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 the maintenance of fidelity and appreciation and application of public values The focus on those two draws integrity to the function of maintaining the means 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 each governmental 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 the integrity branch The idea of separation of powers has always been over-simplistic; its more like separation of institutions sharing power Here are a few examples 1. The extent to which the executive performs legislative action under a Henry VIII clause 2. 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 the executive but over time, they have developed independence The following are some of the integrity institutions which perform functions that collectively form the integrity branch of Australia They assess quality of decision merits review

Parliament Parliament is an institution but does much more than just pass statutes there is a traditional role of ministerial responsibility or accountability 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 democracy

The Queen The Queen and the Governor-General are part of the integrity branch Where the head of state is separate from head of government, the two are able to check and balance each other to ensure proper functioning 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 system works as required by the law and conventions of the constitution but does not try to do the work of the ministers he can himself question the conclusion and draw attention to relevant considerations but cannot advocate any partisan cause in doing this, 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 into performance 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 integrity branches that have developed over the years It can be seen, the high degree of salience, that has come about to prevent corruption Each of these bodies jurisdiction extends beyond the members of the executive branch

For example, complaints about efficiency and courtesy of particular 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 a few 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 a decision and that the fairness of consistency and quality of decision making is maintained Courts deal with integrity either through the aforementioned Constitutional law or Administrative law The duty of the courts in Administrative law, is to review administrative action 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 it originates in common law, and some, from statute The side favoring common law makes more sense: principles of statutory interpretation 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 of proportionality (which essentially allows courts to overrule a policy decision made by the executive) this test clearly falls into the merits division of the legality/merits dichotomy since it assesses the quality of a decision Currently, Australian courts, in the content of the decision, will assess the purpose and quality of actuating the decision but ultimately, the comparison to be made is with the purpose

permitted by the legislation the language of determining whether a purpose is under a head of power conferred is the language of legality The courts however, are willing to review decisions which fail to exercise the power conferred upon them this is obviously the language of legality because it assesses the purpose (or failure of purpose) 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 judicial legitimacy This notion of legitimacy requires courts, in cases of administrative 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 for judicial review of administrative actions

Concerns The most difficult issue is the area for which a judge may stretch the facts of a case as to make it fall under a recognized ground of judicial review Proceedings may often lack balance in this sense that issues of legality are overemphasized and issues of merit underemphasized This is the case because courts themselves are unsure of what kinds 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 ensuring integrity 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 each existing branch of government that deals with integrity This is a unifying theme all thats left is to bring it out