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Summary of Critical Constitutional Issues Affecting the CCC

1. The legislative power of the WA Parliament, in contrast to that of the Commonwealth Parliament, is expressed in very broad terms, unconstrained by subject matter, namely “to make laws for the peace, order and good Government” of Western Australia:  s.2(1) Constitution Act 1889 (WA). There are no relevant express restrictions on that power. Thus the WA Parliament may repeal or amend the Corruption and Crime Commission Act 2003 (WA) as it sees fit.


2. For any constitution, issues of separation of the powers of government loom large.  There is no separation of the powers of the executive and judicial arms of the WA Government expressed in the Constitution Act or any other constitutional instrument.  (In fact such a constitutionally entrenched separation of Commonwealth government powers is recognised not expressly, but by necessary implication from the text and structure of the Commonwealth Constitution – this is the Boilermakers doctrine which, although subject to certain qualifications, remains the law of Australia.)


3. Yet the High Court has now recognised that State Supreme Courts (whose existence is entrenched by Chapter III of the Commonwealth Constitution) have the inherent supervisory jurisdiction to enforce the limits of decision-making power of tribunals and commissions of inquiry (being components of the executive arm of Government) and inferior courts:  Kirk v Industrial Court of NSW (2010) 239 CLR 531.  This inherent supervisory jurisdiction cannot be impaired by a State Parliament.  Thus no privative clause in any State legislation can operate to preclude judicial review by a State Supreme Court for jurisdictional error by an administrative tribunal.


4. Accordingly, the Supreme Court of Western Australia retains a supervisory jurisdiction to judicially review decisions of the CCC, consistently with the premise upon which Cox v Corruption Crime Commission [2008] WASCA 199 was argued and determined.  However, what constitutes “jurisdictional error”, failing which a Supreme Court (the judicial arm) is not empowered to interfere with the decision-making of the CCC (part of the executive arm), is a large question.


5. The Australian system of government recognises at most a limited separation of the legislative arm from the executive arm; indeed, the two are closely linked in many ways.  But the inherent and time-honoured privileges of Parliament continue in their operation in each jurisdiction of Australia (see s.49 of the Commonwealth Constitution and Parliamentary Privileges Act 1987 (Cth)).  In Western Australia, the Parliamentary Privileges Act 1891 (WA) (expressly recognised by s.3(2) of the CCC Act 2008) enacts a range of privileges, immunities and powers for the houses of the WA Parliament and those houses’ members and committees.  It also preserves such privileges, immunities and powers of the UK House of Commons as at 1 January 1989. 


6. Relevantly, reports and other actions of the Parliamentary Inspector (a officer of the WA Parliament: s.188(4) of the CCC Act) are almost certainly “proceedings in Parliament” which, by the custom and tradition of the UK Parliament since the Bill of Rights 1688 (UK), are not to be impeached or called into question.  Thus it is strongly arguable that judicial review of a report of a Parliamentary Inspector (whether on the application of the CCC or any other party) is not available.  It is also arguable that to embark on such a review is itself a contempt of Parliament. 


7. The issue was raised but not resolved in Re Parliamentary Inspector of the Corruption Crime Commission; Ex parte Corruption Crime Commission [2008] WASC 305.  However a similar issue was determined by the Queensland Court of Appeal in a manner consistently with such a limitation on judicial review in Criminal Justice Commission v Parliamentary Criminal Justice Commissioner [2002] 2 Qd R 8.  To the extent that this reflects the law of Western Australia, there is a separation of the parliamentary arm from the judicial arm of the WA Government in a way that is significant to the supervision and accountability of the CCC.

 

Richard Hooker
Francis Burt Chambers
19 August 2010