A Typology Appraising The Constitutional Propriety Of Judicial Inputs Into The Legislative Process

Abstract

The judiciary contributes to the legislative process through a spectrum of inter-government branch dialogue methods. This spectrum ranges from informal conversations to public select committee submissions. The debate on the constitutional propriety of the judiciary testing the separation of powers by engaging in dialogue with Parliament about proposed legislation gained traction when Winkelmann CJ provided persuasive input into the legislative process regarding the Rights for Victims of Insane Offenders Act 2021. I make a negative appraisal of the judicial inputs status quo because the spectrum of judicial inputs is difficult to navigate and under-researched. To improve the status quo, the government ought to increase its understanding of the spectrum of judicial inputs and improve the transparency of such inputs. Furthermore, the government ought to formalise the scope boundary that the judiciary only provides input into the legislative process when the matter relates to a core function of the courts or a matter of high public importance. Drawing the government’s attention to the convention of judicial inputs into the legislative process and the need for scope definition is likely to prompt organic reform. Such reform will lead to a more considered and transparent use of the convention on the part of the judiciary when contributing to legislative processes. If this organic reform does not improve the status quo, formal reform may become necessary. Should the government proceed with formal reform, I recommend an amendment to the Cabinet Manual and an addition to the Standing Orders of the House of Representatives. The time is apt for the government to pay close attention to the future of judicial contributions to the legislative process.