The Decisional Independence of Chapter III Courts and Constitutional Limitations on Legislative Power: Notes from the United States

Abstract

This article is concerned with the identification of principles, derived from the doctrine of the separation of powers, which govern the relationship between the legislative and judicial branches of government where the former purports to amend the law which is applicable in pending legal proceedings. It examines the constitutional principles which apply both in Australia and the United States where the doctrine is constitutionally entrenched. The fundamental enquiry is whether the separation of judicial power places limitations on the competence of the legislature to affect the resolution of legal issues in the pending case. This is an area of quite some considerable complexity in that, unlike legislative usurpations of judicial power (such as a Bill of Attainder), a degree of legislative interference is certainly permissible. However, when purported amendments to the law applicable in the pending case are impugned as unconstitutional legislative interferences, they are often ad hominem, retrospective, and tailored to address the very issues in the pending case. They have a prescriptive quality to them. It is clear that unlimited legislative power in this regard may poses a potential threat to the purposes underlying the separation or powers, principally ensuring that legal disputes - particularly where the government is party or in which it has an interest - are protected from the vagaries and vicissitudes of political influence and factional interest. Although arising rarely, this issue tends to do so in matters of high political moment. The temptation, if not political imperative, to legislative intervention is obvious. The article examines how the relevant constitutional principles strive to maintain the primacy of the law-making role of the legislature in a representative democracy and yet afford the decisional independence of the judiciary that degree of protection essential to protect it from the legislature's impetuous vortex, to borrow the words of Madison from the Federalist (No 48).