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Chief Justice confirms separation of powers

Chief Justice confirms separation of powers

The Chief Justice Robert French has spoken out on the "controversial" nature of the relationship and advice given between the Chief Justice and the Governor General of Australia.

THE Chief Justice Robert French has spoken out on the "controversial" nature of the relationship and advice given between the Chief Justice and the Governor General of Australia. 

Despite historical precedents, there is no constitutional standing to entitle a Governor-Gneeral to seek advice from the Chief Justice, Chief Justice Robert French said. 

"If, in some constitutional crisis requiring consideration of the possible exercise of reserve powers, the Governor-General felt the need to seek independent legal advice, there are plainly sources other than the Chief Justice to whom he or she should resort," Chief Justice French said. 

The Chief Justice noted such advice would have no constitutional standing to distinguish it form legal advice received from a senior barrister or a constitutional law expert. 

"It is difficult to conceive of circumstances today in which it would be necessary or appropriate for the Chief Justice to provide legal advice to the Governor-General on any course of action being contemplated by the holder of that office," he said. 

Chief Justice French cited a eulogy in honor of Sir Garfield Barwick, Chief Justice in 1975 when a caretaker government replaced Gough Whitlam's government, delivered in 1997, in which Sir Gerard Brennan, then Chief Justice, referred to Sir Garfield's tendering of advice to Sir John Kerr. 

In the book A Radical Tory, Sir Garfield what had happened at the time. "I responded to a request by the Governor-General for an answer to a question he asked. It was a legal question – not a political question – and its answer did not involve the expression of any political opinion, though of course Sir John's action in withdrawing the ministry's commission was likely to have, and did in fact have, political consequences. 

"Having heard his question and having decided to give the Governor-General an answer to his question, I knew of instances in which a Chief Justice and other judges of the High Court had given legal advice personally to a Governor-General. I knew also that the Chief Justice of the High Court had on an occasion given such advice to a State governor," Sir Garfield wrote. 

Brennan said at the eulogy, however: "It was, and remains, a controversial matter but, if only on that account, will not happen again." Chief Justice French said: "I agree with that sentiment."

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