2002_01_january_sep of powers

Costs, conflict and delay have been the hallmarks of the saga over disability services in the ACT.

Three young men died in share homes for the disabled run by the ACT in 2000. Something was obviously wrong. Coronial inquests were required for each death, but there was growing concern towards the end of 2000 that individual inquires into individual deaths would not get to the nub of any systemic problem with ACT disability services. There was merit in that concern.

The then Liberal Government resisted the idea under the usual principle that Governments think the world is wonderful and Oppositions whinge about its imperfections. The Government thought the coronial inquests were enough and that any other inquiry would run into conflict with those inquiries.

That would have been the end of the matter anywhere else, but the ACT is an unusual polity. Nowhere else is the doctrine of the separation of powers more apposite and effective.

Executive vs Legislature:

In the ACT, the Government is invariably in a minority on the floor of the single-chamber Legislative Assembly. A majority of Assembly members will support it in most things, but not all. And on disability services in late 2000 the cross-bench and the Labor Opposition had the numbers. They passed a motion demanding an inquiry. The Government ignored it. The Assembly passed another motion, threatening to pass legislation setting it up.

Under the doctrine of the separation of powers in a liberal democracy the Government (the Executive) must obey the law of the land as laid down by the legislature. In dictatorships the Government does what it likes.

But the Executive did not want the legislature to have all its own way. It did not appoint a disability expert who would concentrate on systemic problems and make recommendations about what should happen to improve services in the future. Rather it argued that the best way to avoid the legal pitfalls of an inquiry that might conflict with the coronial inquests would be to appoint someone who know about those legalistic sorts of things.

And so it was in December 2000, the Government appointed former Supreme Court Justice John Gallop to inquire in ACT disability services.

So we had two sets of legalistic inquiries. Even though they were inquiries that look at events and not courts that determine rights, they were imbued with the adversary tradition and rules of evidence – even though unlike courts they were not technically bound by them. These things add costs and delay and often exclude much that should be included.

Justice Gallop’s experience was in judging. Inevitably, he put his undoubted forensic skills to the task of laying blame and finding out what happened when the young men died – precisely what was not required.

Gallop took a year. Just before Christmas his report was ready, but because four public officials thought it made adverse findings about them without giving them a chance to be heard, the officials went off to court to seek an injunction against the report being made public.

This became the second battleground in which the separation of powers was crucial.

Judiciary vs Executive:

What power did the judiciary have over the Executive – in the name of Chief Minister Jon Stanhope, who had a copy of the report in his hand?

The usual role for the judiciary is to apply the law that the legislature has passed to individual cases where a dispute arises. The Executive’s task is to administer that law applying so long as no dispute arises. The legislature might pass a law saying you can build a wall up to 2 metres high of material approved by the Minister. A landowner applies for a brick wall. No problem. Another landowner applies to build a wall made of razor wire. The Minister and the neighbour object. The court sorts it out. The Minister abides by the court’s decision.

In this case, the Executive agreed not to publish.

Enter separation of powers argument Number Three.

Legislature vs Judiciary:

What if the Legislative Assembly (the legislature) met and demanded that the Chief Minister (the Executive) table the report? After all, the Assembly wanted the inquiry in the first place.

That would – at first blush — put the Executive in an awful bind. The Chief Minister would be in contempt of the court if he breached the injunction by publishing or in contempt of the Assembly if he defied the court and tabled the report.

My guess is that the Act Supreme Court’s writ does not run to the privileges of the Legislative Assembly. This is because Section 24 of the (Federal) Australian Capital Territory Self-Government Act provides that the Assembly has “”the same powers as the powers for the time being of the House of Representatives”. Those in turn are taken from the House of Commons. The Self-government Act says powers included privileges and immunities, but does not include legislative powers.

The exclusion of legislative powers is there because the Supreme Court does have power to declare whether or not a law passed by the Assembly is within is law-making power. But the court (the judiciary) has no power over actions of the legislature. The Bill of Rights in 1689 ensured that the Parliament had exclusive control over its own proceedings, including what is debated and tabled and immunity for those who report what is debated and tabled.

If Stanhope was serious about publishing the Gallop report all he needs to do is call the Assembly into session and table it.

That said, he would look a bit of a goose because when the matter first came to court just before Christmas he agreed to abide by the injunction until February 8. It was only after the nature of the injunction was made widely known that Stanhope must have realised the electoral folly of doing so. It was seen as putting bureaucrats reputations before the welfare of the disabled.

If the Gallop inquiry had been done by an Assembly committee, none of this would have happened. It would have cost less than the $2 million projected – money that could have been spent on the disabled.

And the grand irony was that having appointed Gallop with the aim of avoiding conflict with the coroner, what has been the result? The coroner has delayed his inquest into two of the three dead men and at the conclusion of his first inquest in September he found a case of accidental drowning, but called for an urgent review of ACT disability services (eight months into the Gallop inquiry!)

Perhaps it is fair to say that the coroner thought that the Gallop inquiry was either not being done with sufficient urgency or it was not an inquiry into disability services at all, but rather an inquiry into something else – who is to blame for the deaths, for example?

If we have two lawyers steeped in the adversary system given the task of inquiring into similar matters we should only have expected conflict, costs and delay.

Pity the parents and guardians of the disabled.

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