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Integrity Branch of Government James

Spigelman

Introduction

Integrity the fourth branch? Integrity institutional integrity unimpaired or uncorrupted state of

affairs

A concept of how government should operate in practice The role is to ensure that the concept is realized so that the performance

of governmental functions is not corrupt, not merely in the narrow sense,

but in the broader sense of observing proper practice

Institutional integrity goes beyond matters of legality it extends to themaintenance of fidelity and appreciation and application of public values

The focus on those two draws integrity to the function of maintaining themeans of achieving the end, rather than the end itself (both in terms of

the legality of the power to make decisions of a particular type and the

quality of the decisions made under a particular power)

Definition: integrity branch is concerned to ensure that eachgovernmental institution exercise the powers conferred on it in the

manner in which it is expected and/or required to do so for the purposes

of which those powers were conferred

Overlap of Functions

Many of the existing branches of government collectively constitute theintegrity branch

The idea of separation of powers has always been over-simplistic; itsmore like separation of institutions sharing power

Here are a few examples1. The extent to which the executive performs legislative action

under a Henry VIII clause2. Judges making law through the common law system bears

legislative character

Executive Integrity Institutions

Many of the integrity branches may be seen as emanations of theexecutive but over time, they have developed independence

The following are some of the integrity institutions which performfunctions that collectively form the integrity branch of Australia

They assess quality of decision merits review

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Parliament

Parliament is an institution but does much more than just passstatutes there is a traditional role of ministerial responsibility oraccountability

These are performances of integrity functions Parliament helps to ensures that powers conferred upon executive

and judges are properly performed

This lies at the heart of the legitimacy of our democracyThe Queen

The Queen and the Governor-General are part of the integritybranch

Where the head of state is separate from head of government, thetwo are able to check and balance each other to ensure properfunctioning of system

This is done by conventions such as acting on ministerial advice,reserve powers

The Governor-General has a responsibility to see that the systemworks as required by the law and conventions of the constitution

but does not try to do the work of the ministers he can himselfquestion the conclusion and draw attention to relevant

considerations but cannot advocate any partisan cause in doingthis, he fulfills governmental stability and has regards for the total

and non-partisan interests of the people in society

Auditor-General

Deals with the flow of funds associated with government This has always been a critical point for corruption Ensuring that governmental expenditure is properly made is

means of an integrity function

Audit offices have expanded their scope of activities intoperformance auditing; achieving the three Es of economy,efficiency and effectiveness

Merits review (review of quality of decision making)Independent Commission Against Corruption, Ombudsman and Statutory

Crime Misconduct Commission

The above are only a few of the examples of other integritybranches that have developed over the years

It can be seen, the high degree of salience, that has come about toprevent corruption

Each of these bodies jurisdiction extends beyond the members ofthe executive branch

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For example, complaints about efficiency and courtesy ofparticular persons and how they were dealt with are addressed to

the Ombudsman

Express Legislative Rights

Integrity issues often the focus of attention for the public This has allowed it to be the foundation upon which new rights are

conferred to members of public, non-governmental organizations

and media

Freedom of Information and Whistleblower legislation are only afew of the examples

Judicial Integrity Institutions

The most obvious one that comes to mind is Constitutional law The distinction between judicial review and merits review is that judicial

review seeks to ensure that powers are exercised for the purpose for

which they were given and in a manner to which they were intended

Merits review is concerned with the correctness and preference of adecision and that the fairness of consistency and quality of decision

making is maintained

Courts deal with integrity either through the aforementionedConstitutional law or Administrative law

The duty of the courts in Administrative law, is to review administrativeaction and to determine the limits of its exercise it is no duty of the

courts to cure an administrative injustice or error

Source of administrative law is a topic for debate some think itoriginates in common law, and some, from statute

The side favoring common law makes more sense: principles of statutoryinterpretation are common law principles; thus to say that judicial review

derived from common law principles of statutory interpretation is

nevertheless, based on the statute, seems absurd

Policing the boundary

The legality/merits dichotomy does not require a bright line test However, it is not so easily distinctive either Australian common law retains its restrictions upon judicial

review this is seen in our refusal to adopt the test ofproportionality (which essentially allows courts to overrule a

policy decision made by the executive) this test clearly falls intothe merits division of the legality/merits dichotomy since it

assesses the quality of a decision

Currently, Australian courts, in the content of the decision, willassess the purpose and quality of actuating the decision butultimately, the comparison to be made is with the purpose

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permitted by the legislation the language of determining whethera purpose is under a head of power conferred is the language of

legality

The courts however, are willing to review decisions which fail toexercise the power conferred upon them this is obviously the

language of legality because it assesses the purpose (or failure ofpurpose) and the manner (or absence of manner) in which a

power is exercised

Judicial legitimacy

The scope and content of review is at the core, based on judiciallegitimacy

This notion of legitimacy requires courts, in cases ofadministrative review, to pay more attention to the legality/merits

dichotomy Gleeson CJ added that just as twilight does not invalidate

distinction between day and night, Wednesbury unreasonableness

does not invalidate distinction between full merits review and

judicial review of administrative actions

Often, as hard as it may seem, unreasonableness is a ground forjudicial review of administrative actions

Concerns

The most difficult issue is the area for which a judge may stretchthe facts of a case as to make it fall under a recognized ground ofjudicial review

Proceedings may often lack balance in this sense that issues oflegality are overemphasized and issues of merit underemphasized

This is the case because courts themselves are unsure of whatkinds of facts, matters and considerations constitute as relating to

exclusively or primarily to the merits

If judges learn to bear in mind that all they are doing is ensuringintegrity of governmental actions, rather than doing justice, then

the distortions will be less likely to occur and clearer boundaries

be maintained between executive and judiciary It is only when judges intervene in matters which are not issues of

integrity, that they have gone too far

Conclusion

From this, it is clear that there is certainly a branch of actions in eachexisting branch of government that deals with integrity

This is a unifying theme all thats left is to bring it out