylum seekers who had irregularly arrived in Australia after 25 July 2011.  The scheme entailed an arrangement between Australia and Malaysia, entered into on 25 July 2011, under which assessment of the asylum seekers’ claims for protection as refugees would be carried out in Malaysia by the United Nations High Commissioner for Refugees.  Unlike Australia, Malaysia was not a signatory to the Refugee Convention. Article 33.1 of the Refugee Convention provided:
“No Contracting State shall expel or return (‘refouler’) a refugee in any manner whatsoever to the frontiers of territories where his life or freedom would be threatened on account of his race, religion, nationality, membership of a particular social group or political opinion.”
Immediately after the High Court gave judgement, the then Australian Prime Minister, the Hon Julia Gillard MP, who had once practised as a lawyer prior to entering Parliament, accused the High Court of missing an opportunity to “send a message” to people smugglers.
Prime Minister Gillard’s reaction is in marked contrast to that of a predecessor in the office of Australian Prime Minister, the Right Honourable Robert Menzies QC, MP (as Sir Robert then was), whose government also suffered a reverse in the High Court in respect of the lawfulness of the implementation of a policy. In 1950, at the height of the Cold War and at a time when Australian troops were engaged in the United Nations defence of the Korean Government from communist forces, the Australian Parliament, in the implementation of the policy of the Menzies Government, enacted the Communist Party Dissolution Act 1950 (Cth).  Amongst other measures, that Act purported to dissolve the Australian Communist Party, and to confiscate all of its property. 
The Australian Communist Party immediately challenged, before the High Court of Australia, the constitutional legislative competence of the Australian Parliament to enact this Act.  In a judgement delivered the following year, the High Court held that the Act was beyond the legislative competence of the Australian Parliament and thus invalid.  The reaction of Prime Minister Menzies, who was also a lawyer, to the judgement was not, for example, to criticise the High Court for being “soft on communism”. Instead, he stated:
“On behalf of the Government, I say that this is not the end of the fight against Communism, it is merely the beginning.”
He accepted that the role of the High Court was to pronounce on the constitutional validity of legislation and respected its decision. His “fight” took the form of an endeavour by the means authorised by the Australian Constitution, to amend the constitution so as to confer the requisite legislative power on the parliament.  That required means included the successful passage of a referendum.  As it transpired, the referendum was not passed either by the requisite majority of the Australian States or by an overall majority and thus failed.  And so the Communist Party was not banned.  The case stands to this day in Australia as an important example of the limits of our parliament’s ability to circumscribe civil liberties, even of the promoters of unpopular causes.
Very recently, when Papua New Guinea’s Supreme Court held that the detention of asylum seekers on Manus Island violated the National Constitution, the immediate response of the Prime Minister, the Honourable Peter O’Neill MP, was to state publicly that the government would abide the order of the court.  That statement was made even though, as a matter of national policy, the Papua New Guinea government had made an arrangement with the Australian government for the detention there of those asylum seekers. 
The point for present purposes is that the reactions of Prime Ministers Menzies and O’Neill were in conformity with the Latimer House Principles, whereas, with all due respect, the behaviour of President Mugabe and the statement made by Prime Minister Gillard were not. 
In relation to relations between the parliament and the Executive on the one hand and the judiciary on the other, these principles do not exist to protect the vanity or sensibilities of the judiciary.  The reasoning employed in a judgement is not immune from criticism.  What should be avoided is criticism which is subversive of the separate, constitutional role of the judiciary to interpret and apply the law of the land or, put another way, criticism which is subversive of the rule of law.  Statements which suggest that the judiciary must adhere to the views of the Executive are likewise subversive.
There is a corollary of this so far as the judiciary is concerned.  It is not the function of the judiciary to have the general administration of Acts of Parliament or to formulate and implement national policy.  These are the functions of the Executive.  The concern of the judiciary is only with the legality of the discharge of these functions by the Executive, not with their merits. Perhaps the most famous exposition of this principle was by Marshall C.J of the United States Supreme Court in Marbury v Madison:
“It is, emphatically, the province and duty of the judicial department to say what the law is.”
Referring to this duty in the context of the judicial review of administrative action in a case in the Australian High Court, Sir Gerard Brennan has stated:
“The duty and jurisdiction of the court to review administrative action do not go beyond the declaration and enforcing of the law which determines the limits and governs the exercise of the repository’s power.  If, in so doing, the court avoids administrative injustice or error, so be it; but the court has no jurisdiction simply to cure administrative injustice or error. The merits of administrative action, to the extent that they can be distinguished from legality, are for the repository of the relevant power and, subject to political control, for the repository alone.”
Cases involving the judicial review of administrative action arise with much greater frequency before the courts than those which involve a question of the constitutional legislative competence of parliament and thus present both judges, members of parliament and Ministers with a more frequent need to observe and respect each other’s separately assigned constitutional role.  But that need is no less in, for example, a case concerning the judicial review of a decision concerning whether an individual is entitled to a particular benefit under statute than it is in a case involving the constitutionality of an action implementing high national policy.  Further, it is not only in these public law cases that that need arises.  It is the daily business of the courts to determine a range of other civil disputes, notably including tax liability disputes, to which a body politic or official or agency thereof is a party.  That is not to mention criminal cases in which the Crown or the State will always be a party.  In all such cases, a failure on the part of the other branches of government to respect the separate, adjudicative role of the judiciary is subversive of the rule of law.
The exercise of judicial power must entail deference not just to the separate role of the Executive but also to the separate role of parliament.  A not infrequently encountered need for this deference occurs when a court is urged by a Minister or other officer or agency of the Executive to adopt a construction of legislation favoured by the Executive but which does not accord with the meaning of that legislation as disclosed by its text.  In these circumstances, it is not for a court to construe the legislation on the basis of what parliament might have specified if it were desired to implement a particular policy.  For to do that would, in effect, be to legislate.  Instead, the court must construe the legislation on the basis of the text parliament has chosen to approve. If that text has imperfectly implemented that policy, it is for parliament, if so disposed, to amend the legislation so as more exactly to implement that policy.  This approach to the construction of legislation must inform the judiciary in cases great and small.  The approach is well illustrated in remarks made by Pincus J in a case in the Federal Court of Australia concerning legislation governing benefits for war veterans when refusing to adopt a construction of that legislation promoted before him by an agency of the Executive, the Repatriation Commission:
[T]his is not the first time in which the respondent Commission has implied in argument that provisions of this sort could not possibly have been intended to produce such anomalies as, literally read, seem to follow from them; but it is the constitutional function of Parliament, and not that of the judges, to correct any anomalies thought to arise from applying the plain language of legislation.
Notoriously, King Charles I persisted in the assertion of the Divine Right of a monarch to govern alone, as so evident in the relations between his father and Chief Justice Coke.  That persistence and the related behaviours of King Charles in endeavouring to govern without parliament and to impose taxes without parliamentary authority led in the mid-17th century to civil war between the King and his supporters and parliament and its supporters.  King Charles lost that war and paid for his adherence to his principles with his life. But the subsequent English experience after that civil war was that regicide and the triumph of parliament and a republican ideal led not to government by parliamentary authority but instead to a military dictatorship under Lord Protector Oliver Cromwell, backed by the New Model Army. 
On Cromwell’s death, peace was preserved by a restoration of the monarchy but on terms that, over the course of the reign of King Charles II and his successors, led to an acknowledgement of the supremacy of parliament within the field of its legislative competence and to the affirmation of the separate role of an independent judiciary by express provision for the continued tenure in office of judges, subject to capacity and good behaviour.  The instruments by which these features of what has proved to be an enduringly successful system of government were enshrined were:
•	The Declaration of Breda of 4 April 1660, by which King Charles II undertook, if restored to power, to issue a general pardon for crimes committed during the Civil War and the period of the Protectorate for all those who acknowledged him as the lawful monarch; to uphold the right of those who purchased property during that period to retain that property; religious toleration; to pay arrears owing to members of the army, and that the army would be reconstituted under the service of the Crown.  It was on this basis that the English Parliament resolved on 2 May 1660 that “government ought to be by King, Lords and Commons”, which is the essence of a constitutional monarchy.  In this lie the origins of the Westminster system of government in which Ministers appointed by the Crown or other Head of State hold office only while they enjoy the confidence of parliament.
•	The Declaration of Rights of 1688, which recited the infractions of King James II of the laws of England during his reign and formed the basis upon which his successors King William III and Queen Mary II were invited and agreed to accept the Throne in succession from him.  This declaration was later recited and the rights it specified enacted by the English Parliament in the Bill of Rights 1689 (Eng). Article 9 of the Bill of Rights is the foundation of the freedom of speech in parliament:
“Freedom of Speech.
That the Freedom of Speech and Debates or Proceedings in Parliament ought not to be impeached or questioned in any Court or Place out of Parliament.”
(as rendered in modern English form)
In conformity with this freedom, courts do not permit the tendering in court of statements made in parliament for the purpose of drawing an adverse inference against a member of parliament and a member of parliament may not be sued for defamation for statements made in parliament.
•	The Act of Settlement 1701 (Eng), which provided for the succession to the Throne and for the terms of that succession after the failure of King William and Queen Mary and their successor, Queen Anne to produce a surviving heir. Clause 7 of Article III of that Act provided:
“That after the said Limitation shall take Effect as aforesaid Judges Commissions be made Quam diu se bene Gesserint and their Salaries ascertained and established but upon the Address of both Houses of Parliament it may be lawful to remove them.”
Judicial tenure Quam diu se bene Gesserint is tenure during good behaviour.  It affords the judiciary a tenure not enjoyed by Chief Justice Coke and facilitates the discharge of the judicial function he defended.
In England and Wales, provision for this tenure of this kind for the senior judiciary is now found in s 11 of the Senior Courts Act 1981 (UK). The Australian analogue for the federal judiciary of this provision for judicial tenure is found in s 72 of the Australian Constitution. 
Writing extra-judicially in 2002, the Honourable Michael McHugh AC, then a judge of the High Court of Australia, observed of the doctrine of the separation of powers:
“In theory, the doctrine constructs a system that avoids concentrating too much power in any one body of government – the three powers are separated from one another and “none is supposed to trespass into the other's province”.  Furthermore, no arm of government is supposed to abdicate power to another arm.  The premise of this construct is not a harmonious relationship but a checking and balancing of power.  Inevitably, the checking provides the blueprint for, and generates, tension between the three arms of government.”
His Honour’s conclusion was:
“Tension between the Executive and the Judiciary is inevitable.  It is unrealistic to think that it can be eliminated.  But it can be reduced, if the Executive and the Judiciary recognise ‘that each has a role to perform and that each is better equipped to carry it out than the other’.  As Professor Pearce has said, ‘[f]or the good of our society, it is better for the combatants to realise that they are there to serve the people, not their own ends, and to adapt their conduct accordingly’”.
[Footnote reference omitted]
These same sentiments apply in relation to relations between the parliament and the judiciary.  The virtue and value of the Latimer House Principles is that they specify conduct which can reduce the inevitable tensions between the branches of government and thus serve the end of the good of a society.
© J A Logan 2016. Moral right of author asserted. Non-exclusive publication right granted to:
•	The Commonwealth Secretariat;
•	the Commonwealth Parliamentary Association;
•	 the Commonwealth Legal Education Association;
•	 the Commonwealth Magistrates’ and Judges’ Association; and
•	 the Commonwealth Lawyers’ Association.