The Integrity Branch of Government

Australian Law Journal, Vol. 78, No. 11, p. 724, 2004

AIAL National Lecture Series on Administrative Law, No. 2, p. 1, 2004

46 Pages Posted: 16 Apr 2011

Date Written: April 29, 2004

Abstract

The recognition of a functionally distinct and institutionally separate fourth branch of government is occasionally proposed in the constitutional law literature. The paper proposes the recognition of such a branch, termed the integrity branch. At a high level of generality, the purpose of the integrity branch is to ensure that each governmental institution exercises the powers conferred on it in the manner in which it is expected and/or required to do so and for the purposes for which those powers were conferred, and for no other purpose. This paper identifies the ways in which existing governmental institutions ensure institutional integrity and argues that it is possible to identify a distinctive and separate function of maintaining the integrity of government in the activities of such agencies. It particularly identifies the committees of Parliament, the head of state in the Westminster system, and the emanations of the executive that have evolved a nominally separate character, such as audit offices, independent corruption commissions, royal commissions and ombudsmen, as fulfilling an integrity function. It also discusses the role of an independent judiciary exercising judicial review powers over executive conduct. It argues that judicial review is directed to ensuring the integrity of governance, rather than ensuring that justice is done in the individual case, and that this distinction brings clarity to the complex distinction between judicial review and merits review in administrative law.

Suggested Citation

Spigelman, James J., The Integrity Branch of Government (April 29, 2004). Australian Law Journal, Vol. 78, No. 11, p. 724, 2004. Available at SSRN: https://ssrn.com/abstract=1809582

James J. Spigelman (Contact Author)

Independent ( email )

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