Catallaxy Files

One of the most abused terms in Australia is ‘the independent umpire’ when referring to various tribunals and commissions and the like. Any criticism of these, usually state government, bodies that have judicial powers but few checks and balances is dismissed as failing to observe or respect the ‘independent umpire’. The High Court has just ruled on a case involving NSW OHS laws.

Another difficulty in setting up specialist courts is that they tend to become overenthusiastic about vindicating the purposes for which they were set up.

High Court judge Dyson Heydon went further

A major difficulty in setting up a particular court, like the industrial court, to deal with specific categories of work, one of which is a criminal jurisdiction in relation to a very important matter like industrial safety, is that the separate court tends to lose touch with the traditions, standards and mores of the wider profession and judiciary.

I think that is exactly right. These quasi-judicial instruments should not be considered to be legitimate courts and should not be accorded the same type of respect that courts and their officers normally attract. To all intents and purposes they are part of the state bureaucracy and should be seen as such. Politicians have made use of these instruments in order to insulate themselves from criticism having responded, in many instances, to rent-seeking.

Now this is not a criticism of the indviduals who work in these institutions – afterall there is a job of work to be done. When bureaucrats behave badly we need to allocate blame to the politicians and institutional arrangements that facilitate that behaviour. As von Mises tells us,

so the government’s clerks are not responsible for the undesirable consequences of unwise laws.

In the meantime, the High Court has affirmed the rule of law – it is simply extraordinary that a body that can impose criminal liability had no appeal mechanism.