The High Court did some fancy footwork this week to allow the Catholic Church a say in the medical-negligence involving abortion case that was before it. It blurred the lines that constitute the doctrine of the separation of powers and appears to have laid down one set of principles for other judges and courts that it was not prepared to apply to itself.
The doctrine of the separation of powers is a tricky one … as hard to understand as the Holy Trinity … but it is fundamental to our freedoms and democracy. Small wonder that Joh Bjelke-Petersen could not explain what it meant when posed the question during the Fitzgerald Royal Commission.
Let me try to explain what the doctrine is; why it is so important; and why the High Court should therefore not allowed the Church a hearing on Wednesday nor the pro-abortion lobby a hearing the next day.
Briefly the separation of powers means that we have a legislature, an executive and a judiciary. Each should stick to its own role. When they do not, individual liberty and accountability are threatened.
The role of the legislature is to lay down laws of general application. For example, “”a person over 18 with no physical impairment can have a licence to drive; a person shall not drive a motor vehicle without a licence or faster than 60km/h in a built up area”.
The executive function is to execute those laws. The executive which includes the bureaucracy will determine whether Bill Bloggs is over 18 without physical impairment and issue him a licence.
The judicial function is to apply the laws in cases of dispute. If Bloggs is denied a licence and he disputes it, the judiciary determines whether in his case the loss of his left little finger is not “”physical impairment”, or whether he was in a built up area, travelling over 60km/h on July 1, 1996, at 8pm and what his fine should be.
The judiciary allows on-the-spot fines only if the motorist agrees. Ultimately, judges must be able to determine guilt or resolve disputes between parties. It is important that the executive and the legislature do not have the power to do this. Otherwise, the legislature could pass a law saying: “”Bill Bloggs will be jailed for six months.”
This week, the High Court held just such a law an invalid exercise of the legislative power. The NSW law that demanded the jailing of Gregory Wayne Kable because he might commit an offence was struck out. And a good thing, too. Similarly, we do not want the executive (or the bureaucracy) to be the ultimate arbiter of disputes between citizens or between a citizen of the state. The judiciary should be. And the laws must apply equally to all. This is what is meant by the rule of law.
Equally, we do not want the judiciary to be a legislature … to make new general law according to what they think should apply. True, judges make decisions about the application of law in individual cases which give a guide as to how the law might be applied in the future, but they do not, or at least should not, delve into the hypothetical or make general statements of law … that is for the legislature.
To put it simply: the judiciary deals with matters and the legislature deals with issues.
Nor do we want the judiciary to be an arm of government, to be part of the executive. If they do we will lose confidence in their ability to be independent. The High Court ruled recently that judges were not to be the equivalent of policy advisers for government and said that Justice Jane Matthews must end her inquiry into the “”women’s business” at Hindmarsh island because it amounted to policy advice.
The trouble with the judiciary taking on the legislative or executive role is that they are unaccountable. They are not subject to election, like the legislature and the executive. If you make general law for the people you should be directly accountable to the people.
While the powers are separated, liberty will not easily be crushed.
This is the worrying thing about the High Court allowing the Australian Catholic Bishops’ Conference and the Australia Catholic Health Care Association the right to intervene as a “”friend of the court” in the case this week.
The case was brought by a woman suing Superclinics for failing to diagnose her pregnancy. That failure, she argued, resulted in denying her the opportunity to have an abortion because the pregnancy was not diagnosed early enough. She argued Superclinics should pay damages for the inconvenience and cost. Superclinics argues that an abortion in her case would have been illegal anyway, so she cannot claim damages for the denied opportunity of doing something illegal. It is also arguing that to be successful in a negligence action you have to prove that harm flowed from the negligence. So even if they negligently failed to diagnose the pregnancy they are not liable for damages because no harm flowed from it because you could not describe the birth of a healthy child as “”harm”. This is a fight between the woman and Superclinics. It is the judicial function to adjudicate that fight.
The Catholic bishops, however, dissatisfied with earlier court rulings on what constitutes a legal abortion sought to enter the fray because the question of whether an abortion was legal in this woman’s circumstances was an issue. It said that its people delivering health care might be affected by the case.
The court divided 3-3. Under the High Court Act, the decision goes with the Chief Justice who ruled the Catholic organisations should be allowed to intervene.
But the matter (judicial) was none of the Catholic organisations’ business; even if the issue (legislative) is of concern to them.
Justice Michael McHugh, in the minority, said pertinently that the organisations should be addressing the legislature, not the court, if they want the definition of legal abortion changed. He right predicted that the pro-abortion lobby would also want to be heard.
Where will this end. Virtually every case that comes before the court involves issues that concern people who are not directly contesting the matter.
By allowing the Catholics, and now the pro-abortion lobbies, a hearing, the High Court has taken on the role of a parliamentary committee hearing community submissions. When it brings down its judgment it is in danger of taking on the role of Parliament itself.
It is a dangerous and unwelcome action for unelected judges to take. And after its own ruling in the Hindmarsh Island and Kable cases, the court was well aware of the significance of the doctrine of separation of powers that it was about to flout.