Australian Public Law [3 ed.] 0190310898, 9780190310899

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AUSTRALIAN PUBLIC LAW Third Edition GABRIELLE APPLEBY • ALEXANDER REILLY • LAURA GRENFELL

1 Oxford University Press is a department of the University of Oxford. It furthers the University’s objective of excellence in research, scholarship, and education by publishing worldwide. Oxford is a registered trademark of Oxford University Press in the UK and in certain other countries. Published in Australia by Oxford University Press Level 8, 737 Bourke Street, Docklands, Victoria 3008, Australia. © Gabrielle Appleby, Alexander Reilly and Laura Grenfell 2019 The moral rights of the authors have been asserted. First published 2011 Second edition 2014 Reprinted 2015, 2016 Third edition 2019 All rights reserved. No part of this publication may be reproduced, stored in a retrieval system, or transmitted, in any form or by any means, without the prior permission in writing of Oxford University Press, or as expressly permitted by law, by licence, or under terms agreed with the appropriate reprographics rights organisation. Enquiries concerning reproduction outside the scope of the above should be sent to the Rights Department, Oxford University Press, at the address above. You must not circulate this work in any other form and you must impose this same condition on any acquirer.

ISBN: 9780190310899 (paperback) Reproduction and communication for educational purposes The Australian Copyright Act 1968 (the Act) allows a maximum of one chapter or 10% of the pages of this work, whichever is the greater, to be reproduced and/or communicated by any educational institution for its educational purposes provided that the educational institution (or the body that administers it) has given a remuneration notice to Copyright Agency Limited (CAL) under the Act.

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For details of the CAL licence for educational institutions contact: Copyright Agency Limited Level 15, 233 Castlereagh Street Sydney NSW 2000 Telephone: (02) 9394 7600 Facsimile: (02) 9394 7601 Email: [email protected] Edited by Joy Window Cover design by OUPANZ Text design by Sardine Design Typeset by Newgen KnowledgeWorks Pvt. Ltd., Chennai, India Proofread by Bette Moore Indexed by Glenda Browne Tables by Jon Jermey Printed in China by Golden Cup Printing Co. Ltd. Links to third party websites are provided by Oxford in good faith and for information only. Oxford disclaims any responsibility for the materials contained in any third party website referenced in this work.

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PREFACE This book provides a foundation for the ideas and principles that underpin Australian public law. Drawing on Anglo-American and continental understandings of public law, it develops a concept of public law as a means for both empowering and constraining the governing institutions of the state. The ‘public law’ concept is explained through analysis of the mechanisms of power and control, including discussions of the functioning of the institutions of government and contemporary issues of importance in Australian public law. The book looks at both formal and substantive mechanisms for empowering and constraining the institutions of government. It therefore explores concepts such as representation, sovereignty, power and rights as legal and political concepts, and considers them through the lens of particular issues faced in the relationship between the institutions of government and between the state and its people. The book is written as an academic text that is accessible to students of public law. It will be relevant to public law scholars and general readers with an interest in public law, as well as contributing to the teaching of the principles of public law. When it was first published in 2011, the book responded to a change in Australian law degrees that saw the introduction into the curriculum of public law courses that provide a foundation for more specialised constitutional and administrative law courses. The theoretical framework developed in the book can be used to engage with the Australian Constitution and its interpretation, and with the controls on government power. Constitutional law cannot be discussed effectively without introducing the core public law principles of constitutionalism, legality, separation of powers, the rule of law, sovereignty, and representative and responsible government. Administrative law, once treated as a branch of constitutional law and continuing to closely intersect with it, cannot be fully appreciated without an understanding of executive government and the range of mechanisms used to hold government to account. The book therefore introduces the key principles and theoretical concepts that are required for the study of constitutional and administrative law, before they are applied in the more specific contexts of those courses. The third edition of this book responds to a number of important changes and cases in Australian public law, and also has a new chapter on statutory interpretation, introducing this process as part of the dynamic relationship between the institutions of government. The new edition has been further restructured. The chapter on Aboriginal and Torres Strait Islander Peoples and Public Law has been moved to Chapter 3, following directly from the historical chapter that explains colonisation and its ongoing impact on Australian public law. A  new chapter, on statutory

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interpretation, has been added to Part IV of the book, which examines the judiciary, considering the modern approach to statutory and constitutional interpretation in light of its public law context. Part V of the book considers external influences on Australian public law. It includes two chapters:  the first looks at the influence and role of human rights in Australian public law, and the second is a new streamlined chapter on the influence of international law on Australian law. Finally, Part VI of the book, which previously examined a number of applied case studies in the areas of human rights, Indigenous Australians and safeguarding Australia, has been removed. The chapters on human rights and Aboriginal and Torres Strait Islander peoples have been brought forward in the book, and much of the material from the chapter on safeguarding Australia, which considered matters relating to criminal law, national security and defence and border security, has been included as applied case studies through the earlier chapters, particularly Part III on the administrative state. The third edition has been updated to include legal developments up to March 2018. Of particular note, there is a new discussion of developments in constitutional recognition of Aboriginal and Torres Strait Islander peoples, and the regional dialogues and First Nations Constitutional Convention leading to the creation of the Uluru Statement from the Heart in May 2017. There are updates on the failed attempt at federalism reform under the 2014 white paper process. There is an updated discussion of citizenship, and new discussions on plebiscites with a focus on the samesex marriage plebiscite held in November 2017, and on the High Court decisions on s 44 of the Constitution regarding the eligibility of parliamentarians. There are updates to include recent implied freedom of political communication and freedom of association cases, as well as the High Court’s recent Chapter III jurisprudence. The third edition of the book has been reworked collectively, although individuals have had primary carriage of particular chapters in this edition. Gabrielle had carriage of Chapters 2, 4, 7, 8, 9 and 10. Alex had carriage of Chapters 3, 5 and 13. Gabrielle and Alex were jointly responsible for Chapter 1 and the new Chapter 11 on statutory interpretation. Laura had carriage of Chapters 6 and 12. Thank you to Michelle Head and Emily Wu from Oxford University Press for their encouragement, support and patience throughout the revision process, and to Ganur Maynard for his research assistance in updating the references throughout the book. Finally, we would like to thank our academic colleagues and our students who have not only provided us with valuable feedback from the first and second editions, but have also inspired us to continue the challenge of explaining the rich complexity of Australian public law. Gabrielle Appleby Alexander Reilly Laura Grenfell

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AUTHORS Dr Gabrielle Appleby is an Associate Professor and the Associate Dean (International & External Engagement) at the Faculty of Law, University of New South Wales. She is the Co-Director of The Judiciary Project at the Gilbert + Tobin Centre of Public Law and was the founding editor of AUSPUBLAW (www.auspublaw.org), Australia’s leading public law blogging platform. Prior to becoming an academic, she spent time working for the Queensland Crown Solicitor and the Victorian Government Solicitor’s Office, and was an Associate in the Supreme Court of Queensland. Gabrielle researches and teaches public and constitutional law, particularly focusing on questions about the role, powers and accountability of the executive government, the role and ethics of government lawyers, the operation of the Australian federal system, and the independence and integrity of the judicial branch.

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Alexander Reilly is a Professor in the Adelaide Law School and is Director of the Public Law and Policy Research Unit at the University of Adelaide. Previously, Alex held full-time academic positions at Murdoch University in Perth, and Macquarie University in Sydney. Alex researches and teaches in the areas of migration, citizenship, constitutional law, and Indigenous legal issues. Alex takes a broad sociopolitical approach to studying these areas of law, drawing on the knowledge and insights of other disciplines such as history, geography, psychology and politics to critique accepted approaches to regulation. Dr Laura Grenfell teaches and researches public law at the University of Adelaide Law School. She has a particular interest in constitutional law, comparative constitutional law, human rights law and post-conflict justice. Before joining academia in 2002, Laura practised constitutional law with the Crown Solicitor’s Office of South Australia and the Office of the South Australian Solicitor-General, and was an Associate in the Supreme Court of South Australia. In December 2009 she was awarded a Doctor of Philosophy from the Australian National University. Her book, Promoting the Rule of Law in Post-conflict States, was published by Cambridge University Press in 2013. Laura’s work has been cited nationally and internationally, including in UN and World Bank reports.

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COMMON AUSTRALIAN PUBLIC LAW TERMS AND CONCEPTS Accountability Public law focuses on the exercise of public power, where it comes from, what its limits are and how those exercising the power are held accountable for that exercise. Political accountability refers to the accountability of the government to the people it governs, and ensures that government is exercising its powers in accordance with the expectations of the community. In Australia, political accountability is achieved through the democratic principles of representative and responsible government (these terms are explained below). Through requiring government power to be within legal limits, the rule of law acts as the primary mechanism for legal accountability, ensuring that the exercise of power is not arbitrary. In Australia, one important dimension of legal accountability is that exercises of legislative power are in accordance with their constitutional limits, and this is enforced through the courts. Legal accountability for the exercise of executive power is the fundamental precept of administrative law. There are a variety of other mechanisms that hold the executive to account, including tribunals, Ombudsman offices, and anti-corruption watchdogs. Accountability of executive power is discussed further in Chapter 8.

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Constitutional conventions Constitutional conventions are unwritten rules of behaviour that restrict the exercise of government power. These conventions are not enforceable in the courts, but are generally observed because they ensure the smooth running of the constitutional system. Conventions are established based on historical observance and the acceptance by the relevant parties of their binding nature. Without a written constitution, UK public law relies heavily on unwritten conventions. Australia adopted many of the UK conventions, including the conventions relating to responsible government. These are discussed further in Chapters 2, 7 and 8.

Constitutionalism Constitutionalism is a political doctrine that the law of the constitution is supreme in a legal and moral sense. The legitimacy of the state is based on its exercise of power through a constitution that imposes limits on this power. In constitutional theory, there is a distinction drawn between political constitutionalism and legal

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constitutionalism. Political constitutionalism refers to a theory of constitutionalism in which the constitutional limits on power are primarily political; that is, the decisions of the government and the legislature are subject to regular review and accountability through regular elections, which are constitutionally prescribed. Legal constitutionalism refers to a theory of constitutionalism in which the limits on power are expressed in a constitutional document and are the responsibility of the judiciary to enforce. Legal constitutionalism gives rise to tensions between the authority of the democratically elected branches of government and the judiciary, and the legitimacy of the judicial branch to review and have the final say on the legality of the actions of the other branches. Legal limits on state power can take different forms; for example, they could manifest through the mechanisms of separation of powers, federalism, rights protections or procedural requirements. Constitutionalism does not cover a society whose constitution merely identifies the allocation of power without imposing any limits—legal or political—on this power. Constitutionalism is discussed in Chapter 1.

The Crown

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The Crown is literally the bejewelled headgear worn by the monarch. In public law, however, it has taken on other meanings. It is an abstract term that can be used to define the entire government structure, the sum of the judicial, legislative and executive branches. This structure is also referred to as the ‘state’. Historically, the British monarch was responsible for all of these government functions. As these branches became more clearly delineated, the term ‘the Crown’ also came to symbolise the executive branch of government, headed by the monarch and all of his or her officers and agents. In this book, we adopt the term ‘executive’ to avoid confusion. The structure, role and powers of the executive are discussed further in Chapter 7.

Federalism Federalism is a constitutional design in which government power is shared between a central government and sub-national governments operating in the same geographic territory. Federalism is a structural mechanism that can be used to achieve a number of objectives:  it allows for the dispersal of power, it can facilitate greater local participation and ownership over government policies within a single nation-state, it can better accommodate the diversity and pluralism of communities within a nation state, and it can drive innovative policy development through sub-national experimentation and competition. Australia’s Constitution created a federation in 1901. The predominant purpose of the Australian Constitution is to define the powers of the central government (the Commonwealth) and its relationship with the

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sub-national governments (the states). Federalism in Australia is discussed further in Chapter 4.

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Human rights Human rights are norms that are considered to be inherent to all human beings regardless of their race, sex, nationality and religion. They are also considered to be inalienable in that no person can waive these rights. In their legal form, human rights can be understood as standards that prescribe how a government should treat its population, either by acting in a positive way or by refraining from acting. Since the end of the Second World War and the UN Universal Declaration of Human Rights, these standards have increasingly been articulated in international instruments. As moral claims, human rights are often the subject of debate regarding their cultural relativity; that is, some rights, such as the right to privacy, might be highly valued in some cultures but have little value in others. Human rights claims are rarely absolute. In some instances, individual rights may be infringed by governments where there are competing rights and the government must determine which right should be given preference, or where the government wants to achieve some overarching public objective, such as relating to public safety, and to do so, it must limit individual rights. There is an ongoing public law debate as to which state institution is best suited to determine whether these infringements are acceptable. Some argue that these questions are inherently political, and should be determined by the Parliament, who is directly accountable for its decisions back to the community. Others argue that the judiciary, which is independent from politics and therefore better able to protect the rights of vulnerable minorities, is better placed to determine such issues. In Australia, most of these issues are determined by the Parliament: the Constitution articulates and protects very few human rights, there is no comprehensive federal legislative rights protection, and the common law provides only limited protection of a narrow range of human rights. The mechanisms that promote and protect human rights in Australia are explained further in Chapter 12.

Judicial review The judicial branch maintains the rule of law by conducting judicial review of the actions of the other two branches of government: the executive and the legislature. The judiciary undertakes two types of judicial review. The first is constitutional review: the judiciary acts as guardian of the Constitution, reviewing exercises of legislative and executive power by both Commonwealth and state parliaments against the constraints imposed by the Constitution. In Australia, the High Court has asserted its role in constitutional judicial review, despite this role not being expressly granted to it in the

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Constitution. The second type is judicial review of administrative action: this ensures that executive action is exercised in accordance with the legal limits that apply to it. In Australia, judicial review of executive action taken by Commonwealth and state officials is constitutionally guaranteed. Judicial review of administrative action is discussed further in Chapter 8 and constitutional judicial review in Chapter 9. The courts will also review exercises of judicial power through the appeal process, which allows for some accountability within the judicial branch.

Liberalism Liberalism is a political theory based on ideas of freedom and equality of the individual. Its focus is on limiting government power to protect the rights of the individual. Liberalism is the dominant philosophy that informed constitutional development in the UK and the US, although the US was also influenced by the theory of republicanism, discussed below. Liberalism underpins Australia’s system of democratic government, supporting core principles such as free and fair elections, open government, freedom from arbitrary detention, and the accountability of the executive for the effect of its actions on individuals. Many liberal principles are contained within the rule of law, a concept that underpins the Australian Constitution. Liberalism is discussed in Chapter 1.

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Parliamentary sovereignty or supremacy Parliamentary sovereignty, also sometimes referred to as parliamentary supremacy, holds that of the three core institutions of government—the Parliament, the executive and the judiciary—it is the Parliament that is supreme. The rationale for this idea is that Parliament is the most democratically responsive of all of the government branches and therefore it is Parliament alone that has the power to make the law. While courts have the power to apply the law in the settlement of disputes, and the executive has the power to carry out the law through the activities of government departments, agencies and officers, these powers can only be exercised under existing law, which Parliament has the power to amend or repeal. In Australia, the concept of parliamentary sovereignty or supremacy will always be limited because the Parliament is bound by the rules set out in the Australian Constitution. It is discussed in Chapter 6.

Representative government Representative government is a democratic form of government in which those with the power to govern have been selected from among the population of a state to rule on their behalf. Representative democracy is distinct from direct democracy in which the whole of the polity is involved in making decisions over how the polity is

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to be governed. The form and function of Australian representative government are discussed in Chapter 5.

Responsible government Responsible government describes a means by which the executive government is held to account by the Parliament. The government is responsible to the Parliament in two ways. First, Ministers of the government are individually responsible to the Parliament for their decisions and for the performance of their departments. Members of the Parliament hold Ministers to account through the processes of Parliament, in particular through asking questions of Ministers in the Parliament and through parliamentary committees that scrutinise draft legislation and government actions. Second, the entire ministry must retain the confidence of the Parliament to remain in government. This is known as collective responsibility. There are other important mechanisms that help to facilitate the accountability of the government to the Parliament, including the requirement that Parliament approves all taxation and expenditure by the government and maintains a supervisory role over delegated legislation. Responsible government is discussed in Chapters 6 and 8.

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Rule of law The rule of law requires the supremacy of law (sometimes also discussed as ‘supremacy of the Constitution’). It means that no one is above the law and that the law binds the state. In other words, the government must at all times exercise power within legal limits. It aims to curtail arbitrary government action, to guarantee equality before the law and to ensure accountability to the law. For some, the rule of law relates not to any law, but only to law that affords protection of fundamental human rights (see Chapter 1 for a discussion of the two analytical approaches to the rule of law). The rule of law can be distinguished from the concept of rule by law, where the government uses the law as a tool for its own purposes without any accountability or adherence to limits on the law. In this situation, power is exercised in the absence of effective mechanisms for constraining and disciplining the abuses of public power. As a principle of governance, the rule of law rose to international prominence at the end of the 20th century. In Australia the concept is understood as an assumption of the Australian Constitution. It requires that the judiciary review the actions of the other two branches of government, the executive and legislature, so as to check that they are operating within legal limits and not in an arbitrary fashion. For this purpose, it is critical that the judiciary be, and be seen to be, completely independent from these two other branches.

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Republicanism The political theory of republicanism is closely associated with the US Constitution. It rests on the founding idea that state power is drawn from the people, who are the ultimate sovereigns, and is often expressed through the phrase ‘rule by the people’. Republicanism thus embodies the idea of public-minded citizenship and responsibilities for the common good, and sits in contrast to a purely liberal conception of the state as one in which government power is limited to protect the individual from the state. In Australia, the concept of a ‘republic’ is often used in a narrower sense, referring to a change in our constitutional system moving away from a constitutional monarchy with King or Queen as our head of state, to a system in which the head of state is chosen by the people.

Separation of powers The separation of powers describes the horizontal division of government power between the three branches of government:  the legislative, executive and judicial branches. It is a political doctrine associated with US liberalism that provides limits and checks on the exercise of power by each branch. In Australia, there is no separation of powers at the state level. At the federal level, the separation of judicial power and the maintenance of the independence of the judiciary from the executive and legislative branches is the most emphasised aspect of the doctrine because of the necessary relationship between the executive and the Parliament created by responsible government. The separation of judicial power and the maintenance of judicial independence and impartiality in Australia is discussed further in Chapters 9 and 10.

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Sovereignty Sovereignty means supreme power or authority. When applied to public law, this core meaning of sovereignty has many applications. There is a distinction between internal and external sovereignty. External sovereignty refers to the independent power and authority of individual nation-states within international law. Internal sovereignty is sovereignty within single states. Internally, the sovereign is the person or body who has the power to rule. This power might be absolute or it might be divided, as it is in our federation in which sovereignty is shared between the Commonwealth and the states. Sovereignty is also concerned with legitimacy and is used to describe the foundation of the right to govern. In the Australian legal system, the term ‘popular sovereignty’ is used to describe the fact that it is the Australian people, through their participation in electing representatives and through their role in amending

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the Australian Constitution, who have the ultimate power in the Australian legal system. The concept of sovereignty in Australia has also been important to describe the relationship of Aboriginal and Torres Strait Islander peoples to the Australian State. Aboriginal and Torres Strait Islander peoples have claimed sovereignty in a number of senses. First, Aboriginal and Torres Strait Islander peoples have claimed sovereignty in a legal sense through claiming that they retained independent authority over their lives and their lands in the face of UK claims to sovereignty at the time of first settlement in 1788. Second, even though the courts have rejected this first claim, Aboriginal and Torres Strait Islander sovereignty is used to describe their spiritual and ongoing connection to the land, which dictates a degree a separation from the Australian state and their right to self-determination as indigenous peoples. The concept of sovereignty is discussed throughout the book, but particularly in Chapters 1, 2, 3, 4 and 13.

The Westminster system

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The Parliament of the UK is located in the Palace of Westminster on the banks of the River Thames in London. The term ‘the Westminster system’ has come to describe systems of government in former British colonies, such as in Australia, which are based on the UK parliamentary system. The main features of the Westminster system include the division of powers between a head of state (the Queen and her representative in Australia, the Governor-General) who is the nominal holder of executive power, and a head of government (the Prime Minister) who is the leader of the party with the majority in the lower house of Parliament and who exercises de facto executive power with other senior members of the governing party (Ministers in a Cabinet) from within the Parliament. Other features of the Westminster system include responsible and representative government, described above. The Westminster system is discussed in Chapters 2, 6 and 7.

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TABLE OF CASES A v Australia (1997) UN Doc CCPR/C/59/D/560/1993 446 A v Hayden (1984) 156 CLR 532 258, 305 AAP Case see Victoria v Commonwealth (1975) ABC v Chatterton (1986) SASR 1 219 AC TV v Commonwealth (1992) 177 CLR 106 194 Al-Kateb v Godwin (2004) 219 CLR 562 377, 378, 420, 421, 422, 490, 491 Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (2009) 239 CLR 27 415 Alexander’s Case see Waterside Workers Federation of Australia v JW Alexander Alley v Gillespie [2018] HCA 11 174 Amalgamated Society of Engineers v Adelaide Steamship Company Ltd (1920) 28 CLR 129 128, 135, 136, 137, 138, 339, 497, 498 Anti-Discrimination Commissioner v Acting Ombudsman (2003) 11 Tas R 343 294 APLA Ltd v Legal Services Commissioner (NSW) (2005) 224 CLR 322 191 Armed Activities on the Territory of the Congo (DR Congo v Rwanda) (Judgment) [2006] ICJ Rep 6 486 Attorney-General (Cth) v Alinta Ltd (2008) 233 CLR 542 353, 359 Attorney-General (Cth) v Breckler (1999) 197 CLR 83 359 Attorney-General (Cth) v The Queen (1957) 95 CLR 529 348, 351 Attorney-General (NSW) v Brewery Employees Union of NSW (1908) 6 CLR 469 426 Attorney-General (NSW) v Brown (1847) 1 Legge 312 81 Attorney-General (NSW) v Quin (1990) 170 CLR 1 300 Attorney-General (NSW) v Trethowan (1931) 44 CLR 394; [1932] AC 526; (1932) 47 CLR 97 220, 222, 223, 224 Attorney-General (NT) v Emmerson (2014) 253 CLR 393 401 Attorney-General (Qld) v Lawrence (2013) 306 ALR 281 400 Attorney-General (SA) v Corporation of the City of Adelaide (2013) 249 CLR 1 194 Attorney-General v De Keyser’s Royal Hotel Ltd [1920] AC 508 272 Attorney-General (Vic) v Commonwealth; ex rel Dale (1945) 71 CLR 237 141 Attorney-General (WA) v Marquet (2003) 217 CLR 545 224, 225 Austin v Commonwealth (2003) 215 CLR 185 145, 146 Australian Broadcasting Corporation v Lenah Game Meats Pty Ltd (2001) 208 CLR 199 361 Australian Building Construction Employees and Builders Labourers Federation v Commonwealth (1986) 161 CLR 88 362 Australian Capital Television Pty Ltd v Commonwealth (1992) 177 CLR 106 170, 187, 188, 195, 203, 323, 449 Australian Communications and Media Authority v Today FM (Sydney) Pty Ltd (2015) 255 CLR 352 361 Australian Communist Party v Commonwealth (1951) 83 CLR 1 26, 140, 141, 229, 268, 277, 280, 340, 341, 342, 391 Baban v Australia UN Doc CCPR/C/78/D/1014/2001 Baker v The Queen (2004) 223 CLR 513 Bakhtiyari v Australia UN Doc CCPR/C/79/D/1069/2002

446 395 446

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Ballina Shire Council v Ringland (1994) 33 NSWLR 680 Barton v Commonwealth (1974) 131 CLR 477 Re Becker and Minister for Immigration and Ethnic Affairs (1977) 1 ALD 158 Behrooz v Secretary of the Department of Immigration and Multicultural and Indigenous Affairs (2004) 225 CLR 1 Betfair Pty Ltd v Racing New South Wales (2012) 249 CLR 217 Betfair Pty Ltd v Western Australia (2008) 234 CLR 418 BLF Case see Building Construction Employees and Builders’ Labourers Federation of New South Wales v Minister for Industrial Relations Boilermakers Case see R v Kirby Re Bolton; Ex parte Beane (1987) 162 CLR 514 Booth v Dillon [No 1] [1976] VR 291 Booth v Dillon [No 2] [1976] VR 434 Bradken Consolidated Pty Ltd v Broken Hill Proprietary Co Ltd (1979) 145 CLR 107 Brandy v Human Rights and Equal Opportunity Commission (1995) 183 CLR 245

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Bribery Commissioner v Ranasinghe [1965] AC 172 British Coal Corporation v R [1935] AC 500 Bropho v Western Australia (1990) 171 CLR 1 Brown v Tasmania (2017) 91 ALJR 1089; 349 ALR 398 Brown v West (1990) 169 CLR 195 Bugmy v The Queen [2013] HCA 37 Building Construction Employees and Builders’ Labourers Federation of New South Wales v Minister for Industrial Relations (1986) 7 NSWLR 372 Bull v Attorney-General (NSW) (1913) 17 CLR 370 Burmah Oil Co Ltd v Lord Advocate [1965] AC 75 Burns v Corbett [2018] HCA 15 Burns v Ransley (1949) 79 CLR 101 Bushell v Repatriation Commission (1992) 175 CLR 408 Cadia Holdings Pty Ltd v New South Wales (2010) 242 CLR 195 Re Canavan (2017) 91 ALJR

495 270, 283 311 379 132 132

417, 420 314 314 272 351, 357, 358, 464 225 64 272, 273, 419, 420 189, 190, 196, 449 283 89 227, 228, 362, 388 419 272 404 277, 280 312 270, 273, 283, 284 175

Capital Duplicators Pty Ltd v Australian Capital Territory (No 2) (1993) 178 CLR 561 132 Carbines v Powell (1925) 36 CLR 88 269 Carr v Western Australia (2007) 232 CLR 138 417 Carter v Egg and Egg Pulp Marketing Board (Vic) (1942) 66 CLR 557 130 Case of Proclamations (1611) 12 Co Rep 74; 77 ER 1342 46, 47, 261, 271 Case of Prohibitions del Roy (1607) 12 Co Rep 64; 77 ER 1352 46, 47 Castlemaine Tooheys Ltd v South Australia (1990) 169 CLR 436 132 Cheatle v The Queen (1993) 173 CLR 541 427 Chow Hung Ching v The King (1949) 77 CLR 449 494, 495 Chu Kheng Lim v Minister for Immigration, Local Government and Ethnic Affairs (1992) 176 CLR 1 362, 366, 372, 374, 375, 376, 380 Chung Chi Cheung v The King [1939] AC 160 495 Church of Scientology v Woodward (1982) 154 CLR 25 258, 300 CIC Insurance Ltd v Bankstown Football Club Ltd (1997) 187 CLR 384 417 City of Collingwood v Victoria [No 2] [1994] 1 VR 652 346, 388 City of Salisbury v Biganovsky (1990) 54 SASR 117 314

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Clarke v Commissioner of Taxation (2009) 240 CLR 272 146 Clayton v Heffron (1960) 77 WN (NSW) 767; 105 CLR 214 223, 224 Clissold v Perry (1904) 1 CLR 363 419 Clough v Leahy (1904) 2 CLR 139 271 Clubb v Edwards (M46/2018) 198 Clyde Engineering Co Ltd v Cowburn (1926) 37 CLR 466 143 Clydesdale v Hughes (1934) 51 CLR 518 224 Clyne v East [No 1] [1967] 68 SR (NSW) 385 346, 388, 389 Coco v The Queen (1994) 179 CLR 427 421 Coe v Commonwealth (1979) 24 ALR 118 42, 81 Cole v Whitfield (1988) 165 CLR 360 132, 428 Coleman v Power (2004) 220 CLR 1 189, 190, 192, 194, 196 Colonial Sugar Refining Company v Deputy Federal Commissioner of Taxation (1923) 32 CLR 68 133 Combet v Commonwealth (2005) 224 CLR 494 209 Commonwealth v Australian Capital Territory (2013) 250 CLR 441 130, 427 Commonwealth v Cigamatic (1962) 108 CLR 372 145 Commonwealth v Colonial Ammunition Co (1924) 34 CLR 198 281 Commonwealth v John Fairfax (1980) 147 CLR 39 323 Commonwealth v Tasmania (1983) 158 CLR 1 77, 280, 487, 488, 489 Commonwealth v Western Australia (1999) 196 CLR 392 419 Communist Party Case see Australian Communist Party v Commonwealth Condon v Pompano (2013) 252 CLR 38 399, 400 Construction, Forestry, Mining and Energy Union v Australian Industrial Relations Commission (2001) 203 CLR 645 356 Cooper v Stuart (1889) 14 App Cas 286 41, 44, 81 Cormack v Cope (1974) 131 CLR 432 233 Croft v Dunphy [1933] AC 156 226 Croome v Tasmania (1997) 191 CLR 119 355 Cross-vesting Case see Re Wakim; Ex parte McNally Cubillo v Commonwealth (2000) 103 FCR 1 104 D and E v Australia UN Doc CCPR/C/87/D/1050/2002 Daintree Rainforest Case see Queensland v Commonwealth (1989) Davis v Commonwealth (1988) 166 CLR 79 D’Emden v Pedder (1904) 1 CLR 91 Dietrich v The Queen (1992) 177 CLR 292 Re Ditfort; Ex parte Deputy Commissioner of Taxation (1988) 19 FCR 347 Doyle v Attorney-General (1933) 33 SR (NSW) 484 Dr Bonham’s Case (1610) 8 Co Rep 114; 77 ER 646 Re Drake and Minister for Immigration and Ethnic Affairs [No 2] (1979) 2 ALD 634 Drake v Minister for Immigration and Ethnic Affairs (1979) 2 ALD 60 Duggan v Mirror Newspapers (1978) 142 CLR 583 Duncan v Independent Commission Against Corruption (2015) 256 CLR 83 Duncan v New South Wales (2015) 255 CLR 388 Durham Holdings Pty Ltd v New South Wales (2001) 205 CLR 399

446 261, 270, 277, 280 135 372, 494 304 224 47, 227, 438 311 309, 310, 382, 383 44 363, 364 363 227, 228

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428 Eastman v The Queen (2000) 203 CLR 1 Eatock v Bolt (2011) 197 FCR 261 105 Eatock v Bolt [No 2] [2011] FCA 1180 105 Edwards v Attorney General for Canada [1930] AC 124 462 Egan v Chadwick (1999) 46 NSWLR 563 236, 237, 261 Egan v Willis (1996) 40 NSWLR 650; (1998) 195 CLR 424 53, 219, 220 Engineers’ Case see Amalgamated Society of Engineers v Adelaide Steamship Company Ltd Entick v Carrington (1765) 19 St Tr 1029; 95 ER 807 47 Environment Protection Authority v Caltex Refining Co Pty Ltd (1993) 178 CLR 477 495 Evans v New South Wales (2008) 168 FCR 576 462 446 374, 381, 388, 389, 390, 391, 395, 400, 401, 446 Fardon v Australia UN Doc CCPR/C/98/D/1629/2007 447, 459 Farey v Burvett (1916) 21 CLR 433 140 Federal Commissioner of Taxation v Consolidated Media Holdings Ltd (2012) 250 CLR 503 417 Federal Commissioner of Taxation v Munro (1926) 38 CLR 153 357, 358 Federal Commissioner of Taxation v Official Liquidator of EO Farley Ltd (1940) 63 CLR 278 270, 273 Federal Commissioner of Taxation v Salenger (1988) 19 FCR 378 312 Federal Republic of Germany v The Netherlands (Judgment) [1969] ICJ Rep 3 485 Federated Amalgamated Government Railway and Tramway Service Association v New South Wales Railway Traffic Employees Association (1906) 4 CLR 488 135 First Uniform Tax Case see South Australia v Commonwealth (1942) FKAG et al v Australia UN Doc CCPR/C/108/D/2094/2011 446 In re Foreman & Sons Pty Ltd; Uther v Federal Commissioner of Taxation (1947) 74 CLR 508 146, 147 Forge v Australian Securities and Investments Commission (2006) 228 CLR 45 144, 389, 390, 403 Fortescue Metals Group Ltd v Commonwealth (2013) 250 CLR 548 133, 146 Re Gallagher [2018] HCA 17 175 Copyright © 2018. OUPANZ. All rights reserved.

F J et al v Australia UN Doc CCPR/C/116/D/2233/2013 Fardon v Attorney-General (Qld) (2004) 223 CLR 575

Gibbs v Capewell (1995) 54 FCR 503 78 Gilbertson v South Australia (1976) 15 SASR 66; [1978] AC 772 346, 388 Grace Bible Church v Reedman (1984) 68 SASR 200 228 Graham v Minister for Immigration and Border Protection [2017] HCA 33 367 Griffiths v Australia UN Doc CCPR/C/112/D/1973/2010 446 Grollo v Palmer (1995) 184 CLR 348 351, 352, 382, 384, 398 Gypsy Jokers Motorcycle Club Incorporated Inc v Commissioner of Police (WA) (2008) 234 CLR 532 393 Ha v New South Wales (1997) 189 CLR 465 Habib v Commonwealth (2010) 183 FCR 62 Hammond v Commonwealth (1982) 152 CLR 188 Harris v Caladine (1991) 172 CLR 84 He Kaw Teh v The Queen (1985) 157 CLR 523

132, 149 304 461 351 419

Table of Cases

OXFORD UNIVERSITY PRESS

Heiner v Scott (1914) 19 CLR 381 342 Henderson’s Case see Re Residential Tenancies Tribunal of NSW v Henderson Hicks v Australia UN Doc CCPR/C/115/D/2005/2010 446 Hicks v Ruddock (2007) 156 FCR 574 304 Hilton v Wells (1985) 157 CLR 57 352, 383, 384, 398 Hindmarsh Island Bridge Case see Kartinyeri v Commonwealth Hogan v Hinch (2011) 243 CLR 506 192, 194, 398, 421 Holmdahl v Australian Electoral Commission [2013] HCA Trans 72 178 Holmdahl v Australian Electoral Commission (No 2) [2012] SASCFC 110 178 Horta v Commonwealth (1994) 181 CLR 183 226, 488, 492 Huddart Parker & Co Pty Ltd v Moorehead (1909) 8 CLR 330 353 Hughes & Vale Pty Ltd v Gair (1954) 90 CLR 203 224 Incorporation Case see New South Wales v Commonwealth (1990) Independent Commission Against Corruption v Cunneen (2015) 256 CLR 1 363, 422, 423 Industrial Relations Act Case see Victoria v Commonwealth (1996) International Finance Trust Company v New South Wales Crime Commission (2009) 240 CLR 319 366, 373, 390, 392, 395, 397, 400 Jago v District Court of New South Wales (1988) 12 NSWLR 558 James v Commonwealth (1928) 41 CLR 442; (1936) 55 CLR 1 Jones v Commonwealth [No 2] (1965) 112 CLR 206 JT International SA v Commonwealth (2012) 250 CLR 1 Judd v McKeon (1926) 38 CLR 380 In re Judiciary and Navigation Acts (1921) 29 CLR 257 Jumbunna Coal Mine NL v Victorian Coal Miners’ Association (1908) 6 CLR 309

495 132, 133 418 482 178 354 135, 226, 419, 425

360, 389, 393, 394, 400, 401 144, 337, 339, 346, 353, 373, 388, 398, 405 389, 391, 392, 394, 397, 400, 401, 403

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K-Generation Pty Ltd v Liquor Licensing Court (2009) 237 CLR 501 Kable v Director of Public Prosecutions (NSW) (1996) 189 CLR 51

Kable v New South Wales (2013) 252 CLR 118 Kartinyeri v Commonwealth (1998) 195 CLR 337; [1998] HCA Trans 13 26, 85, 98, 229, 230, 426, 490, 491 Kirk v Industrial Court of New South Wales (2010) 239 CLR 531 301, 343, 389, 397, 402 Kirk v Industrial Relations Commission (NSW) (2008) 173 IR 465 403, 404 Kirmani v Captain Cook Cruises Pty Ltd [No 2] (1985) 159 CLR 461 543 Knight v Victoria (2017) 345 ALR 560 401 Koowarta v Bjelke-Petersen (1982) 153 CLR 168 451, 488 Kruger v Commonwealth (1997) 190 CLR 1 104, 198, 372, 376 Kuczborksi v Queensland (2014) 254 CLR 51 355, 401 Kwok v Australia UN Doc CCPR/C/97/D/1442/2005 446 Lacey v Attorney-General (Qld) (2011) 242 CLR 573 Re Lambie [2018] HCA 6 Lane v Morrison (2009) 239 CLR 230 Lange v Australian Broadcasting Corporation (1997) 189 CLR 520 Langer v Commonwealth (1996) 186 CLR 302

414 177 352, 359 189, 191, 194, 323, 449 178

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219 Laurance v Katter [2000] 1 Qd R 147 Le Mesurier v Connor (1929) 42 CLR 481 346, 388 Leeth v Commonwealth (1992) 174 CLR 455 346, 372 Leghaei v Director General of Security [2005] FCA 1576; [2007] FCAFC 37; HCA Trans 655; FCAFC 56 305 Levy v Victoria (1997) 189 CLR 579 193, 194, 196 Libya v UK; Libya v US (Judgment) [1992] ICJ Rep 3 479 Re Littlejohn and Secretary, Department of Social Services (1989) 10 AAR 220 312 Liyanage v The Queen [1967] 1 AC 259 362, 389 Luton v Lesssels (2002) 210 CLR 333 359 Mabo v Queensland [No 2] (1992) 175 CLR 1 10, 42, 62, 79, 81, 85, 88, 91, 94, 95, 103, 464, 493, 494 Magaming v The Queen [2013] HCA 40 365 Marbury v Madison 5 US (1 Cranch) 137 (1803) 340 Markarian v The Queen (2005) 228 CLR 357 365 Maxwell v Murphy (1957) 96 CLR 261 418 Maynard v Neilson [1988] EOC 77 358 Re McBain; Ex parte Catholic Bishops Conference (2002) 209 CLR 372 354 McCloy v New South Wales (2015) 257 CLR 178 190, 191, 195, 196, 204, 449, 498 McCulloch v Maryland 17 US (4 Wheat) 316 425 McDonald v Cain [1953] VLR 411 224 McGinty v Western Australia (1996) 186 CLR 140 181, 186, 225 McGuinness v Attorney-General (Vic) (1940) 63 CLR 73 271 Ex rel McKinlay v Commonwealth (1975) 135 CLR 1 185 McKinnon v Secretary, Department of Treasury (2006) 228 CLR 423 327 Ex parte McLean (1930) 43 CLR 472 143 Melbourne Corporation v Commonwealth (1947) 74 CLR 31 145, 146 Milirrpum v Nabalco (1971) 17 FLR 141 42, 93 Mills v Meeking (1990) 169 CLR 214 417 Mining Tax Case see Fortescue Metals Group Ltd v Commonwealth Minister for Arts, Heritage & Environment v Peko-Wallsend Ltd (1987) 15 FCR 274 305 Minister for Immigration and Citizenship v Haneef (2007) 163 FCR 414 462 Minister for Immigration and Ethnic Affairs v Teoh (1995) 183 CLR 273 419, 463, 486, 493, 494, 495 Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Lam (2003) 214 CLR 1 493 Minister for Immigration and Multicultural and Indigenous Affairs v Al Masri (2003) 126 FCR 54 378 MMM et al v Australia UN Doc CCPR/C/108/D/2136/2012 446 Mobil Oil v Victoria (2002) 211 CLR 1 226 Mokbel v Attorney General (Cth) (2007) 162 FCR 278 284 Momcilovic v The Queen (2011) 245 CLR 1 410, 421, 471 Monis v The Queen (2013) 249 CLR 92 193, 194 Mr C v Australia UN Doc CCPR/C/76/D/900/1999 446 Mulholland v Australian Electoral Commission (2004) 220 CLR 181 199 Murphy v Electoral Commissioner (2016) 334 ALR 369 183

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Nasir v Australia UN Doc CCPR/C/116/D/2229/2012 446 Nationwide News Pty Ltd v Wills (1992) 177 CLR 1 187, 188, 194, 207, 323, 449 Native Title Act Case see Western Australia v Commonwealth (1995) Neal v The Queen (1982) 149 CLR 305 89 New South Wales v Bardolph (1934) 52 CLR 455 276 New South Wales v Commonwealth (1915) 20 CLR 54 263, 348, 349 New South Wales v Commonwealth (1975) 135 CLR 337 263 New South Wales v Commonwealth (1990) 169 CLR 482 141 New South Wales v Commonwealth (2006) 229 CLR 1 136, 137, 138, 393, 428 New South Wales v Kable (2013) 298 ALR 144 366 New South Wales v Minister for Industrial Relations (1986) 7 NSWLR 372 346 New State Ice Co v Liebmann 285 US 262 (1932) 122 Newcrest Mining (WA) Ltd v Commonwealth (1997) 190 CLR 513 490 Nicaragua v US (Merits) [1986] ICJ Rep 14 481 Nicholas v The Queen (1998) 193 CLR 173 366 Re Nolan; Ex parte Young (1991) 172 CLR 460 372 North Australian Aboriginal Justice Agency Ltd v Northern Territory (2015) 256 CLR 569 401 North Australian Aboriginal Legal Aid Service Inc v Bradley (2004) 218 CLR 146 389 Nulyarimma v Thompson (1999) 96 FCR 153 96, 495 Ex parte Ogden (1893) 14 NSWLR 86 462 Pape v Commissioner of Taxation (2009) 238 CLR 1 275, 280, 281, 286, 489 Payroll Tax Case see Victoria v Commonwealth (1971) Pearce v Florenca (1976) 135 CLR 507 226 Permanent Trustee Australia v Commissioner of State Revenue (2004) 220 CLR 388 133 Pharmaceutical Benefits Case see Attorney-General (Vic) v Commonwealth; ex rel Dale Philip Morris Asia Limited v Australia (Award on Jurisdiction and Admissibility) Permanent Court of Arbitration, Case No 2012-12 483 Phillips v Eyre (1870) LR 6 QB 1 43 Plaintiff 157/2002 v Commonwealth (2003) 211 CLR 476 419 Plaintiff M47/2012 v Director General of Security (2012) 251 CLR 1 378 Plaintiff M68/2015 v Minister for Immigration and Border Protection (2016) 257 CLR 42 379 Plaintiff M76/2013 v Minister for Immigration, Multicultural Affairs and Citizenship (2012) 251 CLR 1 378 Plaintiff M96A/2016 v Commonwealth (2017) 343 ALR 362 380 Plaintiff S4/2014 v Minister for Immigration and Border Protection (2014) 253 CLR 219 379, 380 Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476 301, 343, 404 PMA Case see Victoria v Commonwealth and O’Connor PMT Partners Pty Ltd (Liq) v Australian National Parks and Wildlife Service (1995) 184 CLR 301 423 Polites v Commonwealth (1945) 70 CLR 60 492, 495 Pollentine v Bleijie (2014) 253 CLR 629 401 Polyukhovich v Commonwealth (1991) 172 CLR 501 226, 372, 373, 374, 488 Port MacDonnell Professional Fishermen’s Association Inc v South Australia (1989) 168 CLR 340 64 Potter v Minahan (1908) 7 CLR 277 419, 420 Prasad v Republic of Fiji [2001] 1 LRC 665 9

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Precision Data Holdings Ltd v Wills (1991) 173 CLR 167 Preston v Avery (H2/2018) Printz v United States, 521 US 898, 2377 (1997) Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 Prosecutor v Furundzija (Judgment), International Criminal Tribunal for the Former Yugoslavia, Trial Chamber II, Case No JL/PIU/372- E Province of Bombay v Municipal Council [1947] AC 58 Public Service Board of New South Wales v Osmond (1986) 159 CLR 656

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Queensland Electricity Commission v Commonwealth (1985) 159 CLR 192 Queensland v Commonwealth (1989) 167 CLR 232

359, 360 198 497 409, 415 486 272 328 372 488

R (on the application of Animal Defenders International) v Secretary of State for Culture, Media and Sport [2008] 1 AC 1312 203 R v Ballard or Barrett [1829] NSW Sup C 26 80 R v Barger (1908) 6 CLR 41 135 R v Bevan; Ex parte Elias and Gordon (1942) 66 CLR 453 352 R v Bonjon [1841] NSW Sup C 92 80, 81 R v Brisbane Licensing Court; Ex parte Daniell (1920) 28 CLR 23 143 R v Brislan; Ex parte Williams (1935) 54 CLR 262 418 R v Burah (1878) 3 App Cas 889 51 R v Carter; Ex parte Kisch (1934) 52 CLR 221 67 R v Commonwealth Court of Conciliation and Arbitration; Ex parte Barrett (1945) 70 CLR 141 361 R v Commonwealth Industrial Court; Ex parte Amalgamated Engineering Union, Australian Section (1960) 103 CLR 368 361 R v Cox; Ex parte Smith (1945) 71 CLR 1 352 R v Duncan; Ex parte Australian Iron and Steel Pty Ltd (1983) 158 CLR 535 150 R v Farrell (1831) 1 Legge 5 44 R v Federal Court of Bankruptcy; Ex parte Lowenstein (1938) 59 CLR 556 349 R v Fernando (1992) 76 A Crim R 58 89 R v Greater London Council; Ex parte Blackburn [1976] 1 WLR 550 303 R v Hughes (2000) 202 CLR 535 142 R v Joske; Ex parte Australian Building Construction Employees and Builders’ Labourers’ Federation (1974) 130 CLR 87 352 R v Kirby; Ex parte Boilermakers’ Society of Australia (1956) 94 CLR 254 125, 144, 346, 349, 350, 351, 352, 354, 382, 383, 384, 388, 405 R v Murrell and Bummaree [1836] NSW Sup C 35 80 R v Pearson; Ex parte Sipka (1983) 152 CLR 254 101, 170, 180 R v Richards; Ex parte Fitzpatrick & Browne (1955) 92 CLR 157 218 R v Secretary of State for the Home Department; Ex parte Simms [2000] 2 AC 115 419 R v Sharkey (1949) 79 CLR 121 277, 280, 488 R v Spicer; Ex parte Waterside Workers’ Federation of Australia (1957) 100 CLR 312 361 R v Trade Practices Tribunal; Ex parte Tasmanian Breweries Pty Ltd (1970) 123 CLR 361 353, 358, 360 Railway Servants’ Case see Federated Amalgamated Government Railway and Association New South Wales Railway Traffic Employees Association

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Table of Cases

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Rann v Olsen (2000) 76 SASR 450 219 Reference Pursuant to Section 204 of the Commonwealth Electoral Act; Re Webster (1975) 132 CLR 270 174 Republic of Fiji v Prasad [2001] 2 LRC743 9 Re Residential Tenancies Tribunal of NSW v Henderson; Ex parte Defence Housing Authority (1997) 190 CLR 410 145, 147 Richardson v Forestry Commission of Australia (1988) 164 CLR 261 488 Roach v Electoral Commissioner (2007) 233 CLR 162 170, 180, 322, 449 Rowe v Australian Electoral Commissioner (2010) 234 CLR 1 170, 182, 449 Rowley v O’Chee [2000] 1 Qd R 207 218 Ruddock v Vadarlis (2001) 110 FCR 491 261, 270, 278, 280, 283, 284, 285 Sankey v Whitlam (1978) 142 CLR 1 236, 324 Scott v Cawsey (1907) 5 CLR 132 419 Scott v Scott [1913] AC 417 324 Seas and Submerged Lands Case see New South Wales v Commonwealth (1975) Second Uniform Tax Case see Victoria v Commonwealth (1957) 99 CLR 575 Shafiq v Australia UN Doc CCPR/C/88/D/1324 446 Shams v Australia UN Doc CCPR/C/90/D/1255 446 Shanahan v Scott (1957) 96 CLR 245 269 Shaw v Wolf (1998) 83 FCR 113 78 Shrimpton v Commonwealth (1945) 69 CLR 613 141 Smith Kline & French Laboratories (Aust) Ltd v Commonwealth (1991) 173 CLR 194 340 South Australia v Commonwealth (1942) 65 CLR 373 148 South Australia v Lampard-Trevorrow (2010) 106 SASR 331 104 South Australia v Totani (2010) 242 CLR 1 389, 392, 396, 397, 400, 401 Sportsbet Pty Ltd v New South Wales (2012) 249 CLR 298 132 State Government Insurance Commission v Trigwell (1979) 142 CLR 617 43, 44 Stenhouse v Coleman (1944) 69 CLR 457 140 Stephens v West Australian Newspapers Ltd (1994) 182 CLR 211 189 Stolen Generations Case see Kruger v Commonwealth Street v Queensland Bar Association (1989) 168 CLR 461 132, 372, 426 Sue v Hill (1999) 199 CLR 462 64, 174, 175, 254, 427 Sykes v Cleary (1992) 176 CLR 77 174, 175 Tajjour v New South Wales (2014) 254 CLR 508 199 Tampa Case see Ruddock v Vadarlis Tasmanian Dam Case see Commonwealth v Tasmania (1983) Taylor v Attorney-General (Qld) (1917) 23 CLR 457 224, 227 TCL Air Conditioner (ZhongShan) Co Ltd v Judges of the Federal Court of Australia (2013) 295 ALR 596 353, 356 Theophanous v Herald & Weekly Times Ltd (1994) 182 CLR 104 189, 191, 428 Thomas v Mowbray (2007) 233 CLR 307 140, 141, 356, 360, 364, 367, 381, 426, 456 Thorpe v Commonwealth [No 3] (1997) 144 CLR 677 304 Tillman v Australia UN Doc CCPR/C/98/D/1635/2007 447, 459 Timberyard and General Woodworkers’ Employees’ Association (Adelaide Branch) v Alexander (1912) 15 CLR 308 346

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Town Investments Ltd v Department of the Environment [1978] AC 359 Toy v Musgrave (1888) 14 VLR 349 Re Tracey; Ex parte Ryan (1989) 166 CLR 518 Trevorrow v South Australia [No 5] (2007) 98 SASR 136 Re Tyler; Ex parte Foley (1993) 181 CLR 18 Union Steamship Co of Australia Pty Ltd v King (1988) 166 CLR 1 Unions NSW v New South Wales (2013) 252 CLR 530 Uther’s Case see In re Foreman & Sons Pty Ltd

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254 53 372 104 372 51, 226, 228 191, 195

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Victoria v Commonwealth (1937) 58 CLR 618 143 Victoria v Commonwealth (1957) 99 CLR 575 148 Victoria v Commonwealth (1971) 122 CLR 353 135, 136, 146 Victoria v Commonwealth (1975) 134 CLR 338 277, 280, 281 Victoria v Commonwealth (1996) 187 CLR 416 146, 488, 489 Victoria v Commonwealth and O’Connor (1975) 134 CLR 81 233 Victorian Council for Civil Liberties Inc v Minister for Immigration and Multicultural Affairs (2001) 110 FCR 452 279 Victorian Stevedoring & General Contracting Co Pty Ltd and Meakes v Dignan (1931) 46 CLR 73 268, 349 Visnic v ASIC (2007) 231 CLR 381 359 Wainohu v New South Wales (2011) 243 CLR 181 199, 373, 397, 400 Re Wakim; Ex parte McNally (1999) 198 CLR 511 142, 347, 352, 427 Waterside Workers Federation of Australia v JW Alexander Ltd (1918) 25 CLR 434 348, 349 West Lakes v South Australia (1980) 25 SASR 389 223, 224 Western Australia v Commonwealth (1975) 134 CLR 201 131 Western Australia v Commonwealth (1995) 183 CLR 373 96, 146, 495 Western Australia v Wilsmore (1982) 149 CLR 79 224 Western Sahara (Advisory Opinion) [1975] ICJ Rep 12 493 Whaling in the Antarctic (Australia v Japan) (Judgment) [2014] ICJ Rep 226 480, 482 Wheat Case see New South Wales v Commonwealth (1915) White v Director of Military Prosecutions (2007) 231 CLR 570 352 Williams v Commonwealth (2012) 248 CLR 156 145, 262, 274, 299 Williams v Commonwealth [No 2] (2014) 252 CLR 416 276 Wilson v Minister for Aboriginal and Torres Strait Islander Affairs (1996) 189 CLR 1 353, 372, 386 Re Wood (1988) 167 CLR 145 174 Re Woolley; Ex parte Applicants M276/2000 (2004) 225 CLR 1 377, 379 Work Choices Case see New South Wales v Commonwealth (2006) Wotton v Queensland (2012) 246 CLR 1 194 Wurridjal v Commonwealth (2009) 237 CLR 309 106 X7 v Australian Crime Commission (2013) 248 CLR 92 XYZ v Commonwealth (2006) 227 CLR 532 Zheng v Cai (2009) 239 CLR 446

421 226, 488 409

Table of Statutes

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TABLE OF STATUTES s 43(1)

COMMONWEALTH Aboriginal and Torres Strait Islander Act 2005 pt 4A 96 Aboriginal and Torres Strait Islander Commission Act 1989 78, 85, 92, 97 s 4 78 s 4(1) 78

Administrative Decisions (Judicial Review) Act 1977 267, 302, 304, 465 s 3(1) 302 s 3(4) 303 s 5 302 s 13 328 s 16 306

Aboriginal and Torres Strait Islander Heritage Protection Act 1984 85, 98 s 4 97 s 10(4) 98, 386, 387

Age Discrimination Act 2004

320, 451

Anti-Terrorism Act (No 2) 2005

456

Archives Act 1983

323

Aboriginal and Torres Strait Islander Peoples Recognition (Sunset Extension) Act 2015 111 s 4(2)(b)(i) 111

ASIO Act 1979 s 34E s 34G s 34L

454 462 455 462

Aboriginal and Torres Strait Islander Recognition Act 2013 s 4(2)(c)

ASIO Legislation Amendment (Terrorism) Act 2003

110, 111 111

Aboriginal Land Rights (Northern Territory) Act 1976 83, 94, 97 Acts Interpretation Act 1901 s 15A s 15AA s 15AB

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309

393, 411 414 416, 417

AD(JR) Act. see Administrative Decisions (Judicial Review) Act 1977 Administrative Appeals Tribunal Act 1975 pt V pt VIIIA s 2A(b) s 5A s 8 s 13 s 25 s 28 s 33(1) s 33(1)(c) s 39

382 290 329 312 310 310 310 309 329 312 312 312

454, 462

ATSIC Act. see Aboriginal and Torres Strait Islander Commission Act 1989 Auditor-General Act 1997 pt 4, div 1 pt 4, div 2 pt 5 pt 6 s 8(1) s 8(4) s 9, sch 1 s 28 Australia Act 1986 s 1 s 2(1) s 3 s6 s 7(2) s 9 s 10 s 11

299 300 300 299 300 300 300 300

64 64, 226, 227 64 56, 64, 222, 223, 224, 225 260 64 64 64

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Australia Act (Request and Consent) Act 1985

64

Australian Capital Territory (Self-Government) Act 1988 s 10 s 14 s 100

129, 424 171 177 171

Australian Citizenship Act 1948 s 17

62, 100 177

Australian Citizenship Act 2007

69

Australian Citizenship Legislation Amendment Act 2002

177

Australian Human Rights Commission Act 1986 464, 465 s 7 320 s 8 320 s 11 320 Australian Security Intelligence Organisation Act 1979 s 34S

256 437

Border Force Act 2015 s 42

208

Border Protection (Validation and Enforcement Powers) Act 2001

280

Border Security Legislation Amendment Act 2002

454

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Broadcasting Act 1942 pt IIID Broadcasting Legislation Amendment (Broadcasting Reform) Act 2017 Broadcasting Services Act 1992 pt IV sch 2 cl 8(1)(g) Citizenship Act 1948 Commonwealth Electoral Act 1902

s 93(1)(a) s 93(8)(b) s 103A s 103B s 126(2) s 158 s 163(1) s 204 s 240 s 245 s 245(1) s 270 s 270(2) s 294 s 304 s 309 s 329A s 353 s 353(1) s 354 s 376

69 180 182 182 203 170 173 174 178 178 178 179 179 204 205 205 178, 179 202 174 202 174, 202

Commonwealth Franchise Act 1902 s4

101 101

Commonwealth Grants Commission Act 1973

149

Communist Party Dissolution Act 1950 s 4 s 5(2) s 9(2) s 10

342 341 341 341 341

187, 203 206 206, 361 206 361 69, 101 170, 177

Commonwealth Electoral Act 1918 69, 177, 181, 182, 266 pt IV 186 s 6 201 ss 6-38 201 s 48 185

Constitution 15, 17, 18, 22, 25, 26, 39, 56, 57, 58, 59, 60, 61, 62, 65, 69, 75, 76, 77, 84, 86, 93, 104, 109, 110, 111, 112, 113, 120, 125, 126, 127, 128, 129, 131, 134, 135, 136, 138, 140, 141, 142, 143, 144, 146, 150, 151, 156, 157, 165, 168, 170, 171, 172, 181, 185, 186, 187, 188, 189, 194, 200, 201, 220, 221, 222, 223, 226, 227, 228, 229, 230, 254, 255, 259, 260, 261, 262, 263, 267, 269, 274, 277, 281, 285, 323, 338, 342, 425, 426, 428, 429, 437, 440, 449, 473, 476, 491, 496, 497, 498, 501–43 Preamble 501–3 Ch I 503–18 Ch II 519–20 Ch III 138, 142, 199, 301, 336, 337, 339, 343, 347, 348, 350,

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351, 352, 356, 359, 360, 364, 365, 366, 367, 368, 371, 374, 375, 376, 377, 378, 381, 382, 383, 384, 386, 388, 389, 398, 399, 400, 402, 404, 448, 465, 520–3 Ch IV 523–30 Ch V 530–2 Ch VI 532 Ch VII 532–3 Ch VIII 533–4 s1 129, 227, 338, 350 s 5 262 s 6 170 s7 130, 131, 170, 171, 178, 181, 322 s 9 170 s 15 130 s 15A 418 s 24 170, 171, 178, 181, 185, 322 s 25 110, 111, 114, 170 s 28 130, 170 s 29 130 s 32 262 s 33 262 s 34 173 s 41 101, 170, 180 s 43 173 s 44 69, 173, 175, 176, 202 s 44(i) 173, 174, 175, 176, 177, 427 s 44(ii) 173 s 44(iv) 173, 174, 177 s 44(v) 174 s 47 174 s 49 217, 218, 352 s 51 110, 129, 134, 135, 141, 142, 143, 145, 147, 262, 271, 274, 276, 376, 377, 489 s 51(ii) 132, 133, 282 s 51(v) 418 s 51(vi) 140, 267, 352, 359, 426 s 51(xix) 375 s 51(xx) 136, 137, 141, 410 s 51(xxi) 427 s 51(xxiii) 282 s 51(xxiiiA) 141, 275, 282 s 51(xxvi) 74, 76, 77, 81, 84, 85, 86, 111, 141, 229, 490 s 51(xxix) 136, 138, 226, 451, 475, 488, 492 s 51(xxxi) 106, 419, 448 s 51(xxxv) 136, 137

Table of Statutes

s 51(xxxvii) 142 s 51(xxxix) 268 s 52 129, 134, 145, 262, 271, 274, 276 s 53 128, 171, 232, 234 s 56 262 s 57 231, 232, 233, 262 s 58 262 s 59 263 s 61 129, 139, 144, 145, 260, 261, 262, 270, 274, 275, 277, 278, 279, 281, 282, 284, 285, 338, 350, 486 s 62 263 s 63 263 s 64 263, 295 s 68 262 s 71 129, 144, 338, 340, 345, 349, 350, 351, 353, 389, 403 ss 71-80 350 s 72 262, 285, 343, 348, 349, 351 s 72(iii) 343, 345 s 73 339, 340, 402, 403 s 74 144, 339 s 75 339, 354, 405 s 75(i) 475 s 75(iii) 301, 340 s 75(iv) 405 s 75(v) 301, 340, 343, 367, 403, 404 s 76 340, 343, 354, 405 s 76(i) 340, 424 s 77 354 s 77(iii) 144, 351 s 79 345 s 80 372, 427, 448 s 81 275, 281 s 83 275, 281, 299 s 87 148 s 88 133 s 90 129, 132, 148 s 92 131, 132 s 96 147, 148, 152, 276, 277, 282 s 97 299 s 99 133 s 101 262, 348 s 103 262 s 106 129, 225, 227 s 107 129, 227 s 108 129

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s 109 s 114 s 116 s 116A s 117 s 119 s 122 s 127 s 127A s 128

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96, 130, 142, 143, 147, 410 129, 133, 140 104, 187, 274, 448, 496 110 132, 448 267 63, 81, 129, 130, 131, 134, 141, 145, 262, 271, 274, 276, 377 74, 76, 101 110 60, 62, 63, 125, 131, 133, 171, 188, 200, 221, 448

Constitution Alteration (Aboriginals) Act 1967

535

Constitution Alteration Post-War Reconstruction and Democratic Rights) Act 1944

440

Constitution Alteration (Referendums) Act 1977

535

Constitution Alteration (Retirement of Judges) Act 1977 521, 535 Constitution Alteration (Senate Casual Vacancies) Act 1977 507, 535

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Constitution Alteration (Senate Elections) Act 1906 535 Constitution Alteration (Simultaneous Elections) Act 1977

507

Constitution Alteration (Social Services) Act 1946

535

Constitution Alteration (State Debts) Act 1909

535

Constitution Alteration (State Debts) Act 1928

535

Constitutional Amendment (Local Government) Act 2013

156

Corporations Act 2001

142, 256

Courts Legislation Amendment (Judicial Complaints) Act 2012

344

Crimes Act 1914 s 70

329

Criminal Code 1995 s 1

140, 454, 495 496

s 104.12A(3) s 104.4 s 471.12

367 356, 364, 365 193

Defence Act 1903 ss 51-51Y s 63

266 267 266

Disability Discrimination Act 1992

320, 451, 464

Electoral Act 1918

101

Electoral and Referendum Amendment Act 1998 s 270(2)

179

Electoral and Referendum Amendment (Protecting Elector Participation) Act 2012

182

Electoral and Referendum (Maintaining Address) Act 2012

182

Euthanasia Laws Act 1997

130

Evidence Act 1995 s 126H

208

Extradition Act 1988 s 40

284

Fair Work Act 2009

142, 451, 452

Fair Work Amendment (State Referrals and Other Measures) Act 2009

142

Federal Court of Australia Act 1976

383

Financial Framework (Supplementary Powers) Act 1997 s 32B 276, 277 Financial Framework (Supplementary Powers) Regulations 1997

276

Financial Management and Accountability Act 1997

276

Flags Act 1953 s 3(2) Freedom of Information Act 1982 pt IIA pt IV div 2 pt IV div 3

62, 225 225 323, 325 326 326 326

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pt V pt VI pt VII pt VIIIA s 4(1) s 6C s 7 s 11A(5) s 11B s 11B(5) s 11C ss 27-27A s 58(5)

326 308, 328 328 328 326 326 326 327 327 327 328 327 327

Freedom of Information (Charges) Regulations 1982 s 11C

328

Freedom of Information (Removal of Conclusive Certificates and Other Measures) Act 2009 s 13 High Court of Australia Act 1979 s 5 s6 s 7

451

Judicial Misbehaviour and Incapacity (Parliamentary Commissions) Act 2012

344

Judiciary Act 1903 s 30 s 35 s 39B s 78B s 88

327

345 285, 343 344 98, 452

HPA. see Aboriginal and Torres Strait Islander Heritage Protection Act 1984 HRPS Act. see Human Rights (Parliamentary Scrutiny) Act 2011 Human Rights and Equal Opportunity Commission Act 1986. see Australian Human Rights Commission Act 1986

301 340, 424 340 301 144 354

Land Fund and Indigenous Land Corporation (ATSIC Amendment) Act 1995 96 Law Enforcement Integrity Commissioner Act 2006

322

Legislation Act 2003 pt 2

269

Marriage Act 1961

Hindmarsh Island Bridge Act 1997

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International Convention on the Elimination of Racial Discrimination

130, 168, 453

Migration Act 1958 67, 69, 266, 278, 279, 280, 284, 285, 378, 379, 380 s 4(1) 416 s 13 68 s 54L 375 s 65 68 s 189 377, 421 s 196 377, 421 s 198 377, 421 s 501 68 s 501(3) 367 s 503A 367 s 504 268, 269 Mutual Recognition Act 1992 Native Title Act 1993 div 3

150 83, 85, 95, 96 97

Human Rights (Parliamentary Scrutiny) Act 2011 s 7(a) s 7(b) s 7(c)

457 457 457

Native Title Amendment Act 1998

Human Rights (Sexual Conduct) Act 1994

355

Northern Territory (Self-Government) Act 1978 63, 129, 130, 177, 424 s 17 171 s 17(2) 171 s 49 132

Immigration Restriction Act 1901 s 3(a)

67 67

Industrial Relations Act 1988 s 299(1)(d)(ii)

137 187

Intelligence Services Act 2001

256

Northern Territory Acceptance Act 1910

452 63

NTA. see Native Title Act 1993 Ombudsman Act 1976 s 3(1)

313 314

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s 3(4B) s 3A s 3BA s 5(1)(a) s 5(1)(b) s 5(2) s 8(3) s 8(5) s 9 s 11A(2) s 12(3) s 13 s 14 s 15 s 15(1) s 16 s 17 s 19 s 21 s 22B s 28 s 35A s 36

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Parliamentary Privileges Act 1987 s 4 s 7 s 9 s 16

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314 314 314 314, 315 315 314 315 315 315 315 316 315 315 315, 316 315 315, 316 315, 316 316 313 313 313 316 315 218 245 245 218 218, 219

Parliamentary Service Act 1999 s 16 s 35A

329 316

Petroleum and Mineral Authority Act 1974

233

Privy Council (Limitation of Appeals) Act 1968 144, 339 Public Governance, Performance and Accountability Act 2013 210, 276, 299

Public Service Act 1999

Racial Discrimination Act 1975 360, 451, 464, 488 s8 s 18C s 18D s 25Z(2) s 25ZAA(2) s 25ZAB s 25ZAC

317 317 317 329 317 317 317 317 317 317 103, 106, 320, 87, 106 105 105 358 358 358 358

RDA. see Racial Discrimination Act 1975 Referendum (Machinery Provisions) Act 1984 201 Royal Commissions Act 1902

271, 317

Seat of Government Acceptance Act 1909 s 6

63

Security Legislation Amendment (Terrorism) Act 2002 454 Senate (Representation of Territories) Act 1973 131, 185, 233 Sex Discrimination Act 1984 320, 354, 451, 464

Privy Council (Appeals from the High Court) Act 1975 144, 339

Public Interest Disclosure Act 2003 pt II s 26 s 33

s 10 s 13 s 15 s 16 s 40 s 41 s 43A s 44 s 45 s 47

313, 329 330 330 330

Sex Discrimination Amendment (Sexual Orientation, Gender Identity and Intersex Status) Act 2013 451 Social Security and Other Legislation Amendment (Welfare Reform and Reinstatement of Racial Discrimination Act) Act 2010

107

Social Security Legislation Amendment Act 2012 457 States Grants (General Purposes) Amendment Act 1997

149

Statute of Westminster Adoption Act 1942 62, 63, 226, 536

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s 2(2) s 4

63 63

Stronger Futures in the Northern Territory Act 2012

457

Stronger Futures in the Northern Territory (Consequential and Transitional Provisions) Act 2012

457

Suppression of the Financing of Terrorism Act 2002

454

Tax Bonus for Working Australians Act (No 2) 2009

281, 282

Telecommunications (Interception) Act 1979 s 20

384, 385 383

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Telecommunications (Interception and Access) Amendment (Data Retention) Act 2015

458

Telecommunications (Interception and Access) Amendment (Public Interest Advocates and Other Matters) Regulation 2015

459

Telecommunications Interception Legislation Amendment Act 2002

454

Electoral Act 1992 pt 16 div 4 s 217(c)

202 205

Freedom of Information Act 2016

325

Human Rights Act 2004

155, 320, 468, 469

Human Rights Commission Act 2005

320

Legislation Act 2001 s 65 s 120 s 139

269 411 414

Ombudsman Act 1989

313

Public Interest Disclosure Act 2012

330

Public Sector Management Act 1994

316

Royal Commissions Act 1991

317

Aboriginal Land Rights Act 1983 Anti-Discrimination Act 1977

83 103, 320

Civil and Administrative Tribunal Act 2013 130

Tobacco Plain Packaging Act 2011

482

Workplace Relations Amendment (Work Choices) Act 2005

137, 142 139

AUSTRALIAN CAPITAL TERRITORY Aboriginal and Torres Strait Islander Elected Body Act 2008

109

ACT Civil and Administrative Tribunal Act 2008

309

Administrative Decisions (Judicial Review) Act 1989

301

Auditor-General Act 1996 pt 2

103, 320

NEW SOUTH WALES

Territories Self-Government Legislation Amendment (Disallowance and Amendment of Laws) Act 2011

World Heritage Properties Conservation Act 1983

Discrimination Act 1991

299

Community Protection Act 1994 s 3

309 388, 392, 401 389

Constitution Act 1855 s 37

53

Constitution Act 1902 Preamble s 5B s 7 s 7A s 7B s 13 s 13A s 13B(3)(a)(i) s 24(1)

227, 389, 424 108 223 222 222 222 173, 177 177 295 171

Crimes (Criminal Organisations Control) Act 2009 s 13(2)

397 398

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Crimes Act 1900 s 93X

199

Criminal Assets Recovery Act 1990

396

Election Funding, Expenditure and Disclosures Act 1981 195, 196, 204 s 86 205 s 95G(6) 195, 196 s 96D 195, 196 Government Information (Public Access) Act 2009 Government Sector Employment Act 2013 Imperial Acts Application Act 1969

325 316

198

Independent Commission Against Corruption Act 1988 321, 363 s 8(2) 422, 423 s 31 321

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Industrial Relations (Commonwealth Powers) Act 2009

202

Public Finance and Audit Act 1983 pt 3

299

Public Interest Disclosures Act 1994

330

Royal Commissions Act 1923

317

Special Commissions of Inquiry Act 1983

317

Surveillance Devices Act 2007

361

NORTHERN TERRITORY

44

Inclosed Lands, Crimes and Law Enforcement Legislation Amendment (Interference) Act 2016 198 Inclosed Lands Protection Act 1901

Parliamentary Electorates and Elections Act 1912 pt 6 div 2

142

Aboriginal Ordinance 1918 Anti-Discrimination Act 1996

104 103, 320

Audit Act 1995 pt 2

299

Information Act 2002

325

Interpretation Act 1978 s 59 s 62A s 63(9)

411 414 269

Northern Territory Civil and Administrative Tribunal Act 2014

309

Interpretation Act 1987 s 31 s 33 s 34A s 41

411 414 64 269

Northern Territory Electoral Act 1995 pt 12 div 2

202

Ombudsman Act 2009

313

Law Enforcement Conduct Commission Act 2016

322

Police Administration Act 1979 pt IV

322

Legal Profession Act 2004

150

Public Interest Disclosure Act 2008

330

Legislation Review Act 1987 s 8A

241

Public Sector Employment and Management Act 1993

316

Mining Act 1992 sch 3 cl 35(1)

363

QUEENSLAND

Moreton Bay Judge Act 1855

54

Aboriginal Cultural Heritage Act 2003

97

National Parks and Wildlife Act 1974

97

Aboriginal Land Act 1991

83

Occupational Health and Safety Act 1983 s 15 s 16

402 402

Acts Interpretation Act 1954 s 9 s 9A s 14A

411 64 414

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Anti-Discrimination Act 1991

103, 320

330

Auditor General Act 2009 pt 2

299

Public Sector Ethics Act 1994

316

Commissions of Inquiry Act 1950

317

Queensland Civil and Administrative Tribunal Act 2009

309

Constitution Act 1867 s 53 s 78

424 222 225

Right to Information Act 2009

325

Statutory Instruments Act 1992 s 50

269

Constitution Act Amendment Act 1890 s 2

171

Constitution Amendment Act 1921

171

Constitution of Queensland 2001 s 21 s 23 s 51 s 64 s 65

108 173 295 260 173, 177 177

Corrective Services Act 2006

194

Crime and Corruption Act 2001

321

Criminal Law Amendment (Public Interest Declarations) Amendment Act 2013

400

Criminal Organisation Act 2009 s 80

400 399

Dangerous Prisoners (Sexual Offences) Act 2003 390, 392, 446 s 5(6) 391

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Public Interest Disclosure Act 2010

Electoral Act 1992 pt 8 div 3 s 45 ss 253-66

202 185, 186 205

Fair Work (Commonwealth Powers) Act 2009

142

Imperial Acts Application Act 1984

44

Judicial Review Act 1991

301

Legal Profession Act 2007

150

Ombudsman Act 2001

313

Parliament of Queensland Act 2001 s 80

241

Supreme Court Constitution Amendment Act 1861

54

Vicious Lawless Association Disestablishment Act 2013

355

SOUTH AUSTRALIA Aboriginal Heritage Act 1988

97

Acts Interpretation Act 1915 s 20 s 22 s 22A s 22B

273, 419 414 393, 411 64

Anangu Pitjantjatjara Yankunytjatjara Land Rights Act 1981 Constitution (Recognition of Aboriginal Peoples) Amendment Act 2013 s 3 s 3(3)

83

109 109

Constitution Act 1856 s 32

53

Constitution Act 1934 s 2 s 2(2) s 8 s 9 s 10A s 28(1) s 43A ss 43A-45 s 45 s 47 s 64A s 66(1) s 88

424 108 108 222 218 222 171 173 177 173 173 225 295 222

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Constitution Amendment Act 1934 s 3

222

Constitution and Electoral Acts Amendment Act 1973

177

Electoral Act 1985 s 103

202

Equal Opportunity Act 1984

Supreme Court Act 1837

103, 320

Fair Work (Commonwealth Powers) Act 2009

142

Freedom of Information Act 1991

325

Independent Commissioner Against Corruption Act 2012

321, 322

Legal Practitioners Act 1981

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Liquor Licensing Act 1997 s 4 s 28A s 28A(5)

Subordinate Legislation Act 1978 s 10(5a)

150 393 394 393, 394 394, 395 83

Northern Territory Surrender Act 1908

63

Ombudsman Act 1972 s 6

313 313

Ordinance No 2 1843 s 48

43

Police Act 1998

322

Police Complaints and Discipline Act 2016

322

Public Finance and Audit Act 1987 pt 3

299

Public Sector Management Act 1995

316

Royal Commissions Act 1917

317

Serious and Organised Crime (Control) Act 2008 s 10(1) s 14 s 14(1)

397 396 396 396

South Australian Civil and Administrative Tribunal Act 2013

309

54

Terrorism (Preventative Detention) Act 2005 s 12(6)(b)

437

Whistleblowers Protection Act 1993

330

TASMANIA Aboriginal Lands Act 1995

83

Aboriginal Relics Act 1975

97

Acts Interpretation Act 1931 s 3 s 8A s 46C s 47(4) Anti-Discrimination Act 1998

Maralinga Tjarutja Land Rights Act 1984

269

411 414 64 269 103, 320

Audit Act 2008 pt 2

299

Commissions of Inquiry Act 1995

317

Constitution Act 1856

52

Constitution Act 1934 Preamble s 8B(1) s 19(1) ss 30-34 s 31(1) s 41A

424 108 295 171 177 173 222

Criminal Code 1924

355

Electoral Act 1985 pt X

202

Industrial Relations (Commonwealth Powers) Act 2009

142

Integrity Commission Act 2009

321

Judicial Review Act 2000

301

Legal Profession Act 2007

150

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Ombudsman Act 1978

313

Police Service Act 2003 pt III

322

Public Interest Disclosures Act 2002

330

Reproductive Health (Access to Terminations) Act 2013

198

Right to Information Act 2009

325

State Service Act 2000

316

Stolen Generations of Aboriginal Children Act 2006

105

Workplaces (Protection from Protestors) Act 2014

197

VICTORIA Aboriginal Heritage Act 2006

97

Aboriginal Lands Act 1971

83

Abortion Law Reform Act 2008

198

Administrative Law Act 1978

301

Audit Act 1994 pt 2

299

Charter of Human Rights and Responsibilities Act 2006

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s 7(2) s 19(2) s 32(1)

155, 320, 468, 471 469 109 420

Constitution Act 1855 s 18 s 37 s 51

53 53 53

Constitution Act 1975 pt IIA s 1A ss 8-61A s 18 s 19 s 19A s 38(2) s 44 s 45

424 225 108 177 222, 225 218 218 171 173 202

s 47 s 51 s 94E

173 295 313

Constitution Act Amendment Act 1958 pt 5 div 22(2) Equal Opportunity Act 2010

202 103, 320

Fair Work (Commonwealth Powers) Act 2009

142

Freedom of Information Act 1982

325

Imperial Acts Application Act 1980

44

Independent Broad-based Anticorruption Commission Act 2011

321

Infertility Treatment Act 1995

354

Interpretation of Legislation Act 1984 s 22 s 35 s 58

411 414 64

Legal Profession Act 2004

150

Ombudsman Act 1973

313

Parliamentary Committees Act 2003 s 17

241

Payment of Members Act 1870

170

Protected Disclosures Act 2012

330

Public Administration Act 2004

316

Racial and Religious Tolerance Act 2001

320

Subordinate Legislation Act 1994 s 23

269

Supreme Court (Administration) Act 1852

54

Teaching Service Act 1981

174

Victorian Civil and Administrative Tribunal Act 1998

309

WESTERN AUSTRALIA Aboriginal Heritage Act 1972

97, 272

Acts Interpretation Act 1984 s 73

43

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Auditor-General Act 2006 pt 2

299

Constitution Act 1889 Preamble s 73

52, 424 108 222

Constitution Act 1899 ss 31-39 s 34(1) s 34(2)

177 173 173

Constitution Acts Amendment Act 1899 s 21(1)

171

Corruption and Crime Commission Act 2003

321

Electoral Act 1907 pt IV s 16G s 157

54

Swan River Act 1829

43

Western Australian Constitution Act 1889 s 70

186 74

CANADA Charter of Rights and Freedoms 1982

440

Constitution

129

ENGLAND 186 205 185, 186 202

Act of Settlement 1701 12 & 13 Wm 3, s 3 Bill of Rights 1689 art 4

46 46 46, 271, 439 46

224

Constitution

120, 220

Electoral Distribution Act 1947 s 13

224

Electoral Distribution Repeal Act 2001

224

Magna Carta art 12 art 14 art 39

46, 271, 438 45 45 45

Electoral Amendment Act 2001

Equal Opportunity Act 1984

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Supreme Court Ordinance 1861

103, 320

Freedom of Information Act 1992

325

Interpretation Act 1984 s 7 s 18 s 42 s 76A

411 414 269 64

Land (Traditional Usage) Act 1993

96

Legal Profession Act 2008

150

Parliamentary Commissioner Act 1971

313

Parliamentary Privileges Act 1891

218

Public Interest Disclosure Act 2003

330

Public Sector Management Act 1994

316

Royal Commissions Act 1968

317

State Administrative Tribunal Act 2004

309

State Administrative Tribunal (Conferral of Jurisdiction) Amendment and Repeal Act 2004

309

FRANCE Declaration of the Rights of Man and the Citizen 1789 La Constitution du 4 Octobre 1958 Preamble

438, 439

32

GERMANY Grundgesetz für die Bundesrepublik Deutschland art 79(3)

221

SOUTH AFRICA Constitution of the Republic of South Africa Act 1996 s 9 s 9(3) s 39(1)

292 32 32 498

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UNITED KINGDOM Act of Settlement 1701 s 72 Australia Act 1986 s 1 s 2(1) s6 s 7(2) s 11

337 344 64 64 226, 227 222, 223, 224, 225 260 339

Australian Constitutions Act (No 1)  1842 Australian Constitutions Act (No 2)  1850 13 & 14 Vict, c 59,s 32

51, 56 51

Australian Courts Act 1828 s 24

50 43, 44

Balfour Declaration

62

Bill of Rights 1689

217

Colonial Boundaries Act 1895

503

Colonial Laws Validity Act 1865 s 2 s 3 s5 Commonwealth of Australia Constitution Act 1900 cl 9 Communications Act 2003 c 21, s 321 Copyright © 2018. OUPANZ. All rights reserved.

50, 51

55 55 55 55, 56, 222 60 60, 127 203 203

Constitution

48

Constitution Act 1855

52

Constitution Act 1856

52

Constitution Act 1867

52

Federal Council of Australasia Act 1885 57, 502 Human Rights Act 1998

441, 456

New South Wales Act 1823 4 Geo 4, c 96, s 24 4 Geo 4, c 96, s 29

54 50 50

New South Wales Court Act 1787

54

Parliament Act 1911 1 & 2 Geo 5, c 13

231

Parliament Act 1949 12, 13 & 14 Geo 6, c 103

231

Royal Mines Act 1688 s 3

284 284

Statute of Westminster 1931 22 Geo 6, c 4, s 9(1) s 3

62, 63, 64 63 226

Terrorism Prevention and Investigation Measures Act 2011 c 23 Transportation Act 1784

456 39

UNITED STATES Bill of Rights

438, 439, 441, 467, 470

58, 61, 121, 128, 186, 338, 347, Constitution 496, 497 First Amendment 186

INTERNATIONAL Agreement between the Government of Australia and the Government of Hong Kong for the Promotion and Protection of Investments 1993

483

Agreement on Technical Barriers to Trade 1995

483

Agreement on Trade-Related Aspects of Intellectual Property Rights 1995

483

Certain Maritime Arrangements in the Timor Sea 2006

485

Charter of the United Nations 1945 art 1 art 1(3) art 2(1) art 2(4) art 13 art 23 art 25 art 41 art 55 art 56

86 477 441 476 476 478 479 479 479 441 440

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art 94 art 103 Ch IV Ch VI Ch VII

481 484 478 479 479, 480

482

International Convention on the Elimination of All Forms of Racial Discrimination 1965 442, 489

Convention Against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment 1987 437, 442

International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families 2003 442

Convention for the Protection of World Cultural and Natural Heritage 1975

International Covenant on Civil and Political Rights 1976 208, 446, 465, 470, 494 art 1 442 art 4(1) 442 art 7 99 art 9 437 art 9(1) 445, 447 art 9(4) 445 art 14 373, 447, 494 art 15 373 art 21 442

139

Convention on the Elimination of All Forms of Discrimination Against Women 1979 442 Convention on the Prevention and Punishment of the Crime of Genocide

97

Convention on the Prohibition of the Development, Production, Stockpiling and Use of Chemical Weapons and on their Destruction 1997 480 Convention on the Rights of Persons with Disabilities 2006 Convention on the Rights of the Child 1989 art 37(c)

442

379, 485, 493 484, 485

Convention Relating to the Status of Refugees 1951

International Covenant on Economic, Social and Cultural Rights 1976 art 1

442

Refugee Convention 1951

484

Declaration on the Rights of Indigenous Peoples 2007 75, 86, 90, 112, 445

Statute of the International Court of Justice 1945 art 3 art 4 art 13 art 31 art 38 art 38(1)(c)

Declaration on the Rights of Mentally Retarded Persons 1971

Universal Declaration of Human Rights 1948 28, 86, 441

68, 484

Declaration of the Rights of the Child 1959 465 Declaration on the Rights of Disabled Persons 1975

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International Convention for the Regulation of Whaling 1948

465

465

480, 481 480 481 480 483 485

European Convention on Human Rights 1949 441

Universal Declaration on Human Rights 1948 478, 483, 486

First Optional Protocol to the ICCPR 1996 445

Vienna Convention on the Law of Treaties 1969 art 1(b) 483 art 31 484 art 49 485 art 56 484 arts 19-23 484 arts 39-40 484

General Agreement on Tariffs and Trade 1994

483

ILO Convention 111 Concerning Discrimination in Respect of Employment and Occupation 1960 465 International Convention for the Protection of All Persons from Enforced Disappearance 2010 442

1

PART I Introducing Australian Public Law CHAPTER 1 The Idea of Public Law 3 CHAPTER 2 The Development of Public Law in Australia 37 CHAPTER 3 Aboriginal and Torres Strait Islander Peoples and Australian Public Law 72

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CHAPTER 4 A Federal Commonwealth 119

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3

THE IDEA OF PUBLIC LAW

1

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CHAPTER OVERVIEW Introduction

4

The predominance of states

6

Sovereignty and the origin of law’s authority

9

The nature of law

11

Empowerment and constraint

13

The social contract

13

Constitutionalism

16

Constitutional change

18

The scope of public law

18

Public law and private law

23

The rule of law

25

The values underpinning public law

30

Freedom

31

Equality

31

Community

32

Conclusion

34

4

PART I: Introducing Australian Public Law

OXFORD UNIVERSITY PRESS

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Introduction We are alone in the world, making our own way; and we are part of a community, with a collective understanding of the conditions for a good and meaningful life. Our lives are a complex combination of the individual and the collective. In the 4th century BCE, the Greek philosopher Aristotle (384–22 BCE) described the organisation of humans by reference to a progression from the individual to the collective.1 The collective nature of our existence operates at a number of levels—at the level of the family or household, the neighbourhood, and the social or political organisation; at the level of the nation-state; and, increasingly, at the global level, both regionally and across all nation-states. At each of these levels there are rules for how we interact with each other and with those who hold power. The larger and more complex the organisational unit, the more elaborate and complicated the rules for functioning within it. For Aristotle, the level of the state was the highest form of association for human beings.2 It differed in nature, not just in scale, from the other levels of organisation in the sense that the state was concerned not only with living in a practical sense, but in pursuing a form of living that reflected on and pursued the ideals of a good life.3 Modern states, in general terms, are bodies of governing institutions that have legal authority over a defined territory and population.4 States are legal constructions and, for this reason, the relationship between states and individuals cannot be a relationship of equals. In the modern world, the public law of a state describes the system of institutions and rules that govern the relationship between the state and the people residing in its territory. One of the most important dimensions of the study of public law is the study of the laws of a state insofar as they regulate the relationship between the state and its people. These rules will have different origins: many will be contained in the constitutional text itself, and others will be found in the common law (judge-made law), in statutes and delegated legislation, and sometimes the rules will be unwritten, existing in the form of practice and convention only. The laws of a state have a direct and powerful influence over individuals. They regulate individual conduct such as freedom of movement and speech, they determine fundamental rights such as the right to own property, they require the fulfilment of

1 2 3 4

Aristotle, The Politics (T A Sinclair trans, Penguin Books, 1992) Book 1. Note that Aristotle referred to the Greek city-state of Athens as a polis rather than a state. Aristotle, above n 1, Book 1. This definition is derived from the international law of states. See, eg, the Convention on the Rights and Duties of States, opened for signature 26 December 1933, 165 LNTS 19 (entered into force 26 December 1934); Charter of the United Nations, .

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CHAPTER 1: The Idea of Public Law

certain responsibilities such as participation in military service in defence of the state, and they punish individuals who offend the laws of the state. But the study of public law is incomplete through this narrow, formalistic approach of considering only the public laws of a state. It is important to also consider the processes by which those laws are created, interpreted, applied and changed. One school of legal thought, known as legal realism, tells us that we must look beyond the ‘words or rules’ of the law. One of the leading early legal realists in the US, Karl Llewellyn, explained that legal institutions needed to be understood by reference to how these rules are lived and performed.5 Drawing on these ideas in the public law context, New Zealand judge Matthew Palmer coined the term ‘constitutional realism’ to emphasise the need to understand the ‘complete’ constitution, beyond just the words and rules, but more generally ‘what factors affect the exercise of power and how’.6 Harvard constitutional law professor Mark Tushnet believes it is important to study ‘constitutional orders’ or ‘regimes’ rather than simply constitutions in isolation. Constitutional orders or regimes go beyond words and text, and require study of the ‘reasonably stable set of institutions through which a nation’s fundamental decisions are made over a sustained period, and the principles that guide those decisions’.7 A constitutional order, explains Tushnet, will be in constant evolution,8 shifting its community’s composition, identity and expectations; responding to global events and changes, whether they relate to the economy, security or the environment; and meeting challenges posed by technological advances that affect the way we live and are governed. States govern and exercise power over individuals through their institutions, so an important dimension of public law is to understand the origin and function of these institutions, and the practice of the actors within them. States relate to individuals indirectly through their institutions. The membership and role of these institutions vary across states depending on the system of political organisation that they employ. As we explain in this chapter, in Australia that system is liberal democracy with its origins in the US and the UK. Australia has adopted its main institutions of state and its principles of public law predominantly from these two countries, but has fashioned these institutions and principles into a uniquely Australian public law.

5

6 7 8

Karl Llewellyn, ‘The Constitution as Institution’ (1934) 34 Columbia Law Review 1, 17; See also Karl N Llewellyn, The Bramble Bush: The Classic Lectures on the Law and Law School (Oxford University Press, 1930) 4, 7, 16, 79. Matthew SR Palmer, ‘What is New Zealand’s Constitution and Who Interprets it? Constitutional Realism and the Importance of Public Office-Holders’ (2006) 17 Public Law Review 133, 134. Mark Tushnet, A New Constitutional Order (Princeton University Press, 2003) 1. Ibid 2. 

5

6

PART I: Introducing Australian Public Law

OXFORD UNIVERSITY PRESS

During the 1950s and 1960s, a school of legal thought that focused public  law inquiry exclusively on institutions developed in the US.9 Legal process theory studied and analysed legal institutions—courts, legislatures, the executive, and administrative agencies—to articulate their particular institutional attributes with the ultimate objective of determining which institution was best suited to undertake particular government functions and make particular governmental decisions. Legal process theorists were particularly concerned about institutional coherence between  the courts (composed of independent judges trained in legal reasoning) and the legislatures (composed of democratically elected representatives of the people). Legal process theorists were not concerned with articulating the values underpinning the legal system. If institutional settlement could be achieved, the values of the system would emerge from the institutions themselves. While legal process theory purported to be value-neutral, critics argued that it was not possible to determine which institution was better suited for particular functions and decisions without resort to the values associated with those functions and decisions. This foundational criticism of legal process theory reveals that it is not enough to simply study the rules and institutions of a legal system. Public law requires study of the values and objectives which that system is empowered to achieve.

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The predominance of states The role of the state as the main political and legal unit, though postulated by Aristotle, did not represent a global reality until the 20th century. Since the time of Aristotle, numerous civilisations under a singular law and government have been established and dismantled around the world. In the 18th and 19th centuries, European colonial expansion brought the notion of the state, and of state law, to existing civilisations elsewhere. Lands were invaded and indigenous peoples conquered, or they entered into new power-sharing arrangements with colonisers, and new states were formed. By the 20th century, the nation-state was unrivalled as the level of political association at which communities organise themselves. All people in the world are now under the influence of the law of states as a result of their membership of a state, their residence in a state, or the control of state law over the territories in which they reside. To the extent that people are excluded from membership of a state (and are therefore ‘stateless’), this exclusion is itself a product of the laws of states. 9

The most famous legal process theorists were Henry M Hart and Albert M Sacks:  Henry M Hart and Albert M Sacks, The Legal Process: Basic Problems in the Making and Application of Law (Foundation Press, 1994) 148 (prepared for publication from the 1958 Tentative Edition by William N Eskridge Jr and Phillip P Frickey); see also John Hart Ely, Democracy and Distrust: A Theory of Judicial Review (Harvard University Press, 1980).

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Despite the predominance of nation-states, the legitimacy and efficacy of their public law is open to constant challenge from influences above and below. From above, the phenomenon of globalisation has to some extent broken down state boundaries and established global norms. In many parts of the world, states have joined together to form larger regional bodies, such as the European Union, with higher level rules for their organisation. In more recent times we have seen a backlash against the loss of political power and autonomy that accompanies the entry into these arrangements, most directly in the vote to exit the European Union. In the second half of the 20th century, the phenomenon of public international law emerged as a highly developed and universal system of law, which gives rise to the notion of a world community beyond the boundaries of the state. There are nonstate places where public international law is the only form of regulation, such as parts of the world’s oceans, outer space and Antarctica. Public international law also includes rules and norms that overlap with the laws of states and sometimes conflict with them. A key issue for the public law of states is the extent to which international laws are capable of influencing or even controlling state law. In Chapter  13, we explain the different facets of the relationship between Australian public law and international law. From below, the predominance of the state is challenged by local communities and their expectations from the state to govern and deliver services that align and promote their core values. This challenge often manifests in claims against the state in the form of individual rights. Segments of the community, defined by ethnicity, religion, territory or common history, might also differentiate themselves from other groups within the state in terms of their core values and allegiances. Sometimes these intra-state allegiances challenge the very existence of the state, as in the case of secessionist movements.10 On other occasions, without challenging the existence of the state, local communities demand particular forms of recognition under the law of the state or assert a freedom from its laws. In Australia, a key challenge to the public law of the state has come from Australia’s Aboriginal and Torres Strait Islander peoples claiming a freedom from state laws and asserting the right to selfdetermination under their systems of government and law. The relationship between Aboriginal and Torres Strait Islander peoples and public law is discussed in Chapter 3. A perennial public law question is whether there are places in society that are free of legal regulation. That is, are communities and the places in which they live governed only by law, or are they also governed by other obligations that have a greater hold upon them? In discussing the concept of legal pluralism, US anthropologist John

10

For example, the secessionist movement of the Quebecois in Canada, or Western Australians in the early 20th century in Australia.

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Griffiths argues that the concept of law needs to expand beyond its role in state legal systems to encompass other systems of obligations, such as those derived from a range of social spaces, including the home, the workplace and the place of worship. If law is so expanded, then the official law exists as just one of many influences on a person’s choice of conduct.11 In a very different analysis of the relationship between society and law, the US and Italian philosophers Michael Hardt and Antonio Negri propose that there are social goods that cannot be governed by law. Their paradigmatic example is the development of language in a community. Language evolves in a space outside public and private control, in what Hardt and Negri call the ‘common’: ‘if language were made either private or public … then [it] would lose its powers of expression, creativity, and communication’.12 In the common, the development of language is not planned. It occurs organically. Any legal regulation of language serves only to inhibit its evolution. In our view, social and political power necessarily influence how public law analysis should proceed. For example, to understand the character of executive power, one cannot limit oneself to an analysis of the constitutional expression of that power, but must also consider the other legal and political restrictions that operate on that power and understand the practical exercise of that power. In fact, Martin Loughlin, Professor of Public Law at the London School of Economics, goes so far as to suggest that effective public law analysis should explore the character of power first and only then derive conclusions about constitutions and public law from the nature and scope of that power, not the other way around.13 We also recognise that the scope of public law is not fixed, that different communities conceptualise their relationship to the state and nation differently, and that, even within a particular conception of the state, the boundaries of what is inside and what is outside the state’s public law is contestable. The question of the scope of public law is resolved in legal theory through the introduction of limiting concepts such as state sovereignty, the public and the private, and a conceptual distinction between law and morality, all of which are discussed in this chapter. Since the state remains the primary unit of political organisation, the concept of public law in this book focuses on the exercise of power within states. It analyses the development and exercise of rules and principles that determine the organisation of the Australian state, and that regulate the relationship between the institutions of the state and its individual members.

11 12 13

John Griffiths, ‘What is Legal Pluralism?’ (1986) 24 Journal of Legal Pluralism 1, 36–8. Michael Hardt and Antonio Negri, Commonwealth (Harvard University Press, 2011) ix. Martin Loughlin, The Idea of Public Law (Oxford University Press, 2004) 82–98.

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Sovereignty and the origin of law’s authority Sovereignty is the location of absolute power in the state. It is both a legal and a political concept, and can also find expression in other ways. As a legal concept, sovereignty is concerned with the authority of the institutions of the state to make laws. As a political concept, sovereignty concerns the capacity to generate and exercise political power. The concept of sovereignty is an important foundation of the claims of indigenous peoples and in this context can be conceived in other ways. For instance, the Uluru Statement from the Heart, issued by Aboriginal and Torres Strait Islander peoples after a national First Nations Constitutional Convention in 2017, explained sovereignty as a ‘spiritual notion’:

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the ancestral tie between the land, or ‘mother nature’, and the Aboriginal and Torres Strait Islander peoples who were born therefrom, remain attached thereto, and must one day return thither to be united with our ancestors. This link is the basis of the ownership of the soil, or better, of sovereignty. It has never been ceded or extinguished, and co-exists with the sovereignty of the Crown.14

Public law is concerned with both legal and political aspects of sovereignty. If the focus is purely on the legal conception, public law will be unable to determine the practical capacity of the institutions of government to enforce laws. For example, an elected government may not have the power to enforce laws if the government has been deposed in a coup. If the focus is only on the political conception, public law will not be able to differentiate between legitimate and illegitimate exercises of power under a particular constitutional system. For example, there needs to be a body (such as a court) to test the legitimacy of a new government purporting to exercise power in a state against criteria established in a constitutional document.15 A key public law question is how political sovereignty is secured in a state. The legitimacy of a state’s law depends on how the state was formed—through the agreement of the people to form it, through a voluntary handing over of power from one ruler to another, or through an original and unquestionable force. For the French philosopher Jacques Derrida (1930–2004), it is an original act of force—a political act—that institutes the law.16 Derrida claimed that violence is at the origin of all

14 15

First Nations Constitutional Convention, ‘Uluru Statement from the Heart’ [2017] Indigenous Law Resources 1 (emphasis in original). For example, in 2001 the High Court and the Court of Appeal of Fiji were called upon to declare that the Interim Civilian Government of Commodore Josia Bainimarama had not replaced the elected government of Mahendra Chaudry. See Prasad v Republic of Fiji [2001] 1 LRC 665; Republic of Fiji v Prasad [2001] 2 LRC 743.

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law, and that therefore the legitimacy of the law is always in question and it requires constant reassertion and justification to maintain its legitimacy. Although there may be a violence behind the foundation of all legal systems, the form, extent and direction of this violence affect the ethos and the legitimacy of each legal system’s public law in a unique way. And so in our discussion of Australian public law we pay particular attention in Chapters 2 and 3 to how the Australian state was formed and the human consequences of its foundation. There has been an evolution in the grounds for legitimacy of government in states. Before the 17th century, most monarchs in Europe exercised absolute power. Monarchs asserted that their appointment was directly from God, meaning that they were free of all restraints, including law. This became known as the doctrine of the divine right of Kings, which allowed monarchs to exercise the royal prerogative— to preside over cases of consequence and to suspend the law when it pleased them. The obvious problem with such unlimited power was the potential for its arbitrary exercise. Generally, monarchs recognised that it was in their best interest to be seen to conform to the law, but this self-regulation did not always work. An important part of the evolution of government was the separation of church and state. Prior to the formation of modern states, religion provided the public law for many states. European states either aligned themselves with the Catholic Church in Rome or established themselves in opposition to it. Either way, the laws of God and the laws of the state existed together. Human law was derived from divine law through the correct application of reason. Kings expounded the human law, known as natural law, and subjects were bound to follow it. The church was highly influential in affairs of the state—it dictated what was in the common good and determined what were appropriate beliefs. With the emergence of popular sovereignty—that is, rule by the people—church and state became separated. Once the people or their representatives were the highest authority, it was their will that reflected the public good and determined the public law.17 The authority of government in most modern states is now premised, at least in theory, on an agreement of its people to institute a binding constitution that allocates power to governing institutions. But the agreement of the people remains forever contingent. Legal sovereignty only secures law-making power in governing institutions to the extent that political support for the constitution remains. The 16

17

Jacques Derrida, ‘The Force of Law: The Mystical Foundations of Authority’ in Jacques Derrida, Acts of Religion (Gil Anidjar (ed), Routledge, 2002) 230–42. The move from political force to legal authority is as true for the formation of new colonies, such as Australia, as it is for revolutions, such as in France and the US. So in Mabo v Queensland [No 2] (1992) 175 CLR 1, the High Court recognised the original violence of the assertion of British sovereignty in Australia, but held unanimously that the assertion of sovereignty was an ‘Act of State’, the legality of which could not be questioned. Democracy as a form of government, and its characteristics in Australia, are discussed in Chapter 5.

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German political theorist Carl Schmitt (1888–1985) argued that power cannot simply be traced to an origin. Instead, he put forward a thesis that the source of true power is revealed at the moment of its exercise in a time of crisis. In other words, the mark of sovereignty is precisely the power to make decisions outside (or create exceptions to) the regular law. As Schmitt put it, ‘sovereign is he who decides on the exception’.18 There is a tendency in public law to assert that all problems of power are resolvable within the law. This is evident in the focus of public law texts, such as this one, on the lawful limits on executive power. But as Schmitt recognised, the law cannot deal with exceptional power which, by definition, is exercised outside the law. Schmitt’s analysis of the ultimate source of power itself contains a paradox. Rulers exercising exceptional power may demonstrate their sovereignty, but the very exercise of sovereign power outside the law will soon undermine public support for their legitimacy, highlighting once again that legal and political sovereignty cannot be sensibly separated and must both be considered in the study of public law.

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The nature of law A related issue to that of the origin of law’s authority, albeit a conceptually distinct one, is: What makes the rules promulgated by a sovereign body in the nature of ‘law’? This question is the province of jurisprudence or legal philosophy. Two main jurisprudential theories offer competing explanations for the origin and nature of law’s authority. Natural law theories focus on the source and content of laws as the basis of their legitimacy. The Italian monk and philosopher Thomas Aquinas (c. 1225–74) traced all law back to an eternal law provided by God. This law was, according to Aquinas, discoverable by humans through the application of reason.19 Drawing on Aquinas, Oxford legal philosopher John Finnis argues that there are seven discernable basic goods that any legal system must uphold:  life, knowledge, play, aesthetic experience (or beauty), sociability (or friendship), practical reasonableness and religion.20 A  legal system that does not protect these basic goods is not a legal system in its fullest sense.21 The idea that there are limits to what can be law outside the authority of the government of a state is a direct challenge to positive legal authority. A key public law question is how these limits are drawn, and who determines them.

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19 20 21

Carl Schmitt, Political Theology: Four Chapters on the Concept of Sovereignty (George Schwabb trans, MIT Press, 1985) 5 [trans of: Politsche Theologie:Vier Kapitel zur Lehre von der Souveranital (first published 1922)]. Thomas Aquinas, The Summa Theologica of Saint Thomas Aquinas translated by Fathers of the English Dominican Province (Chicago Encyclopaedia Britannica, 1982). John Finnis, Natural Law and Natural Rights (Oxford University Press, 2nd ed, 2011) ch IV. For Finnis, law in its fullest sense is not only passed by a legitimate authority, but is also consistent with the basic goods: ibid 11.

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The other major theory on the origin and nature of law is legal positivism. Legal positivists sought a scientific explanation for law within its self-contained structures and processes. For the legal theorist John Austin (1790–1859), laws are nothing more than the commands of a sovereign, backed by the threat of punishment, which are habitually obeyed by most people in a society.22 According to Austin, the explanation for sovereign power and the institution of law is a matter of fact in need of no independent justification. With no one in a position to question its authority, and with some form of legal organisation being necessary for effective human existence, unquestionable power is a sufficient explanation for an effectively constituted public law. H L A Hart (1907–92) argued that Austin’s command theory of law did not adequately explain legal authority.23 For Hart, people obey the law for reasons other than the risk of punishment. Obligation is a distinctive attitude that people develop, and rules are used in a more positive sense as standards for the appraisal of behaviour. Furthermore, Hart argued that the command theory of law failed to explain several dimensions of law. It did not explain why the law of an old sovereign remains the law (even though the sovereign is no longer in a position to use force to command obedience), or how and when sovereignty could be transferred. The command theory also failed to explain how some laws were facultative only and not backed by force, such as laws of succession. Hart argued that such questions could only be resolved through a separate system of rules that established the criteria for the validity of laws, rules for determining the location of authority and when authority was transferred from one ruler to another, and rules for adjudication of disputes between parties. These ‘secondary’ rules, as Hart called them, gave primary rules of obligation coherence and legitimacy. Public law is largely focused on explaining and developing these secondary rules. Whereas Austin’s and Hart’s theses were derived from their observation of what they experienced as social reality,24 the Austrian legal philosopher Hans Kelsen (1881–1973) developed an abstract theory of positive law that described the logical structure of legal systems. Kelsen postulated that law is nothing more than a hierarchy of norms. Each normative proposition is derived from a higher normative proposition until a basic norm or Grundnorm is reached. This basic norm is simply posited and must be obeyed without question.25 Legal positivism tells us what makes a rule in the nature of law and what gives law its legal authority, but it does not tell us when individuals should obey the law. As natural 22 23 24 25

John Austin, The Province of Jurisprudence Determined (Cambridge University Press, first published 1832, 1995 ed). See generally H L A Hart, The Concept of Law (Oxford University Press, 2nd ed, 1994). This approach to developing Austin’s and Hart’s theories aligns them with the branch of philosophy known as empiricism or logical positivism. Hans Kelsen, Pure Theory of Law (Max Knight trans, University of California Press, 1967), 198–204 [trans of: Reine Rechtslehre (first published 1934)].

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law theorists recognise, law may lack legitimacy despite being passed in the regular way by an authoritative law maker. There may be a point at which the content of a rule is so contrary to principles of liberty, equality or justice, or some other principles considered fundamental, that it is not law and should not be obeyed. At several points throughout the book we ask: At what point does a rule fail the test of legitimacy, and who determines this to be the case? The ‘rule of law’, discussed below, offers one benchmark of legitimacy. In Chapter 6 we discuss whether there are inherent limits to the power of Parliament to make laws, in Chapters 9 and 10 we discuss the role of the courts as the final arbiters of legality, and in Chapter 12 we discuss the protection of individual human rights that are asserted by people against the legitimate authority of the state. In each of these references to the fundamental question of legality, we find decision makers striving to articulate the limits of legitimate authority within an identifiable system of principles and values. From a broader perspective, although legal positivism and natural law theories are useful for explaining the idea of law, they are inadequate as an explanation of public law. Public law can only be understood in relation to both the legal and political manifestations of power. The nature of public law is inextricably connected to its social and political origins. Although legal positivists could isolate law from its political context to develop their theories on the nature of law, public law considers real government action in real political contexts, and these contexts determine both the nature and the function of public law.

Empowerment and constraint

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One way to conceptualise the function of public law is as a mechanism both to empower the institutions of government to make and enforce laws, and to place constraints on the extent of this power to prevent its excessive use and thus avoid tyranny. The balance between empowerment and constraint is evident in the various conceptual frameworks underpinning public law.

The social contract The origins of Anglo-American and continental public law are within the same conceptual framework:  social contract theory, an idea that is found in the work of Thomas Hobbes (1588–1679), John Locke (1632–1704), the French political philosopher Jean-Jacques Rousseau (1712–78),26 and more recently in the work of John Rawls (1921–2002).27

26 27

Jean-Jacques Rousseau, The Social Contract and Discourses (G D H Cole trans, Dent, 1923) [trans of: Du Contrat Social ou Principes du Droit Politique (first published 1762)]. John Rawls, A Theory of Justice (Harvard University Press, 1971).

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The social contract is an idealised explanation of the state’s authority to regulate the lives of individuals in its territory. It contends that life without law (that is, in  the state of nature) is both insecure and prone to disputes. To keep the peace, an authoritative law and unbiased law enforcers (judges) are required. Autonomous individuals choose to enter a mutually binding covenant to form a government that has the power to promulgate and enforce a body of laws in the interest of preserving order. People limit their natural freedom so as to live under a system of law. What makes this arrangement legitimate is the consent of these autonomous individuals. Effectively, an unspoken bargain is made between individuals, meaning that they sacrifice a measure of their personal freedom in order to set up a government with limited but necessary power over them. In the 17th and 18th centuries, Hobbes, Locke and Thomas Paine (1737–1809) argued that the role of law was to provide protection from the potential abuse of arbitrary and unlimited power. As Locke stated: Freedom of men under government is to have a standing rule to live by, more common to everyone of that society, and made by the legislative power erected in it … and not to be subject to the inconstant, uncertain, unknown and arbitrary will of another man.28

Hobbes also described the role of the state as being to protect individual freedom.29 Hobbes posited freedom as the ultimate human value. However, he argued that humans could not attain it on their own, as their natural state was to compete with others, and through this competition individuals would destroy their freedom and the freedom of others:

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amongst masterlesse men, there is perpetuall war, of every man against his neighbour; no inheritance to transmit to the Son, nor to expect from the Father; no propriety of Goods, or Lands; no security.30

To guarantee their freedom, he continued, humans must voluntarily give up some of their freedom to the state: But as men, for the atteyning of peace, and conservation of themselves thereby, have made an Artificial Man, which we call a Common-wealth; so also have they made Artifciall Chains, called Civill Laws.31

Hobbes was acutely aware that the submission of power to a state comes at a cost to the individual freedom that he so cherished, thus his description of laws as 28 29 30 31

John Locke, Two Treatises of Government (Cambridge University Press, first published 1689, 1988 ed) ch IV, s 22. Note that Hobbes referred to the state as the ‘Commonwealth’. Thomas Hobbes, Leviathan, (A R Waller (ed), Cambridge University Press, first published 1651, 1935 ed) pt ii, ch 21, 151. Ibid 149.

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‘chains’. For Hobbes, humans should only confer the power required to achieve four purposes: to defend against external enemies; to maintain peace within the state; to facilitate wealth acquisition; and to promote liberty.32 If the state took more than was required to achieve these purposes, this was an abuse of its authority. Paine, who crossed the Atlantic and influenced the US Revolution, stated that, ‘in America, THE LAW IS KING’.33 Paine proposed that the role of a constitution is to constrain the government, and that when the government acts outside constitutional limitations it is exercising ‘power without a right’.34 The basic idea is that the government is bound by law; that power is neither unlimited nor arbitrary. In this, Paine drew on English traditions, in particular the idea that the King was bound by the law and that there was a law higher than that of the King.35 Generally, constitutional limits arise through a separation of the powers of the different arms of government, but they can also take the form of individual or group rights, or the division of power into different levels of government in a federal system. In Australia, limits on power are entrenched by the text and structure of the Australian Constitution,36 and adjudicated by the judiciary. Australian courts have assumed the role of adjudication under our Constitution. In his discussion of the social contract, Rousseau emphasised the positive benefits of entering such a contract. For Rousseau, the benefits of a common bond with others far outweighed the loss of personal freedom that this union required:

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The passage from the state of nature to the civil state produces a very remarkable change in man. … Although, in this state, he deprives himself of some advantages which he got from nature, he gains in return others so great, his faculties are so stimulated and developed, his ideas so extended, his feelings so ennobled, and his whole soul so uplifted, that, did not the abuses of this new condition often degrade him below that which he left, he would be bound to bless continually the happy moment which took him from it for ever, and, instead of a stupid and unimaginative animal, made him an intelligent being and a man.37

The giving of consent, then, strengthens the individual’s liberty by providing a higher purpose for living.

32 33 34 35

36 37

Ibid ch 21. Thomas Paine, Common Sense (Project Gutenberg, first published 1776, 2009 ed). Thomas Paine, Rights of Man: Being an Answer to Mr Burke’s Attack on the French Revolution (Penguin Books, first published 1791, 1984 ed) pt II, ch IV. For example, under the reign of Henry III, the jurist Henry de Bracton famously asserted that England is ‘not under the King but under God and the law’: Henry de Bracton, On the Laws and Customs of England (Samuel Thorne trans, Harvard University Press, 1968) vol II, 33 [trans of: De Legibus et Consuetudinibus Angliae]. Hereafter, the ‘Constitution’. Rousseau, above n 26, Book I, ch 8. 

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Constitutionalism The idea of constitutionalism provides a mechanism for limiting the power of the state. Constitutions allocate and limit the exercise of power, and the legitimacy of the state is conditional upon the limits provided by the constitution. In UK public law the focus is on the political levers for limiting power, ‘political constitutionalism’. As the name implies, ‘political constitutionalism’ suggests that the constraints on government must predominantly be found in the political system. The most fundamental safeguards to maintain the state lie in empowering citizens in their choice of representatives. If the system of choosing the government is truly democratic and representative, then a government so chosen is empowered to pursue the objectives for which it was elected, and there is little scope for courts to question the exercise of power in the fulfilment of the government’s mandate from the people. The founders of the American State were also sceptical of government and government power. Indeed, their independence was defined in opposition to a British Government that they felt had exploited them. Although government was necessary, it needed to be small and tightly controlled. The big ideas in US constitutional law were the innovative use of principles to constrain government, in particular the principle of federalism, in which sovereignty is divided between different levels of government; the principle of the separation of powers, in which the main institutions of each level of government have clearly defined and limited powers; and the idea of rights that protected individuals against certain exercises of government power. Legal limits such as these form the basis of the doctrine of ‘legal constitutionalism’. Legal constitutionalism is a political doctrine which holds that the power of government can—and should—be delimited by the law and not just through political levers such as elections. In a system governed through legal constitutionalism, the courts have the final say on whether government actions and decisions are authorised under the constitution and the laws. This responsibility will often place the judiciary in opposition to the political branches of government, and can raise questions about the legitimacy of judicial review. These concerns are most acute in legal systems in which there is judicial review of contestations between the pursuit of government objectives and the enjoyment of individual rights. Under a system of political constitutionalism, such contestations are resolved entirely at the political level, so that the government will be politically responsible for how it balances individual rights claims against government objectives. In contrast, legal constitutionalism directs at least some of the responsibility for the resolution of these disputes to the law and the courts. This can place the non-elected judiciary in conflict with the objectives of the democratic branches of government. While the constitutional theories of political and legal constitutionalism emphasise the role of formal, institutionalised political and legal constraints on power, in any

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community there will be a myriad of non-institutionalised ways by which power is constrained and brought to account. Most well known among these non-institutional actors are the media, but academics and non-government organisations (NGOs) also perform important roles in strengthening more formal accountability mechanisms. We discuss these in Part II. Australia has developed its own unique combination of political and legal constitutionalism. Stephen Gageler, justice of the High Court of Australia and former Solicitor-General of the Commonwealth, explains that in Australia, where representative and responsible government act as the fundamental political accountability checks on government, the role of legal limits should be restricted. He argues that under the Australian system, ‘political accountability provides the ordinary constitutional means of constraining governmental power’.38 Therefore, where political mechanisms of accountability are strong, the judiciary should be deferential in its review of the legality of government decisions and actions. However, where political mechanisms of accountability are weak, the judiciary must be ‘vigilant’ in enforcing legal protections against the government. Applying his theory, for example, Gageler argued that the judiciary should be especially vigilant in enforcing the constitutionally protected right to vote and freedom of political communication. The unique Australian combination of political and legal constraints manifests itself particularly sharply in relation to the protection of rights. Historically, the protection of rights in Australia has been a political matter; the extent of rights protection is resolved by the parliaments as there are few rights that have constitutional protection. However, there are a few rights-like protections expressly protected in the Constitution (such as the freedom of interstate trade and commerce, or the right to be free from discrimination based on state residency) and, since the 1990s, the High Court has implied a series of democratic-based limitations on power that protect the right to vote and the freedom of political communication. These limits must be judicially enforced against the executive and the legislature. Nonetheless, Australia’s long tradition of political resolution of rights disputes has had a significant impact on our public law. It has proven difficult to shift, with many failed campaigns to extend the constitutional protection of rights or to introduce a comprehensive legislative bill of rights. Further, it has meant that the Australian judiciary has been reluctant to embrace rights-based tools of adjudication, such as the proportionality analysis, that would require it to review and scrutinise the balancing of competing values that has been undertaken by the political branches. It is only in the last decade that Australia’s High Court has

38

Stephen Gageler, ‘Beyond the Text: A Vision of the Structure and Function of the Constitution’ (2009) 32 Australian Bar Review 138, 152.

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started to consistently adopt the test and language of proportionality when it enforces limitations against the government.

Constitutional change An important aspect of any system of public law is how the fundamental rules of the legal system can be amended. Two principles of sovereignty need to be reconciled in relation to changes in the law. The first principle is that one sovereign cannot bind a future sovereign (and thereby diminish its sovereignty). This principle is at play in basic rules of the operation of legislation. In cases of conflict between laws, statute law overrides the common law, and a more recent statute law overrides an earlier statute. These rules are important for ensuring that the most recent Parliament has full legislative capacity and is able to carry out the will of the people. However, in a constitutional system of government, there need to be special rules for changing the fundamental constitutional rules that establish the powers of the institutions of government and the operation of the system of government. These special rules guard against a sovereign Parliament entrenching its own power by eliminating the constitutional constraints on its power. For example, if a government, through its majority in the Parliament, were able to amend the Constitution to remove the requirement for periodic elections, it would be able to remove all democratic scrutiny of its actions for the future. The government of the day would be able to use its parliamentary supremacy to transform our constitutional democracy into a dictatorship. In Chapter 2, we discuss special manner and form provisions in colonial and state constitutions, and in Chapter 6 we discuss the process for amending the Commonwealth Constitution.

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The scope of public law Although the public law of all countries is premised on an understanding of law as a constraint on the arbitrary exercise of power, there is a distinction between public law in civil law countries, such as France and Germany, and public law in countries from the common law tradition, such as the UK, the US and Australia. In civil law countries there is a greater focus on public law as the source of empowerment. Public law provides the sense of common enterprise of the people in a state, and articulates core common values. There is a discernible ‘public thing’ (res publica) that propounds a notion of the common good outside the values and desires of individuals. The ideals of public law were articulated in this way by the Roman writer Cicero (106–43 BCE): A commonwealth is a constitution of the entire people. … The first cause of this association is not so much the weakness of man, as the spirit of association which naturally belongs to him—For the human race is not a race of isolated individuals,

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wandering and solitary; but it is so constituted for sociality, that even in the affluence of all things, and without any need of reciprocal assistance, it spontaneously seeks society.39

Aristotle, in describing the state as the highest level of association, recognised that it was also the level at which the highest expression of what is good occurs:

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in all their actions all men do in fact aim at what they think good. Clearly then, as all associations aim at some good, that association which is the most sovereign among them all and embraces all others will aim highest, that is, at the most sovereign of all goods. This is the association which we call the state.40

The UK and US notions of public law are narrower than those of continental Europe. The dominant Anglo-American political theory is liberalism. Liberalism espouses the virtues of limited government and the separation of government from society because it views society as separate from its government. However, liberals are still concerned with happiness and the common good in society, although these ideals are not seen to be best served by the activities of government.41 Societies, made up of individuals and any number and type of groups, strive for what is good through their own rules and conventions outside the laws of states. Liberals are concerned that these other non-state mechanisms of regulation operate free from government interference. This narrow understanding of liberal constitutionalism is often contrasted with republican constitutionalism in which there is a greater focus on civic virtue and the role of government to promote the common good. In classic republican theory, the individual’s freedom may be partly compromised to serve the needs of the state. In the political discourse of the UK, the pursuit of happiness is predominantly the preserve of the private sphere, and the common good is achieved through protecting this sphere from interference. As the English jurist William Blackstone (1723–80) stated:  ‘The public good is in nothing more essentially interested, than in the protection of every individual’s private rights.’42 British public law is, then, predominantly concerned with delimiting the extent of the power of the state, and public law institutions and doctrines were created and invoked for this task. Elisabeth Zoller, Professor of Public Law at the University of Paris, has stated that because of the emphasis on the control of government through law in the 39 40 41

42

Marcus Tullius Cicero, Treatise on the Commonwealth (Francis Barham trans, Edmund Spettigue, 1841– 42) [trans of: De Republica (first published 54–51 BCE)] Book 1 (emphasis in original). Aristotle, above n 1, 54. Mitchell Dean and Barry Hindess, ‘Introduction:  Government, Liberalism, Society’ in Mitchell Dean and Barry Hindess (eds), Governing Australia:  Studies in Contemporary Rationalities of Government (Cambridge University Press, 1998) 1, 4–7. William Blackstone, Commentaries on the Laws of England (Clarendon Press, first published 1765–69, 1827 ed) 101.

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Anglo-American heritage, ‘all countries sharing [this] legacy have no public law and no state in the sense that these terms are understood on the European continent’.43 Zoller’s dismissal of Anglo-American public law is, in our opinion, too sweeping. Since Hobbes, Locke and Paine were formulating their theories, there has been a dramatic change in the reach and capacity of governments. States have at their disposal much greater resources and more precise knowledge of matters relevant to effectively governing their people. They know the size, distribution and earning capacities of their people. They know the economic potential of their territories. Consonant with this knowledge, state economies have much greater productive potential. They are able to raise vastly greater amounts of revenue through taxation, and have greater control over their economies through monetary and fiscal policy. As a result, modern states have been able to expand dramatically their range of activities. They are not only concerned with the safety and freedom of their people, but also with their health, welfare and education. As Martin Loughlin has put it:

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At the beginning of the nineteenth century, government was mainly concerned with law and order, external affairs, and raising revenue to finance these activities. By the end of the twentieth century, there were few areas not only of public but also personal life in which government performed no role.44

For this reason, we argue in this book that, despite the grounding of the AngloAmerican heritage in liberalism, there remains a rich concept of public law to be accounted for—a concept that includes a role for public institutions and a pursuit of the public good. The theory of republicanism encompasses the public-minded sentiments in Anglo-American public law. At its core, republicanism is the democratic idea of rule by the people, as opposed to a monarch. Republican popular sovereignty invokes a public-spirited citizenship.45 It involves civic virtue and pursues a notion of the common good. The US republic emerged from a war of independence and survived a civil war, both of which required great sacrifice and a strong sense of nationalism. It maintained a deep suspicion of government power. At the same time, it required a sense of unity and a strong central government to hold the union together. In a discussion of republicanism, Philip Pettit draws a distinction between two concepts of freedom that might underpin republican states—freedom as noninterference and freedom as non-domination. If the state is underpinned by freedom as non-interference, then the focus is on limited and constrained government for its own sake—a government that does not interfere with its citizens. However, if the state

43 44 45

Elisabeth Zoller, Introduction to Public Law: A Comparative Study (Martinus Njjhoff, 2008) 112. Loughlin, above n 13, 11. John Dryzek and Patrick Dunleavy, Theories of the Democratic State (Palgrave Macmillan, 2009) 214.

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is underpinned by freedom as non-domination, there is scope for the state to regulate the lives of its citizens, for it is possible to restrict freedom in a ‘non-dominating way’, as long as regulation is not arbitrary and occurs in accordance with the established legal order.46 As ‘domination’ is a contestable concept, it allows for a more dynamic relationship between the state and its people. The prospect of domination is ever present, and people must remain ever vigilant against its manifestation. On the other hand, as the principle of freedom as non-domination allows the state to interfere in people’s lives in a non-dominating way, there is greater scope for the state to articulate and defend a concept of the public good. As Pettit puts it: ‘The republican state must be concerned with what the state is as well as what it does: with the forms as well as with the aims of the state.’47 Where Pettit uses a rich concept of freedom to justify a form of government that is based on empowerment and not just constraints, Martin Krygier, Professor of Law and Social Theory at the University of New South Wales, finds scope within the concept of the rule of law for a positive role for government. Krygier suggests that, rather than a blunt object for restraining and controlling power, the rule of law should have as its objective a more subtle ‘tempering’ of power. ‘Tempering’, Krygier explains, encompasses the idea that the rule of law and constitutionalism have at their core not only a concept of constraint, but also of the strengthening of power and the ‘harnessing of power to good purpose’.48 The Scottish political economist Adam Smith (1723–90) identified three ‘duties’ that a sovereign must attend to in order to ensure what he described as a ‘system of natural liberty’: first, the duty of protecting society from the violence and invasion of other independent societies; secondly, the duty of protecting … every member of the society from the injustice or oppression of every other member of it, … and thirdly, the duty of erecting and maintaining certain publick works and certain publick institutions, which it can never be for the interest of any individual … to erect and maintain.49

Smith’s third duty of the state directly connects with Pettit’s focus on what the state is. The development of public institutions may still be to promote individual liberty, but even if one accepts this narrow premise, as Smith does himself, there 46 47 48

49

Philip Pettit, Republicanism:  A Theory of Freedom and Government (Clarendon Press and Oxford University Press, 1997) 273. Ibid 276. Martin Krygier, ‘Tempering Power’ in Maurice Adams, Ernst Hirsch Ballina and Anne Meuwese (eds), Constitutionalism and the Rule of Law. Bridging Idealism and Realism (Cambridge University Press, 2017) 34. Adam Smith, An Inquiry into the Nature and the Causes of the Wealth of Nations (Clarendon Press, first published 1776, 1976 ed) 687.

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are important questions about the exercise of public power in the establishment of the institutions necessary for effective living in the liberal state. That is, there is a dimension to the law that is at the very least concerned with public means to private ends, which must be accounted for in any theory of Anglo-American public law. There are several reasons, both principled and strategic, for emphasising empowerment in addition to the traditional emphasis on control in Australian public law. First, emphasising the positive role of government leads to a focus on the theoretical justification for the state and its laws, as we have discussed in this chapter. If it is accepted that government has a positive role in upholding the common good, then legal constraints on government cannot be simply accepted—they must be justified explicitly. Throughout this book, there are examples of governments exercising power and the courts being asked to review this exercise of power. The people turn to the government for leadership and will often elect governments specifically to achieve particular policy objectives. At the same time, the people rely on the courts to constrain the bounds of this government power, or even to require government action where none is forthcoming. As a result, there is an evident tension between empowerment and constraint in the exercise of judicial review. Second, an emphasis on empowerment turns the focus to the most powerful institution of government in the state, the executive. Despite its central role in government, executive power is the least clearly defined of the powers of the three branches of government.50 While administrative law has increased the discussion of the executive in the law, its focus is on control of the executive, rather than the depth and the breadth of its power. In Australia, the Constitution explains the source and extent of federal executive power in a single sentence, and until recently constitutional law courses and textbooks gave less attention to the executive than they did to legislative and judicial power. Third, key public law doctrines—federalism, separation of powers, and responsible and representative government—are traditionally discussed narrowly as mechanisms of control. A  focus on public law as providing for the common good through empowerment as well as constraint allows a broader consideration of these doctrines. The separation of powers, for example, can be seen not only as a mechanism of constraint, but also as a positive allocation of power to institutions whose attributes are designed to ensure the exercise of that power promotes the common good. Federalism is not only a means for dividing and thereby limiting power, but also a positive way to promote diversity and experimentation within the Commonwealth. We believe that a positive, facilitative role of public law is inherent

50

Paul Craig and Adam Tomkins, ‘Introduction’ in Paul Craig and Adam Tomkins (eds), The Executive and Public Law: Power and Accountability in Comparative Perspective (Oxford University Press, 2006) 1.

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in its principles, and must not be obscured by placing too heavy a focus on constraint for its own sake. Constraint of government, however, remains a crucial theme in public law. The modern state’s enhanced capacity to govern, discussed above, has included an unprecedented level of economic and social power. States fund and manage largescale, well-organised police and military forces. Governments in stable democracies have little fear of alternative power bases within the state threatening their supremacy. They are, then, free to govern in the knowledge of their superior strength. The constraints on this power to govern must, therefore, come from constraints on the legal exercise of powers within the system of public law.

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Public law and private law In addition to the dichotomy of empowerment and constraint, the breadth of public law is delimited by a distinction between the public and the private. One conceptual way of distinguishing between private and public law is that private law regulates the interaction of individuals (a horizontal relationship), and public law regulates the relationship between the state and individuals (a vertical relationship). In ancient Greek society, the division between the public and private related not only to the level of social organisation, with the private being at the lower levels such as the household, but also to the type of activities that occurred in each realm. What were considered the mundane necessities of life—such as food production, childrearing, the disciplining of slaves and the rules of economic activity—were matters for the private realm, where women and slaves were confined. The public realm was the realm of freedom and equality enjoyed by non-slave men, where there was no necessary activity, where there was no hierarchical authority, where everything was decided through ‘words and persuasion and not through force and violence’,51 and where what had to be decided related to the ideals of the common world, such as courage and honour. It was a condition of entering the public realm that men were free of their practical concerns.52 The philosopher Hannah Arendt (1906–75) argued that this division between the public and private has become blurred in the modern world. What is considered a matter of common concern has expanded dramatically. The public sphere is now concerned with individual economic, social and even cultural well-being through its administration of the affairs of the state. The expansion of the public sphere has led to a blurring of the distinction between public and private law: ‘we see the body of peoples

51 52

Hannah Arendt, The Human Condition (University of Chicago Press, 1958) 26–7. Ibid 22–78.

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and communities in the image of a family whose everyday affairs have to be taken care of by a gigantic, nation-wide administration of housekeeping.’53 At the same time the division between the public and private has been blurred by women’s formal entry into, and acceptance in, the public sphere since the beginning of the 20th century. The expansion of public concerns has meant that archetypal examples of private law— such as torts, contract and company law—are overlaid with laws that have public aims, such as anti-discrimination laws, laws of fair trading, laws for the disclosure of information and, paradoxically, laws protecting privacy. Also, governments regularly operate in the private sphere, engaging in commercial activities and entering into contracts with private individuals. There is a separate body of public law regulating the operation of institutions that are largely private in nature. For example, employment relations are regulated by labour law, which sets down minimum wages and conditions for workers. The financial sector is highly regulated, and even more so in the wake of the 2008–09 economic downturn triggered by the collapse of financial markets in the US and Europe. In addition, consumer laws protect consumers against aggressive marketing, misleading advertising, and unsafe or faulty products. There are also laws—such as the laws of evidence—that are required for the effective operation of the legal system, and are therefore of importance in both the public and private realms. The blurring of the public and private spheres is not only a result of the public sphere encroaching on the private sphere. Hobbes’s primary justification for public law—saving individuals from the chaos of unregulated individual desires—is most obviously evident in the criminal law. In the criminal law, the state takes on the responsibility for punishing individuals who have harmed others. The Director of Public Prosecutions decides whether there is a case to be brought against an individual according to the prescribed law, and prosecutes the case on behalf of both victims of crime and the community at large. The state takes on this responsibility for responding to crime to prevent private retribution. Judges apply the criminal law consistently to all accused persons, and impose punishments that fit the crime equally and dispassionately. There is no clearer example of the exercise of public law. And yet the concerns of private individuals are still reflected in criminal law, as victims are able to communicate their suffering to courts through victim impact statements, and even their views as to appropriate punishments. Furthermore, there now exist concurrent private law remedies available to victims of crime, such as actions in criminal negligence, which operate in addition to the criminal law. Clearly, the criminal law is a very important component of any society’s public law system. The intricacies of the subject in the Australian context, including the 53

Ibid 28.

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different offences and the principles of sentencing, are beyond the scope of this book. We do, however, discuss the fundamental principles on which the criminal justice system traditionally rests, and how the criminal law jurisdiction fits within the broader public law framework. These broader principles have been developed by the common law over centuries and operate to protect the rights of individuals accused of crimes against the power of the state. The power to prosecute and punish criminal actions on behalf of the community is the state’s largest and most coercive power, and is unparalleled in the private sphere.54 The potential for abuse of this power against individuals has led to the development of a number of legal safeguards for individual rights. These include the presumption of innocence, the right to hear and respond to the prosecution’s case, the burden of proof being on the prosecution, the right to legal representation, the right to a trial by jury, and the right not to be detained unless a competent court has found the person guilty of a designated offence and has sentenced them to a term of imprisonment. To some extent, these principles have been implied in the Australian Constitution through the exclusive vesting of judicial power in the courts, to be exercised in accordance with normal judicial process.55 The traditional focus of criminal law has been on the detection of criminal behaviour, as defined by the legislature, and the prosecution and punishment of culpable individuals in accordance with safeguards that ensure a balancing between the rights of the individual and the obligation of the state to protect society. Zoller has suggested that the same legal principles underpin both public and private law—fairness, openness, transparency, accountability, due process, legality, rationality and efficiency.56 Dawn Oliver, Emeritus Professor of Constitutional Law at University College London, goes so far as to argue that the distinction between public and private is an unhelpful or even illusory theoretical distinction. The commonality of underlying principle requires the reconsideration of the distinction drawn between the common good and the individual good.57 The two are not, evidently, mutually exclusive.

The rule of law In Australian public law, the rule of law operates to constrain arbitrary government action. There is an ongoing debate over whether the rule of law operates only as a constraint on arbitrary exercise of government power or whether it contains within 54 55 56 57

Private parties may bring criminal prosecutions, but these are limited to particular types of offences and are always subject to being taken over by the Attorney-General or Director of Public Prosecutions. See Chapters 9 and 10. Zoller, above n 43, 167. Dawn Oliver, Common Values and the Public–Private Divide (Butterworths, 1999) 56.

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it substantive values to be upheld by the law. The concept of the rule of law can be traced back to ancient Greek times,58 and has been part of the Westminster tradition since at least the 17th century.59 Oxford scholar Albert Venn Dicey (1835–1922) used the term at the end of the 19th century,60 and it has since enjoyed a meteoric rise. At a broad level, in order for a state to be able to enjoy the rule of law, there needs to be a culture that respects the idea of law. According to Austrian scholar Friedrich Hayek (1899–1992): [The rule of law] will be effective only in so far as the legislator feels bound by it. In a democracy this means that it will not prevail unless it forms part of the moral tradition of the community, a common ideal shared and unquestioningly accepted by the majority.61

Although the term ‘rule of law’ is not explicitly mentioned in the Australian Constitution, it is an accepted part of our constitutional system and some believe that the rule of law provides authority for the Constitution itself. In Australian Communist Party v Commonwealth,62 Dixon J famously described the rule of law as an ‘assumption’ of the Constitution.63 Since this time, the rule of law has been invoked by the High Court on a few occasions, but the Court has never fully extrapolated its significance and there has been much disagreement among commentators regarding its meaning and content.64 However, given the centrality of this concept to Australian public law, it is important to consider how we should understand it.65 There are two main analytical approaches to the rule of law that can assist in elucidating its meaning. These are known as the thin or procedural approach, and the thick or substantive approach. Hayek is one of the main proponents of the procedural approach. He offers the following definition:

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Stripped of all technicalities, this means that government in all its actions is bound by rules fixed and announced beforehand—rules which make it possible to foresee with 58 59 60 61 62 63

64

65

See, eg, Aristotle, above n 1, 3.16. Samuel Rutherford, Lex, Rex, or the Law and the Prince (Portage Publications, first published 1644, 2013 ed); see also Locke, above n 28. Albert Venn Dicey, Introduction to the Study of the Law of the Constitution (Macmillan, 10th ed, 1995). Friedrich Hayek, The Constitution of Liberty (University of Chicago Press, 1960) 206. (1951) 83 CLR 1 (‘Communist Party Case’). Ibid 193. This case concerned legislation enacted by the Federal Parliament to dissolve the Australian Communist Party and to make communist organisations illegal on the basis that it was ‘necessary’ for the defence of Australia. The High Court struck the legislation down on the ground that the Parliament was acting outside the Constitution in that there was insufficient evidence available that the legislation was ‘necessary’ for the defence of Australia, given that the nation was not at war. Here, Dixon J noted in his judgment that ‘it is a government under the Constitution’ (emphasis added). See, eg, Lisa Burton-Crawford, The Rule of Law and the Australian Constitution (Federation Press, 2017). Burton-Crawford argues that the rule of law is not a judicially enforceable doctrine in the Australian system, but, rather, a political ideal that is partly implemented in the Constitution. In Kartinyeri v Commonwealth (1998) 195 CLR 337, Gummow and Hayne JJ enigmatically stated in regard to the above-mentioned statement by Dixon J that ‘the occasion has yet to arise for consideration of all that may follow from [it]’: 381 [89].

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fair certainty how the authority will use its coercive powers in given circumstances and to plan one’s individual affairs on the basis of this knowledge.66

For Hayek, the key is certainty and predictability, as these allow people to plan their affairs. Hayek believes that laws must be general and equally applied. Laws should not single out specific persons (ad hominem legislation) or even groups (for example, based on ethnicity or race) for adverse treatment. On the flipside, legislation would not be able to single out women or even the blind for beneficial treatment. While Hayek believes the state has crucial functions to perform, as a civil libertarian he understands the rule of law to be limited to constraining the state and not to empowering it. Dicey expounded a three-part definition of the rule of law:

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The ‘rule of law’ … means, in the first place, the absolute supremacy or predominance of regular law as opposed to the influence of arbitrary power; …[second] equality before the law; … [third] the law[s] of the constitution are not the source, but the consequence of the rights of individuals, as defined and enforced by the courts.67

Dicey believed that law provides the most secure means of protecting each citizen from the arbitrary will of every other, and that the law forms a bulwark between those who govern and those who are governed. In particular he was worried that decision makers have too much discretion, and that too much discretion leads to arbitrariness. Joseph Raz, Professor of Legal Philosophy at Oxford University, sets out a list of conditions for the rule of law. His list includes the following mechanisms as important: an independent judiciary, a limited form of legislative and administrative review, open and fair hearings, accessible justice, and laws that are prospective, open, clear, public, certain and relatively stable.68 Raz’s conditions for the rule of law are all procedural. In his view, there is no necessary connection between law and morality. He argues that ‘[the rule of law] says nothing about how the law is to be made: by tyrants, democratic majorities, or any other way. It says nothing about fundamental rights, about equality or justice.’69 He states: a non-democratic legal system, based on the denial of human rights, on extensive poverty, on racial segregation, sexual inequalities, and religious persecution may, in principle, conform to the requirements of the rule of law better than any of the legal systems of the more enlightened Western democracies.70

66 67 68 69 70

Friedrich Hayek, The Road to Serfdom (Dymock’s Book Arcade, 1944) 54. Dicey, above n 60, 202–3. Joseph Raz, ‘The Rule of Law and its Virtue’ in Joseph Raz (ed), The Authority of Law (Clarendon Press and Oxford University Press, 1979) 210. Ibid 210. Ibid 211.

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Raz argues that because there is no necessary connection between law and morality, the rule of law should be balanced with other values and should not always trump them. The second approach, the substantive approach, agrees that Raz’s procedural conditions are necessary for the rule of law, but it adds a further condition, that of morality. This element of morality is evident in the 2004 definition of the rule of law offered by the UN for its own working purposes:

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[The rule of law is a] principle of governance in which all persons, institutions and entities, public and private, including the State itself, are accountable to laws that are publicly promulgated, equally enforced and independently adjudicated, and which are consistent with international human rights norms and standards. It requires, as well, measures to ensure adherence to the principles of supremacy of law, equality before the law, accountability to the law, fairness in the application of the law, separation of powers, participation in decision-making, legal certainty, avoidance of arbitrariness and procedural and legal transparency.71

This approach emphasises rights. Two exponents of the substantive approach are US legal philosopher Ronald Dworkin (1931–2013), and former English House of Lords justice Lord Bingham of Cornhill (1933–2010). Dworkin believes that the rule of law contains fundamental civil and political rights and duties that pre-exist the written law. This means that when courts interpret the written law and find gaps or ambiguity in it, they should interpret the law in light of these underlying rights and duties in order to fill the gaps. Thus, Dworkin assumes that judges have the capacity and authority not only to interpret the written law, but also to fill the gaps within it.72 In late 2006, Bingham gave a speech setting out eight sub-rules of the rule of law.73 His fourth sub-rule states that the ‘law must afford adequate protection of fundamental human rights’, which he acknowledges ‘would not be universally accepted’ as a part of the rule of law.74 However, he points out that the preamble to the 1948 Universal Declaration of Human Rights states that: ‘It is essential, if man is not to be compelled to have recourse, as a last resort, to rebellion against tyranny and oppression, that human rights should be protected by the rule of law.’ Bingham rejects Raz’s contention that a state which represses or persecutes sections of its people could be regarded as observing the rule of law, even if the persecution of the minority were the subject of detailed laws duly enacted and scrupulously observed. In his view, this would strip the 71

72 73 74

The Rule of Law and Transitional Justice in Conflict and Post-conflict Societies—Report of the Secretary General, 58th sess, Agenda Items 37 and 156, UN Doc S/2004/616 (23 August 2004)  5 [11] (emphasis added). See generally Ronald Dworkin, Taking Rights Seriously (Duckworth, 1977). Lord Bingham, ‘The Rule of Law’ (2007) 66 Cambridge Law Journal 67. Ibid 75.

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rule of law of most of its virtue. He does not set down what rights in particular must be protected by the rule of law, but somewhat vaguely leaves this up to each society. In contrast to Raz, Bingham sees a necessary connection between law and morality. He believes that the rule of law relates to good law, and not just any law that is good procedurally. Unifying these two approaches to the rule of law is the concept that they are all versions of Western liberalism. The ideology of liberalism is dominant in Australia: it has shaped our political, social and legal system. Every version of liberalism reserves a place for the rule of law as it requires that every interference with liberty is done through lawful means. At the heart of liberalism is a belief in the liberty of the individual from the state and from the demands of others. Liberalism is focused on the rights of the individual as opposed to the broader interests of the community and the individual’s responsibility to the community.75 In this sense there is tension between the rule of law and public law because, as discussed above, public law should be about public good—what is good for the community—rather than simply preserving the rights of the individual. Western liberalism also shows a preference for law and legal rules, which is not the case in some non-liberal societies where a resort to rules is alien and considered distasteful because relationships and the natural order regulate the resolution of disputes. In the West, the rule of law has been found deficient on a number of grounds. For example, socialist political theories generally lament the fact that the rule of law pays too little attention to true equality between persons and too much attention to the protection of property rights. A  Marxist critique of the rule of law goes much further: it argues that the rule of law is a mask for structures of inequality and that the law serves not to restrict government and protect individual rights, but rather to conceal the injustices of the capitalist system. Hence a Marxist view is that the rule of law represents no more than a false idealisation of law designed to reinforce political structures and the economic status quo in society. These Marxist critiques, which were carried forward by the Critical Legal Studies movement from the late 1970s,76 hold that the law is not neutral but represents the interests of the powerful within society. While Australian public law has secured effective and accountable government for more than a century, it has not always upheld the substantive rights and values that underpin the Western liberal ideal. In particular, as Chapter 3 shows, Australian law has often failed to protect Aboriginal and Torres Strait Islander peoples from

75 76

In non-liberal societies that exist in regions such as Asia and Africa there is a greater emphasis on group rights and the responsibility of the individual towards the community. Critical Legal Studies was a movement begun by American scholars to critique the dominant legal ideology on the basis of its conservatism and disengagement from politics.

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grave injustices and, on occasion, has itself been responsible for perpetrating injustices against them in the name of upholding liberal values. The suffering of Australia’s First Nations peoples, among others, is a warning against complacency in the development of Australian public law, which requires constant reflection on the values that underpin the law.

The values underpinning public law There is no point creating a state with a body of laws if those laws do not protect and promote the values that are of importance to the people. A good deal of political theory is devoted to articulating the core political values that underpin states and provide states with a reason to exist. The US political philosopher John Rawls (1921– 2002), building on the liberal tradition of Hobbes and Locke, posited ‘principles of justice’ as the explanation for any original agreement to live together. Principles of justice are those principles that:

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free individuals concerned to further their own interests would accept in an initial position of equality as defining the fundamental terms of their association. These principles are to regulate further agreements; they specify the kind of social cooperation that can be entered into and the forms of government that can be established.77

To base public law on a concept of justice is to express a commitment to some form of public morality. However, there are no objective standards of justice. From one perspective, a legal system might be considered ‘just’ if it ensures due process and procedural fairness. From another, a legal system might only be considered ‘just’ if its provisions uphold particular substantive moral values.78 Furthermore, the notion of justice begs the question to whom is justice owed—to the individual, or to the community as a whole? While there will always be contestation when articulating political values, there are generally three values that are commonly described as providing the justification for liberal democratic states:  freedom, equality and community. These have been formulated in different ways and the values of freedom and equality are often associated with a meta-value of human dignity. For instance, T R S Allan, Professor of Jurisprudence and Public Law at the University of Cambridge, argues that liberal constitutionalism is based on commitments to ‘the equal dignity of citizens’.79 In different ways each of these values are all concerned with pursuing a concept of justice. 77 78 79

Rawls, above n 27, 11. See generally Tom Campbell, Justice (Palgrave Macmillan, 3rd ed, 2010). T R S Allan, Constitutional Justice: A Liberal Theory of the Rule of Law (Oxford University Press, 2001) 2.

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Freedom Liberalism posits freedom as the foundation of the relationship between individuals and the state: ‘[It is a function of liberty that] a man live as he likes; … inasmuch as to live not as one likes is the life of a man that is a slave’.80 Liberty extends to a whole range of freedoms, including freedom of belief and opinion, freedom of expression and association, freedom to make political choices, freedom of movement and residence, and freedom of occupation. In his influential work, ‘On Liberty’, John Stuart Mill (1806–73) described a sphere of individual thought and action—a private space that the state could not regulate. The boundary of this private space was determined by the extent to which a person’s actions interfered with the rights of, or ‘harmed’, others. Mill recognised that, in exercising their freedom, people can make highly misguided and self-destructive choices, and in doing so can affect society indirectly. But this is a price that society must be willing to pay to maintain the fundamental principle of individual autonomy.81 Mill makes a strong case for a substantial degree of individual freedom from state interference. The individual autonomy of which Mill speaks assumes that people have the capacity to exercise real choices. This capacity depends upon individuals having the basic necessities of life, such as good health, shelter and education. Some branches of liberalism, such as liberal egalitarianism, focus therefore not only on individual freedom from state interference, but also the role of the state in ensuring that citizens have the freedom to exercise meaningful choices for their lives.82 Here liberty overlaps substantially with the other fundamental values of equality and community.

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Equality The concept of equality recognises that all individuals are of equal worth despite any differences in their personal attributes, their wealth and power, and their contribution to society. All are equal before the law, even those in positions of power who may have made the laws. Beyond this formal equality, substantive equality is concerned to address imbalances in opportunity. A difficulty with pursuing substantive equality is that it invariably affects the freedom of others, and thus conflicts with the principle of liberty. An important way in which equality is expressed in public policy is through the concept of non-discrimination. It is universally accepted—at least within Western

80 81 82

Aristotle, above n 1, Book 6, 1317b. John Stuart Mill, ‘On Liberty’ in Conrad Johnson (ed), Philosophy of Law (Macmillan, 1993) 168. See, eg, Will Kymlicka, Multicultural Citizenship: A Liberal Theory of Minority Rights (Clarendon Press and Oxford University Press, 1995).

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liberal democracies and in international human rights law—that it is illegal and, in most states, unconstitutional to discriminate between people on a whole range of bases, including race, gender, sex, pregnancy, marital status, ethnic or social origin, colour, sexual orientation, age, disability, religion, conscience, belief, culture, language and birth.83 The elimination of these grounds for discrimination provides an equal platform for people to flourish, but it does not eliminate deeply entrenched historical disadvantages, which may require more than formal equality to combat them into the future. Hence, in some democracies, there is also constitutional or legislative provision for affirmative action, or positive discrimination, to overcome entrenched disadvantages arising from past inequalities.84 A further major cause of inequality is the disparity of wealth between people. There can be no doubt that with wealth comes opportunity—opportunity for, among other things, better education, better work, better housing and better access to a range of material possessions. There have been political systems that have attempted to redress inequalities of wealth, such as communism, but these have largely failed because of the excessive burden they have placed on personal freedom. Nevertheless, the principle of equality within a democracy cannot simply ignore the differences in opportunity that exist as a result of disparities in wealth. In fact, there is research to suggest that there are strong reasons to address inequality beyond the need to pursue justice for individuals. One study has found that disparities in wealth have a powerful effect on the psychological well-being of both rich and poor people in large societies, and that the most effective way to improve well-being and happiness across the socioeconomic spectrum is not to increase overall wealth, but to decrease inequality.85

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Community The idea of community is particularly strong in continental expressions of democracy. The French republic is famously built on not only liberty and equality, but also ‘fraternity’.86 Fraternity encapsulates a sense of community and common bond which the state is to protect and foster. A collective sense of the common good gives rise to

83 84

85 86

This list of grounds is taken from s 9(3) of the Constitution of the Republic of South Africa Act 1996 (South Africa). See, eg, s 9 of the Bill of Rights in the South African Constitution, which states:  ‘(1) Everyone is equal before the law and has the right to equal protection and benefit of the law. (2) Equality includes the full and equal enjoyment of all rights and freedoms. To promote the achievement of equality, legislative and other measures designed to protect or advance persons, or categories of persons, disadvantaged by unfair discrimination may be taken’. Richard Wilkinson and Kate Pickett, The Spirit Level:  Why Equality is Better for Everyone (Allen Lane, 2009). For the most recent official use of this triad, see La Constitution du 4 Octobre 1958 [French Constitution of 4 October 1958] Preamble.

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the possibility of liberty beyond that asserted and expressed as individual freedom. It is a liberty that comes from ‘ruling oneself through the medium of a state which one has made one’s own’.87 Isaiah Berlin describes this concept of liberty as ‘positive liberty’. It recognises that individuals are not capable of the full expression of freedom without a community to assist the individual in escaping their immediate desires and discover their higher selves.88 Berlin contrasted this ‘positive liberty’ with that of ‘negative liberty’, more closely associated with liberalism and the freedom from state interference. In the 1970s, a new branch of liberal political theory, communitarianism, tried to provide a new emphasis on the place of community in liberalism based on this idea of collective freedom.89 Communitarians offered three main critiques of liberalism. First, they argued that the pursuit of individual liberty was not the only rationale for states and their political institutions. They pointed to non-Western societies in which other principles underpin legal systems, such as loyalty to family and social harmony. Second, communitarians questioned whether the individual was necessarily the only, or even the main, expression of the self. People have a range of attachments to others which can be as important to their identity as their experience as individuals. This, communitarians argued, needed to be reflected in any political theory of the state and its laws. Third, communitarians argued that societies based on liberal political theory are far from ideal. The idea of liberty has, for example, been responsible for individual alienation from political processes, excessive consumption, the failure to take collective responsibility for the natural world, and isolation and loneliness.90 The idea of community was drawn on powerfully by President Barack Obama in his famous victory speech in the US presidential election of 2008: ‘So let us summon a new spirit of patriotism; of service and responsibility where each of us resolves to pitch in and work harder and look after not only ourselves, but each other. … in this country, we rise or fall as one nation; as one people.’91 There is a major assumption in any discussion of community and the common good  that what is held in common is coherent and identifiable. The possibility of identifying common national values has, however, been challenged by the phenomenon

87 88 89

90 91

Maurice Cranston, ‘Liberalism’ in Paul Edwards (ed), The Encyclopaedia of Philosophy (Macmillan, 1967) 458, 459. Isaiah Berlin, ‘Two Concepts of Liberty’ (1958) in Isaiah Berlin, Four Essays on Liberty (Oxford University Press, 1969) 150. See Michael Walzer, Spheres of Justice:  A Defense of Pluralism and Equality (Basic Books and Martin Robertson, 1983); Michael Sandel, Liberalism and the Limits of Justice (Cambridge University Press, 2nd ed, 1988). These critiques are discussed in general terms by Daniel Bell: Daniel Bell, Communitarianism (21 March 2016), Stanford Encyclopaedia of Philosophy, . Barack Obama, ‘Victory Speech’ (Speech delivered at Grant Park, Chicago, Illinois, 4 November 2008).

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of globalisation. Modern societies contain many cultural groups, with a wide range of beliefs and aspirations. In Australia in the 1990s, the Hawke/Keating Government introduced a policy of multiculturalism to capture the breadth of Australian identities. The Howard Government dismissed multiculturalism as a slogan, preferring to emphasise an Australian identity associated with its Anglo-Celtic, colonial roots. The debate over national identity took an ugly turn in 2005 when a series of racially motivated riots occurred in the Sydney beach suburb of Cronulla.92 The ultimate expression of community in the state occurs when the very existence of the state is under threat—in times of war. At such times, extraordinary sacrifice is both expected and required of citizens. At such times, executive power expands in order to protect the state, and this expansion of power comes at the expense of a degree of personal freedom. In Australia, the story of the ANZACs in Gallipoli has become one of the most potent and enduring symbols of community in Australia— one that has been embraced by young and immigrant Australians, as well as those who have been more personally affected by war. Some commentators, however, have raised concerns about the desirability of building a national identity around a military event of such violence.93

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Conclusion Australian public law is not simply a set of rules. It is an amalgam of systems of government (such as monarchies and republics), underpinning concepts and principles (such as sovereignty and the rule of law), fundamental processes (such as social contracts and democracy), basic institutions (such as states and local political communities) and core values (such as freedom and equality). In the Australian state, the public rules are both informed by the interaction of these systems, processes, concepts, principles, institutions and values, and determine how they develop in the pursuit of the common good. In this book we explore closely the unique dimensions of public law in the Australian state. There is no one right way to organise such an exploration. It is a rich tapestry of ideas and concepts to facilitate understanding of the relationship between us, the people, and the state in which we reside.

92 93

See generally Gregory Noble (ed), Lines in the Sand: the Cronulla Riots, Multiculturalism and National Belonging (Institute of Criminology Press, 2009). Marilyn Lake and Henry Reynolds with Mark McKenna and Joy Damousi, What’s Wrong with ANZAC?: The Militarisation of Australian History (University of New South Wales Press, 2010).

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In this book, we have chosen to draw on organising ideas that represent the many dimensions of public law. In this first Part, we introduce foundational narratives and concepts of Australian public law. Chapter 2 uses a historical analysis to discuss the development of Australian public law that gives the context to understand the modern public law institutions, rules and issues. Chapter 3 addresses the foundational fact of Australia’s colonial establishment, and the various dimensions of the ongoing relationship between Australia’s first peoples—Aboriginal and Torres Strait Islander peoples—and the Australian state. Chapter 4 introduces the core organising principle and value of federalism. Parts II to IV (Chapters 5 to 11) are organised according to the functions and powers of the core Australian public law institutions of government. Chapters 5 and 6 explain the principles of democracy and representative government, and the processes of parliament, their powers and their limitations; Chapters 7 and 8 outline the actors that constitute the executive and the different forms of executive power and how this is brought to account; Chapters 9 and 10 turn to judicial power and its separation from the other government powers, and how this separation has operated in practice to protect fundamental rights. Chapter 11 addresses the judiciary’s important role in interpreting statutes, and the principles and public law doctrines that influence this. Part V concludes the book with a consideration of the external influences on Australian public law. Chapter 12 explains how the expectations of the community shape public law in the form of government protection and promotion of human rights, while Chapter 13 considers the influence on Australian public law of international law and institutions.

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DISCUSSION QUESTIONS 1

Does public law now reach into all aspects of our life, or is there still a private sphere untouched by public law?

2

What is the purported distinction between public law in civil law countries and public law in the common law tradition? Is the distinction convincing today?

3

Is the idea of public law dependent on the existence of nation-states, or could there be a global public law?

4

Explain the core distinction between the theories of political constitutionalism and legal constitutionalism. Where are the strengths and weaknesses of each theory and how might any weaknesses be addressed?

5

How different are the procedural and substantive approaches to the rule of law? Which is more useful for protecting human rights?

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FURTHER READING David Feldman (ed), English Public Law (Oxford University Press, 2004) Michael Hardt and Antonio Negri, Commonwealth (Harvard University Press, 2009) Martin Loughlin, The Idea of Public Law (Oxford University Press, 2004) John Rawls, A Theory of Justice (Harvard University Press, 1971) Martin Smith, Power and the State (Palgrave Macmillan, 2009) Adam Tomkins, Public Law (Oxford University Press, 2003)

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Elisabeth Zoller, Introduction to Public Law: A Comparative Study (Martinus Njihoff, 2008)

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2

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CHAPTER OVERVIEW Introduction

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Inauspicious beginnings

39

An autocratic state

40

The assertion of UK sovereignty

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The reception of English law

42

The English system of public law

44

The development of key institutions

49

Representative and responsible government

49

Judicial independence

53

Repugnancy and the Colonial Laws Validity Act

55

A new chapter: federation

56

Post-federation developments

62

Severing Australia’s ties to the UK

62

National security

65

Immigration and border control

66

Conclusion

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Introduction Chapter 1 explained the role of the state in society and identified what constitutes the public law of the state. This chapter explains how the principles of public law developed in Australia, chronicling the emergence of an independent democratic nation with a highly developed system of public law from its origins in 1788 as a penal colony. The story of the development of public law in Australia is one that draws upon public international law, the English common law system and, as the colonies embarked upon the adventure of federating for which the UK offered no model, the law of other nation-states; that is, comparative law. The resulting constitutional system is a unique combination of features from the Westminster tradition and the republican and federal systems of the US. This chapter starts at the time of English colonisation, when few of the key principles of modern public law existed. Unchecked power was given to the Governor, the monarch’s representative in the colony. The state was really best described as an autocratic dictatorship. And perhaps it was necessarily so:  what role could the state play in the protection of individual freedoms in a penal colony where convicts outnumbered military officers by nearly four to one?1 However, many convicts were gradually freed and an increasing number of free settlers also arrived, giving rise to a local community with its own economy, interests and concerns. The second part of this chapter considers the basis under international law by which sovereignty was claimed over Australia as a settled colony. This had wideranging effects, particularly on the rights and continuation of the legal systems of the Aboriginal and Torres Strait Islander peoples. It meant that English law was brought across to the colonies, at least to the extent that it was applicable to the local conditions. This was often a difficult question to determine, causing a large amount of confusion and keeping the colonial courts busy. Naturally, the Australian colonies looked to England and occasionally to the other colonies of the British Empire as models for the development of a system of government and laws for their fledgling society. The First Fleet also carried with it the major political and social ideals fought for in England during the 17th and 18th centuries, including those of Hobbes, Locke and Rousseau discussed in Chapter 1. Australia’s initial story is therefore one of implementing many of the public law reforms secured in England, and, in some respects, the colonies even surpassed

1

The First Fleet, led by Captain (later Governor) Arthur Phillip, arrived at Botany Bay with between 700 and 800 convicts and only about 200 military officers: F M Bladen (ed), Historical Records of New South Wales (Lansdown Slattery, first published 1892–1901, 1978 ed) vol 1, pt 2, 79, 85–91.

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these reforms. The third part of this chapter provides an overview of the public law principles of the English system of government. In the fourth part of this chapter we turn to how the key institutions of representative and responsible government and judicial independence were achieved in the colonies. The fifth part of this chapter considers a more pioneering aspect of Australia’s story. In the journey to federation, which started in the mid-19th century and was fully realised in 1901, Australia had to forge its own path. The Australian Constitution incorporated many of the public law institutions of the English system the colonies had fought for, but also took ideas from institutions in the US, Canada and Switzerland. The final part of this chapter considers the Australian steps towards independent nationhood and our ability to take part in the international community. This was once again achieved through a number of incremental milestones until the UK’s control over Australian institutions was finally removed. For many people, this is the penultimate story only, with the final component—the creation of an Australian republic—yet to be written.

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Inauspicious beginnings Despite numerous sightings of and landings on the Australian mainland by explorers from Portugal, Holland, France and England from as early as the 16th century, the first European claim to the territory was made on behalf of Britain by Captain James Cook during his voyage in 1770. Cook’s reports from this voyage formed the basis for the decision to establish a colony in the newly discovered territory.2 The colonisation of Australia in 1788 was not for its natural resources or promise of wealth, but to solve the problem of accommodating the increasing number of prisoners produced by the English justice system. After using its American colonies for this purpose until they were lost in the American War of Independence, in desperation England had started to use the hulks of old ships as floating prisons. This could only be a temporary measure and the establishment of the new colony of New South Wales must have been viewed with a large amount of relief. In 1786, an orderin-council under the Transportation Act 1784 (Imp) created the colony as an open prison for the reception of ‘felons and other offenders’.3

2 3

John Quick and Robert Garran, The Annotated Constitution of the Australian Commonwealth (Legal Books, first published 1901, 1976 ed) 23–8. An order-in-council is a type of delegated legislation. Delegated legislation is explained in more depth in Chapter 7.

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An autocratic state When establishing the fledgling penal colony in New South Wales, England was not concerned about providing the public law institutions that had evolved in the UK by that time. The state as a benefactor of the people or as the protector of individual freedoms had no role in a colony of convicts and military officers.4 The state that was established was autocratic and akin to a military dictatorship. In the Governor was vested complete power by a number of instructions issued from the King, called royal commissions.5 The Governor exercised more power in the colonies than the monarch in England had enjoyed since the time of King James II, who was overthrown by Parliament in an event known as the Glorious Revolution of 1688 (this is discussed in more depth later in this chapter). The Governor exercised executive, quasi-legislative,6 and judicial power—appeals from both civil and criminal jurisdictions of the courts lay to the Governor. Governor William Bligh once said: ‘Damn the Law! My will is the Law!’7 The royal commission to Governor Arthur Phillip, the first Governor of New South Wales, reinforced the penal purpose of the colony, instructing the Governor to discharge his duty ‘according to the rules and discipline of war’.8 It was quite a different society to that left behind in England. A letter from the seventh Governor of New South Wales, Governor Ralph Darling, expressed the difficulties of associating the English public law institutions with the new penal colony:

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The people are taught by the papers to talk about the rights of Britishmen and the Free Institutions of the Mother Country, many of them forgetting their actual condition. Besides, this is evidence, altho’ this is a British colony, there is no similarity whatsoever in its composition to that of Britain. … But their pretensions seem totally inadmissable—the Colony is still in its infance and is by no means prepared for such an Institution as a Legislative Assembly.9

However, the position of the New South Wales colony and the other colonies that were established in Australia changed over the subsequent century. Whether by pardon or completion of their sentences, the convicts were gradually becoming free

4 5

6

7 8 9

David Neal, The Rule of Law in a Penal Colony: Law and Power in Early New South Wales (Cambridge University Press, 1991) 10. Governor Phillip’s first royal commission was dated 12 October 1786. The first commission was supplemented by a fuller Commission in Letters Patent dated 2 April 1787, and a further amended commission and detailed instructions dated 25 April 1787: Bladen, above n 1, 24–5, 61–7, 85–91. The power is called quasi-legislative because the Governor did not have the power to make laws as such, but orders for the good government of the settlement. For all intents and purposes, however, these orders operated as laws. Neal, above n 4, 78. Bladen, above n 1, 24–5. Neal, above n 4, 27.

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men and women. In addition, there was an increasing number of free settlers arriving and the first generation of Australian-born children was growing. A free society was established within each colony, with its own economy based on agriculture and trade, and distinct local interests and concerns developed. The autocratic government suitable for a penal colony was no longer sufficient. People in the colonies started to request the representative and responsible institutions that had been granted to the people of England, to which they thought themselves equally deserving. Before looking at the English public law institutions in more depth, this chapter considers the basis for and consequence of the assertion of UK sovereignty in Australia by the first settlers, because this is what dictated the legal system in which the colonies operated.

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The assertion of UK sovereignty On 26 January 1788, when Governor Phillip established the penal colony in Sydney Cove, an important principle of public international law came into play that determined the sovereignty and legal system of this new colony. Captain Cook had described the inhabitants of ‘New Holland’ (this is what Australia was then called) as follows: ‘[they have] no fix’d habitation but move on from place to place like Wild Beasts in search of food’,10 and ‘[they live] wholy by fishing and hunting, but mostly by the former for we never saw one Inch of Cultivated Land in the Whole Country’.11 As such, Australia was considered ‘terra nullius’: a land belonging to no civilised person. With no ‘civilised’ inhabitants to conquer or to cede the land, the colony was settled. At international law, the effect of this was twofold. First, the English Crown acquired sovereignty over the land, giving the Crown radical title under the feudal system of land tenure (this refers to the absolute ownership of all land by the Crown, and the ability to make beneficial grants of land). Second, the laws of England, as far as they were applicable to local conditions, were brought across into the new colony. The authority of English jurist William Blackstone (1723–80) was relied upon to support this position: Plantations, or colonies, in distant countries, are either such where the lands are claimed by right of occupancy only, by finding them desart and uncultivated, and peopling them from the mother country; or where, when already cultivated, they have been either gained by conquest, or ceded to us by treaties. And both these rights are founded upon the law of nature, or at least upon that of nations. … if an uninhabited

10 11

Captain James Cook, Cook’s Description of New Holland (National Library of Australia, first published 1773, 2004 ed) 86. Ibid 87. See also Cooper v Stuart (1889) 14 App Cas 286, 291 (Lord Watson).

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country be discovered and planted by British subjects, all the British laws then in being, which are the birthright of every subject, are immediately there in force. But this must be understood with very many and very great restrictions. Such colonists carry with them only so much of the British law, as is applicable to their own situation and the condition of an infant colony …12

Concluding that the land was terra nullius and therefore able to be settled was very convenient for the English. It allowed their legal system to override the preexisting systems of the Aboriginal and Torres Strait Islander peoples. But however convenient it was, it was a fiction, and the following century would finally reveal it as such. Terra nullius was challenged by Aboriginal and Torres Strait Islander peoples in the second half of the 20th century,13 until, in the landmark decision of Mabo v Queensland [No 2],14 the High Court accepted that there had existed at settlement and continued to exist a recognisable indigenous legal system, at least in relation to land ownership. The repercussions of this decision could have been enormous: Blackstone emphasised that the sovereignty and reception of the British law rested on settlement, which in turn rested on the fiction of terra nullius. If Australia’s Aboriginal and Torres Strait Islander peoples were understood as having a recognisable legal system in 1788, then according to Blackstone they would have to have been conquered before English law would be the law of the land. The implications of such a finding in 1992, 204 years after the fact, would have created unfathomable complications for the Australian legal system. The leading judgment of Brennan J in Mabo carefully navigated around this issue. He classified the assertion of UK sovereignty as a political act, unquestionable in the courts. He explained therefore that the acquisition of territory by a sovereign state is an act ‘the validity of which is not justiciable in the municipal courts’.15

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The reception of English law Another point of dispute that arose regarding settlement was the extent to which the law of England applied in the Australian colonies.16 As mentioned above, Blackstone stated that the law of England applied to the extent that it was possible, 12

13 14 15 16

William Blackstone, Commentaries on the Laws of England (Clarendon Press, first published 1765–69, 1827 ed) Book 1, s 4. See also Emmerich de Vattel, Law of Nations or the Principles of Natural Law: Applied to the Conduct and the Affairs of Nations and Sovereigns (Charles G Fenwick trans, Carnegie Institution of Washington, 1916) Book 1, ch XVIII [trans of: Le Droit des Gens ou Principes de la Loi Naturelle: Appliqués à la Conduite et aux Affaires de Nations et des Souverains (first published 1758)]; Case 15—Anonymous (1722) 2 PWms 75; 24 ER 646. See, eg, Milirrpum v Nabalco (1971) 17 FLR 141; Coe v Commonwealth (1979) 24 ALR 118. (1992) 175 CLR 1 (‘Mabo’). Ibid 31 (Brennan J). See J M Bennett and Alex C Castles, A Source Book of Australian Legal History (Lawbook, 1979) 263–9; Alex Castles, ‘The Reception and Status of English Law in Australia’ (1963) 2 Adelaide Law Review 1; Victor Windeyer, ‘A Birthright and Inheritance: The Establishment of the Rule of Law in Australia’ (1962) 1 University of Tasmania Law Review 635.

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based on the conditions in the colonies. This raised a number of issues. Could the law of England apply at all to a penal colony? If it did, to what extent could the law of England be modified to the situation of the colonies? Would law that was not applicable to the initial conditions of the colonies become applicable as the colonies changed and developed? As the common law subsequently developed in England, would it be brought across to the colonies? Was there a distinction between common law and statute? Each of these questions plagued the colonies for decades until some resolution was brought in 1828 through the passage of legislation—but most of the uncertainties as to the applicability of the law were not entirely clarified until well into the 20th century. The extent to which the law of England was applicable at all to a purely penal colony was debated for some time,17 although it was being applied as such by many colonial judges. Clarification was finally attempted by the UK Parliament with the inclusion of s 24 in the Australian Courts Act 1828 (Imp). The operation of this section meant that from 25 July 1828, all common law and statute law of England was received in the colony of New South Wales, while subsequent UK legislation (after 25 July 1828) would apply to the colony only by ‘paramount force’. ‘Paramount force’ meant the statute must either expressly provide or necessarily intend for such a consequence.18 Even amendments to existing statutes in the UK would not apply to Australia unless by paramount force, and many pieces of legislation continued to apply in Australia even after they had been amended or repealed in the UK. The principle also applied to the other Australian colonies, but some of the ‘reception’ dates for the common law and statute law were different. For Tasmania, Victoria and Queensland the date was the same as for New South Wales, from which they had separated; while in South Australia it was 28 December 1836,19 and in Western Australia it was 1 June 1829.20 A further question that s 24 did not answer was whether the common law was ‘frozen’ in the form that was received in 1828. The High Court of Australia has held that this is not the case. The traditional view is that when judges determine the common law, they do not make law but uncover what has always been the correct law (this is known as the ‘declaratory theory of law’). The High Court held therefore that developments in the common law since 1828 would in fact have been received by the colonies at that date, albeit they had not been known at that point in time.21

17 18 19 20 21

R D Lumb, The Constitutions of the Australian States (University of Queensland Press, 5th ed, 1991) 4–5. Phillips v Eyre (1870) LR 6 QB 1, 20–1 (Willes J). Ordinance No 2 1843 (SA) s 48. See also State Government Insurance Commission v Trigwell (1979) 142 CLR 617, 634–5 (Mason J). Swan River Act 1829 (WA), confirmed in Acts Interpretation Act 1984 (WA) s 73. State Government Insurance Commission v Trigwell (1979) 142 CLR 617, 625 (Gibbs CJ).

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Section 24 also failed to put to rest the debate as to how much of the English law was applicable in the colonies. It essentially reinforced Blackstone’s test—English law applied to the extent that it was applicable to the conditions of the colonies—and so the question then turned on what parts of English law were applicable to the local circumstances.22 While Blackstone had given the judiciary the task of determining which laws applied to the colonies, the Australian Courts Act 1828 gave this power to the Governor as well. Inconsistencies between the courts and the Governor over the application of the English law to each colony’s local circumstances started to appear and this remained a point of confusion for many decades. Professor Alex Castles observed that over one-quarter of cases reported in Legge’s Reports23 concerned the question of whether a piece of UK legislation applied to the colony.24 These included important questions over, for example, the applicability of statutes of limitation, Sunday observance laws, statutes dealing with the criminal law and police offences, lotteries, land legislation, statutes of distribution, and laws dealing with master-andservant relationships.25 Doubts about the application of some laws were put to rest in some of the states by legislation only in the 20th century.26 The 1828 Act gave rise to a final question—could the common law be dormant and thus inapplicable during a period where a colony’s circumstances are unsuited to it, but spring into life when the colony evolves? In State Government Insurance Commission v Trigwell,27 Gibbs CJ affirmed that such ‘dormant’ law can come into force, and that ‘a rule of the common law will not be held inapplicable to the conditions of a colony simply because it could not have been applied in the circumstances existing at the very date of settlement’.28 To be subjected to the law of the colony during the 19th century was therefore to be subject to a moveable feast—an uncertain combination of UK and local statutes and principles of common law.

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The English system of public law At this point it is necessary to make a brief foray into the struggles that characterised English public law, and particularly the tri-focal struggle between the executive 22

23 24 25 26 27 28

The Privy Council decision of Cooper v Stuart (1889) 14 App Cas 286 reaffirmed that New South Wales was to be treated as a colony to which Blackstone’s words applied. See also R v Farrell (1831) 1 Legge 5, 10, in which Forbes CJ indicated that the 1828 Act was ‘merely declaratory of what the law was before’. Legge’s Reports are the earliest New South Wales reports. They covered cases decided in the years 1825–1962. Castles, above n 16, 6. Ibid 19. See, eg, Imperial Acts Application Act 1969 (NSW); Imperial Acts Application Act 1984 (Qld); Imperial Acts Application Act 1980 (Vic). (1979) 142 CLR 617. Ibid 615–6. See also Duggan v Mirror Newspapers (1978) 142 CLR 583.

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(the Crown), the Parliament and the judiciary for the control of public power. The social and political ideology that was forged during this period accompanied the settlers and convicts to the new colonies and provided the benchmark by which their own satisfaction would be compared. The height of this struggle occurred in the 17th century, during which many of the features associated with the rule of law and the limitation of government power were developed. There had been precursors—most notably the limitations conceded by King John to the barons in the Magna Carta 1215. This document limited the powers of the King, particularly over taxation, which could only be levied under the Magna Carta after receiving the ‘general consent of realm’,29 and it also contained some due-process guarantees, requiring that no free man could be punished except by the lawful judgment of his equals or by the law of the land.30 The barons who had exacted these concessions from King John formed what was known as the ‘Great Council’—the noblemen and churchmen who were called upon by the monarch to approve of particular decisions, generally those involving taxation. The summoning of the Council became known as a meeting of Parliament. The Council was the precursor to the House of Lords. Also between the 11th and 13th centuries, ‘shire moots’ started to appear, at which local matters were discussed by local noblemen, churchmen and other local representatives. Representatives from the local community would be sent to Parliament to deliver messages, including grievances, petitions and the acceptance of taxation measures. These initial ad hoc gatherings of advisers to the King gradually crystallised into the modern Parliament of the House of Lords (appointed), the House of Commons (elected) and the monarch, and so by the 14th century a legislature somewhat resembling its modern form had developed. The impetus behind its development was predominantly the monarch’s need for money, and therefore the need to obtain Parliament’s consent to levy taxes. By the 17th century, the House of Commons had gained the right to introduce money bills (for taxation and expenditure), and it became the dominant House of Parliament.31 During the comparatively wealthy and peaceful Tudor reign (1485–1603), Parliament generally respected the monarchs, and the struggle between Parliament and the Crown lay in abeyance. Monarchs limited their own powers without testing the limits of Parliament’s tolerance. Things were to change, however, under the cruel, despotic and arbitrary rule of the Stuart Kings. The first, James I, was a believer in the divine right of Kings—that his power to rule came from God alone and was supreme, accountable only to God. 29 30 31

Magna Carta arts 12 and 14. Ibid art 39. An excellent history of the UK Parliament is provided on its website: UK Parliament, Living Heritage: The Evolution of Parliament, .

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The two essential documents of public law in England emerged during this period: the Glorious Revolution in which the Stuart kings were finally overthrown by Parliament in 1688 resulted in the Bill of Rights 1689 and the Act of Settlement 1701. The Bill of Rights resurrected many of the (by then frequently breached) rights from the Magna Carta, limited the powers of the Crown and increased Parliament’s powers—particularly over taxation and expenditure.32 It abolished the monarch’s prerogative to a large extent, removing for example the King’s power to dispense with or suspend statutes, and making Parliament the supreme law maker. The Act of Settlement brought substantial guarantees for the independence and impartiality of the judiciary, as the judges were given commissions instead of being appointed at the pleasure of the Crown. Under this Act they were only able to be removed on address of both houses of Parliament.33 These milestones were created after a tumultuous century that saw the trial and execution of King Charles I, the establishment of a republican government, the Commonwealth of England (which eventually also showed the weaknesses of absolute power vested in a Parliament), the reinstatement of Charles I’s son, Charles II, and the subsequent dethroning of his son, James II, in the Glorious Revolution of 1688. The Glorious Revolution was led by parliamentarians and was a revolt against the tyrannous excesses of James II. It established a constitutional monarchy. Parliament invited Mary and William of Orange to take the throne, but these monarchs now wielded power through popular assent, not by divine right. The attempts to limit the absolute power of the monarch were made not only by Parliament, but also by the courts. On a number of occasions Sir Edward Coke, Lord Chief Justice of England, asserted the primacy of the common law over both the King and the Parliament. The most famous opinions exemplifying his position are the Case of Prohibitions del Roy,34 the Case of Proclamations35 and Dr Bonham’s Case.36 The Case of Prohibitions del Roy was in fact not a case at all, but Coke’s notes of a conference with King James I  as to whether the King had the power to act as an arbiter of legal disputes. Coke challenged the King’s power to do this, advising that such power must be exercised by the courts alone, ‘by the artificial reason and judgment of the law’. Coke used the importance of training in legal reasoning and the common law method to resist encroachments from the monarch into the judicial sphere. More recently, debates about whether the legal training in the common law 32

33 34 35 36

The Bill of Rights provided in article 4 that ‘levying money for or to the use of the Crown by pretence of prerogative, without grant of Parliament, for longer time, or in other manner than the same is or shall be granted, is illegal’. Act of Settlement 1701, 12 & 13 Wm 3, s 3. (1607) 12 Co Rep 64; 77 ER 1342. (1611) 12 Co Rep 74; 77 ER 1352. (1610) 8 Co Rep 114; 77 ER 646.

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method and legalistic doctrinal reasoning that is purported to be employed by judges is in fact used as a smokescreen for value-laden policy judgments raise some doubts about Coke’s assertions.37 However, it must be remembered that Coke’s statements were made at a very distinct point in history and were important in ensuring judicial independence from executive interference. In the Case of Proclamations, Coke again pitted himself against James I.  Coke asserted that the King could not create new offences by proclamation—this power belonged to Parliament. Coke advised ‘the King by his Proclamation, or other waies, cannot change any part of the Common Law, or Statute Law, or the Customs of the Realm … also the King cannot create any offence by his Prohibition or Proclamation, which was not an Offence before, for that was to change the Law’. In Dr Bonham’s Case, Dr Thomas Bonham brought an action for false imprisonment against the Royal College of Physicians, which had charged him with practising medicine without a licence. The College asserted the power to imprison was conferred on it by its charter under an Act of Parliament. Coke, however, held that there were certain fundamental common law principles by which even Parliament was bound. His Honour said Acts of Parliament would be void when they are ‘against common right and reason, or repugnant, or impossible to be performed’. Coke found that the provision of the College’s charter that authorised imprisonment must be read strictly, and did not authorise Dr Bonham’s imprisonment. Unlike many of Coke’s other statements, this principle of common law supremacy over Parliament has not been accepted. The fundamental cornerstone of the English legal system is actually the reverse, ‘parliamentary supremacy’, and the subjection of the common law to Parliament. However, a more modest rule of statutory interpretation, known as the principle of legality—which assumes Parliament would not have intended to infringe on common law rights and freedoms—continues to exist. This principle is discussed in greater depth in Chapter 11. Coke’s fundamental ideal of limited prerogative power was reaffirmed in the later case of Entick v Carrington.38 In this case the Court asserted that intrusion on common law rights could not be authorised by the sovereign alone, but must be accompanied by authorising legislation. Thus the principle of rule by law was established. The events of the 17th century firmly established the relationship between the monarch, the Parliament and the courts. But as at 1788 the important principle of responsible government, establishing accountability between the executive and the Parliament, was yet to be realised in the UK. There were a number of events that were 37

38

See, eg, the critique of common law method provided in US legal realism and by US scholars such as John Chipman Gray, Oliver Wendell Holmes Jr, Karl Llewellyn and Roscoe Pound. In Australia, see Julius Stone, The Province and Function of Law (Maitland Publications, 1946). (1765) 19 St Tr 1029; 95 ER 807.

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precursors to the system of responsible government. These were originally designed to overcome the difficulties of the proposition that the monarch could do no wrong. As such, Parliament held the monarch’s advisers liable for mistakes made by the monarch on the basis that, while the monarch could do no wrong, they could act on erroneous advice. One of the early examples in the 17th century was the execution of Thomas Wentworth, First Earl of Strafford and close adviser to King Charles I, for his role in counselling the King to use the Irish Army against England during the Civil War between the King and Parliament.39 By the 18th and 19th centuries, Parliament’s ability to hold the monarch’s ministers to account became easier. The monarch started to appoint ‘Members of Parliament’ to great offices in an attempt to garner parliamentary support for the monarch’s policies. These inauspicious beginnings were the germ of responsible government, where ultimately the ministers are responsible for the executive’s actions to the House of Commons through their membership of Parliament.40 Responsible government in England is an unwritten convention; that is, it is not set down in any constitutional or legislative document, or even established by the common law. In fact, many unwritten constitutional conventions support responsible government. These include the practice that the executive (that is, the ministers) is appointed from the party that holds the confidence of the lower House of Parliament and for only so long as they continue to hold that confidence. Except in rare circumstances, the monarch acts in accordance with the advice of these ministers. Ministers are collectively bound by decisions of the Cabinet and therefore must unanimously support policies of the executive once determined. This allows the Cabinet to be held collectively responsible to Parliament for government policies and decisions. Ministers are also individually accountable to Parliament for the administration of their department through the public service. They must answer questions and provide information when asked by Parliament. Much of the UK Constitution is contained in conventions and, as the next section  explains, many of these were subsequently adopted in Australia. Constitutional conventions are customs and practices that governments observe out of habit because they feel politically and morally bound to follow them. These conventions have developed in order to guide the interpretation and application of the formal written rules and to fill in some of the gaps these leave. Where legislation contravenes a written constitution, the legislation can be struck down, but constitutional conventions are not legally enforceable in the same way. There is no legal sanction for breaching a constitutional convention. However, despite the absence

39 40

Harold J Laski, ‘The Responsibility of the State in England’ (1919) 32(5) Harvard Law Review 447, 449. W G McMinn, A Constitutional History of Australia (Oxford University Press, 1979) xi–xii.

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of legal sanction, constitutional conventions are very important to the operation of the  English  constitutional system, and became important to the Australian system as well.41

The development of key institutions

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The next part of this chapter focuses upon the struggles of the Australian colonies for independent self-government, modelled to a large extent on the systems still developing in England. This was largely in response to the autocratic power of the Governor, which may have been appropriate to a penal settlement but was increasingly despised as the number of free settlers and freed convicts grew by the mid-19th century. In the UK during this time a new reform movement had emerged that found many followers in the Australian colonies. Chartists campaigned for stronger democratic and labour rights, and reform of the Westminster system to ensure that working-class citizens were protected by public institutions. In Australia, Chartists saw the possibility of establishing a system more democratically inclusive and with stronger rights for the working class than in England. This manifested, for example, in the increasing disquiet over the taxation of the colonies by a Parliament not composed of elected representatives of the broader population, known as ‘taxation without representation’.42 The influence of the Chartist Movement is seen in many of the colonies’ democratic achievements. The colonial government of New South Wales was once described by the philosopher Jeremy Bentham as ‘showing the outrages offered to law, justice, and humanity’.43 Under the general lexicon of the rule of law, the main public law institutions for which the colonies struggled were representative government, responsible government, the ability to amend their own constitutions, judicial independence and procedural rights, particularly the right to trial by jury.44

Representative and responsible government The first move towards the establishment of these institutions was in New South Wales in 1823 following an influential review by John Thomas Bigge into the position 41 42 43

44

See further Gabrielle Appleby, ‘Unwritten Rules’ in Cheryl Saunders and Adrienne Stone (eds), Australian Handbook of Constitutional Law (Oxford University Press, 2018). For a fuller account of this movement and the resulting Eureka Stockade, see Manning Clark and Michael Cathcart, Manning Clark’s History of Australia (Melbourne University Press, 1993) 252–68. Jeremy Bentham, ‘The True Bastille, Showing the Outrages Offered to Law, Justice, and Humanity, by Mr Pitt and his Associates, in the Foundation and Management of the Penal Colony of New South Wales’ (Pamphlet, 1802–1803). See also Jeremy Bentham, ‘A Plea for the Constitution of New South Wales’ (Pamphlet, 1803). Neal, above n 4, 62.

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of the colony.45 The New South Wales Act 1823 (Imp) created the first Legislative Council. This had between five and seven members appointed by the Governor and its role was to approve laws proposed by the Governor.46 The Governor could, however, still make laws without the approval of the Legislative Council in circumstances where he believed that it was essential for the peace and safety of the colony, and that it would cause extreme injury to the welfare and good government of the colony if the laws were not made. The Chief Justice of the Supreme Court was given the responsibility of certifying that the Council’s legislation was not repugnant to Imperial law.47 This arguably compromised the position of the Chief Justice, who could be required to rule upon the validity of the law should it come under challenge.48 This first taste of limited government powers was temporary. In 1828, the 1823 Act was replaced by the Australian Courts Act 1828 (Imp), which established new legislative councils (of between 10 and 15 appointed members) in the two colonies of New South Wales and Van Diemen’s Land (later Tasmania), which together covered all of eastern Australia at that time. The Legislative Council could now veto the Governor’s decisions—an important development. In addition, the Supreme Court could declare legislation repugnant to Imperial law within 14 days of its passage. These developments in 1823 and 1828 created governments of limited powers, but government was still non-representative and ‘irresponsible’ in that there was no direct chain of accountability between the governed and the government.49 Lord Durham—the author of a famous report on British North America (Canada) that recommended the adoption of responsible government in that province—thought that the English were resisting these developments because they were concerned to ensure that ministers remained appointed and accountable to the English Crown.50 The Australian Constitutions Act (No 1)  1842 (Imp) introduced representative government to the colony of New South Wales.51 As constitutional scholars John Quick (1842–1932) and Robert Garran (1867–1957) described it, the 1842 Act

45

46 47 48 49 50 51

Bigge presented three reports to the British Parliament, the most relevant being John Thomas Bigge, Report of the Commissioner of Inquiry on the Judicial Establishments of New South Wales and Van Diemen’s Land (Great Britain Colonial Office, 1823). New South Wales Act 1823 (Imp) 4 Geo 4, c 96, s 24. Ibid s 29. McMinn, above n 40, 21. Quick and Garran, above n 2, 38. Lord Durham, Report on the Affairs of British North America (1839) extracted in McMinn, above n 40, 19. At that time, New South Wales included Victoria and Queensland. Van Diemen’s Land was left with its own Legislative Council under the 1828 Act. A separate piece of legislation for the freely settled province of South Australia was introduced, but this established a fully appointed Legislative Council of seven members (although it made provision for an elected council in the future). It was not until 1850 that South Australia received representative government.

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was the work of the UK Government and might be considered a gift from the UK Parliament to the colony:

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Although it was only a half measure and an instalment of political freedom, it marked the dawn of a new system. It contained the feeble germs of Representative Government, whence has since sprung the splendid fabric of the Parliamentary institutions in Australia. It was the first concession made by enlightened British statesmen to the growing wealth and importance of the Australasian colonies.52

The Act provided for limited representative government—a Legislative Council made up of 24 elected members (elected by males over the age of 21 with a property qualification) and 12 appointed members. The Governor could still withhold his consent to any legislation passed by the Council. Further, there was no responsibility of the Governor or his ministers (who were appointed and did not hold seats in Parliament) to the Parliament at that stage. However, the Act did grant control of the ‘purse strings’ to the Council (requiring its consent before taxation could be implemented and, conversely, when funds were spent), which replicated Parliament’s position in England after the Glorious Revolution. The 1842 Act was considered by many of the more radical reform movements, such as the Chartists, as ‘a “mockery of self-government” and a mockery of all those who were looking to “a considerable extension of popular rights”’.53 The next ‘gift’ to the colonies from the UK Parliament came eight years later. The Australian Constitutions Act (No 2)  1850 (Imp) was an attempt by the UK to give more self-government to the colonies—it created new elected legislative councils for Tasmania, New South Wales (which still included Queensland) and South Australia. It also made provision for Port Phillip to separate into its own colony, and so it was that Victoria came into existence on 1 July 1851. Critically, the Act created greater representation—by reducing the property qualifications for voting eligibility. It also bestowed upon the legislative councils the power to make laws for the ‘peace order and good government’ of the colonies—a plenary grant of power subject to their subordinate position as colonies.54 These progressive initiatives of the UK Parliament were again met with disdain in the colonies, which sought even greater independence and strengthened democratic institutions; they particularly wanted responsible government, which was still not required in the 1850 Act. Importantly, however, this Act gave the local legislatures power to make amendments to it (within limitations, and subject to royal assent).55 52 53 54 55

Quick and Garran, above n 2, 39. Clark and Cathcart, above n 42, 214. Union Steamship Co of Australia Pty Ltd v King (1988) 166 CLR 1; R v Burah (1878) 3 App Cas 889, 904. See further discussion in Chapter 6. Australian Constitutions Act (No 2) 1850 (Imp) 13 & 14 Vict, c 59, s 32.

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Almost immediately, each new Parliament established a parliamentary committee to draft its own constitutional documents. Some of the redrafted constitutions went beyond what was allowed by the 1850 Act, and had to be passed as full enactments by the UK Parliament. These new constitutions were drafted by the representatives of the colonies, but their ultimate legitimacy still rested with the UK Parliament. With the colonial constitutions enacted between 1855 and 1890, in many respects the evolution towards the UK model in the colonies was complete. For the first time there was responsible government and bicameral legislatures, although there were some deviations between the colonies. Importantly, power was given to the colonial legislatures to amend the constituting statutes, subject to certain provisions that entrenched aspects of the constitutions through manner and form requirements (manner and form requirements as restrictions on state legislative power are discussed further in Chapter 6). The Constitution Act 1855 (Imp) for New South Wales established a bicameral legislature, with an appointed upper house (the Legislative Council) but an elected lower house (the Legislative Assembly), although electors had to meet a property qualification. The Constitution Act 1856 (Imp) for Victoria also established a bicameral legislature—both the Legislative Assembly and Legislative Council were elected, with the Council having higher property qualifications. The Constitution Act 1856 (Tas) established an institution similar to that of Victoria. Queensland separated from New South Wales on 6 June 1859 by Letters Patent,56 and eventually, received its own Constitution Act 1867 (Imp), which in effect consolidated the various constitutional documents that applied to the colony. The Constitution Act 1856 (SA) was the most democratic constitution of its time. It went beyond many of the mechanisms in England and reflected many of the goals of the Chartist Movement. It created a bicameral elected legislature, universal male suffrage with no property qualifications (including Aboriginal men in the lower house, the House of Assembly), and introduced the secret ballot in elections. Representative and responsible government came much later in Western Australia. Transportation of convicts to the colony did not cease until 1868 and it was very much seen as a younger sibling of the colonies, without the necessary capacity to support its own government at that time. In 1870 it was granted limited representative government (12 elected and six nominated members to a Legislative Council). It was not until 1890 that full representative and responsible government was given to the colony under the Constitution Act 1889 (WA). Given its late entry to self-government, it was perhaps not surprising that Western Australia dragged its

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Letters Patent are instruments issued by the Crown under its prerogative powers. These powers are explained further in Chapter 7.

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heels to give up this autonomy to a federal Commonwealth, which was under serious consideration in the second half of the 19th century. In each of the new constitutions the power division between the two houses of Parliament was the same as in the UK. This was despite, in some situations, the elected nature of both houses. The division in the UK between the aristocracy in the House of Lords and the representative House of Commons had often been seen as the reason for providing greater control of financing to the Commons. In Victoria, South Australia and Tasmania at least, this division no longer held such relevance because both houses were elected. It was a question with which the framers of the federal Constitution would also grapple, before they too ultimately adopted the UK division. The powers of each of the houses are discussed in more depth in Chapter 6. Responsible government was given effect in these constitutions, but not expressly. In the Constitution Act 1855 (NSW), s 37 provided that certain officers were to retire on ‘political grounds’. This has been held to imply the principle of responsible government, where government ministers resign if they no longer hold the confidence of Parliament.57 In Victoria and South Australia, the position was stronger because of a number of additional provisions—one of which required that a certain number of responsible officers be members of the legislature.58 In Victoria, a marginal note (not part of the statute itself ) stated that ministers were to be responsible to Parliament. A direction from the UK also provided that governors were to conduct government through ministers who enjoyed majority rule in the lower houses of the colonies. For a hard-fought institution, the reliance upon these cryptic provisions and extra-constitutional statements to establish responsible government may seem strange. However, the long tradition of unwritten constitutional conventions in England, including responsible government, may explain the colonies’ trust in these implications and obscure provisions.59 These colonial constitutions would suffice in the colonies (with minor changes) until federation and, in a general sense, until today. Although some state constitutions have been rewritten and consolidated, the general institutions in the states remain the same.

Judicial independence The establishment and conduct of the judiciary was a sore point for the colonies, particularly its lack of independence and the lack of trial by jury, which became the cause célèbre of many emancipists fighting for local representation.

57 58 59

Toy v Musgrave (1888) 14 VLR 349, 392–3 (Higinbotham CJ). See also Egan v Willis (1998) 195 CLR 424. Constitution Act 1856 (SA) s 32; Constitution Act 1855 (Vic) ss 18, 37, 51. Anne Twomey, The Constitution of New South Wales (Federation Press, 2004) 26–7.

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The first court of criminal jurisdiction was established by Letters Patent pursuant to the New South Wales Court Act 1787 (Imp), and consisted of a Judge Advocate and six military officers to assist him. The Judge Advocate fulfilled a military role and the court was in essence a military court martial, lacking judicial training or independence. The Judge Advocate was the prosecutor, committing magistrate and judge, and also legal adviser to the Governor from time to time. The combination of these roles was criticised heavily by Ellis Bent, the first legally qualified Judge Advocate, appointed in 1810.60 The first court of civil jurisdiction had no legislative backing but was established in 1787 by Letters Patent pursuant to the royal prerogative. It was known as the First Charter of Justice and its members were the Judge Advocate and two members appointed by the Governor.61 Appeal from decisions of both courts was to the Court of Appeal, consisting of the Governor, and ultimately to the Privy Council in the UK. After a number of military judges, the first civilian, judicially trained Judge Advocate, Ellis Bent, was appointed in 1810, and in 1814 his brother, Jeffrey Hart Bent, was also appointed. Both judges were ultimately sacked on the request of the Governor after various assertions of independence against the arbitrary actions of the Governor,62 defiance perhaps reminiscent of Coke in the 17th century. In 1823, reform came to the colonies following the report of John Thomas Bigge into the colonial judicial system, which was very critical of the concentration of powers in the Judge Advocate. The New South Wales Act 1823 (Imp) provided an unquestionable statutory basis for the Supreme Courts of New South Wales and Van Diemen’s Land (which were given criminal and civil jurisdiction). It provided these courts with the same jurisdiction as the Court of King’s Bench and the Exchequer. Many of the state Supreme Courts to this day retain this jurisdiction. Appeal still lay to the Court of Appeal and then onto the Privy Council. The first court under the 1823 Act was created on 17 May 1824 for New South Wales, and Francis Forbes was appointed Chief Justice. So defiantly independent was Forbes that on several occasions the Governor unsuccessfully asked for his removal. The other colonies were given similar court systems—South Australia in 1837, Victoria in 1852, and Queensland and Western Australia in 1861.63

60 61

62 63

A C V Melbourne, Early Constitutional Development in Australia:  New South Wales 1788–1856; Queensland 1859–1922 (University of Queensland Press, 2nd ed, 1963) 37–8. The creation of a single court much simplified the civil justice system that was at that time operating in Britain. Britain had a system of common law courts—Kings Bench, Common Pleas and Exchequer— together with courts of equity, ecclesiastical courts and the High Court of Admiralty. Such simplification and unification has still not been brought to the UK. McMinn, above n 40, 6–7; Melbourne, above n 60, 23–4. Moreton Bay Judge Act 1855 (NSW) (this set up a Supreme Court for the colony of Moreton Bay, which became the Supreme Court of Queensland after the colony’s separation in 1859 under the Supreme Court Constitution Amendment Act 1861 (Qld)); Supreme Court Act 1837 (SA); Supreme Court (Administration) Act 1852 (Vic); Supreme Court Ordinance 1861 (WA).

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Repugnancy and the Colonial Laws Validity Act As the colonial governments became more representative and responsible throughout the 19th century and the amount of local legislation started to increase, Blackstone’s statements from the 18th century—about the reception of English law by the colonies only so far as it was applicable to local conditions—caused further confusion. The colonial parliaments remained creatures of UK statutes. This meant they were subject to a number of limitations, the first of which was a limit on their ability to legislate extra-territorially (this limit is returned to in Chapter 6). As part of the British Empire, the colonies relied upon the UK for international personality and therefore the ability to legislate beyond the limits of the colony. The second limitation was repugnancy. Blackstone made it clear that the colonies were still subject to the ‘superintending power of the legislature of the mother country’.64 Thus, the UK Parliament could still pass legislation that applied to the colonies, and colonial law must necessarily give way to this. The confusion in the position was exemplified by the extreme situation that South Australia found itself in during the 1850s and 1860s. Upon appointment to the Supreme Court of South Australia in 1853, Justice Benjamin Boothby proceeded to cause headaches for the South Australian Parliament, striking down colonial legislation on the basis of, among other things, repugnancy to Imperial laws. After an initial unsuccessful attempt to remove him (it was subsequently successful at this), the colonial Parliament did manage to extract from the UK Parliament the Colonial Laws Validity Act 1865 (Imp) to clarify the situation.65 The Colonial Laws Validity Act set the legislative limits for the colonies (and subsequently the states) for over 100  years. It provided in ss 2 and 3 that all laws (statute and common law) received by the colonies before 23 July 1828 (or the other dates of settlement in the colonies of South Australia and Western Australia) could be amended by the colonial legislatures. The colonial legislatures could not pass laws that were repugnant to legislation that applied to the colonies (by paramount force) after that date. Finally, s 5 of the Colonial Laws Validity Act reaffirmed the ability of the colonial parliaments to make amendments to their constitutional instruments. However, it added an important caveat that remains with the states until this very day. Section 5 provided that the colonial legislatures had power to make laws respecting the ‘constitution, powers and procedure’ of the legislature ‘provided that such laws shall

64 65

Blackstone, above n 12, Book 1, s 4. John M Williams, ‘Justice Boothby:  A Disaster that Happened’ in George Winterton (ed), State Constitutional Landmarks (Federation Press, 2006) 21.

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have been passed in such manner and form as may from time to time be required by any Act of Parliament, letters patent, order-in-council or colonial law for the time being in force in the said colony.’ We will see later in this chapter that s 5 of the Colonial Laws Validity Act is now replicated in s 6 of the Australia Acts 1986 and continues to apply to the states. The unique nature of what are known as ‘manner and  form’ provisions as a limit of legislative power in our constitutional system is returned to in more depth in Chapter 6.

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A new chapter: federation Up until this point, Australia’s public law story has been indicative of a desire to bring English institutions to the colonies and, influenced by a progressive reform movement, to expand the democratic base of these institutions. This was largely achieved in the second half of the 19th century. Even throughout the process of federation, a step that required Australia to look beyond the English legal system for inspiration, Australia maintained its loyalty to the English monarch.66 Federation was not an action of independence and a step towards republicanism, but was seen as necessary for a number of local reasons, including overcoming the various trading barriers that had emerged between the colonies that were stifling economic growth, the perceived threat from the other European colonies in the Pacific, requiring a defence force of greater strength than any individual colony could provide, and the perceived need to protect local labour markets from migrant workers of non-European descent. Despite its loyalty to the UK, the Australian constitutional system borrowed heavily from the US system, enshrined in the institutions of Washington DC, as well as the UK Westminster system. The Australian Constitution is not an inspiring document, but its novel remodelling and combination of these two systems has successfully empowered and constrained our legal institutions and secured robust and accountable government in Australia for more than a century. The idea of federation had been floated in Australia since at least the mid-19th century. When the Imperial Australian Constitutions Act was drafted in 1850, the largely unpopular Earl Grey—the Secretary of State for the Colonies—wished to include a number of federal provisions within the Act that would have established a ‘General Assembly of Australia’.67 These clauses were removed after protest from the colonies, and the House of Lords resolved that such an Act could not be thrust upon the colonies.68 The colonies themselves were aware of the need for a more cooperative 66 67 68

Bruce Kercher, An Unruly Child: A History of Law in Australia (Allen & Unwin, 1995) 157. John M Ward, Earl Grey and the Australian Colonies 1846–1857: A Study of Self-Government and SelfInterest (Melbourne University Press, 1958). McMinn, above n 40, 42, 46–7.

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model—free trade agreements were attempted and, in 1885, the Federal Council of Australasia was established.69 This body had some limited legislative powers over participating colonies. However, the Federal Council never garnered full support (New South Wales did not participate,70 and South Australia only participated for two years). The colonies were slow to federate; even once the momentum started it took the best part of a decade. Each colony had only recently been given self-government from the UK, and was dubious about giving up some of this power to a central government. There were simmering suspicions and resentments: between the free-trading colony of New South Wales and the protectionist colony of Victoria, and between the smaller colonies and these two larger ones.71 Queensland had its own problems with divisions between its northern and southern communities leading to the possibility of separation, and its extensive use of labourers from the Pacific Islands was looked upon with distrust by the other colonies where the seeds of the White Australia Policy were already sprouting. As to what type of union it was to be, federation seemed obvious. Federal theory at the time was receiving a lot of support. Australia looked to the US as its primary muse, although Switzerland provided another comparator (being a non-presidential federal state), as did Canada (which maintained its dominion status and affiliation with the English monarch). The framers of the Australian Constitution drew upon many theoretical writings to assist them in their endeavour—both in federal theory and also the theory of the state more generally.72 The lasting germ of Australia’s federation started in 1890, with the Australasian Federation Conference in Melbourne, which resolved to obtain the union of the colonies. One of the important decisions made at this meeting—and which continued across the later conventions—was to admit the press and the people into its deliberations. This made the drafting of Australia’s Constitution a more public deliberative process than that which occurred in the US. The 1890 Conference was followed by the Sydney Convention of 1891, to which delegates were elected by colonial parliaments. The entire Convention was transcribed by Hansard, leaving us with a detailed account of the framers’ debates. The draft Constitution adopted at the 1891 Convention was substantially based on an earlier draft brought to the 1891 Convention by Tasmanian, Andrew Inglis Clark,

69 70 71 72

Federal Council of Australasia Act 1885 (Imp). McMinn, above n 40, 101. Helen Irving, To Constitute a Nation; A Cultural History of Australia’s Constitution (Cambridge University Press, 1997) 3. Nicholas Aroney, The Constitution of a Federal Commonwealth: The Making and Meaning of the Australian Constitution (Cambridge University Press, 2009).

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who was enormously influenced by the US Constitution and James Bryce’s tome on the US system, The American Commonwealth.73 The influence of the US document can still be seen in the structure of the final Australian Constitution (and particularly in the separation of the legislature, the executive and the judiciary in the first three chapters) and many of the provisions. This draft was substantially amended onboard the Lucinda (the Queensland Government yacht) by a team consisting of Samuel Griffith, Charles Kingston and Edmund Barton. Inglis Clark was not able to be there. In this draft the term ‘Commonwealth’ was agreed upon, despite some objections because of the undertones of regicide and republicanism from Oliver  Cromwell’s ‘Commonwealth’ after the trial and execution of King Charles I. The drafters were confronted with a number of problems. They retained parliamentary democracy—including representative and responsible government— but also sought to adopt new concepts, including federalism and the separation of powers, from the US Constitution. While initially the federal system of Canada was mooted as an option, Inglis Clark successfully argued that the US model was more appropriate as it created a less centralised federation. The establishment and marriage of these systems, taken from Westminster and Washington, created the major challenges for the federal compact. This was seen particularly in relation to the constitution and powers of the houses of Parliament if, as in the US, the Senate was to be a ‘states’ house’ and popularly elected, rather than appointed as in the UK. In the UK, the House of Lords had fewer powers than the House of Commons, particularly over bills relating to taxation and expenditure, but this was generally perceived to be because the Lords were not representatives of the people. The eventual compromise regarding the powers of the houses under the Constitution is discussed in more detail in Chapter 6. Other major challenges that confronted the framers included how to resolve the tensions between advocates of free trade and protectionism in determining the new Commonwealth’s economic policy. Eventually, the framers agreed to adopt a freetrade zone across the new Commonwealth, while leaving to the Commonwealth Parliament the decision as to whether it would adopt a protectionist or free-trade approach in its relations. The rights of the states to the Murray River was also debated at length in the conventions, although the cause for concern in the 19th century was maintaining the rights of traders that used the river rather than the environmental concerns that now define this debate. Divergences in opinion ran along free-trade/ protectionist, nationalism/imperialism, and territorial lines.

73

Published opportunely in the year 1888:  James Bryce, The American Commonwealth (Macmillan, first published 1888, 1908 ed). See also Stephen Gageler, ‘James Bryce and the Australian Constitution’ (2015) 43 Federal Law Review 177.

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The next stage of the federation movement required the colonial legislatures to adopt the draft, but at this point the momentum dropped, partly because of a lack of popular support for the process, which many viewed as rushed and ill-thoughtout;74 partly because the New South Wales Premier and key figure in the federation movement, Henry Parkes, lost his support in that colony’s Parliament for the Bill; and partly because of the dire economic times that many Australians found themselves in during the depression of the 1890s. The federal movement lay in abeyance until given new life in 1893 with the first forum to involve broader public involvement in the process: the Corowa People’s Convention. At this convention, a new process for achieving federation was adopted, and it was the most democratic and representative constitution-making process of its time. The process proposed at Corowa was accepted by the Premiers of the colonies in 1895 and enshrined in enabling legislation across the colonies.75 It required representatives elected by the people of the colonies to participate in a series of constitutional conventions at which a draft would be adopted. This draft would then be approved by referendum in each of the colonies before being taken to London for enactment by the UK Parliament. In practice, the process did not work completely to plan, For example, Queensland was not involved in the conventions, as infighting between the north, south and central regions prevented it from passing its enabling legislation, and Western Australia elected its representatives through its Parliament. New South Wales initially rejected the draft from the conventions, and the enabling legislation had to be amended to allow for a second set of referendums to be held. Pursuant to the Corowa process, a series of conventions were held in 1897 in Adelaide and Sydney, and in 1898 in Melbourne. The conventions adopted a draft Constitution on 16 March 1898, which was subsequently approved at a referendum held in June 1898 in Tasmania, Victoria and South Australia. However, New South Wales fell short of the necessary 80,000 votes required for approval under its enabling legislation (even though it achieved a close numerical majority). From 24 to 27 January 1899 the Federal Council met to consider the concerns of New South Wales, and at a ‘secret’ Premiers’ Conference some amendments were made to the Constitution to pacify the largest colony (it was named ‘secret’ because it was closed to the media and the public so that the premiers could engage in open and frank negotiations). At this Conference Queensland joined the negotiations for the first time since 1891. Some important compromises to New South Wales were made, including agreement that the new capital would be created in New South Wales.

74 75

McMinn, above n 40, 107–8. Hobart Understanding of the Premiers (29 January 1895).

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In 1899, successive referendums in each of the colonies except Western Australia achieved the necessary votes. Western Australia did not conduct its referendum until 13 July 1900, just in time to be a founding state. While Australia’s federation movement was the most representative process ever attempted,76 it is important to remember that at these referendums many people were excluded from the franchise on the basis of class, sex and race. Only in South Australia and Western Australia did women have the vote (in fact, in South Australia, one woman, Catherine Helen Spence, stood for election to the conventions, although she was unsuccessful). There were limitations on the franchise for Aboriginal and Torres Strait Islander people, and in many colonies Aboriginal and Torres Strait Islander people were not allowed to vote unless they had permanent residency, which excluded a great number. People in receipt of aid from a public or charitable institution were unable to vote; and in Queensland and New South Wales, members of the defence and police forces were also prohibited from voting. Peter Botsman has calculated that only 15 per cent of the total Australian population actually approved the Constitution.77 The Constitution did not gain its legal legitimacy from the referendums; its legal authority would still rest with its final enactment by the UK Parliament. On 15 March 1900, a delegation of colonial representatives went to London with the draft Constitution. Debate ensued over the proposed abolition of appeals from Australian courts to the Privy Council in the UK. Appeals had been removed in the draft on the basis that the expense of appealing to the UK was prohibitive for most litigants, and the Privy Council lacked appreciation of local conditions. The UK Parliament was concerned to see appeals to the Privy Council kept, both to maintain UK ties with the colonies and to ensure that UK property interests were not subjected solely to the decisions of colonial courts.78 The draft was accordingly amended to reinstate the right to appeal to the Privy Council. The Commonwealth of Australia Constitution Act 1900 (Imp), which contained the Australian Constitution in cl 9, was passed on 5 July 1900, was given royal assent on 9 July 1900, and came into force on 1 January 1901. Australia’s little-celebrated ‘Constitution Day’ occurs on 9 July each year. One of the important features of the Australian Constitution was that, while it required passage by the UK Parliament for its initial authority, subsequent amendments could be made by the Australian Parliament acting together with the Australian people. Section 128 provides that the Constitution can be amended by

76 77 78

Quick and Garran, above n 2, 225. Peter Botsman, The Great Constitution Swindle:  A Citizen’s View of the Australian Constitution (Pluto Press, 2000) 52. Kercher, above n 66, 159.

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a Bill that is passed by special majorities in the Parliament and by a majority of Australian electors, together with a majority of the electors in a majority of the states. The backdrop for the US Constitution was the late-18th century War of Independence from the UK, as well as the 1860s Civil War. The drafters of the US Constitution were concerned that a concentration of state power led to the risk of oppression. In the eyes of the Americans, the behaviour of the UK Parliament exemplified this risk. Thus the US Constitution entrenched various mechanisms to protect individuals from the state and to constrain state power. In Australia, on the other hand, the federation was predominantly a compact between the colonies rather than a compact of the people of Australia, and the core relationship is between the states and the Commonwealth. Looking through the Constitution this is remarkably clear—it is not a Constitution that defines individual rights against the state in express terms. The colonies had won their struggles to receive the institutions of representative and responsible government prior to federation. For many of the framers, these institutions were the best protection for individuals against the state. However, it is important not to view history through the prism of the current controversy and debate over the protection of individual rights in the Constitution, which we discuss further in Chapter  12. While trust in the representative and responsible nature of government was relied upon to rebut the inclusion of something akin to the US due process clause (which protects the legal process rights in relation to an individual’s life, liberty or property), another dominant reason was the fear of giving rights to coloured people, particularly Asian migrants and Pacific Islanders who had been brought to Australia as labourers.79 Because in Australia the motivations of the drafters of the Constitution were much more prosaic than in the US, the drafters were politically at liberty to draw on the range of institutions and principles offered by both the Westminster and Washington systems. From the US we have refashioned federalism, the separation of powers and constitutional judicial review to suit our context; and from the UK we have recast the parliamentary system and its principles of responsible and representative government, as well as the use of constitutional conventions and the overarching principle of the rule of law. Thus the story of federation ends. It was one of innovation and comparative law, of democracy, of fierce allegiance to the Crown, freedom and racism, establishing many of the lines of battle over which public law in Australia has subsequently been waged.

79

John M Williams, ‘Race, Citizenship and the Formation of the Australian Constitution:  Andrew Inglis Clark and the “14th Amendment”’ (1996) 2 Australian Journal of Politics and History 10, 18.

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Post-federation developments The development of public law in Australia does not end on 1 January 1901. As Australia’s society and economy has evolved and as the world order has changed, the Constitution has necessarily applied to new public law issues, many of which were not in contemplation at the time of federation. There have been a small number of successful changes to the text through s 128 of the Constitution. Parliaments across Australia have also enacted important public law statutes, including the creation of formal merits review and judicial review regimes, Ombudsman offices, and integrity and corruption watchdogs. There have also been common law developments, such as the decision in Mabo v Queensland [No 2] which we explain in the next chapter, where the High Court accepted that the Aboriginal and Torres Strait Islander peoples had in some instances retained title to their lands despite the British assertion of sovereignty in 1788.80 Australian public law has also evolved because it has had to adapt to remain relevant to new and emerging issues, such as the changing nature of threats to the defence of the nation, and changes in the identity of Australian society that have been shaped by the immigration policies of the Australian state.

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Severing Australia’s ties to the UK At the time of federation the new Australian nation identified closely both legally and politically with the British Empire, or the Commonwealth of Nations as it became known. The British monarch remained the head of the Australian state, the Privy Council sat at the apex of the court system, and both the Commonwealth and state parliaments were subordinate to the UK Parliament. Australia had no international personality and relied upon the UK to conduct its international affairs (although a federal head of power over ‘external affairs’ was provided for in the Constitution). Australian citizenship was not created until 1948.81 There was no Australian flag or anthem officially adopted until well over half a century after federation.82 In 1926 the UK Government signed the Balfour Declaration, named after former UK Prime Minister A J Balfour, which indicated that the UK considered the colonies independent, ‘autonomous communities within the British Empire’. These sentiments were reflected in the Statute of Westminster 1931 (UK), which applied to all of the dominions upon their adoption of it. Canada, a chief protagonist, adopted it almost immediately. But it was not until the Second World War that Australia made the decision to assume the independence offered by it with the passage of the Statute 80 81 82

(1992) 175 CLR 1. Australian Citizenship Act 1948 (Cth). See Flag Act 1953 (Cth). The national anthem was adopted by proclamation on 19 April 1984.

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of Westminster Adoption Act 1942 (Cth) (although its adoption was backdated to when Australia entered the war, on 3 September 1939). This statute produced a number of important results for the Commonwealth.83 These included that the UK Parliament could no longer pass legislation for the Commonwealth without the request and consent of the Commonwealth Parliament.84 Additionally, the doctrine of repugnancy no longer limited the Commonwealth Parliament,85 and neither did the limit on territoriality.86 Internally, Australia has changed a great deal since federation. It is now composed of the original six states in addition to two internal self-governing territories, one other internal territory, and seven external territories. The ability to create and govern federal territories is provided for in s 122 of the Constitution. The Australian Capital Territory was ceded from New South Wales and made the national capital in 1909.87 It was given self-government in 1988. The Northern Territory was transferred from South Australia to the Commonwealth in 1911,88 and was granted self-government in 1978.89 In 1998, the Northern Territory held a referendum on whether it should become the seventh state, but the result was a majority ‘No’ vote (albeit only by 51.3 per cent). In 1933, unhappy with the practical realities of the federation, Western Australia voted to secede from the Commonwealth by an overwhelming two-thirds majority. Rather than attempt to amend the Australian Constitution through the difficult referendum process in s 128, or secede unilaterally, the state decided to petition the UK Parliament to amend the Act containing the Constitution and re-establish Western Australia as a separate British colony. However, the UK Parliament decided it could not receive the petition presented by Western Australia, because it was ‘contrary to any request or desire of the Commonwealth of Australia’ and, as a matter of convention and practice, after the Statute of Westminster the UK Parliament would not enact legislation for a dominion except with that dominion’s request and consent.90 In 1986 the states achieved the same level of independence as the Commonwealth with the passage of the Australia Acts (we refer to them as ‘Acts’ because versions of them were passed by the Commonwealth and UK parliaments, as there was some

83 84 85 86 87 88 89 90

Note that the statute was expressly made not applicable to the Australian states (Statute of Westminster 1931, 22 Geo 6, c 4, s 9(1)), whereas the provinces of Canada did receive the benefits of it. Statute of Westminster Adoption Act 1942 (Cth) s 4. Ibid s 2(2). Ibid s 3. Seat of Government Acceptance Act 1909 (Cth) s 6. Northern Territory Acceptance Act 1910 (Cth); Northern Territory Surrender Act 1908 (SA). Northern Territory (Self-Government) Act 1978 (Cth). Thomas Musgrave, ‘The Western Australian Secessionist Movement’ (2003) 3 Macquarie Law Journal 95.

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uncertainty as to which Parliament actually had the power to enact them). The Acts were passed in a process that involved eight parliaments—the six states requested the Commonwealth to pass the Australia Act (Request and Consent) Act 1985 (Cth), which then requested the UK Parliament to enact the Australia Act 1986 (UK). The Commonwealth, just to make sure, also passed its own version of the Act, the Australia Act 1986 (Cth).91 The Acts terminated the UK Parliament’s power over the states, territories and the Commonwealth (so that even with the request and consent of the local parliaments the UK Parliament could not pass laws with respect to Australia).92 They removed the extra-territorial limitation on state parliaments.93 They also removed the repugnancy limitation on state parliaments,94 abolished the availability of appeals to the Privy Council from the state courts,95 removed the requirement for UK parliamentary approval for certain state legislation,96 and reinforced that the Queen and her representatives must act on the advice of the local government (state or Commonwealth) and not the UK Government.97 The ability of the state parliaments to pass manner and form requirements—at least for laws respecting the constitution, powers or procedures of the Parliament—was retained in s 6. There was still confusion as to whether the Statute of Westminster and the Australia Acts did in fact completely sever the ties between Britain and Australia.98 This was not confirmed until 1999 in the case of Sue v Hill,99 which held that Australia had reached a point of independence for each of its institutions, since at least the time of the passing into law of the Australia Acts: its legislatures were no longer subject to the UK legislature, but only to the Constitution; its courts were no longer subject to appeal to the Privy Council; and its executive was independent of the UK Crown. The distinction between the Crowns was confirmed by the fact that the Queen of the Commonwealth acts on the advice of the Commonwealth ministers, and the Queen of each state acts on the advice of that state’s ministers.100 91

Fears about the constitutionality of the Acts were put to rest in Port MacDonnell Professional Fishermen’s Association Inc v South Australia (1989) 168 CLR 340. 92 Australia Act 1986 (Cth) s 1, which is identical to the same section in the Australia Act 1986 (UK). 93 Ibid s 2(1). 94 Ibid, s 3 removed the repugnancy restriction, although the limitation was removed only prospectively, which has been remedied in the states. See Interpretation Act 1987 (NSW) s 34A; Acts Interpretation Act 1954 (Qld) s 9A; Acts Interpretation Act 1915 (SA) s 22B; Acts Interpretation Act 1931 (Tas) s 46C; Interpretation of Legislation Act 1984 (Vic) s 58; Interpretation Act 1984 (WA) s 76A. 95 Australia Act 1986 (Cth) s 11. 96 Ibid s 9. 97 Ibid s 10. 98 See, eg, Christopher Gilbert, ‘Section 15 of the Australia Act: Constitutional Change by the Back Door?’ (1989) 5 Queensland University of Technology Law Journal 55; British Coal Corporation v R [1935] AC 500, 520 (Lord Sankey LC); Twomey, above n 59, 115–9. 99 (1999) 199 CLR 462. 100 An explanation of the relationship between the Queen and the executive ministers is provided in Chapter 7.

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There is still a large reform movement in Australia to sever ties completely with Britain by removing the UK Queen as our head of state; that is, to become a republic. A referendum on whether Australia should adopt a particular model of a republic was held in 1999, but was not carried nationally or in any state. This model replaced the office of the Governor-General with that of a President, confirmed by a special majority of Parliament and subject to removal by the Prime Minister, and who retained the same powers as the current Governor-General (these officers and powers are explained in Chapter 7). One of the main reasons why the 1999 republic referendum failed was because of the lack of consensus over this model. The move to a republic by Australia in the future remains an ongoing and important debate in Australian public law. It is one that raises questions over how Australians identify themselves in the 21st century, how we reflect upon and celebrate the history of our nation, and the extent to which society democratically participates in our institutions of government. The republican debate contains a number of difficult technical issues, such as the most appropriate model for the head of state. The choice of the institution for the head of state—whether that be an elected or appointed President—and the breadth of their powers, will have an important impact upon the operation of the current public law institutions, and has the capacity to affect the legitimacy and powers of Parliament and the executive. But the republican debate also represents an opportunity to change the Constitution to reflect the identity of the Australian nation in the 21st century—developing a lasting compact with Australia’s First Nations peoples, acknowledging and reflecting the diverse, multicultural makeup of the Australian population, and reflecting Australia’s changing place in the international community. Australia’s public law has been shaped by particular key post-federation developments. Next we briefly chronicle two: national security, and immigration and border control.

National security One of the key responsibilities of the state is to protect its citizens from harm. Those harms will evolve across the course of the nation’s history, and the community will expect the government to develop new policies and laws to protect it from new, or newly perceived, threats. This makes this field an intensely political issue, and it also produces some of the most heated spaces in which tensions between public law principles and institutions play out. It raises questions around the appropriate extent of executive empowerment to protect against threats, the protections that are retained for individual rights and liberties in the face of these powers, and the strength of public law institutions to provide appropriate political and legal accountability to their exercise.

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Pursuant to its constitutional powers, the Commonwealth established a defence force straight after federation in 1901, but Australia saw no real threat from foreign sovereign nations until the advancement of the Japanese military across the Pacific during the Second World War. In late 1942 and 1943, Australia was subjected to a number of attacks on its shores by Japanese military forces. The first and largest of these attacks occurred on 19 February 1942 in Darwin, killing at least 243 people; while on 31 May 1943, the Japanese launched three midget submarines into Sydney Harbour to attack the USS Chicago and other ships anchored there. One of the submarines successfully torpedoed a civilian boat commissioned by the Navy, killing 21 Navy personnel. Since the Second World War, the Australian mainland has not been attacked. However, Australia’s military forces have been involved in combat through deployment in strategic alliances, most recently in Afghanistan and Iraq, and through involvement in peacekeeping and nation-building missions, such as in East Timor and the Solomon Islands. They have also been increasingly involved in national security operations targeted against the threat of terrorism. The September 11 terrorist attacks in the US were significant, not only because of the number of lives lost in them, the damage caused and the subsequent international conflicts spawned, but also because of the quantity of controversial legislation passed in their wake across a number of jurisdictions, including Australia.101 Canadian constitutional expert Kent Roach referred to the Australian response as ‘hyper-legislation’, as the nation’s legislature became caught up in the ‘9-11 effect’.102 New Commonwealth anti-terrorism laws now operate in addition to and often superseding the states’ criminal laws. Government agencies, including ASIO, the Australian Federal Police and the defence forces, have been given sweeping new powers to combat the threat of terrorism, including powers to question and detain, that undermine many of the traditional rights protections inherent in the general criminal law. These developments raise acute public law concerns around how Australia’s democratic institutions have balanced new investigative and deterrence powers with protections for individual rights, and the extent to which the judicial branch should be involved in the constitutional and administrative review of these new powers.

Immigration and border control Another key post-federation policy development that continues to shape Australian public law, and provides the factual context against which many of the public law issues play out, is Australia’s immigration policy. A fundamental incident of sovereignty is 101 Gérard Chaliand and Arnaud Blin (eds), The History of Terrorism from Antiquity to Al Qaeda (Edward Schneider, Kathryn Pulver and Jesse Brown trans, University of California Press, 2007)  328–9 [trans of: Histoire du Terrorisme: De l’Antiquité à Al Qaida (first published 2004)]. 102 Kent Roach, The 9-11 Effect: Comparative Counter-Terrorism (Cambridge University Press, 2011) ch 6.

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the power to exclude others from the political community. Immigration control is used to exclude non-citizens who might present a threat to the physical safety of the Australian people or a threat to the continuance of the Australian system of government. Immigration control is also used to regulate entry and exit to Australia for the purpose of maintaining social and cultural cohesion, and bolstering economic prosperity. From the beginning of federation, Australia has maintained strict control of entry into Australian territory. The Immigration Restriction Act 1901 (Cth) was passed by the first Commonwealth Parliament to implement the White Australia Policy, an immigration policy that favoured people from Europe, and particularly the UK, in order to preserve a homogenous ethnic identity among the Australian population.103 In addition to excluding people based on criminal convictions, insanity, the state of their health and other personal characteristics, the Act excluded people using the mechanism of a dictation test of 50 words, to be administered at the discretion of a migration officer in a ‘European language’ to any person seeking to enter Australia.104 The dictation test was used successfully to implement the White Australia Policy until it was repealed in 1958.105 After the Second World War, immigration was seen to play a new role in Australia’s security. Australia was a very small nation of seven million people, with a large territory. It was considered that the defence and economic prosperity of the nation required rapid population growth. From the 1950s, an aggressive immigration program was implemented, targeting first British migrants, and then—as these were in short supply after the war—migrants from across Europe. The Immigration Restriction Act 1901 was replaced by the Migration Act 1958, which is the current law governing Australia’s migration policy. Over the course of the 1960s, the Migration Act progressively abandoned the White Australia Policy. Remaining vestiges of the policy were removed in 1973, when the Whitlam Government legislated to allow migrants from all origins to apply for citizenship after three years of permanent residence; issued instructions to department officers to disregard race as a factor in

103 Department of Immigration and Citizenship, Fact Sheet 8:  Abolition of the ‘White Australia’ Policy (October 2012), . 104 Immigration Restriction Act 1901 (Cth) s 3(a). 105 Museum of Australian Democracy, Documenting Democracy:  Immigration Restriction Act 1901 (Cth), . The dictation test was also used to keep out people considered undesirable for reasons other than race. For instance, in the 1930s it was deployed against Jewish writer and journalist from Czechoslovakia, Egon Kisch. See generally Egon Kisch, Australian Landfall (John Fisher, Irene Fitzgerald and Kevin Fitzgerald trans, M Secker & Warburg, 1937)  [trans of: Landung in Australien (first published 1937)]; Steve Meacham, ‘One Jump Ahead of a Ban on Freedom’, The Sydney Morning Herald (online), 8 February 2005, ; R v Carter; Ex parte Kisch (1934) 52 CLR 221.

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the selection of migrants; and ratified a range of international agreements relating to immigration and race.106 Australia continues to have a high level of planned migration. As in most countries, the determinant of legal presence in Australia is possession of a valid visa.107 The responsibility for granting or refusing to grant a visa lies with the Minister for Immigration and Citizenship,108 and the Minister has the power to refuse to grant a visa and to cancel a visa previously granted if the Minister is satisfied that a person does not satisfy the ‘character test’.109 The fact that Australia is surrounded by water means that people generally do not enter Australia undetected, and indicates there is a marked contrast between Australia’s ability to control its borders and that of other developed nations.110 As a result, the number of people present in Australia without valid visas is relatively low. There is, however, one category of migrant over whom the Government does not have such control—asylum seekers who arrive at the border and seek Australia’s protection pursuant to its obligations under the Convention Relating to the Status of Refugees 1951 (the ‘Refugee Convention’) and its protocol.111 Throughout this book, we will see that many public law issues have arisen in relation to the different approaches of Australian governments to dealing with asylum seekers. There have been challenges to the Government’s deployment of military officers to prevent asylum seekers arriving in Australian territory; there have been many different types of challenges to the Government’s policy of detaining asylum seekers in Australia and offshore; and there have been numerous individual challenges to ministerial decisions refusing to grant or cancelling visas. Australia’s approach to the question of who may enter and stay in Australia has proven a highly contested battleground of Australian public law. Another significant change in migration policy, particularly since the 1990s, has been the increase in temporary migration. Australia now accepts close to one million new temporary migrants annually, including skilled workers, international students, seasonal workers, working holiday makers, and asylum seekers and refugees. These

106 See Department of Immigration and Citizenship, above n 103; Andrew Markus, Australian Race Relations, 1788–1993 (Allen and Unwin, 1994). 107 Migration Act 1958 (Cth) s 13. 108 Ibid s 65. 109 Ibid s 501. 110 On 23 September 2013, for example, the illegal migrant population in the US was 11.7 million: See Julia Preston, ‘Number of Illegal Immigrants in US May Be on the Rise Again, Estimates Say’, The New York Times (online), 23 September 2013, . 111 Protocol Relating to the Status of Refugees, opened for signature 31 January 1967, 606 UNTS 267 (entered into force 4 October 1967).

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temporary migrants have significantly fewer civil and political rights than citizens or permanent residents. From a public law perspective, there are important questions about how their rights can be protected, and at what point their connection to Australia should be recognised with a grant of permanent residence.112 Along with changes to migration policy, since 2000, there has been a discernable shift in approaches to citizenship. At federation, the people of Australia were subjects of the Queen, not ‘citizens’ of Australia. Indeed, the terms ‘citizen’ or ‘citizenship’ are not contained in the Constitution other than in s 44, which disqualifies foreign citizens from being Commonwealth parliamentarians. In 1948, the Australian Parliament passed the Citizenship Act 1948 (Cth), which, for the first time, created Australian citizenship. This has been superseded by the Australian Citizenship Act 2007 (Cth). In 2007, the Howard Coalition Government added a citizenship test to the eligibility criteria for citizenship. The test was aimed at assessing applicants’ knowledge of Australia’s history, culture and institutions of government. In 2017, the Turnbull Liberal National Coalition Government proposed significant changes to Australia’s citizenship laws. The proposal was to increase the residence requirement, add a new Australian values test, and introduce an English language test to the existing criteria for citizenship. These additional barriers to citizenship, which were ultimately rejected by Parliament, were justified on the basis that citizenship is a privilege rather than a marker of membership and inclusion. Citizenship is an important mechanism to foster integration and make people feel fully connected and committed to Australia. There is a risk that if citizenship is too hard to attain, a two-tier system of permanent residency will develop in Australia: those who are full citizens, and those who failed to become citizens. From a public law perspective, this division creates a difficulty in reckoning who are the people of Australia. Under the Constitution, governments are to be directly chosen by the people. Only citizens, and British subjects enrolled before 26 January 1984, are entitled to vote,113 and have security of residence under the Migration Act 1958 and the Commonwealth Electoral Act 1918. However, if there are permanent residents who have made Australia their home, and have little if any connection to another country, is it right to deny them the basic rights of citizenship, such as the right to vote? Questions such as this are likely to be at the forefront of debates about national identity and the rights of the Australian people in coming years, debates that are at the heart of the development of Australian public law.

112 See, eg, Peter Mares, Not Quite Australian:  How Temporary Migration is Changing the Nation (Text Publishing, 2016). 113 Commonwealth Electoral Act 1918 (Cth) s 93(1)(a).

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Conclusion Australia’s system of public law must be understood against its history as a penal colony and the constitutional developments that preceded it in England. In many ways, the story of public law in Australia is a conservative one in which the colonists fought for rights to English institutions. However, coupled with this caution is innovation and experimentation. Australian colonies were among world leaders in many democratic rights. Australia’s federal movement experimented with democratic participation in the constitution-making process (a vital dimension of any constitution-making attempted today), as well as the combination of UK and US institutions in novel ways. Australia’s constitutional system can be viewed on the one hand as a fairly static cornerstone to our governance system:  only eight of 44 proposed constitutional referendums have been successful in amending its text and the High Court has been able to change our understanding of the text only through incremental change. However, the remainder of this book will demonstrate that our larger public law system remains dynamic, as it continues to struggle with how best to resolve the tensions inherent in granting and limiting public power in responding to post-federation developments, including national security, immigration and border control, and, as we turn to in the next chapter, the rightful place of Australia’s First Nations people and their relationship with the state.

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DISCUSSION QUESTIONS 1

Explain the role and legacy of international law principles in the establishment of Australia’s legal system.

2

The institutions of representative and responsible government and an independent judiciary were extremely important to the Australian colonists. Why were they important? Describe the process by which Australia adopted them.

3

Describe some of the unwritten constitutional conventions adopted from Britain by the Australian colonies and later the Commonwealth. Are there advantages to retaining these rules as unwritten conventions?

4

Consider the history of the state and Commonwealth constitutions. To what extent do the Australian people own their constitutions?

5

Find a copy of the debates from the Australian constitutional conventions (these will be available in a good law library, or you can access them online),114 and read those

114 They are available at Parliament of Australia, Records of the Australasian Federal Conventions of the 1890s, .

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parts of the debates where the delegates considered the regulation of the Murray River. Where were the concerned delegates from? What were their major points of disagreement? 6

Australia’s constitutional documents were drafted in the second half of the 19th century and reflect many of the struggles of that period. Does Australia need to revisit its constitutional documents and consider, for example, whether it should become a republic?

FURTHER READING Nicholas Aroney, The Constitution of a Federal Commonwealth: The Making and Meaning of the Australian Constitution (Cambridge University Press, 2009) J M Bennett and Alex Castles, A Source Book of Australian Legal History: Source Materials from the Eighteenth to the Twentieth Centuries (Law Book Co, 1979) Alex Castles, ‘The Reception and Status of English Law in Australia’ (1963) 2 Adelaide Law Review 1 Helen Irving, To Constitute a Nation; A Cultural History of Australia’s Constitution (Cambridge University Press, revised ed, 1999) Bruce Kercher, An Unruly Child: A History of Law in Australia (Allen & Unwin, 1995) J A La Nauze, The Making of the Australian Constitution (Melbourne University Press, 1972) W G McMinn, A Constitutional History of Australia (Oxford University Press, 1979) A C V Melbourne (R B Joyce (ed)), Early Constitutional Development in Australia: New South Wales 1788–1856; Queensland 1859–1922 (University of Queensland Press, 2nd ed, 1963)

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David Neal, The Rule of Law in a Penal Colony:  Law and Power in Early New South Wales (Cambridge University Press, 1991) John Quick and Robert Garran, The Annotated Constitution of the Australian Commonwealth (Legal Books, first published 1901, 1976 ed) John M Williams, ‘The Emergence of the Commonwealth Constitution’ in H P Lee and George Winterton (eds), Australian Constitutional Landmarks (Cambridge University Press, 2003) 1 John M Williams, The Australian Constitution: A Documentary History (Melbourne University Press, 2005) Victor Windeyer, ‘A Birthright and Inheritance:  The Establishment of the Rule of Law in Australia’ (1962) 1 University of Tasmania Law Review 635 George Winterton (ed), State Constitutional Landmarks (Federation Press, 2006)

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ABORIGINAL AND TORRES STRAIT ISLANDER PEOPLES AND AUSTRALIAN PUBLIC LAW

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CHAPTER OVERVIEW Introduction

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Aboriginal and Torres Strait Islander peoples

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Sovereignty

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The struggle for Aboriginal and Torres Strait Islander rights

81

The legal and theoretical bases for Aboriginal and Torres Strait Islander claims against the state

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Types of Aboriginal and Torres Strait Islander claims

90

Self-determination and self-government

90

Land rights

93

Protection of cultural heritage

97

Recognition of customary law

99

Equality rights

100

Citizenship and voting rights

100

Compensation for harm resulting from discriminatory policies and conduct

102

Northern Territory Emergency Response

105

Closing the gap on social outcomes

107

Structural change

108

Constitutional recognition

108

Treaties

114

Conclusion

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Introduction

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In Chapter  1, we discussed how the study of public law not only includes an examination of the rules for the functioning of the state, but also considers the grounds for its legitimacy. In Chapter 2, we found that the Australian legal system frames its legitimacy in terms of its connection to, and then its independence from, the legal system of the UK. In this chapter, we confront the fact that the foundation of the Australian legal system was asserted without addressing the relationship of the Australian state with the people who were living here for tens of thousands of years before the colonists and settlers arrived. The first governors did not seek permission of Aboriginal and Torres Strait Islander peoples to enter the land, they did not attempt to form treaties with them, nor did they claim the land by right of conquest. And yet, for the common law to become the law of the land, there must be an explanation for how this law either replaced the laws of the First Nations, or, if they did not replace these laws, the terms upon which the laws of the state and the laws of Aboriginal and Torres Strait Islander peoples co-exist. In the absence of a clearly defined legal relationship between Aboriginal and Torres Strait Islander peoples and the Australian state, the terms of the relationship have remained a contested issue in Australia’s public law. Australian public law must account for the unique place of Aboriginal and Torres Strait Islander peoples in the nation due to their original occupancy; the fact of their unique languages, laws, cultures and connection to the land; and the history of their interaction with colonisers and colonial, state and Commonwealth governments. At the time of colonisation, the British were aware that they were engaging in legal relations with Aboriginal and Torres Strait Islander peoples. Captain James Cook carried instructions from the Admiralty issued in 1768 that stated: You are likewise to observe the genius, temper, disposition and number of the natives, if there be any, and endeavor by all proper means to cultivate a friendship and alliance with them … You are also with the consent of the natives to take possession of convenient situations in the country in the name of the King of Great Britain.1

Eighteen years later, when Governor Arthur Phillip arrived with the First Fleet, his instructions focused more on the needs of settlers in relation to land grants and empowered him to take measures to limit native ‘interference’.2 The instructions gave no sense of the Aboriginal peoples who had lived on the land for generations having a legal entitlement to it, and the only obligation on the Governor was ‘to open 1 2

J M Bennett and Alex C Castles, A Source Book of Australian Legal History: Source Materials from the Eighteenth to the Twentieth Centuries (Lawbook, 1979) 253–4. Heather McRae, Garth Nettheim, Larua Beacroft and Luke McNamara, Indigenous Legal Issues: Commentary and Materials (Lawbook, 3rd ed, 2003) 19.

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an intercourse with the natives, and to conciliate their affections, enjoining all our subjects to live in amity and kindness with them’.3 The constituting documents and constitutions of some colonies provided expressly for Aboriginal peoples. These sections have been the subject of litigation on behalf of Aboriginal people in these states, arguing for the enforcement of the terms of these constitutional documents. The actions have been unsuccessful to date.4 The only mention of Aboriginal people in the Commonwealth Constitution when it was drafted was in s 127, which related to not counting them in ‘reckoning the numbers of the people of the Commonwealth in certain circumstances’, and in s 51(xxvi), which provided that the Commonwealth had the powers to make laws with respect to: ‘the people of any race, other than the Aboriginal race in any state, for whom it is deemed necessary to make special laws’. The words ‘other than the Aboriginal race in any state’ were removed in the 1967 constitutional referendum, giving, for the first time, the Commonwealth Parliament the power to make laws for Aboriginal people. The ongoing silence of the Commonwealth Constitution in relation to Aboriginal and Torres Strait Islander rights has led to calls for a referendum to ‘recognise’ Aboriginal and Torres Strait Islander peoples as First Nations peoples in the Constitution. This has led to an ongoing debate about what ‘recognition’ would mean: would it be merely symbolic recognition of the history and status of Aboriginal and Torres Strait Islander peoples as the First Peoples of Australia, or would it include more substantive recognition, which might take the form of representation in the parliamentary process, or a legally enforceable prohibition on racial discrimination? We return to the debate over constitutional recognition below. The legal relationship between Aboriginal and Torres Strait Islander peoples and the Australian state remains unresolved, including the terms upon which the British colonists took possession of land without the consent of the Aboriginal and Torres Strait Islander peoples; the place of Aboriginal and Torres Strait Islander peoples in the Australian legal system, particularly in the Australian Constitution; the degree of autonomy and self-determination of Aboriginal and Torres Strait Islander communities; the status and recognition of customary law; and the ‘voice’ of Aboriginal and Torres Strait Islander peoples in the institutions of government. 3 4

G Barton, History of New South Wales from the Records (Charles Potter, 1889–94) vol 1, 483. The Letters Patent under the Seal of William IV establishing the colony of South Australia in 1936 concluded with the words:  ‘Provided that nothing in those Letters Patent contained shall affect or be construed to affect the rights of any Aboriginal Natives of the said Province to the actual occupation or enjoyment in their own Persons of their Descendants of any Lands therein now actually occupied or enjoyed by such Natives.’ Section 70 of the Western Australian Constitution Act 1889 provided for the expenditure of 5000 pounds or 1 per cent of the gross revenue of the colony, whichever was the greater, for the ‘welfare of the Aboriginal Natives’. The section was not complied with by the government, and eventually repealed in 1905: Peter Johnston, ‘The Repeals of Section 70 of the Western Australian Constitution Act 1889: Aborigines and Governmental Breach of Trust’ (1989) XIX University of Western Australia Law Review 318.

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There is no easy way to capture the many different means by which public law addresses the relationship of the state with Aboriginal and Torres Strait Islander peoples. In this chapter, we seek to do so by providing an overview of the key theoretical questions around the state’s assertion of legal authority over Aboriginal and Torres Strait Islander peoples in Australia and their claims in response to this assertion of authority. The chapter begins by considering the question of who are Aboriginal and Torres Strait Islander peoples, and how Australian governments have dealt with this question of identity. Second, it considers how public law has responded to the most fundamental of claims made by Aboriginal and Torres Strait Islander peoples: the claim to sovereignty. The chapter then outlines the various bases for Aboriginal and Torres Strait Islander peoples’ claims against the state, and offers and discusses a typology for these claims. The chapter ends with a consideration of how Aboriginal and Torres Strait Islander interests and rights can be pursued in the future—through recognition of Aboriginal and Torres Strait Islander peoples in the Commonwealth Constitution and other public law instruments, or through the use of agreements or ‘treaties’ between Australian governments and Aboriginal and Torres Strait Islander peoples. There is considerable variation in how Aboriginal and Torres Strait Islander peoples have been described and have chosen to describe themselves. Many of those nouns are now considered derogatory, including ‘Indigenes’, ‘Aborigines’ or ‘Natives’, although in Tasmania, the Aboriginal population often self-describes as ‘Aborigines’. In previous editions of this book, we adopted the term ‘Indigenous’ or ‘Indigenous Australians’. This term is still widely used by academics and within government. It encompasses Aboriginal as well as Torres Strait Islander peoples, who have a recognised separate identity to Aboriginal peoples on the mainland and in Tasmania. Further it connects the indigenous population in Australia to international standards, such as the United Nations Declaration on the Rights of Indigenous Peoples, as well as to other indigenous peoples across the world. However, in this edition, we have chosen to use the language of ‘Aboriginal and Torres Strait Islander peoples’, First Nations and First Peoples. This reflects the language that Aboriginal and Torres Strait Islander peoples have adopted to describe themselves—for instance, in the Uluru Statement from the Heart. It is important to refer to Aboriginal and Torres Strait Islander peoples in the plural, to recognise that there are hundreds of separate communities in Australia with their own language, culture, law and traditional lands.

Aboriginal and Torres Strait Islander peoples In determining the nature and extent of the relationship between Aboriginal and Torres Strait Islander peoples and public law, a threshold question arises as to the identity of these groups and the individuals within them. A distinction immediately needs to be made between Aboriginal and Torres Strait Islander peoples defined as a national

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group, and Aboriginal and Torres Strait Islander peoples as separate cultural and territorial communities. Each community has its own relationship with the state, and each, depending on its historical circumstances and its continuing strength, will have different claims to make against the state. At the same time, because Aboriginal and Torres Strait Islander peoples were originally treated as an undifferentiated whole by the state in most respects,5 and because they have a common experience of dispossession from land, removal from families and other harms under the laws of governments and the actions of settlers, Aboriginal and Torres Strait Islander peoples also have a shared experience that operates at a national level. At the individual level, each Aboriginal and Torres Strait Islander person has unique claims to be made against the state, based on their particular histories and current socio-economic circumstances. A need, therefore, arises for the government to be able to identify who might fall within these different levels of identity as Aboriginal and Torres Strait Islander peoples. At the time of British settlement, there were several hundred Aboriginal and Torres Strait Islander communities with unique languages, cultures, territories and laws. Colonisation had a devastating impact on these communities, through the introduction of disease, alcohol, and the new settlers’ acquisition of territory with little or no concern for the rights of the First Peoples. Australian colonial history is marked by violent episodes, both random and systemic, both government-sponsored and driven by private individuals, and by policies focusing on eugenics that continued to be administered into the second half of the 20th century.6 Many Aboriginal and Torres Strait Islander communities lost some or all of their language, culture and law. The number of Aboriginal and Torres Strait Islander people was drastically reduced in the 19th century to the extent that it was popularly and officially predicted in the early 20th century that they would disappear as a race.7 Their predicted demise is one reason they hardly feature in the Australian Constitution, as is discussed below. There is a separate history to be told of Aboriginal and Torres Strait Islander peoples’ strength, resilience, resistance and sense of identity in the face of the official and unofficial practices that negatively affected them. The 1921 census recorded that there were 58,867 ‘full-blood Aborigines’ or just over 1 per cent of the total population of 5.4  million people.8 In the 2016 census conducted by the Australian Bureau of 5 6

7

8

See, eg, the generic description of ‘the aboriginal race’ in s 51(xxvi) and ‘aboriginal natives’ in s 127 of the Australian Constitution. For a survey of these policies, see Human Rights and Equal Opportunity Commission, Bringing Them Home: National Inquiry into the Separation of Aboriginal and Torres Strait Islander Children from Their Families (‘Bringing Them Home Report’) (1997) ch 2 and apps 1–7. For a discussion of the existence and influence of this belief, see Russell McGregor, Imagined Destinies:  Aboriginal Australians and the Doomed Race Theory, 1880–1939 (Melbourne University Press, 1997). Australian Bureau of Statistics, Yearbook of Australian Statistics (1924) 918. The fact that ‘full–blood Aborigines’ were selectively counted, and not included in all other population statistics, indicates that there was an expectation of their demise.

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Statistics, 649,000 people, or 2.8 per cent of the Australian population, reported being of Aboriginal and/or Torres Strait Islander origin.9 The highest number of Aboriginal and Torres Strait Islander people lived in New South Wales (216,176), and the Northern Territory has the highest proportion of Aboriginal and Torres Strait Islander people in its total population (25.5 per cent). Aboriginal and Torres Strait Islander peoples had a much younger age profile than non-Indigenous Australians, with a median age of 23 years compared to 38 years. Ten per cent of Aboriginal and Torres Strait Islander people spoke an Indigenous language at home. Of these, 85 per cent also reported speaking English well or very well. Over 35 per cent of Aboriginal and Torres Strait Islander peoples lived in capital city areas, but this varied around the country with over 50 per cent being in cities in Victoria and South Australia but only 20 per cent being in cities in the Northern Territory. Census data in 2016 also revealed that Aboriginal and Torres Strait Islander incomes were lower than other Australians, and their education attainment levels were much lower. The mixed and complex interaction of Aboriginal and Torres Strait Islander peoples and non-Indigenous Australians in the process of colonisation has had a profound impact on the determination of Aboriginal and Torres Strait Islander identity. Most directly, it has made it difficult for many Aboriginal and Torres Strait Islander people to establish a direct biological or cultural connection to their ancestors and family. Australian governments have cause to distinguish between Aboriginal and Torres Strait Islander peoples and others for many reasons, including, for instance, in the protection of cultural heritage, the grant of native title and other land rights, the grant of compensation for past wrongs, and the provision of targeted benefits and opportunities to address historical discrimination. There is no comprehensive legal definition of who is an Aboriginal and Torres Strait Islander person. This is partly because of the problems inherent in the idea of ‘race’, which is now accepted as a social construct, a weak—and discriminatory— proxy for genetic diversity across the human species. The concept, nonetheless, continues to find expression in the Commonwealth Constitution, and there are many legal regimes that turn on the establishment of Aboriginal and Torres Strait Islander identity and which rely on the race power as their source of legitimacy. In considering the meaning of the term ‘race’ in s 51(xxvi) of the Constitution in the High Court case of Commonwealth v Tasmania (‘Tasmanian Dam Case’), Brennan J held that although there is necessarily a biological element to the determination of race, other characteristics such as ‘a common history, a common religion or spiritual beliefs and a common culture’ were of equal importance.10

9 10

Australian Bureau of Statistics, Census Aboriginal and Torres Strait Islander Population (27 June 2016), . (1983) 158 CLR 1, 243–5.

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In 1981, the Department of Aboriginal Affairs proposed a three-part definition for Aboriginality that included proof of descent, self-identification and community recognition.11 In Shaw v Wolf,12 Merkel J of the Federal Court, following earlier Federal Court authority,13 used these three criteria to determine whether certain individuals were ‘Aboriginal’ and thereby eligible to stand for election for the Aboriginal and Torres Strait Islander Commission under the Aboriginal and Torres Strait Islander Commission Act 1989 (Cth) (‘ATSIC Act’) (this Act has since been repealed and the Commission abolished, which we discuss below). Section 4(1) of the ATSIC Act defined an ‘Aboriginal person’ as ‘a person of the Aboriginal race of Australia’. The claimants, who objected to the eligibility of the people standing for the ATSIC election, argued that although the people standing for election might be able to construct a contemporary identity as Aboriginal through their involvement in the community and through their self-identity, they could not prove their descent. The claim was of particular significance and sensitivity because it involved one group of Aboriginal people challenging the identity of another group of Aboriginal people. In his judgment, Merkel J was careful to consider historical proof of descent and questions of self-identity together, so that the two were mutually reinforcing and not in opposition. Nonetheless, his Honour concluded that two of the nine individuals whose identity was challenged did not satisfy the definition of an ‘Aboriginal person’ under s 4 of the Act.14

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Sovereignty This chapter is premised on there being a relationship between Australian public law and Aboriginal and Torres Strait Islander peoples. Although this relationship is well established now, the question of the acquisition of British sovereignty to found the Australian state has been vigorously contested by Aboriginal and Torres Strait Islander peoples, both in fact and in law. There are two related questions of sovereignty in the law. First, there is the question of whether a colonising state’s claim to sovereignty is recognised at all. Second, even if it is recognised, it must be asked whether the claim can be sustained in the face of claims to legal and political autonomy of groups within a territory,15 or whether a single state can accommodate competing claims to sovereignty within its territory and, if so, how. 11 12 13 14 15

Department of Aboriginal Affairs, Report on a Review of the Administration of the Working Definition of Aboriginal and Torres Strait Islanders (1981). (1998) 83 FCR 113. Gibbs v Capewell (1995) 54 FCR 503 (Drummond J). Shaw v Wolf (1998) 83 FCR 113, 131. For a discussion of Indigenous perspectives on sovereignty, see Aileen Moreton-Robinson, Sovereign Subjects (Allen & Unwin, 2007); C F Black, The Land is the Source of Law:  A Dialogic Encounter with Indigenous Jurisprudence (Routledge, 2011); Irene Watson, Aboriginal Peoples, Colonialism and

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As discussed in Chapter 2, in Australia the first question of sovereignty—which is known as the external dimension—focuses on the international law at the time of the British discovery and settlement of the east coast of Australia.16 According to international law in the 18th century, such as it was, colonisers needed to exercise a degree of physical occupation over a territory to successfully claim sovereignty over it. In relation to the first settlement at Sydney Cove in 1788, Deane and Gaudron JJ observed in Mabo v Queensland [No  2] (‘Mabo’):  ‘it is scarcely arguable that the establishment by [Governor] Phillip in 1788 of a penal camp at Sydney Cove constituted occupation of the vast areas of the hinterland of eastern Australia’.17 In everyday relations between Aboriginal and Torres Strait Islander peoples and British settlers, the inadequacy of effective occupation was of enormous significance for the Governor’s ability to govern for all, including Aboriginal and Torres Strait Islander peoples. It gave rise to legal and practical problems of the application of English law. Were Aboriginal and Torres Strait Islander peoples subject to English law at all? Did English law apply to disputes among Aboriginal and Torres Strait Islander people that had been resolved under customary law for thousands of years? If English law dispossessed Aboriginal and Torres Strait Islander peoples of entitlements they held under their own systems of law, when did this dispossession occur? Did it occur immediately upon the declaration of sovereignty on 26 January 1788, or progressively as settlement expanded? If it occurred progressively, did it require further declarations of sovereignty? In areas where there had not been effective British occupation, and English law had not yet been applied, could agreements be reached between Aboriginal and Torres Strait Islander people and settlers outside the law? The assertion of absolute British sovereignty in Australia was only possible in the face of the evident fact of Aboriginal and Torres Strait occupation because of the colonial mind-set of the British, which ‘embodied a series of cultural assumptions about the relative worth of other cultures, ways of life, value systems, social and political institutions, and ways of organising property’.18 Nonetheless the assertion of sovereignty was challenged in various ways in the early years of colonial rule. In the early 19th century, the newly established New South Wales Supreme Court19 grappled with three cases involving challenges to the Crown’s sovereignty: R v Ballard

16 17 18 19

International Law: Raw Law (Routledge, 2015); Julie Evans, Ann Genovese, Alexander Reilly and Patrick Wolfe (eds), Sovereignty:  Frontiers of Possibility (University of Hawai’i Press, 2013); Michael Mansell, Treaty and Statehood: Aboriginal Self-Determination (Federation Press, 2016). See also discussion of international law in Chapter 13. (1992) 175 CLR 1, 78. Duncan Ivison, Paul Patton and Will Sanders (eds), Political Theory and the Rights of Indigenous Peoples (Melbourne, 2000) 2. The Court’s first year of operation was 1824. See the further discussion in Chapter 2.

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or Barrett, R v Murrell and Bummaree and R v Bonjon.20 The cases all involved a dispute in which one Aboriginal man killed another Aboriginal man in areas where Aboriginal peoples outnumbered settlers and were living in self-governing communities. The question in all three cases was whether the accused could be charged with murder in the Supreme Court. From one perspective, the cases were a challenge to external sovereignty; that is, a challenge to whether English law had successfully become the law of the land and had jurisdiction over the disputes. From another perspective, the cases questioned the internal sovereignty of the Crown, considering the practicalities of applying the English law in these circumstances. The Court did not question British sovereignty in the cases, but did question the appropriateness of the application of English criminal law to the disputes. In Ballard, Forbes CJ considered the appropriateness of imposing English systems of justice on disputes among Aboriginal and Torres Strait Islander peoples and concluded that the Court had no jurisdiction to hear the dispute. In reaching this conclusion, he went back to the first principles for the application of law in a state: In the civilized state, man gives up certain natural rights, in exchange for the advantage of social security, and other benefit arising from the institutions of civilized life. It may be a question admitting of doubt, whether any advantages could be gained … by ingrafting the institutions of our country, upon the natural system which savages have adopted for their own government.21

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In Murrell,22 Burton J (with whom Forbes CJ and Dowling J agreed) affirmed the jurisdiction of the UK courts and the case went to trial. The Court was then faced with the problem of how to run an effective trial when the only witnesses were Aboriginal and Torres Strait Islander people who could not be sworn to give evidence. Despite this, and other difficulties, the trial proceeded and an all-white jury found Murrell to be not guilty. In Bonjon, Willis J, while acknowledging the sovereignty of the Crown, held that the Court did not have jurisdiction over disputes among Aboriginal and 20

21

22

R v Ballard or Barrett [1829] NSW Sup C 26 (13 June 1829); R v Murrell and Bummaree [1836] NSW Sup C 35 (5 February 1836); R v Bonjon [1841] NSW Sup C 92 (16 September 1841). These cases are reproduced in Bruce Kercher, Decisions of the Superior Courts of New South Wales, 1788–1899 (Division of Law, Macquarie University, 22 June 2012), . For a discussion of the three cases, see Bruce Kercher, ‘R v Ballard, R v Murrell and R v Bonjon’ (1998) 3(3) Australian Indigenous Law Reporter 410. R v Ballard or Barrett [1829] NSW Sup C 26 (13 June 1829)  available in Bruce Kercher, Decisions of the Superior Courts of New South Wales, 1788–1899 (Division of Law, Macquarie University, 22 June 2012), . R v Murrell and Bummaree [1836] NSW Sup C 35 (5 February 1836) available in Bruce Kercher, Decisions of the Superior Courts of New South Wales, 1788–1899 (Division of Law, Macquarie University, 22 June 2012), .

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Torres Strait Islander people, and held that the dispute should be dealt with by ‘their own rude laws and customs’.23 Any doubts about the applicability of English law to these disputes were soon resolved in favour of the Crown.24 However, it was not until 1979, in the case of Coe v Commonwealth,25 that the High Court was called upon to determine whether the British had taken effective possession of the Australian continent for the Crown, and whether this taking—and the accompanying assertion of British sovereignty— were consistent with any countervailing Aboriginal claim to sovereignty. The Court emphatically affirmed the sovereignty of the Crown and declared this sovereignty to be inconsistent with any other claims: The aboriginal people are subject to the laws of the Commonwealth and of the States or Territories in which they respectively reside. They have no legislative, executive or judicial organs by which sovereignty might be exercised. If such organs existed, they would have no powers, except such as the laws of the Commonwealth, or of a State or Territory, might confer upon them. The contention that there is in Australia an aboriginal nation exercising sovereignty, even of a limited kind, is quite impossible in law to maintain.26

We will see in the discussion of Aboriginal and Torres Strait Islander land rights below, that although the authority of UK law was unquestionable, UK law itself contained a recognition of Aboriginal and Torres Strait Islander rights that could be claimed against the Crown.

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The struggle for Aboriginal and Torres Strait Islander rights The plenary legislative power of colonial parliaments under their constitutions was used to implement Aboriginal and Torres Strait Islander policy in different regions of Australia prior to federation. After federation, the states continued to implement their own policies and the Commonwealth relied on the territories power under s 122 of the Constitution to implement policy in the territories. There was a fundamental shift in responsibility in 1967, following a referendum that altered the Commonwealth Constitution to remove the exclusion of Aboriginal Australians from the race power (s 51(xxvi)). 23

24 25 26

R v Bonjon [1841] NSW Sup C 92 (16 September 1841) available in Bruce Kercher, Decisions of the Superior Courts of New South Wales, 1788–1899 (Division of Law, Macquarie University, 22 June 2012), . Attorney-General (NSW) v Brown (1847) 1 Legge 312; Cooper v Stuart (1889) 14 App Cas 286. (1979) 24 ALR 118. Ibid 129 (Gibbs CJ), affd Mabo v Queensland [No 2] (1992) 175 CLR 1, 31 (Brennan J), 78 (Deane and Gaudron JJ).

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There have been a number of phases in government policy relating to Aboriginal and Torres Strait Islander affairs. What follows is a general overview of these phases. Note that there has in fact been considerable variation in how governments and Aboriginal and Torres Strait Islander peoples have interacted in different parts of Australia. For example, although violence was universal, it was particularly fierce in mainland Queensland and Tasmania, and policies of miscegenation were implemented particularly vigorously in Western Australia.27 Most issues involving Aboriginal and Torres Strait Islander peoples in the 19th century were resolved outside the purview of the law. Aboriginal and Torres Strait Islander peoples were forcefully dispossessed from their land, and their lives and those of settlers were lost in internecine conflicts. As disease, alcoholism, dispossession from land and culture, conversion to Christianity and resettlement on missions occurred across the continent, it was assumed that Aboriginal and Torres Strait Islander peoples would simply die out.28 The assumption of a ‘dying race’ was manifest in Tasmania, where the last Tasmanian Aborigines were purportedly resettled on Flinders Island where they failed to flourish, and were then returned to Hobart to see out their days. The death of an Aboriginal woman, Truganini, in 1876 was expressed to be the point of extinction of Aboriginal peoples in Tasmania.29 The falsity of this claim was soon evident, however, as Aboriginal families and communities who had continued to live on other islands in the Bass Strait re-entered mainland Tasmanian society.30 By the late 19th century, and into the 20th century, the predicted demise of Aboriginal and Torres Strait Islander peoples had not occurred. The population stabilised, and then grew across the country. When it was clear that Aboriginal and Torres Strait Islander peoples would not simply die out, the official response was to implement policies of assimilation that aimed to separate Aboriginal and Torres Strait Islander children from their traditional culture, to breed out their colour and to fully integrate them into white society.31 The impact of these policies was thoroughly reported in the 1997 Bringing Them Home Report of the Human Rights and Equal Opportunities Commission.32 In February 2008, the Prime Minister Kevin Rudd apologised for the effect of these policies on behalf of the Commonwealth

27 28 29 30 31 32

See generally A Dirk Moses (ed), Genocide and Settler Society: Frontier Violence and Stolen Indigenous Children in Australian History (Berghahn Books, 2005). See McGregor, above n 7.  See, eg, Robert Travers, The Tasmanians: The Story of a Doomed Race (Cassell, 1968); Henry Ling Roth, Aborigines of Tasmania (Fullers Bookshop, 2nd revised ed, 1968). See, eg, Lindell Ryan, Tasmanian Aborigines: A History Since 1803 (Allen & Unwin, 2nd ed, 2012). See, eg, Moses, above n 27; Antonio Buti, Separated: Aboriginal Childhood Separations and Guardianship Law (Institute of Criminology, 2004). Human Rights and Equal Opportunity Commission, above n 6.

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Parliament.33 However, today, there has been no federal scheme of reparations or compensation to address the ongoing and intergenerational harm that these policies have caused. Alongside policies of assimilation, there were various ways in which laws of the Commonwealth and the states expressly discriminated against Aboriginal and Torres Strait Islander peoples into the 1970s. Aboriginal and Torres Strait Islander peoples worked alongside white workers for considerably lower wages, or for no wages at all.34 Aboriginal and Torres Strait Islander peoples were prevented from accessing many public and private places,35 and were denied the right to vote in many Australian parliaments. Furthermore, there was only limited legal protection of traditional lands on which many Aboriginal and Torres Strait Islander communities continued to live, and no recognition of entitlement to land under the law. This continued until the passing of land rights legislation in most states and territories from the 1970s,36 and recognition of common law rights to land, known as ‘native title’, in the landmark case of Mabo in 1992.37 Aboriginal and Torres Strait Islander peoples fought the actions and policies of the settlers and governments from the arrival of the First Fleet. This resistance was expressed initially in the form of violent resistance to the invasion and violence of the early settlers. This period of violent resistance was followed by the growth of a political movement in the 1920s, organising around events such as the Annual Day of Mourning, staged on 26 January 1938. Today, whether Australia should celebrate the arrival of the First Fleet on this date or should remember the fact of invasion of Aboriginal land is an unresolved debate. The early political movement grew strength through the 20th century, and crystallised around the equality and land rights movements in the 1960s and 1970s.38 In the 1960s, there was a new rise in Aboriginal and Torres Strait Islander political consciousness. This was expressed through protests at unequal working conditions—such as the Gurindji people walking off the Wave Hill cattle station in the Northern Territory in 1966 in protest over their

33 34 35 36

37 38

Commonwealth, Parliamentary Debates, House of Representatives, 13 February 2008, 167 (Kevin Rudd, Prime Minister). See, eg, Thalia Anthony, ‘Unmapped Territory: Indigenous Stolen Wages on Cattle Stations’ (2007) 11(1) Australian Indigenous Law Reporter 4. See, eg, Ann Curthoys, Freedom Ride: A Freedom Rider Remembers (Allen & Unwin, 2002). Aboriginal Land Rights (Northern Territory) Act 1976 (Cth); Aboriginal Land Rights Act 1983 (NSW); Anangu Pitjantjatjara Yankunytjatjara Land Rights Act 1981 (SA); Maralinga Tjarutja Land Rights Act 1984 (SA); Aboriginal Lands Act 1995 (Tas); Aboriginal Lands Act 1971 (Vic); Aboriginal Land Act 1991 (Qld). (1992) 175 CLR 1; Native Title Act 1993 (Cth). For an outline of the periods of resistance as told by Aboriginal and Torres Strait Islander peoples themselves across a nationwide consultation that led to the Uluru First Nations Constitutional Convention, see further Referendum Council, Final Report of the Referendum Council (2017) 16–21.

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wages—and claims to land rights in response to the government granting mining leases on traditional lands.39 The development of a stronger Aboriginal and Torres Strait Islander voice in mainstream politics led to pressure on the federal and state governments to develop laws and policies recognising their rights.40 As mentioned above, at federation, the power to make laws with respect to Aboriginal and Torres Strait Islander affairs had been specifically excluded from the Commonwealth and left to the states. By the 1960s, there was a consensus that the Commonwealth ought to play a more central role in Aboriginal and Torres Strait Islander affairs, and provide national redress for the harms of the state policies and laws. In 1967, a referendum was held to amend the Constitution in order to grant the power to make laws with respect to Aboriginal and Torres Strait Islander peoples to the Commonwealth Parliament. The mechanism for granting this power was to remove the exclusion of Aboriginal people from Parliament’s existing legislative power to make ‘special laws deemed necessary’ for the ‘people of any race’ in s 51(xxvi) of the Constitution.41 Since the referendum, the contest for the protection and promotion of rights for Aboriginal and Torres Strait Islander peoples has been focused largely at the Commonwealth level. In the 1960s, there were campaigns to eradicate the last vestiges of entrenched discrimination. In the 1970s there were assertions of sovereignty through the establishment of the Tent Embassy in Canberra and the beginning of a land rights movement. In the 1980s Aboriginal and Torres Strait Islander peoples advocated for a treaty, and the Commonwealth Government created a fund to buy back traditional lands for cultural and economic purposes.42 In the 1990s, the Aboriginal and Torres Strait Islander Commission (‘ATSIC’) was established as a dedicated voice for Aboriginal and Torres Strait Islander people in relation to policies that had a direct impact on their communities, and a dedicated reconciliation process was established to focus on all areas of Aboriginal and Torres Strait Islander policy. In 1991 there was a landmark report on Aboriginal deaths in custody that shone a light on disproportionately high rates of incarceration. In 1992, the High Court declared

39

40 41

42

For example, the Yirrkala bark petition presented to the Commonwealth Parliament in 1963, objecting to a mine that the Federal Government had approved without consulting with the Aboriginal peoples in that area. For a discussion of this petition, see House of Representatives Select Committee on Grievances of Yirrkala Aborigines, Arnhem Land Reserve, Parliament of Australia, Report (1963); Nancy Williams, The Yolngu and Their Land: A System of Land Tenure and the Fight for its Recognition (Australian Institute of Aboriginal Studies, 1986). See generally Bain Attwood and Andrew Markus, The Struggle for Aboriginal Rights:  A Documentary History (Allen & Unwin, 1999). Prior to 1967, s 51(xxvi) of the Constitution conferred the power on Parliament to make laws with respect to ‘the people of any race, other than the aboriginal race in any State, for whom it is deemed necessary to make special laws’. The Aboriginal Land Fund.

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the existence of a new property right, native title, in Mabo, and in 1997 the Australian Human Rights Commission released the Bringing Them Home Report, which detailed state and Commonwealth government policies for the removal of Aboriginal children from their families. The 2000s saw a particular focus on ‘closing the gap’ of Aboriginal and Torres Strait Islander disadvantage in health and other social indicators. In 2008, Prime Minister Kevin Rudd delivered an apology to the ‘Stolen Generation’ and recommitted to a process of reconciliation. While there has been a largely federal focus on Aboriginal and Torres Strait Islander affairs since the 1967 referendum gave legislative responsibility for these issues to the Commonwealth Parliament, there have been important developments at the state and territory level. As we describe below, this has included successful claims against the state for compensation for previous policies, the establishment of state reparation regimes, and, more recently, a move in some jurisdictions towards treaty negotiations with relevant Aboriginal communities. Under s 51(xxvi), the power of the Commonwealth to make laws with respect to Aboriginal and Torres Strait Islander peoples was limited to laws that were ‘special’ and that discriminated between Aboriginal and Torres Strait Islander peoples and others on the basis of their ‘race’. Relying on the amended s 51(xxvi), the Commonwealth Parliament has passed several important pieces of legislation aimed at protecting and promoting Aboriginal and Torres Strait Islander rights, including legislation to protect Aboriginal and Torres Strait Islander cultural heritage;43 legislation to establish an elected Aboriginal and Torres Strait Islander body to offer advice to government and with responsibility for the delivery of some government programs;44 and legislation to recognise Aboriginal and Torres Strait Islander land rights (native title) and establish a process for making native title claims.45 Although these legislative initiatives were generally supported by Aboriginal and Torres Strait Islander peoples, there remains a real question as to whether s 51(xxvi)— based as it was on the power to discriminate on the ground of race—could be used to pass laws that discriminated against Aboriginal and Torres Strait Islander peoples to their detriment. Four justices of the High Court considered this issue in Kartinyeri v Commonwealth (‘Hindmarsh Island Bridge Case’).46 Two judges held that the power was a plenary one and could be used to pass any laws that discriminated between Aboriginal and other Australians, regardless of the perceived benefit or detriment

43 44

45 46

Aboriginal and Torres Strait Islander Heritage Protection Act 1984 (Cth). Aboriginal and Torres Strait Islander Commission Act 1989 (Cth). This Act was repealed in 2005 with bipartisan support of the major parties. See the discussion on self-determination and self-government later in this chapter. Native Title Act 1993 (Cth). (1998) 195 CLR 337. For an analysis of the interpretation of s 51(xxvi) in Kartinyeri, see Alexander Reilly, ‘Reading the Race Power: A Hermeneutic Analysis’ (1999) 23 Melbourne University Law Review 476. The Hindmarsh Island Bridge dispute, which gave rise to the Kartinyeri case, is discussed further below.

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of the law (Gummow and Hayne JJ); and two judges held that the power to pass discriminatory laws was limited, either by the wording of the text itself (Gaudron J), or by its underlying purpose in a modern Constitution (Kirby J).47 The High Court has not subsequently been called upon to interpret the race power, so its scope remains uncertain. A new movement to change the Commonwealth Constitution to recognise the unique position of Aboriginal and Torres Strait Islander peoples in Australia has gained momentum in the last 10 years. The most appropriate form of constitutional recognition of Aboriginal and Torres Strait Islander peoples has become a subject of ongoing public debate, which we return to at the end of this chapter.

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The legal and theoretical bases for Aboriginal and Torres Strait Islander claims against the state The unique status of Aboriginal and Torres Strait Islander communities and their relationship with the state have led to various types of claims against the state based on two quite divergent principles: the first based on difference and the second on equality.48 In 2007, the UN General Assembly recognised these two bases for indigenous claims in the United Nations Declaration on the Rights of Indigenous Peoples.49 This instrument affirms that indigenous peoples are equal to all other people, and thus have the full protection of rights contained in the Charter of the United Nations and in the Universal Declaration of Human Rights. In addition, it recognises a range of distinct indigenous rights, including the right to self-determination, land rights and the protection of culture. The claim to equality rights is a basic and universal claim of all peoples. And yet the Commonwealth Parliament’s power to make special laws in relation to Aboriginal and Torres Strait Islander peoples in s 51(xxvi) is based on a principle not of equality, but of racial difference. The discriminatory basis of the Commonwealth’s power in s 51(xxvi) underscores a complicated and seemingly contradictory relationship between indigenous-specific rights and equality rights. How can Aboriginal and Torres Strait 47

48 49

Kirby J held that the purpose of the section needed to be interpreted consistently with contemporary principles of international law, which strongly opposed discrimination against Aboriginal and Torres Strait Islander peoples. The law was also constrained by the intention of the Australian people in amending s 51(xxvi) at the 1967 referendum, which was to benefit Aboriginal and Torres Strait Islander peoples through the extension of Commonwealth legislative power to Indigenous affairs. Mick Dodson, ‘The Unique Nature of the Australian Indigenous Experience’ (1996) 9 Without Prejudice 3. United Nations Declaration on the Rights of Indigenous Peoples, GA Res 61/295, UN GAOR, 61st sess, 107th plen mtg, Supp No 49, UN Doc A/RES/61/295 (13 September 2007).

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Islander peoples claim both equality and special treatment? And even if both claims are justifiable and reconcilable, how can government law and policy satisfy both? At a general level, the capacity to claim both indigenous-specific and equality rights derives from a broader conception of equality. Indigenous-specific rights are required to achieve substantive equality for Aboriginal and Torres Strait Islander peoples; that is, in order to achieve equal access to culture, to law and to land, there need to be different laws for Aboriginal and Torres Strait Islander peoples. The principle of unequal treatment on the basis of race is permitted under s 8 of the Racial Discrimination Act 1975 (Cth) (‘RDA’), where special, remedial measures are required to provide equality of access to basic human rights. On this basis, unequal treatment is justifiable when the unequal treatment is unequivocally for the benefit of Aboriginal and Torres Strait Islander peoples. Of course, whether a particular policy of unequal treatment is beneficial may be highly contested, as was the case with the Federal Government’s intervention in Aboriginal communities through its Northern Territory Emergency Response measures in 2007, discussed later in this chapter. Although the Response had the support of both major parties, and was supported by some Aboriginal communities directly affected by the intervention (but not others), the government suspended the RDA in case the intervention was not classified as a ‘special measure’ under s 8. Some indigenous-specific claims are not posited as remedial, but as permanent rights based on a permanent difference. These rights are necessarily more controversial in a liberal nation-state, and more difficult to accommodate in an equality analysis. Claims to permanent difference are generally framed as rights deriving from an alternative system of government and law; that is, a claim to self-determination. As a multicultural society, Australia has a wide range of cultures and legal traditions among its people. So what is it that sets Aboriginal and Torres Strait Islander peoples apart as possessing rights to different treatment under the law? The most obvious response to this question is that, as descendants of the original occupants of the land, their laws and cultures pre-existed the assertion of British sovereignty and the establishment of English law. Aboriginal and Torres Strait Islander people did not choose to be governed by the law of the state.50 In many places, regardless of what the state may have claimed to be the consequence of its assertion of sovereignty, their laws and cultures have continued to be observed and practised alongside the laws of the state. The fact that a formal accommodation was not made of Aboriginal and Torres Strait Islander law at the time of colonisation, and that the state actively pursued

50

For an elaboration of this opinion, see Will Kymlicka, Multicultural Citizenship:  A Liberal Theory of Minority Rights (Oxford University Press, 1995).

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policies of destroying Aboriginal and Torres Strait Islander societies and cultures, gives rise to a further and separate claim against the state based on historical injustice. Aboriginal and Torres Strait Islander peoples suffered two distinct forms of historical injustice. First, there was the harm and suffering caused by policies directed specifically at Aboriginal and Torres Strait Islander peoples. This harm was acknowledged eloquently by Prime Minister Paul Keating in a speech in Redfern, Sydney, in 1992, the Year of the World’s Indigenous People, and just after the High Court’s judgment in Mabo:51

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[T]he starting point might be to recognise that the problem starts with us nonIndigenous Australians. It begins, I think, with the act of recognition. Recognition that it was we who did the dispossessing. We took the traditional lands and smashed the traditional way of life. We brought the disasters. The alcohol. We committed the murders. We took the children from their mothers. We practised discrimination and exclusion. It was our ignorance and our prejudice. And our failure to imagine these things being done to us. With some noble exceptions, we failed to make the most basic human response and enter into their hearts and minds. We failed to ask—how would I feel if this were done to me?52

Second, there was the harm caused by the exclusion of Aboriginal and Torres Strait Islander people from rights enjoyed by others, such as exclusion from voting, educational opportunities, employment, fair reward for work, and access to public and private spaces. These forms of historical injustice give rise to claims to both indigenous-specific rights and equal protection before the law. Finally, Aboriginal and Torres Strait Islander peoples also have a claim to special assistance from the state based on the fact that as a group they lag behind the rest of the community in relation to all fundamental socio-economic indicators of health and prosperity.53 For example, life expectancy of Aboriginal and Torres Strait Islander people is 10.9  years lower for men and 9.5  years lower for women compared with the population at large.54 Employment outcomes and corresponding income levels are also very poor for Aboriginal and Torres Strait Islander peoples. For example, the workforce participation rate for Aboriginal and Torres Strait Islander people

51 52 53

54

(1992) 175 CLR 1. Paul Keating, ‘Redfern Park Speech’ (Speech delivered at Redfern, 10 December 1992). John Gardiner-Garden, Indigenous Socio-Economic Indicators (Parliamentary Library, Parliament of Australia, 11 February 2008), . Australian Institute of Health and Welfare, Life Expectancy (7 February 2017), .

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15  years  and over is 46 per cent.55 Aboriginal and Torres Strait Islander peoples experience much lower rates of completion of secondary education, and much higher unemployment rates and rates of imprisonment.56 Clearly, governments must respond to these poor indicators of Aboriginal and Torres Strait Islander well-being with practical policy initiatives, regardless of the reasons for or origins of this systemic disadvantage. It has also come before the courts to determine whether Aboriginal and Torres Strait Islander disadvantage can be taken into account as a mitigating factor in sentencing. In Bugmy v The Queen, the High Court was asked to consider whether an offender’s Aboriginality could act in itself as a mitigating factor in sentencing.57 In a unanimous judgment, the Court noted that it was a well-established principle of sentencing that the individual circumstances of offenders can act as a mitigating factor in their sentencing.58 Their Honours noted further that there were circumstances of disadvantage that were particular to Aboriginal and Torres Strait Islander people, such as the endemic alcohol problems in some communities,59 and their lack of experience in European ways, and that these could be mitigating factors in sentencing.60 However, in considering the impact of these factors on sentencing, the Court stressed that it is always the particular impact on the individual accused that must be considered, irrespective of their ethnic background.61 A key question for Australia’s public law is how to respond to these different claims. For instance, should a response be directed solely at addressing the claims of Aboriginal and Torres Strait Islander peoples? Or is a broader range of legal protections, in the form of a comprehensive human rights framework, the best way to improve outcomes on these issues? There is also a question of whether government responses and policies are ad hoc reactions to individual claims and emerging problems, which ‘ignore the longer-term structural and institutional changes’ that are required to ensure better outcomes for Aboriginal and Torres Strait Islander peoples.62

55 56

57 58 59 60 61 62

Australian Bureau of Statistics, National Indigenous and Torres Strait Islander Social Survey 2014-2015 (17 February 2017), . Australian Human Rights Commission, A Statistical Overview of Aboriginal and Torres Strait Islander Peoples in Australia (2008), . (2013) 249 CLR 571. Ibid 592–3 [37]–[40] relying on R v Fernando (1992) 76 A Crim R 58, 62; Neal v The Queen (1982) 149 CLR 305. (2013) 249 CLR 571, 593 [38]. Ibid 593–4 [39]. Ibid 594–5 [41]–[45]. Larissa Behrendt, Achieving Social Justice:  Indigenous Rights and Australia’s Future (Federation Press, 2003) 9.

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Types of Aboriginal and Torres Strait Islander claims Aboriginal and Torres Strait Islander peoples have articulated their claims against the state in many forms.63 In this chapter, we will discuss these claims under five categories: 1

self-determination and self-government;

2

land rights;

3

protection of cultural heritage;

4

recognition of customary law; and

5

equality rights.

These claims broadly reflect the rights asserted in the Barunga Statement,64 which was the product of years of negotiation between Aboriginal and Torres Strait Islander elders around Australia, and was presented to Prime Minister Bob Hawke in 1988. They also align with the list of 17 items of ‘unfinished business’ compiled by Aboriginal and Torres Strait Islander leaders at a meeting convened by ATSIC in 1999.65 The claims are also represented in the United Nations Declaration on the Rights of Indigenous Peoples.66 The first four claims are for indigenous-specific rights. The last claim, equality rights, incorporates a range of rights that are common to all peoples, but are claimed by Aboriginal and Torres Strait Islander peoples in a unique way due to the particular effect of government law and policy upon them.

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Self-determination and self-government The most fundamental claim made by Aboriginal and Torres Strait Islander peoples against the Australian state is the freedom to make their own decisions about their lives, and also the freedom to negotiate the intersection of their own laws and the

63

64 65

66

See, eg, ibid 115–6; Council for Aboriginal Reconciliation, The Barunga Statement (1988) in Council for Aboriginal Reconciliation, Documents of Reconciliation, AustLII, ; Agreements, Treaties and Negotiated Settlements Project, Eva Valley Statement (1993) (17 June 2005), ; Patrick Dodson, ‘Until the Chains are Broken’ (Speech delivered at the 4th Vincent Lingiari Memorial Lecture, Darwin, 1999) in Michelle Grattan (ed), Reconciliation: Essays on Australian Reconciliation (Bookman Press, 2000) 264. Council for Aboriginal Reconciliation, above n 63. Jackie Huggins, ‘Reconciliation: The Unfinished Business’ (Speech delivered at the Federation of Ethnic Communities’ Councils of Australia National Conference on Multiculturalism and Harmony: Building a New Future, Freemantle WA, 11 November 2000). United Nations Declaration on the Rights of Indigenous Peoples, GA Res 61/295, UN GAOR, 61st sess, 107th plen mtg, Supp No 49, UN Doc A/RES/61/295 (13 September 2007).

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laws of the state. Self-government is a way to gain control over the management of matters that directly affect Aboriginal and Torres Strait Islander peoples. At one level, some Aboriginal and Torres Strait Islander peoples have always retained control over decisions about their own lives, regardless of the formal legal position. This is an example of legal pluralism as defined by Griffiths, discussed in Chapter 4.67 For example, prior to the recognition of land rights in Mabo in 1992,68 many Aboriginal and Torres Strait Islander communities continued to live on their traditional lands, performing traditional cultural practices with no concern for their formal legal rights to the land. Claiming native title was simply a way to gain legal recognition of these practices. And even when native title claims have been unsuccessful, except where the exercise of traditional customs conflict with the formal legal interests of others, Aboriginal and Torres Strait Islander peoples continue to exercise them. A first point that needs to be recognised, then, is that some Aboriginal and Torres Strait Islander peoples have been able to organise their lives according to their cultural norms regardless of whether the state recognises their right to do so. Although, while acknowledging this reality for some Aboriginal and Torres Strait Islander peoples, for many, this ongoing practice of governance and law was simply not possible, due to policies of dispossession and removal. Nonetheless, in this sense, Aboriginal and Torres Strait Islander governance exists and is practised at various levels in the Australian state. The narrower question for Australian public law is whether this self-governance should be formally recognised and supported as a system of self-government.69 There are two claims against the state associated with the formal recognition of Aboriginal and Torres Strait Islander self-government. One is a claim for institutional support for the maintenance of Aboriginal and Torres Strait Islander systems of self-government; and the other is a claim to freedom from state interference in the exercise of Aboriginal and Torres Strait Islander cultural practices. Larissa Behrendt has used the term ‘sovereignty’ to explain the nuances of the claim of Aboriginal and Torres Strait Islander peoples to greater community and individual autonomy. As she explains it, sovereignty ‘captures the essence of both a separate cultural entity and historical dispossession and the exclusion and lack of consent involved in the creation of the modern Australian state’.70 An example of state support for Aboriginal and Torres Strait Islander selfgovernment is the establishment of a self-governing body with the assistance of the

67 68 69 70

John Griffiths, ‘What is Legal Pluralism?’ (1986) 24 Journal of Legal Pluralism 1, 1: ‘[legal pluralism is] the presence in a social field of more than one legal order.’ (1992) 175 CLR 1. For an elaboration of this analysis, see Alexander Reilly, ‘A Constitutional Framework for Indigenous Governance’ (2006) 28 Sydney Law Review 403. Behrendt, above n 62, 102.

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state. In the 1970s, the Federal Parliament established a series of such representative bodies. The Whitlam Government established the national Aboriginal Consultative Committee, and this was followed by the Fraser Government’s national Aboriginal Conference. Then, in 1989, the Hawke Government established the Aboriginal and Torres Strait Islander Commission (‘ATSIC’). The Aboriginal and Torres Strait Islander Commission Act 1989 (Cth) (‘ATSIC Act’) provided a comprehensive model of self-government for Aboriginal and Torres Strait Islander peoples. Commissioners were chosen from designated regions through specially held elections in which only Aboriginal and Torres Strait Islander peoples participated. ATSIC had its own budget and was responsible for the delivery of certain government programs. It provided an official voice for Aboriginal and Torres Strait Islander peoples that was close to government. However, although this closeness to government was one of ATSIC’s strengths, it was also a weakness. It constrained ATSIC in its ability to implement a more radical agenda in opposition to government policies. After operating for 15  years, ATSIC was abolished in 2004 with the bipartisan support of the major parties after it lost favour with the Howard Government for its political advocacy; what Howard described as its preoccupation with symbolic issues;71 and a longrunning controversy relating to criminal conduct alleged against the Commissioner at the time, Geoff Clark.72 In the Torres Strait, the Torres Strait Regional Authority was hived off and has continued to operate. Many Aboriginal people were critical of the decision to abolish ATSIC.73 Its abolition had a significant effect on the ability of mainland Aboriginal and Torres Strait Islander peoples to participate in the development of policy that affected them. There are a number of other government-funded bodies dedicated to protecting Aboriginal and Torres Strait Islander interests. Within the broader system of laws protecting human rights in Australia, discussed in Chapter  12, the position of an Aboriginal and Torres Strait Islander Social Justice Commissioner was created in 1992. The Commissioner’s role includes ‘reviewing the impact of laws and policies on Indigenous peoples, reporting on Indigenous social justice and native title issues and promoting an Indigenous perspective on issues’.74 In 2009–10, the Commissioner, Tom Calma, was instrumental in gathering together Aboriginal and Torres Strait Islander people and developing the model for a new national representative body

71 72 73 74

‘Clark Vows to Fight as ATSIC Scrapped’, Sydney Morning Herald (online), 15 April 2004, . Meaghan Shaw, ‘Ruddock Suspends ATSIC Chief Clark’, The Age (online), 14 August 2003, . See, eg, Larissa Behrendt, ‘Habeus Corpus’ (2004) 73 Arena 25. Australian Human Rights Commission, Aboriginal and Torres Strait Islander Social Justice, .

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following the abolition of ATSIC. The new body, the National Congress of Australia’s First Peoples, was incorporated as a company in April 2010. Unlike ATSIC, it is a non-government organisation that does not receive government assistance. As of 2017, the Congress had over 180 member organisations and almost 9000 individual members.75 The Congress aims to be a national leader and advocate recognising the status of Aboriginal and Torres Strait Islander peoples as First Nation peoples.76 On 7 December 2015, the Prime Minister Malcolm Turnbull and the opposition leader Bill Shorten appointed the Referendum Council to advise the Parliament on options for constitutional reform. After an extensive series of dialogues with Aboriginal and Torres Strait Islander communities around the country that culminated in the Uluru First Nations Convention on 23–26 May 2017, the Council reported back to the Parliament, recommending that a representative body be added to the Constitution to advise Parliament on policies that affect Aboriginal and Torres Strait Islander peoples. The process of dialogues and the Convention and the details of the proposal are discussed in ‘Constitutional recognition’ below.

Land rights Aboriginal and Torres Strait Islander laws and cultures are deeply embedded in tribal territories or ‘country’:

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People say that country knows, hears, smells, takes notice, takes care, is sorry or happy  … Country is a living entity … with a consciousness, and a will toward life. Because of this richness, country is home, and peace; nourishment for body, mind, and spirit; heart’s ease.77

For Aboriginal and Torres Strait Islander peoples in the 20th and 21st centuries, land is also an economic resource, a basis upon which communities hope to build economic self-sustainability into the future. As such, rights to land are also integrally connected to the aspiration for self-government discussed above. The first modern land rights case was brought by Yirrkala tribes on the Gove Peninsula in the Northern Territory in 1968. The Yirrkala sought to prevent the Nabalco mining company from establishing a bauxite mine on their traditional land. In the case, reported as Milirrpum v Nabalco,78 Blackburn J in the Federal Court held that all land was owned by the Crown and that this was inconsistent with Aboriginal

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National Congress of Australia’s First Peoples, About Us (2017), This aim is enshrined in the latest available copy of the Congress’s Constitution, which is available for download via a link at National Congress of Australia’s First Peoples, About Us (2017), . Deborah Bird Rose, Nourishing Terrains:  Australian Aboriginal Views of Landscape and Wilderness (Australian Heritage Commission, 1996) 7. (1971) 17 FLR 141.

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land rights; and, furthermore, that even if existing property rights were capable of surviving the assertion of sovereignty, the relationship of the Yirrkala tribes to their land was not a legally recognisable property right. Despite this comprehensive failure, the case led to important developments in Aboriginal and Torres Strait Islander land rights. First, in response to the case, the government established the Royal Commission into Indigenous Land Rights, which recommended the passing of legislation enabling Aboriginal groups in the Northern Territory to make claims to land. The Commonwealth Parliament accordingly passed the Aboriginal Land Rights (Northern Territory) Act 1976. Since that time, about 40 per cent of the Northern Territory has been recognised as Aboriginal land under the Act, and much of it is held by Aboriginal communities as freehold land. Second, despite rejecting the claim of the Yirrkala tribes, Blackburn J’s judgment revealed that his Honour was deeply impressed with the strength and complexity of the tribes’ relationship to their land, and their social organisation:

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The evidence shows a subtle and elaborate system highly adapted to the country in which the people led their lives, which provided a stable order of society and was remarkably free of the vagaries of personal whim or influence. If ever a system could be called ‘a government of laws, and not men’, it is that shown in the evidence before me.79

The case therefore revealed a serious disjuncture between the fact of Aboriginal and Torres Strait Islander physical, cultural and spiritual connection to land, and the absence of any recognition of this connection in the law. In Mabo, the High Court recognised a new form of Aboriginal and Torres Strait Islander land right.80 The Court confirmed that the British had successfully claimed sovereignty over Australia, and that a consequence of this assertion of sovereignty was that the Crown acquired a title to all land. But the Court made a crucial qualification. Being British subjects who owed an allegiance to the Crown, Aboriginal and Torres Strait Islander peoples were ‘entitled to such rights and privileges’ as the common law provided,81 and this included recognition of their rights to land. As Brennan J noted, ‘[i]t would be a curious doctrine to propound today that, when the benefit of the common law was first extended to Her Majesty’s indigenous subjects in the Antipodes, its first fruits were to strip them of their right to occupy their ancestral lands’.82 The Court held instead that the common law was capable of recognising the proprietary interests of Aboriginal and Torres Strait Islander peoples in their ancestral lands. To recognise these interests, the Court overturned previous authority to draw 79 80 81 82

Ibid 267. (1992) 175 CLR 1. Ibid 38 (Brennan J). Ibid 39.

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a distinction between the Crown’s ultimate or radical title to land, and beneficial titles that individuals or groups might hold as a burden upon the Crown’s radical title.83 The Court further ruled that Aboriginal and Torres Strait Islander peoples held a beneficial title in their traditional lands to the extent that they had maintained a continuing connection to the land under their traditional laws and customs. The Court called this beneficial title ‘native title’. In holding that the common law was capable of recognising Aboriginal and Torres Strait Islander relationships to land as a form of property right, Brennan J indicated that it was a failure to understand the true facts of Aboriginal and Torres Strait Islander connections to land that had led to the failure of governments and courts over the previous 204 years to recognise Aboriginal and Torres Strait Islander land rights:

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The facts as we know them today do not fit the ‘absence of law’ or ‘barbarian’ theory underpinning the colonial reception of the common law of England. That being so, there is no warrant for applying in these times rules of the English common law which were the product of that theory.84

The recognition of native title in Mabo was heavily criticised from some quarters as an  illegitimate exercise in judicial law making.85 This response demonstrates the complex interconnection between the different arms of government. From one perspective, the High Court was simply ‘updating’ the common law in a way that was consistent with its evolution—in this instance, an evolution that accorded with developments in international law and its understanding of settler–Aboriginal relations. From another perspective, the Court was impermissibly making law in response to a failure of Australian governments to adequately recognise Aboriginal and Torres Strait Islander land rights. Whichever perspective is accepted, it was open to Australian parliaments to respond to the decision by passing laws inconsistent with the Court’s declaration of the state of the common law. In the end, the Federal Parliament responded to Mabo by introducing the Native Title Act 1993 (Cth) (‘NTA’), which provided a legislative basis for the rights recognised in Mabo. The Western Australian Parliament immediately passed legislation extinguishing native title rights and replacing them with rights of traditional usage in

83 84 85

Ibid 51. Ibid 39. See, eg, P D Connolly, ‘Should the Courts Determine Social Policy?’ in P Connolly and S E K Hulme (eds) The High Court of Australia in Mabo: Two Papers Delivered to the Samuel Griffith Society (The Association of Mining & Exploration Companies, 1993)  9; Geoffrey de Q Walker, ‘Ending Constitutional Drift:  A Democratic Agenda for Change’ in G Walker, S Ratnapala and W Kasper (eds), Restoring the True Republic (The Centre of Independent Studies, 1993) 12; B English, ‘Groom calls for Tighter Controls on High Court’, The Australian (Sydney), 13 September 1993, 5.

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the Land (Traditional Usage) Act 1993 (WA), but the High Court held that this Act was invalid due to its inconsistency with the NTA.86 The NTA confirmed the existence of native title and established a process for claiming it. Under the Act, hundreds of claims have been concluded, either through the consent of interested parties, or, if there are competing interests that cannot be resolved, through trial in the Federal Court. The NTA has been the subject of both praise and criticism, relating to the extent of native title rights claimed under the Act and the fairness of the claims process.87 One particular area of criticism has been that establishing native title under the Act requires a number of conditions to be met, including an ongoing connection to the land. This is often difficult for Aboriginal peoples to prove in areas that have a history of widespread dispossession and removal, particularly in urban and agricultural regions. Proving a connection in such areas so as to claim native title seems particularly unfair in light of these historical reasons for its loss. In recognition of these injustices, the Indigenous Land Corporation (‘ILC’) was established and funded in 1995 to assist Aboriginal and Torres Strait Islander peoples to acquire and manage lands to provide economic, environmental, social and cultural benefits.88 The ILC’s acquisitions and developments include the National Centre of Indigenous Excellence in Redfern, Sydney, Gunbalanya Station and Meats, the Fish River wilderness property, and the Voyages resort at Uluru, Northern Territory.89 In 1998, the Howard Coalition Government introduced sweeping amendments to the NTA which weakened native title rights under the Act. One quite novel response to the introduction of the Bill proposing these changes was an application by a group of Aboriginal elders to the Registrar of the Australian Capital Territory Magistrates Court for warrants to be issued for the arrest of the Prime Minister, John Howard; the Deputy Prime Minister, Tim Fisher; and Senators Brian Harradine and Pauline Hanson for the commission of the crime of genocide for their participation in the creation of amendments to the Act.90 The Full Court of the Federal Court rejected the application in Nulyarimma v Thompson,91 but in its reasons the Court turned its attention to the question of whether Aboriginal people were indeed victims of

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Western Australia v Commonwealth (1995) 183 CLR 373 (‘Native Title Act Case’). The inconsistency arose under s 109 of the Constitution, which provides: ‘When a law of a State is inconsistent with a law of the Commonwealth, the latter shall prevail, and the former shall, to the extent of the inconsistency, be invalid.’ See, eg, Sean Brennan, ‘Native Title in the High Court of Australia a Decade after Mabo’ (2003) 14 Public Law Review 209; Lisa Strelein, Compromised Jurisprudence: Native Title Cases since Mabo, (Aboriginal Studies Press, 2nd ed, 2009). Established by the Land Fund and Indigenous Land Corporation (ATSIC Amendment) Act 1995; See also Aboriginal and Torres Strait Islander Act 2005 (Cth) pt 4A. See Indigenous Land Corporation, History of the ILC (2015), . Re Thompson; Ex parte Nulyarimma (1998) 136 ACTR 9. (1999) 96 FCR 153.

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genocide in Australia.92 Wilcox J concluded that, with a few notable exceptions such as in Tasmania, the killing and dispossession of Aboriginal peoples was not done with the required intention for the actions to amount to genocide as understood by the Convention on the Prevention and Punishment of the Crime of Genocide.93 One of the dilemmas for Aboriginal and Torres Strait Islander communities is how to balance their interest in preserving land for cultural purposes and their interest in developing land for economic purposes. Unlike the position with land grants made under the Aboriginal Land Rights (Northern Territory) Act 1976 (Cth), native title rights are limited to traditional uses of land. As a rule, economic benefits come from forfeiting native title rights. In 1998 a process was established in the NTA to allow claimants and holders of native title to enter into Indigenous land use agreements with others about the use and management of native title rights.94 Native title holders can agree to future developments in exchange for various economic and other benefits, such as monetary compensation, employment opportunities, and mechanisms for consulting over the protection of sacred sites.95

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Protection of cultural heritage Aboriginal and Torres Strait Islander cultural heritage includes both objects and areas of significance to Aboriginal and Torres Strait Islander peoples for traditional cultural reasons.96 Historical dispossession from land meant it was difficult to maintain cultural practices that relied on the land for their expression. Accordingly, from the 1970s onwards, the Commonwealth and the states passed legislation aimed at protecting Aboriginal and Torres Strait Islander cultural heritage.97 In 1984 the Commonwealth enacted the Aboriginal and Torres Strait Islander Heritage Protection Act 1984 (‘HPA’) for ‘the preservation and protection from injury or desecration of areas and objects in Australia and Australian waters of particular significance to Aboriginals in accordance with Aboriginal tradition’.98 Under the Act, 92 93

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For an analysis of this case, see Ann Curthoys, Ann Genovese and Alexander Reilly, Rights and Redemption: History, Law and Indigenous People (University of New South Wales Press, 2008) ch 5. (1999) 96 FCR 153, 161 [15]. The Convention was adopted by Resolution 260 (III) A of the UN General Assembly on 9 December 1948, and entered into force on 12 January 1951. Australia is a signatory to the Convention. Native Title Act 1993 (Cth) div 3. See generally National Native Title Tribunal, About Indigenous Land Use Agreements, . See, eg, Aboriginal and Torres Strait Islander Heritage Protection Act 1984 (Cth) s 4. Ibid; National Parks and Wildlife Act 1974 (NSW); Aboriginal Cultural Heritage Act 2003 (Qld); Aboriginal Heritage Act 1988 (SA); Aboriginal Relics Act 1975 (Tas); Aboriginal Heritage Act 2006 (Vic); Aboriginal Heritage Act 1972 (WA). Note that the New South Wales Government is currently undertaking a review of the National Parks and Wildlife Act with a view to passing stand-alone Indigenous cultural heritage legislation. HPA s 4.

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the Minister for Indigenous Affairs is empowered to declare an area or an object to be of cultural significance and to prevent any activities that will damage the area or object. Before making such a declaration, the Minister must commission and give due consideration to a report that outlines the significance of the area, the nature and extent of the threat to the area, and the rationale for a declaration protecting the area.99 Under this legislative process, the Minister is required to make assessments of Aboriginal and Torres Strait Islander culture that, in cultural terms, may be difficult or inappropriate for them to make. And yet, when there is a clash between Aboriginal culture and commercial, non-Indigenous interests, these assessments must be made. Just how difficult—and on occasions destructive—the process of assessing Aboriginal and Torres Strait Islander culture can be is evident in a heritage claim that sought to prevent the building of a bridge between the Australian mainland and Hindmarsh Island, which is located at the mouth of the Murray River in South Australia. In 1989, developers proposed building a large tourist development on Hindmarsh Island, including a marina. The viability of the project was dependent on improved access to the island. The South Australian Government agreed to construct a bridge in partnership with the developers, but was opposed by the local Ngarrindjeri community. The dispute ran for many years, involved two applications for protection under the HPA, numerous state and Commonwealth inquiries into Aboriginal cultural connection to the area, a royal commission into the veracity of Aboriginal spiritual beliefs, and several legal cases in the High Court and Federal Court. The dispute was only finally resolved when there was a change in federal government in March 1996. The new Minister for Aboriginal Affairs in the Howard Coalition Government, John Herron, introduced legislation—the Hindmarsh Island Bridge Act 1997 (Cth)—that designated the area around Hindmarsh Island to be outside the purview of the HPA. The effect of the Hindmarsh Island Bridge Act was to prevent the Ngarrindjeri from continuing to pursue their heritage protection claim. One of the original applicants, Doreen Kartinyeri, challenged the constitutionality of this Act in the Hindmarsh Island Bridge Case,100 claiming that Parliament did not have the power to make a law that was detrimental to Aboriginal people under the race power. A  majority of the High Court held that the Hindmarsh Island Bridge Act was valid, and with this decision the Ngarrindjeri people exhausted all possible challenges to the building of the bridge under Commonwealth and state legislation. The bridge was completed in October 2001. The Hindmarsh Island Bridge dispute demonstrates how difficult it is for the law to adequately respond to a claim when the perspectives of the parties on the

99 Ibid s 10(4). 100 (1998) 195 CLR 337.

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significance of a heritage site are so divergent. The outcome of the dispute was unsatisfactory for all parties. From the perspective of the developers, the time taken to resolve the dispute and the cost of litigation was damaging to their commercial interests. From the claimants’ perspective, the heritage protection claim was not finally determined under the process established to resolve it, and a bridge was nonetheless built, affecting sacred sites and knowledge. The issue polarised the public at large and was highly divisive within the local Aboriginal community. The South Australian Government used its powers of inquiry to set up a royal commission, which process proved inappropriate to reach a reliable conclusion on the veracity of the spiritual beliefs of a vulnerable Aboriginal community.101 One is left to ponder how the law could be better utilised to overcome the bitter political and cultural divisions at the heart of such a dispute.

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Recognition of customary law Customary laws are the traditional legal practices of Aboriginal and Torres Strait Islander peoples that, prior to colonisation, governed all aspects of life. For many Aboriginal and Torres Strait Islander peoples, particularly in some remote communities, customary law continues to provide the framework for their lives. Law reform commissions in Australia have conducted three significant inquiries into Aboriginal and Torres Strait Islander customary law and its relationship to the mainstream legal system in Australia.102 The inquiries agreed on a number of key findings. They all recommended that the mainstream legal system recognise customary law in various ways, including that it should be left to Aboriginal and Torres Strait Islander peoples to determine the content of customary law, and the extent to which they are individually governed by it. In this respect, it is important to note that the inquiries have recommended that customary law be recognised within the mainstream legal system, and not as a stand-alone alternative to it. Despite these narrow parameters for the recognition of customary law, its recognition has remained controversial, particularly when customary practices are contrary to basic human rights. For example, traditional punishments such as spearing may be contrary to prohibitions against torture or cruel, inhuman and degrading treatment or punishment under art 7 of the International Covenant on Civil and Political Rights (‘ICCPR’). Also, childhood ends at puberty in many traditional Aboriginal and Torres Strait Islander societies. This means that sexual relationships 101 For a detailed examination of the Hindmarsh Island Bridge saga, see Margaret Simons, The Meeting of the Waters: The Hindmarsh Island Affair (Hodder Headline, 2003). 102 Australian Law Reform Commission, The Recognition of Aboriginal Customary Laws, Report No 31 (1986); Northern Territory Law Reform Commission, Aboriginal Customary Law, Report No 8 (2003); Law Reform Commission of Western Australia, Aboriginal Customary Laws, Report No 4 (2006).

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with post-pubescent girls may be permissible ‘as part of the promised bridal system’ even though the girls are below the statutory age for lawful sexual intercourse.103 In these cases, where customary practices may be in breach of the regular law, or international law, the recommendation is that the traditional practices must either give way to the regular law, or that there is the clear consent of all people participating in customary law, which is not possible in the case of minors. The Western Australian Law Reform Commission report recommended that customary law could only be recognised to the extent that the recognition was consistent with international human rights standards.104 Despite the difficulty of negotiating the boundaries of when a customary law practice is permissible in place of the regular law, the three law reform commission reports recommended that customary law be recognised in a wide range of legal areas. For example, the most recent of the reports, that of the Western Australian Law Reform Commission (2006), outlined a role for customary law in all aspects of the criminal justice system, including in the determination of guilt for offences, the application of defences to crimes, the granting of bail, and sentencing. The Commission also recommended the formation of Aboriginal community justice groups and Aboriginal and Torres Strait Islander courts to play a role in the determination of guilt and punishment. Outside the criminal law, it outlined a role for customary law in laws of succession regarding the distribution of property after death, in coronial inquests, in laws around burial and funeral rights, and in intellectual property laws used to protect cultural information.105 Aboriginal courts operate in South Australia (the Nunga Court), Victoria (the Koori Court) and Queensland (the Murri Court). These courts ensure that legal processes are culturally appropriate and allow for more informal and culturally specific procedures. For example, in criminal law, they allow for a wide range of affected parties, including family and kin groups, to participate in the sentencing process.106

Equality rights Citizenship and voting rights Once the British Crown had attained sovereignty over Australia, Aboriginal and Torres Strait Islander people became British subjects and were entitled to the protection of the law. In 1948, when the Parliament passed the Australian Citizenship Act 1948

103 104 105 106

Law Reform Commission of Western Australia, Aboriginal Customary Laws, Report No 4 (2006) 20. Ibid 69 (recommendation 5). Ibid chs 5–7. See Australian Institute of Judicial Administration, Indigenous Issues and Indigenous Sentencing Courts, .

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(Cth), Aboriginal and Torres Strait Islander people gained Australian citizenship.107 Despite this, as we have already noted, in many ways the law treated Aboriginal and Torres Strait Islander people separately. Aboriginal and Torres Strait Islander peoples were largely excluded from the most basic citizenship entitlement: the right to participate in government. Prior to federation in 1901, Aboriginal and Torres Strait Islander people were excluded from the vote in Queensland and Western Australia, but were entitled to vote in the other colonies. After federation, the Commonwealth Franchise Act 1902 (Cth) extended the vote to women, but still excluded Aboriginal and Torres Strait Islander people from the vote at the federal level.108 Section 41 of the Constitution protected the voting rights in Commonwealth elections of people entitled to vote in state elections prior to federation. However, the High Court held that s 41 was a transitional provision and only protected the voting rights of Aboriginal and Torres Strait Islander people already on state electoral rolls, and not the voting rights of Aboriginal and Torres Strait Islander people who became eligible to vote in the states after federation.109 Aboriginal and Torres Strait Islander people continued to be excluded from voting in Commonwealth elections until the Electoral Act 1918 (Cth) was amended in 1962 to extend the vote to Aboriginal and Torres Strait Islander people. The Act was amended again in 1984 to extend compulsory voting to Aboriginal and Torres Strait Islander people, putting their voting rights on the same footing as other citizens for the first time. Although Aboriginal and Torres Strait Islander peoples enjoyed full voting rights and responsibilities in the Commonwealth and the states from this time, they have rarely had the opportunity to vote for Aboriginal and Torres Strait Islander representatives. As will be discussed in Chapter  5, there have only ever been eight Aboriginal and Torres Strait Islander members sit in either house of the Commonwealth Parliament. In 1998, the New South Wales Legislative Council Standing Committee on Social Justice Issues conducted an inquiry into the case for creating dedicated seats in the New South Wales Parliament for Aboriginal and Torres Strait Islander peoples.110 It recommended against the introduction of dedicated seats at that time. The case for dedicated seats is that there is a need for Aboriginal and Torres Strait Islander voices in Australian parliaments regardless of political allegiances. 107 While there is a widely held myth that citizenship was not granted to Aboriginal and Torres Strait Islander people until the 1967 referendum, citizenship was in fact granted in 1948 with the passage of the Citizenship Act 1948 (Cth). Rather, the 1967 referendum removed the prohibition in s 127 of the Constitution from counting Aboriginal people in the ‘reckoning of the numbers of the people of the Commonwealth’. 108 Commonwealth Franchise Act 1902 (Cth) s 4. 109 R v Pearson; Ex parte Sipka (1983) 152 CLR 254. 110 Legislative Council Standing Committee on Social Issues, Parliament of New South Wales, Enhancing Aboriginal Political Representation:  Inquiry into Dedicated Seats in the New South Wales Parliament (1998). See also Alexander Reilly, ‘Dedicated Seats for Indigenous Australians in Federal Parliament’ (2001) 2(1) Balayi: Culture, Law and Colonialism 73.

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This argument relies on the strength of Aboriginal and Torres Strait Islander group identity, and a view that without a voice in mainstream Parliament this identity is inadequately represented. There is no doubt that representation in Parliament carries with it powers of representation that are not present outside Parliament, such as the power to propose Bills, ask questions of ministers and vote on legislation. The creation of dedicated seats would be one way to achieve an Aboriginal and Torres Strait Islander voice across the policy spectrum, and not only on issues relating directly to Aboriginal and Torres Strait Islander peoples. New Zealand offers an example of a parliamentary system that has dedicated seats for indigenous peoples. In the New Zealand Parliament, seven of the 122 seats (about 4.5 per cent) are set aside for Māori representatives (although this is adjusted depending on how many Māori are registered on the Māori electoral roll). Māori constitute about 15 per cent of the population in New Zealand, the largest minority ethnic group in the country. Arguments against dedicated seats are based on a resistance to special or groupbased rights and a preference for the principle of equal individual franchise. In addition, there are many practical objections to the proposal. There is a danger of tokenism. If the number of Aboriginal and Torres Strait Islander representatives is too small, they will have no effective power, and Parliament might be able to claim a legitimacy in passing laws on Aboriginal and Torres Strait Islander issues that the presence of a small number of Aboriginal and Torres Strait Islander representatives does not provide. Another objection is the fact that Aboriginal and Torres Strait Islander peoples are a diverse group of people, both culturally and ideologically. A small number of representatives cannot hope to represent this diversity, and could in fact be counterproductive to its full expression. Finally, some Aboriginal and Torres Strait Islander people are concerned that moving the location of the struggle for rights into Parliament may undermine claims to sovereignty and self-determination, and have a preference for a Aboriginal and Torres Strait Islander law-making body outside the mainstream political system.111

Compensation for harm resulting from discriminatory policies and conduct Aboriginal and Torres Strait Islander peoples have suffered various forms of discrimination under colonial, state and Commonwealth laws. Governments have implemented policies that have had a negative and differential impact on Aboriginal and Torres Strait Islander peoples, and have failed to protect Aboriginal and Torres

111 See, eg, Michael Mansell, Submission No 40 to the Legislative Council Standing Committee on Social Issues, Parliament of New South Wales, Enhancing Aboriginal Political Representation:  Inquiry into Dedicated Seats in the New South Wales Parliament (1998).

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Strait Islander peoples from discrimination by private individuals. Aboriginal and Torres Strait Islander peoples have suffered discrimination in employment, access to private and public places and services, health, education, and in relation to their rights and interests in land. In response to an alarming rate of Aboriginal and Torres Strait Islander deaths in custody, the Commonwealth Government established a royal commission to investigate the reasons for these deaths. The Commission’s report highlighted not only institutional discrimination against Aboriginal and Torres Strait Islander peoples, but also a range of socio-economic factors that led to their disproportionate levels of incarceration in the first place.112 Inquiries such as this have been instrumental in driving reforms aimed at substantive equality for Aboriginal and Torres Strait Islander peoples.113 An important move toward the elimination of discrimination was the enactment of the Racial Discrimination Act 1975 (Cth) (‘RDA’). This Act and its state and territory equivalents have provided an avenue for Aboriginal and Torres Strait Islander people to challenge government action that has discriminated against them.114 However, the Act does not provide any remedy for historical discrimination. In Mabo, for example, a majority of the High Court held that any discriminatory extinguishment of native title prior to the passing of the RDA was not unlawful, and did not give rise to compensatory damages.115 For government policies and actions targeting Aboriginal and Torres Strait Islander peoples prior to 1975, and thus prior to the passing of the RDA, Aboriginal and Torres Strait Islander claimants have had to rely on contemporary common law or statutory duties of care. One set of policies in particular, the removal of Aboriginal children from their families, has been the subject of a number of common law claims for damages. These policies existed in all states and territories up to the 1970s. In 1997, the Human Rights and Equal Opportunities Commission reported to the Federal Government on the impact of these policies. The Bringing Them Home 112 Commonwealth of Australia, Royal Commission into Aboriginal Deaths in Custody, National Report (1991). 113 In response to the Royal Commission into Aboriginal Deaths in Custody, ibid, the government spent more than $400 million to implement the Commission’s recommendations. It established the position of Indigenous Social Justice Commissioner within the Australian Human Rights Commission, and undertook measures aimed at addressing discrimination against Indigenous peoples involved in the criminal justice system. Despite this, in a 2002 address reflecting on progress since the Royal Commission, Darren Dick, the Director of the Aboriginal and Torres Strait Islander Social Justice Commission, commented that the rate of over-representation in the criminal justice system had increased. See Darren Dick, ‘The Royal Commission into Aboriginal Deaths in Custody Ten Years On: The Ongoing Role of Government’ (Speech delivered at the Victorian Aboriginal Justice Forum, Victoria, 20 September 2002), . 114 Discrimination Act 1991 (ACT); Anti-Discrimination Act 1977 (NSW); Anti-Discrimination Act 1996 (NT); Anti-Discrimination Act 1991 (Qld); Equal Opportunity Act 1984 (SA); Anti-Discrimination Act 1998 (Tas); Equal Opportunity Act 2010 (Vic); Equal Opportunity Act 1984 (WA). 115 (1992) 175 CLR 1, 15 (Mason CJ and McHugh J), 67–9 (Brennan J), 170 (Dawson J).

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Report suggested that the practices of removal were widespread and had a profound and devastating effect on individuals, families and communities.116 Among other responses, the Report recommended that the Federal Government issue a formal apology, establish services to assist Aboriginal and Torres Strait Islander people in finding their families, and compensate victims of the policies.117 All Australian state and territory governments have now apologised for their respective legislation that empowered welfare agencies to remove children from their families.118 Tasmania, South Australia, Western Australia and New South Wales have also established schemes with defined financial compensation for victims of the policies. However, despite a widely praised apology in February 2008, the federal Rudd ALP Government did not implement a national compensation scheme. Where there has been an absence of a mechanism for claiming compensation, a number of Aboriginal and Torres Strait Islander people have brought constitutional or common law claims to the courts seeking redress for their removal. These claims have met with varying degrees of success. In 1997, the High Court rejected Alec Kruger’s challenge to the constitutionality of provisions in the Aboriginal Ordinance 1918 (NT) that authorised the forced removal of Aboriginal children from their families.119 A  wide range of arguments were put forward, including that the Ordinance was invalid as a law ‘for prohibiting the free exercise of religion’ under s 116 of the Constitution; that it infringed an implied constitutional freedom of movement and association that was tied to the implied freedom of political communication; and that it infringed an implied freedom of equality.120 In 2000, the Federal Court rejected claims by Laura Cubillo and Peter Gunner for damages resulting from their removal into state care.121 On the other hand, in 2007 Gray J of the Supreme Court of South Australia accepted a compensation claim by Bruce Trevorrow,122 and in 2011 Neville Austin’s claim against the Victorian Government was settled, with the government offering him an apology and a compensation payout. Common law actions for compensation are fraught with difficulty. It is hard to establish liability and to provide evidence of damage caused by government many decades in the past. The actions are costly and the results unpredictable. In 2006, the 116 Human Rights and Equal Opportunity Commission, above n 6, ch 3. 117 Ibid app 9 (Recommendations). 118 For details of state and territory government apologies to the Stolen Generation, see Australian Human Rights Commission, Content of Apologies by State and Territory Parliaments (20 March 2008), . 119 Kruger v Commonwealth (1997) 190 CLR 1 (‘Stolen Generations Case’). 120 For a discussion of the case, see Maurice Byers, ‘Kruger Case’ (1997) 8 Public Law Review 224. 121 Cubillo v Commonwealth (2000) 103 FCR 1. 122 Trevorrow v South Australia [No 5] (2007) 98 SASR 136 (Gray J). The decision was substantially upheld by the Full Court in South Australia v Lampard-Trevorrow (2010) 106 SASR 331.

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Tasmanian Government established a statutory compensation scheme for children removed from their families into state care in 2006.123 Non-statutory ex gratia payment schemes for children in state care (including Aboriginal and Torres Strait Islander children) have also been established in Tasmania, Queensland, Western Australia and South Australia. Specific schemes to provide reparations to the stolen generations were established in 2015 in South Australia, and in 2017 in New South Wales. There have been consistent calls for the Commonwealth Government to establish a compensation scheme.124 Another type of claim for compensation for harm has arisen under s 18C of the RDA, which states: (1)

It is unlawful for a person to do an act, otherwise than in private, if: (a) the act is reasonably likely, in all the circumstances, to offend, insult, humiliate or intimidate another person or a group of people; and (b) the act is done because of the race, colour or national or ethnic origin of the other person or of some or all of the people in the group.

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In August 2009, the journalist Andrew Bolt wrote two articles published in the Herald and Weekly Times, which suggested that a number of Aboriginal people with fairer, rather than darker, skin were ‘essentially of European descent’ and that they were not ‘genuinely Aboriginal persons’ but were ‘motivated by career opportunities available to Aboriginal people’ to ‘falsely identify as Aboriginal’.125 The claimants in the ensuing legal proceedings chose to seek a retraction of the articles rather than damages under a common law defamation action. Bromberg J held that Bolt was in breach of s 18C, and that his comments were not protected by the free speech exemptions in s 18D, as they were not made ‘reasonably in good faith’, since the articles used ‘inflammatory and provocative language’ and failed to ‘minimise the possible degree of harm caused’.126 This case was the catalyst, at least in part, for a longer national conversation about whether s 18C ought to be reformed.

Northern Territory Emergency Response The Commonwealth Government has drawn on a range of justifications for its intervention in Aboriginal communities in the Northern Territory, which began in 2007:  the Northern Territory Emergency Response (‘NTER’). The NTER is a good example of the difficult policy decisions that have to be made in negotiating the twin 123 Stolen Generations of Aboriginal Children Act 2006 (Tas). 124 Dylan Lino, ‘Monetary Compensation and the Stolen Generations:  A Critique of the Federal Labor Government’s Position’ (2010) 14 Australian Indigenous Law Review 18, 20; Senate Standing Committee on Legal and Constitutional Affairs, Parliament of Australia, Stolen Generation Compensation Bill 2008 (2008) ch 3 [127]. 125 See Eatock v Bolt (2011) 197 FCR 261; Eatock v Bolt [No 2] [2011] FCA 1180, [2] (Bromberg J). 126 Eatock v Bolt (2011) 197 FCR 261, 354 [412], 358 [425].

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claims of Aboriginal and Torres Strait Islander peoples to equality and difference, and in fulfilling the state’s distinct responsibility to Aboriginal and Torres Strait Islander peoples. The Howard Coalition Government announced this emergency intervention in Aboriginal communities in response to a 2007 report from the Northern Territory Board of Inquiry into the Protection of Aboriginal Children from Sexual Abuse entitled Ampe Akelyernemane Meke Mekarle ‘Little Children are Sacred’. The report detailed widespread sexual abuse of children in certain remote Aboriginal communities. The government, in defiance of the recommendation in the report that governments commit to genuine consultation with Aboriginal people to design initiatives for Aboriginal communities to address these urgent issues,127 passed a series of measures that were executed with the assistance of the Australian army and federal police, as well as through an increased level of general welfare services. The initiatives applied to all land owned by Aboriginal communities in the Northern Territory, although about 70 communities were particularly targeted. As mentioned earlier in this chapter, in order to implement the NTER initiatives, Parliament suspended the operation of the RDA in case the initiatives were not considered to be ‘special measures’ under s 8 of the Act. Initiatives in the NTER included the compulsory acquisition of Aboriginal land, which was then leased back to Aboriginal communities. This arrangement was to enable government to regulate various activities of communities on this land. In Wurridjal v Commonwealth,128 this measure was challenged for not providing ‘just terms compensation’ as required by s 51(xxxi) of the Constitution. The High Court rejected the challenge. There are a number of initiatives in the NTER that have been welcomed by many, including measures designed to reduce alcohol-related violence, to improve health outcomes, to increase the availability and quality of housing, and to improve Aboriginal education outcomes. There are also initiatives that have proved controversial, including the compulsory acquisition of land and the imposition of compulsory income maintenance to ensure that welfare payments are used to provide food and other essential goods and services to children. A  major criticism of the income management initiative was the fact that it targeted Aboriginal people. The government had suspended the RDA in relation to income management in case it was not construed as a special measure under the Act, but in June 2010 extended income

127 Northern Territory Board of Inquiry into the Protection of Aboriginal Children from Sexual Abuse, Ampe Akelyernemane Meke Mekarle ‘Little Children are Sacred’ (2007) 21 and recommendation 1. 128 (2009) 237 CLR 309.

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management to all people in the Northern Territory who failed to provide adequately for children according to key government indicators.129 Regardless of the success or otherwise of the measures themselves, one of the key criticisms of the NTER was that it was designed and executed without consultation with the targeted and affected Aboriginal communities. This central design and imposition of the measures stripped the Aboriginal communities of their rights to selfdetermination and to participate in the formation of policies that specifically affect them. It meant they had no opportunity to have input into the design of the policies to ensure that they were targeted for the specific conditions of their communities.

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Closing the gap on social outcomes In 2006, the Aboriginal and Torres Strait Islander Social Justice Commissioner, Tom Calma, launched an initiative to ‘close the gap’ between Aboriginal and nonIndigenous health outcomes within a generation.130 In March 2008, a month after the national apology to the Stolen Generation, Prime Minister Kevin Rudd, the ministers for Health and Indigenous Affairs, the Opposition Leader, Aboriginal and Torres Strait Islander health leaders and others signed a Statement of Intent to close the gap on Aboriginal and Torres Strait Islander health outcomes, particularly life expectancy, by 2030.131 The government also included education and employment outcomes within its ‘closing the gap’ targets, and pledged to write an annual report on progress towards meeting those targets. The initiatives were to be coordinated and funded through Council of Australian Government (‘COAG’) partnership agreements.132 In its second report, in 2010, the Closing the Gap Steering Committee set out specific targets to be achieved in the coming decades, reiterated the targets and noted some improvement in key health outcomes.133 However, in 2017, the Prime Minister’s ninth Closing the Gap report recorded much less progress. Targets to halve the gap in child mortality by 2018, close the life expectancy gap, halve the gap in reading and numeracy, and halve the gap in employment were each recorded as not on track.134

129 Social Security and Other Legislation Amendment (Welfare Reform and Reinstatement of Racial Discrimination Act) Act 2010 (Cth). 130 Tom Calma, ‘Achieving Aboriginal and Torres Strait Islander Health Equality Within a Generation—A Human Rights Based Approach’ in Human Rights and Equality Opportunity Commission, Social Justice Report 2005 (2005). 131 Closing the Gap Campaign Steering Committee, Shadow Report (2013) 11. 132 Australian Government, Closing the Gap: Prime Minister’s Report (2010) 4. 133 Closing the Gap Campaign Steering Committee, Closing the Gap: Shadow Report (2010). 134 Department of Prime Minister and Cabinet, Australian Government, Closing the Gap: Prime Minister’s Report 2017 (2017).

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Structural change These failures to achieve substantial outcomes on social outcomes, including health and education, have led to calls for greater structural reform, reform that addresses the more fundamental institutional reasons for the discrepancies between Aboriginal and Torres Strait Islander peoples and non-Indigenous people in these areas. Structural reform could take the form of substantive structural changes to accommodate Aboriginal and Torres Strait Islander peoples in the Australian public law system, or in the form of a treaty, which recognises the right of Aboriginal and Torres Strait Islander peoples to self-government, within mutually agreed parameters.

Constitutional recognition

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There are many forms that constitutional recognition might take. These can be considered to exist on a spectrum. At one end of the spectrum is symbolic recognition that Aboriginal and Torres Strait Islander peoples were the First Peoples of the land, have suffered historical injustice and wrongs, and have an ongoing connection to country and cultural practices. Further along the spectrum are amendments that would change the way that the Australian state institutions relate to Aboriginal and Torres Strait Islander peoples. This could include the insertion of a racial non-discrimination clause, thus protecting Aboriginal and Torres Strait Islander peoples (and others) from discrimination based on their race. An alternative form of recognition would be to guarantee Aboriginal and Torres Strait Islander peoples political representation within the Australian Parliament, such as we have already discussed in relation to designated seats. Symbolic recognition has now been achieved in each of the state constitutions in Australia.135 For instance, s 2(2) of the South Australian Constitution Act 1934 (SA) states: (2)

Following the Apology given on 28 May 1997, the Parliament, on behalf of the people of South Australia— (a) acknowledges and respects Aboriginal peoples as the State’s first peoples and nations; and (b) recognises Aboriginal peoples as traditional owners and occupants of land and waters in South Australia and that— (i) their spiritual, social, cultural and economic practices come from their traditional lands and waters; and

135 Constitution Act 1902 (NSW) Preamble; Constitution of Queensland 2001 (Qld); Constitution Act 1934 (SA) s 2; Constitution Act 1934 (Tas) Preamble; Constitution Act 1975 (Vic), s 1A; Constitution Act 1889 (WA) Preamble.

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(ii)

(c)

they maintain their cultural and heritage beliefs, languages and laws which are of ongoing importance; and (iii) they have made and continue to make a unique and irreplaceable contribution to the State; and acknowledges that the Aboriginal peoples have endured past injustice and dispossession of their traditional lands and waters.136

As in all of the other state constitutions with the exception of Western Australia and Tasmania, the South Australian recognition includes a subsection stating that the recognition is to have ‘no legal force or effect’.137 In addition to state constitutional recognition, the Charter of Human Rights and Responsibilities Act 2006 (Vic), which is discussed in more detail in Chapter 12, specifically recognises Indigenous rights in s 19(2):

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Aboriginal persons hold distinct cultural rights and must not be denied the right, with other members of their community— (a)

to enjoy their identity and culture; and

(b)

to maintain and use their language; and

(c)

to maintain their kinship ties; and

(d)

to maintain their distinctive spiritual, material and economic relationship with the land and waters and other resources with which they have a connection under traditional laws and customs.

In the Australian Capital Territory, a different and more structural form of recognition has been provided to the Aboriginal and Torres Strait Islander community there. The ACT Government has established the Aboriginal and Torres Strait Islander Elected Body, which provides a democratically elected voice to government on policy and services that affect Aboriginal and Torres Strait Islander people in the Territory.138 In 2008, the Rudd ALP Government established the National Human Rights Consultation Committee (the ‘Brennan Committee’) to report on human rights protection in Australia. In its 2009 report, the Brennan Committee devoted a chapter to the question of human rights and Aboriginal and Torres Strait Islander peoples. It outlined a number of possible mechanisms for protecting the human rights of Aboriginal and Torres Strait Islander peoples, including a recognition of specific rights in the Constitution, or the enactment of a Bill of Rights with a separate section providing for the protection of Aboriginal and Torres Strait Islander rights. The Brennan Committee concluded that it was ‘unable to recommend’ that specific rights

136 Constitution (Recognition of Aboriginal Peoples) Amendment Act 2013 (SA) s 3. 137 Ibid s 3(3). 138 Aboriginal and Torres Strait Islander Elected Body Act 2008 (ACT).

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be protected in either of these ways ‘in view of the lack of support from the broader Australian community for different rights for different people’.139 As part of the negotiations with independents and minor parties to form government in 2010, the Gillard Government undertook to hold a referendum to recognise Aboriginal and Torres Strait Islander peoples in the Constitution. However, this promise did not detail what form that recognition would take. In November 2010, the government established an Expert Panel to consider options for constitutional amendment. After wide consultation in 2011, the panel submitted a report to the government in January 2012 with a concrete proposal for constitutional change.140 First, the Expert Panel recommended repealing s 25 of the Constitution, which recognises the right of states to disqualify people of any race from voting and provides that ‘in reckoning the number of the people of the …. Commonwealth, persons of that race resident in that State shall not be counted’. Whatever its original intention, the section is clearly anachronistic, and its potential repeal has brokered little controversy. Second, the Expert Panel recommended replacing the race power with a new general power in s 51 of the Constitution to make laws ‘with respect to Aboriginal and Torres Strait Islander Peoples’, to be preceded by a preamble that would be intended to limit the exercise of the power, which is stated as follows: Recognising that the continent and its islands now known as Australia were first occupied by Aboriginal and Torres Strait Islander peoples; Acknowledging the continuing relationship of Aboriginal and Torres Strait Islander peoples with their traditional lands and waters; Respecting the continuing cultures, languages and heritage of Aboriginal and Torres Strait Islander peoples;

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Acknowledging the need to secure the advancement of Aboriginal and Torres Strait Islander peoples; …

Third, the Expert Panel recommended including a new s 116A in the Constitution, prohibiting racial discrimination. Finally, the Expert Panel recommended including a languages clause in a new s 127A that recognises English as the national language and recognises Aboriginal and Torres Strait Islander languages as ‘the original Australian languages, a part of our cultural heritage’. The Commonwealth Government did not formally respond to the Expert Panel’s report. Parliament responded by passing its own Act, the Aboriginal and Torres Strait

139 National Human Rights Consultation Committee, National Human Rights Consultation (AttorneyGeneral’s Department, Australian Government, 2009) 213. 140 Expert Panel on Constitutional Recognition of Indigenous Australians, Recognising Aboriginal and Torres Strait Islander Peoples in the Constitution: Report of the Expert Panel (2012).

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Islander Recognition Act 2013 (Cth). The Act required a ministerial review of issues relating to holding a referendum on recognition. The review was charged, among other things, with ‘taking into account the work of the Expert Panel on Constitutional Recognition’;141 and considering which of the proposals put forward by the Expert Panel ‘would be most likely to obtain the support of the Australian people’.142 A parliamentary joint select committee was established to ‘inquire into and report on steps that can be taken to progress towards a successful referendum on Indigenous constitutional recognition’. Similarly to the Expert Panel, the Joint Select Committee on Constitutional Recognition of Aboriginal and Torres Strait Islander Peoples also recommended the repeal of s 25 and a change to the race power, and while it supported the inclusion of a form of racial non-discrimination clause, it did not make a final recommendation on this issue.143 Following the government’s failure to respond and implement any of the recommendations for more substantive constitutional reform, in 2015 a group of Aboriginal and Torres Strait Islander leaders presented the Kirribilli Statement to the Prime Minister and the Opposition Leader, calling for a dialogue between the government and Parliament and Aboriginal and Torres Strait Islander peoples to negotiate the content of a question to be put to referendum and engagement with Aboriginal and Torres Strait Islander peoples about the acceptability of any such question. This was largely responding to a growing government-funded campaign, ‘Recognise’, that was generating increasing support for ‘constitutional recognition’ purportedly on behalf of Aboriginal and Torres Strait Islander peoples, without specifying what form that recognition would take, and whether it would be acceptable to Aboriginal and Torres Strait Islander people. The Kirribilli Statement addressed the question of the substance of reform as follows: [A]ny reform must involve substantive changes to the Australian Constitution. It must lay the foundation for the fair treatment of Aboriginal and Torres Strait Islander peoples into the future. A minimalist approach, that provides preambular recognition, removes section 25 and moderates the races power [section 51(xxvi)], does not go far enough and would not be acceptable to Aboriginal and Torres Strait Islander peoples.144

This meeting led to the establishment of the Referendum Council, which we refer to above. The Indigenous Steering Committee of the Referendum Council conducted 141 Aboriginal and Torres Strait Islander Recognition Act 2013 (Cth), s 4(2)(c); this Act was extended to 28 March 2018: Aboriginal and Torres Strait Islander Peoples Recognition (Sunset Extension) Act 2015 (Cth). 142 Ibid s 4(2)(b)(i). 143 Joint Select Committee on Constitutional Recognition of Aboriginal and Torres Strait Islander Peoples, Parliament of Australia, Final Report (2015). 144 ‘Statement presented by Aboriginal and Torres Strait Islander Attendees at a Meeting held Today with the Prime Minister and Opposition Leader on Constitutional Recognition’ (Speech delivered at H C Coombs Centre, Sydney, 6 July 2015).

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a rigorous and deep conversation with Aboriginal and Torres Strait Islander people across Australia about constitutional recognition. While the earlier processes had made attempts at consultation, the sheer scale and sophistication of the Referendum Council’s regional dialogue meetings and final Uluru First Nations Constitutional Convention eclipsed these efforts. The dialogues and the Convention were designed and led by Aboriginal and Torres Strait Islander people themselves. Each dialogue was hosted by a local organisation, and led by local people. The agenda included civics information sessions, question and answer sessions, and small and large group discussions. The dialogues led to the Uluru Convention. Written records of each dialogue were taken to the Convention, and each dialogue elected delegates to attend and represent that group. The Convention was held in May 2017, marking the 50year anniversary of the 1967 Referendum. The Uluru Convention outlined 10 guiding principles from the dialogues that preceded it, which stated that any reform: 1.

Does not diminish Aboriginal sovereignty and Torres Strait Islander sovereignty.

2.

Involves substantive, structural reform.

3.

Advances self-determination and the standards established under the United Nations Declaration on the Rights of Indigenous Peoples.

4.

Recognises the status and rights of First Nations.

5.

Tells the truth of history.

6.

Does not foreclose on future advancement.

7.

Does not waste the opportunity of reform.

8.

Provides a mechanism for First Nations agreement-making.

9.

Has the support of First Nations.

10.

Does not interfere with positive legal arrangements.145

The Convention endorsed the Uluru Statement from the Heart, which called for three substantive reforms, summarised as ‘Voice, Treaty, Truth’. The first reform suggested was ‘the establishment of a First Nations Voice enshrined in the Constitution’. This was a proposal to create structural change through a constitutionally guaranteed representative body to enhance participation of Aboriginal and Torres Strait Islander peoples in the democratic life of the Australian state, especially the Federal Parliament. The second and third were for the creation of a Makarrata Commission to oversee a process of agreement making (or treaty making) between governments and First Nations, and to oversee a process of truth telling about the history of Aboriginal and Torres Strait Islander peoples in Australia. 145 Referendum Council, Final Report of the Referendum Council (2017) 22.

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The Uluru Statement from the Heart was not just a pragmatic call for reform, but also provided a sophisticated explanation of the sovereign claims of Aboriginal and Torres Strait Islander peoples and the reason why structural reform was needed to address ongoing causes of disadvantage within their communities. It read: We, gathered at the 2017 National Constitutional Convention, coming from all points of the southern sky, make this statement from the heart: Our Aboriginal and Torres Strait Islander tribes were the first sovereign Nations of the Australian continent and its adjacent islands, and possessed it under our own laws and customs. This our ancestors did, according to the reckoning of our culture, from the Creation, according to the common law from ‘time immemorial’, and according to science more than 60,000 years ago. This sovereignty is a spiritual notion: the ancestral tie between the land, or ‘mother nature’, and the Aboriginal and Torres Strait Islander peoples who were born therefrom, remain attached thereto, and must one day return thither to be united with our ancestors. This link is the basis of the ownership of the soil, or better, of sovereignty. It has never been ceded or extinguished, and co-exists with the sovereignty of the Crown. How could it be otherwise? That peoples possessed a land for sixty millennia and this sacred link disappears from world history in merely the last two hundred years? With substantive constitutional change and structural reform, we believe this ancient sovereignty can shine through as a fuller expression of Australia’s nationhood. Proportionally, we are the most incarcerated people on the planet. We are not an innately criminal people. Our children are aliened from their families at unprecedented rates. This cannot be because we have no love for them. And our youth languish in detention in obscene numbers. They should be our hope for the future.

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These dimensions of our crisis tell plainly the structural nature of our problem. This is the torment of our powerlessness. We seek constitutional reforms to empower our people and take a rightful place in our own country. When we have power over our destiny our children will flourish. They will walk in two worlds and their culture will be a gift to their country. We call for the establishment of a First Nations Voice enshrined in the Constitution. Makarrata is the culmination of our agenda: the coming together after a struggle. It captures our aspirations for a fair and truthful relationship with the people of Australia and a better future for our children based on justice and self-determination. We seek a Makarrata Commission to supervise a process of agreement-making between governments and First Nations and truth-telling about our history. In 1967 we were counted, in 2017 we seek to be heard. We leave base camp and start our trek across this vast country. We invite you to walk with us in a movement of the Australian people for a better future.

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The Uluru Statement effected a dramatic shift in the conversation over constitutional reform in Australia. It shifted the focus of reform away from changes that would be largely symbolic (such as the repeal of s 25, a preambular acknowledgement of the place of Aboriginal and Torres Strait Islander peoples, or a change to the race power). It also represented a shift away from the proposal of a racial non-discrimination clause, which would offer Aboriginal and Torres Strait Islander peoples legal protections from discrimination. Instead, the Uluru Statement prioritised political empowerment and the realisation of the right to self-determination. The Referendum Council’s final report endorsed the Uluru Statement’s call for a voice to the Parliament to be constitutionally enshrined.146 The political response to the Uluru Statement in 2017 was mixed. In October 2017, Prime Minister Malcolm Turnbull explicitly rejected the call for a voice to the Parliament. In contrast, the Labor Party, in opposition, endorsed each of the reforms called for in the Statement. In 2018, the Parliament established a Joint Select Committee on Constitutional Recognition Relating to Aboriginal and Torres Strait Islander Peoples. The Committee must consider the recommendations of the Referendum Council (2017), the Uluru Statement from the Heart (2017), the Joint Select Committee on Constitutional Recognition of Aboriginal and Torres Strait Islander Peoples (2015) and the Expert Panel on Constitutional Recognition of Indigenous Australians (2012).

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Treaties Outside of constitutional reform, another method of protecting Aboriginal and Torres Strait Islander rights through the formal legal system is for the state and Aboriginal and Torres Strait Islander peoples to enter agreements or treaties over the nature and extent of Aboriginal and Torres Strait Islander rights. In the 2017 Uluru Statement from the Heart, Aboriginal and Torres Strait Islander peoples stated that treaty—or ‘Makarrata’, which is a Yolngu word that means the coming together after a struggle— was the culmination of their agenda, and they called for the establishment of a commission to oversee this. This was certainly not the first call for the government to enter treaty negotiations by Aboriginal and Torres Strait Islander peoples. In 1979, the government-funded National Aboriginal Conference passed a resolution calling for a treaty.147 This resolution was welcomed by the Fraser Coalition Government, although no progress was made towards reaching an agreement. In 1988, having received the Barunga Statement discussed earlier in this chapter,148 146 Referendum Council, Final Report of the Referendum Council (2017) 2. 147 See generally Stewart Harris, It’s Coming Yet: An Aboriginal Treaty Within Australia Between Australians (Aboriginal Treaty Committee, 1979). 148 Council for Aboriginal Reconciliation, above n 63.

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Prime Minister Bob Hawke stated that there would be a treaty. However, no progress was made in subsequent years and the issue fell off the government agenda. In 2000, the Council for Aboriginal Reconciliation called for a treaty; but at this time Prime Minister John Howard strongly opposed the idea, arguing that treaties were documents between governments, and that the focus of Aboriginal and Torres Strait Islander policy should be on ‘practical reconciliation’.149 The process of agreement making necessarily recognises the agency of Aboriginal and Torres Strait Islander peoples as autonomous political entities. In other British settler colonies, such as New Zealand, Canada and the US, treaties between indigenous peoples and the British colonisers continue to form a vital part of the legal relationship between indigenous peoples and governments. There are several advantages to treaties over the protection of rights in the Constitution or in legislation. First, treaties are more flexible instruments. They can operate at a community, regional, state or national level, meaning that communities can negotiate treaties individually or collectively. They would allow Aboriginal and Torres Strait Islander communities or representatives to be direct parties to the treaty, thus recognising and honouring the right to self-determination in a way that legislation cannot. Also, the process of negotiation can itself be a positive process for relations between indigenous peoples and governments. It would allow Aboriginal and Torres Strait Islander peoples to bring information and perspectives to governments in a direct way, and make it less likely that the rights and interests of particular groups will be omitted from the process.150 From another perspective, however, it is questionable whether there are outcomes that can be achieved through a process of treaty negotiation that cannot be pursued through direct relations with government, and, as the history of attempts to further the treaty cause testify, there are considerable conceptual and political hurdles to be overcome for governments to accept the treaty process as a legitimate and productive one. Furthermore, in negotiating with the state—with all its resources—Aboriginal and Torres Strait Islander people might find that the outcome of any treaty process does not deliver all that they hope. In commenting on the lessons Australians might gain from the Canadian experience of treaty making, Ravi de Costa states:  ‘treatymaking has always been an instrumental exercise for the settler state: treaties are acts and calculations about power, not collective expressions of principle. [This is evident in] the genesis of treaties, in the means by which they were negotiated, in their partial implementations, but mostly in their neglect.’151 149 See John Howard, ‘Practical Reconciliation’ in Michelle Grattan (ed), Reconciliation: Essays on Australian Reconciliation (Bookman Press, 2000) 89. 150 Sean Brennan, Larissa Behrendt, Lisa Strelein and George Williams, Treaty (Federation Press, 2005) 8. 151 Ravi de Costa, ‘Treaty How?’ (2003) 4(1) Drawing Board: An Australian Review of Public Affairs 1, 19.

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The last few years have seen a number of positive developments that signal greater government interest in negotiating treaties, or at least substantive agreements, with Aboriginal and Torres Strait Islander peoples. At the federal level, the Uluru Statement called for a more formalised, national process to oversee the fairness of any such negotiations. The ‘Makarrata Commission’ that was sought could look similar to the Treaty Commission that was established in 1992 in British Columbia to oversee treaty negotiations between the province’s First Nations and the federal and provincial governments. The role of the Commission is to act as an independent facilitator, not to negotiate the treaties with the government directly. Any treaty negotiation process is likely to be a long and slow process. Questions around who would be the parties to any treaty, whether it should be negotiated at a national or regional level, and what its content might include (for instance, whether it would include self-governance rights, reparations, the recognition of customary law, the grant of land rights, and the establishment of a truth-telling process) would have to be the subject of mutual agreement between the government and the Aboriginal and Torres Strait Islander parties.152 At the state and territory level, there have been substantial moves in Victoria and South Australia to progress treaty negotiations with the Aboriginal groups in those states. In Victoria, this has led to the establishment in early 2018 of the Treaty Advancement Commission, with a view to establishing an Aboriginal representative body to further the negotiations towards treaty.153 In South Australia, a Treaty Commissioner has been appointed and the first negotiations with the Ngarrindjeri Nation commenced in late 2017.154

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Conclusion There is no question that the relationship between Aboriginal and Torres Strait Islander peoples and the Australian state gives rise to more issues for Australian public law than the state’s relationship with any other group. Governments pursue a range of policies directed specifically at Aboriginal and Torres Strait Islander peoples that are influenced by the common law and international legal norms, by perceptions of Aboriginal and Torres Strait Islander peoples and their degree of autonomy, and by views of Australian colonial history. The policies are also influenced by an underlying

152 See further discussion of these issues in Referendum Council, Final Report of the Referendum Council (2017) 31. 153 See further State Government of Victoria, Victorian Treaty Advancement Commission, . 154 Department of State Development, Government of South Australia, South Australian Government Commences Treaty Negotiations with South Australian Aboriginal Nations (2017), .

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philosophy of what is required of the public law in response to Aboriginal and Torres Strait Islander peoples’ demands: what is the extent of the state’s responsibility for Aboriginal and Torres Strait Islander disadvantage? Should the state be actively fostering the fundamental values of liberty, equality, community and justice in its relationship with Aboriginal and Torres Strait Islander peoples? How much autonomy and plurality is possible and desirable in the legal system? What is the responsibility of present governments for the harmful laws and policies of previous administrations? There are highly divergent opinions in answer to these questions, and public law responses to Aboriginal and Torres Strait Islander issues vary considerably across time. There is one certainty though: Aboriginal and Torres Strait Islander peoples and their unique claims on and relationship with the state are a permanent and ongoing feature of Australian public law, and must be addressed as such.

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DISCUSSION QUESTIONS 1

What was the basis for the British claim to legal sovereignty over Australia? At what point was it an effective claim? Is there any scope for Aboriginal and Torres Strait Islander peoples to claim a continuing sovereignty in the face of the British claim?

2

On what basis do Aboriginal and Torres Strait Islander peoples have claims to special rights? Does the law adequately account for these claims? Have the courts played an effective role in recognising Aboriginal and Torres Strait Islander claims in the absence of formal legal recognition?

3

Explain the basis for the High Court’s recognition of native title in Mabo. Was it right for the High Court to recognise a new form of property right? How does native title differ from non-Indigenous property rights?

4

Should Aboriginal and Torres Strait Islander peoples be recognised in the Australian Constitution? Of the different proposals for reform, which do you think would be the most effective in setting a more positive enduring relationship between Aboriginal and Torres Strait Islander peoples and the Australian state?

5

On what basis do Aboriginal and Torres Strait Islander peoples have a claim to differential rights and protection in Australian law?

FURTHER READING Thalia Anthony, Laura Beacroft, Sean Brennan, Megan Davis, Terri Janke, Heather McRae and Garth Nettheim, Indigenous Legal Issues: Commentary and Materials (Thomson Reuters, 4th ed, 2009) Bain Attwood, Rights for Aborigines (Allen & Unwin, 2003)

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Larissa Behrendt, Achieving Social Justice: Indigenous Rights and Australia’s Future (Federation Press, 2003) Ann Curthoys, Ann Genovese and Alexander Reilly, Rights and Redemption: History, Law and Indigenous People (University of New South Wales Press, 2008) Julie Evans, Ann Genovese, Alexander Reilly and Patrick Wolfe, Sovereignty:  Frontiers of Possibility (University of Hawai’i Press, 2013) Martin Hinton, Daryle Rigney and Elliott Johnston (eds), Indigenous Australians and the Law (Routledge-Cavendish, 2nd ed, 2008) Human Rights and Equal Opportunity Commission, Bringing Them Home: National Inquiry into the Separation of Aboriginal and Torres Strait Islander Children from Their Families (1997) Marcia Langton, Odette Mazel, Lisa Palmer, Kathryn Shain and Maureen Tehan (eds), Settling with Indigenous People: Modern Treaty and Agreement-making (Federation Press, 2006) Dylan Lino, Constitutional Recognition:  First Peoples and the Australian Settler State (Federation Press, 2018) Michael Mansell, Treaty and Statehood: Aboriginal Self-Determination (Federation Press, 2016) Aileen Moreton-Robinson (ed), Sovereign Subjects: Indigenous Sovereignty Matters (Allen & Unwin, 2007) Referendum Council, Final Report of the Referendum Council (2017) Henry Reynolds, The Other Side of the Frontier: Aboriginal Resistance to the European Invasion of Australia (University of New South Wales Press, 1981, 2006 ed) Peter Russell, Recognizing Aboriginal Title:  The Mabo Case and Indigenous Resistance to English-settler Colonialism (University of Toronto Press, 2005)

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Robert A  Williams Jr, The American Indian in Western Legal Thought:  The Discourses of Conquest (Oxford University Press, 1990)

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A FEDERAL COMMONWEALTH

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CHAPTER OVERVIEW Introduction

120

The idea of federalism

120

Federalism as legal pluralism

120

The values of federalism

121

The character of federal states

123

The origins of the Australian federation

125

The structure of the Australian federation

129

The distribution of powers

134

Legislative power: distributing jurisdiction

134

Judicial power: an ‘integrated court system’

143

Executive power: reinvigorating federalism

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Protecting the federation: implied immunities

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Federal financial relations

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The practice of Commonwealth–state relations

150

The future of Australian federalism

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Conclusion

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Introduction Chapter  2 explained how the Australian colonies united to form a federal Commonwealth. In this chapter, we explore how the federal nature of Australia affects the creation and operation of its public law and the interaction between its institutions of government. The co-existence of the Commonwealth and state governments in the same geographical space was a necessary and exalted part of the design of Australian public law. It was also a large departure from the unitary Constitution of England, with which the colonists were most familiar. Since its creation, the federal design has had to adapt to new additions, including the incorporation of the self-administering territories (the Australian Capital Territory and the Northern Territory).1 The last few decades have also seen a call from local governments to be formally recognised as part of our federal system. In this chapter, we explore the idea of federalism by looking at its purpose and at the characteristics of a federal government. We then turn to how the principles of federalism were incorporated into the provisions of the Australian Constitution and how these principles have been interpreted by the High Court since federation in a way that has seen the Commonwealth grow in power and prominence, while ensuring the constitutional survival of the states. We then explore the evolution of the practice of federalism between the Commonwealth and the states, and the techniques that have been used to achieve effective and efficient government within the constraints of the constitutional requirements of the federal system. Finally, we consider whether the trend towards centralisation of government in Australia is inexorable, and what it means for the Australian federation.

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The idea of federalism Federalism as legal pluralism Countries adopt federal models for different reasons. At its core, federalism is a type of pluralism; that is, it is a means of managing and accommodating diversity in a single geographical space. Diversity is everywhere. It is hard to imagine modern society without a plurality of cultures, attitudes, preferences and moralities. But this diversity creates great challenges for a system of government like ours that purports to establish a consistent and coherent law for all people.

1

Until recently, these included the external territory of Norfolk Island. The Commonwealth re-established control over the administration of the territory, abolishing its legislative assembly, in 2015.

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US anthropologist John Griffiths described legal pluralism as ‘the presence in a social field of more than one legal order’.2 For Griffiths, an order is a legal order regardless of whether it is officially recognised; that is, regardless of whether it is properly classified as ‘law’ in a positivist sense. What matters is whether it is determinative of conduct.3 So the rules governing a religious tradition or a community group or a family might well be ‘legal’ in nature. The challenge posed by the existence of more than one legal order in a single sociolegal space is that individuals might find themselves having multiple and sometimes conflicting obligations. There is no doubt that Australian society is highly pluralistic, with individuals facing a whole range of unofficial obligations that determine their behaviour and that they need to reconcile with the official law. Although the law of a state can recognise a certain amount of diversity, it demands obedience to the official law. In a federal system of government, the official law itself comes from more than one source, and facilitates a greater degree of diversity at the official level.

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The values of federalism Comparative constitutional law expert Professor Rosalind Dixon explains that, across the world, ‘federalism is often understood to promote a range of different political values, including (a)  government accountability; (b)  democratic experimentalism; (c) the accommodation of diversity or pluralism, across states; and (c) government closer to the people’.4 The drafters of the American Constitution adopted a federal system for two key reasons. The first was the political reality of the pre-existing states, which would not forego their autonomy for the creation of a new, unitary government. The second was to create a system of government that was restrained. As one of the American founding fathers, James Madison (1751–1836), explained, this was achieved through the separation of powers horizontally between the legislature, the executive and the judiciary, but also the vertical separation of powers between the new central government and the states: In the compound republic of America, the power surrendered by the people is first divided between two distinct governments, and then the portion allotted to each subdivided among distinct and separate departments. Hence a double security arises to the rights of the people. The different governments will control each other, at the same time each will be controlled by itself.5 2 3 4 5

John Griffiths, ‘What is Legal Pluralism?’ (1986) 24 Journal of Legal Pluralism 1, 1. Ibid 26. Rosalind Dixon, ‘Introduction’ in Rosalind Dixon (ed), Australian Constitutional Values (Hart Publishing) 1. James Hamilton, ‘Federalist No 51’ in Clinton Rossiter (ed), The Federalist Papers (New American Library, first published 1788, 1961 ed) 320, 323. See further Stephen Gageler, ‘Foundations of Australian Federalism and the Role of Judicial Review’ (1987) 17 Federal Law Review 162, 166.

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The existence of multiple levels of government provides greater scope for customising policies to meet local needs, and experimenting in policy and service delivery.6 Federal systems provide an additional level of democratic participation at the local level, thus enhancing the people’s participation in government.7 As Justice Antonin Scalia of the US Supreme Court explained, federal systems give citizens what has become known as a greater ‘voice’ in the policies that apply to them:

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Now there are many reasons for having a federal system, but surely the most important is that it produces more citizens content with the laws under which they live. If, for example, the question of permitting so-called ‘sexually oriented businesses’—porn shops—were put to a nationwide referendum, the outcome might well be 51 per cent to 49 per cent, one way or the other. If that result were imposed nationwide, nearly half of the population would be living under a regime it disapproved. But a huge proportion of the pro-sex-shop vote would be in states such as New York, California, and Nevada; and a huge proportion of the anti-sex-shop vote would be in the south, and in such western states as Utah and New Mexico. If the question of permitting sexually oriented businesses were left to the states … perhaps as much as 80 per cent of the population would be living under a regime that it approved.8

Closely associated with the idea of federalism giving citizens a stronger democratic ‘voice’ is the notion that they have the right to leave a state—to ‘exit’—and move to one more congruent with their political beliefs and preferences.9 Federalism is also said to breed  experimentation,  innovation and competition between the sub-national governments, promoting better policy outcomes.10 An earlier justice of the US Supreme Court, Louis Brandeis (1856–1941), stated that one of the ‘happy incidents of the federal system’ is that ‘a single courageous State may, if its citizens choose, serve as a laboratory; and try novel social and economic experiments without risk to the rest of the country’.11 When there is a need for the cooperation of different levels of government to implement a national scheme, federal systems of government necessarily draw on a wider range of opinions, and may provide additional scrutiny of government than exists in a unitary state.

6 7 8 9

10 11

Anne Twomey and Glenn Withers, Federalist Paper 1: Australia’s Federal Future (Council of the Australian Federation, 2007) 8. See Brian Galligan and Cliff Walsh, ‘Australian Federalism Yes or No?’ in Gregory Craven (ed), Australian Federation (Melbourne University Press, 1992) 197. Antonin Scalia, ‘Romancing the Constitution:  Interpretation as Invention’ in Grant Huscroft and Ian Brodie (eds), Constitutionalism in the Charter Era (LexisNexis Butterworths, 2004) 337, 342. See further A O Hirschmann, Exit, Voice, and Loyalty: Responses to Decline in Firms, Organizations, and States (Harvard University Press, 1970). See also H Gerken, ‘Exit, Voice and Disloyalty’ ( 2013 ) 62 Duke Law Journal 1349; H K Gerken, ‘Federalism All the Way Down’ (2010) 124 Harvard Law Review 4. See further Gabrielle Appleby and Brendan Lim, ‘Democratic Experimentalism’ in Rosalind Dixon (ed), Australian Constitutional Values (Hart Publishing, 2018) 221. New State Ice Co v Liebmann 285 US 262 (1932).

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Federal states allow the benefits of local governance to be achieved, while leaving the central government to control areas of national concern such as defence, international relations, trade and commerce, and immigration. Larger political entities are better suited to take responsibility for some areas of governance. Most obviously, a larger entity is more able to protect itself from external aggressors and can carry more influence in global economic concerns. Charles-Louis de Secondat, Baron de Montesquieu, recognised the significance of size as an advantage of creating a federal state in 1748 when he said: This form of government is a convention by which several petty states agree to become members of a larger one, which they intend to establish. It is a kind of assemblage of societies, that constitute a new one, capable of increasing by means of further associations, till they arrive at such a degree of power as to be able to provide for the security of the whole body.12

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The positive outcomes of adopting a federal state are often contrasted with the inefficiencies and inequalities that federalism can create. The adoption of diverse policies by sub-national governments across a federation requires individuals and business to understand and comply with different regimes as they travel across a single country. In Australia, this is often felt by children changing schools across different states, or by businesses that operate across different states and must comply with different regulatory regimes in areas such as workplace health and safety, and tax. Where sub-national governments are left to develop their own policies, concerns arise that minimum levels of services (such as in health care) and standards (such as in school curricula) are not being received by individuals across the federation. Concerns about equality and efficiency drive calls for nationwide schemes and standards to be adopted at the expense of local diversity and innovation. The central government is often called upon to ensure equality of access to resources such as education, health care and welfare payments.

The character of federal states English professor Albert Venn Dicey (1835–1922) observed that the formation of a federal nation state requires two conditions. First, it requires an existing body of countries or colonies that were sufficiently connected ‘by locality, by history, by race, or the like, as to be capable of bearing … an impress of common nationality’.13 In other words, there must be a foundation of similarity between the countries or colonies, such that a coherent set of governing institutions acceptable to all the participants in 12 13

Charles-Louis de Secondat, Baron de Montesquieu, The Spirit of the Laws (Thomas Nugent trans, J V Prichard, revised ed, 1914 ed) Book 9:1 [trans of: De L’esprit des Lois (first published 1748)]. Albert Venn Dicey, Introduction to the Study of the Law of the Constitution (Macmillan, 10th ed, 1995) 141.

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a new national body can be created. In Australia, the colonies were strikingly similar in terms of their origins—all being British colonies established between 1788 and 1859; the population of each colony being predominantly white and Anglo-Saxon; all but South Australia being former penal colonies; and all having similar economic bases, with a heavy reliance on agriculture and mining. Also, as Chapter 2 explained, in the history of the federation movement the colonies shared similar concerns for the future. There was a fear that alone they were vulnerable economically, and vulnerable in terms of their defence requirements as a result of their size and their isolation from the UK, and there was also shared desire to pursue immigration policies that furthered the white settlement of the colonies. Second, according to Dicey, the people in the separate countries or colonies must possess a ‘peculiar state of sentiment. … They must desire union, and must not desire unity’.14 Similarities must not be so great that there is no reason for the original countries or colonies to continue to exist, but the similarities must be great enough for a union to be desirable in the first place. Federalist scholar Thomas Fleiner has referred to these as the ‘the communalities’: ‘common values and common interests’ that allow for community building and co-existence while respecting ‘each other’s right to be different in order to profit in common from the richness of the diverse culture’.15 Dicey also made three observations on the common characteristics of federal government. First, federations tend to be a weak form of government as sovereign power is divided between the national and sub-national entities to the federation.16 As a result, there are more checks on the exercise of power at either level, and the diffusion of power across the governments means that sometimes national and sub-national governments will need to cooperate and pool their powers to effect a desired outcome. Second, Dicey explained that federalism is a conservative form of government.17 This is evident in the very rationale for creating a federalist state— federalism is designed to maintain the status quo (for example, the Australian colonies retaining their parliaments and laws) as much as possible in times of change (the establishment of a new national government). Traditionally, in Australia, conservative political parties were closely associated with supporting a strong federal state, which promoted small and limited government, at least at the Commonwealth level. In

14 15

16 17

Ibid. Thomas Fleiner, ‘Dynamics of Federalism: A Comparative Analysis of Recent Developments in Federations and Countries in Transition to Federalism’ in Gabrielle Appleby, Nicholas Aroney and Thomas John (eds), The Future of Australian Federalism: Comparative and Interdisciplinary Perspectives’ (Cambridge University Press, 2012) 213, 226. Dicey, above n 13, 171. Ibid.

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contrast, the Australian Labor Party (‘ALP’), which was founded just after federation, has always had a strong centrist policy. More recently, a similarly centrist position has been adopted by the Liberal/National Coalition and there is little to distinguish between the two major parties in terms of their approach to federalism. Another conservative characteristic of federal constitutions is that the power to amend them is outside the control of the national or sub-national governments acting alone. As a result, most provisions in federal constitutions are ‘rigid’, and difficult to amend formally. In some federal constitutions, as in the case of the Australian Constitution, constitutional amendment relies not only on parliamentary agreement, but also on the agreement of the people: in Australia, a special majority of Parliament together with a majority of the people of the Commonwealth and a majority of people in a majority of the states must approve constitutional amendments.18 This double majority referendum requirement engages the Australian people first as a national electorate, and then in the states as a federal electorate, thus demonstrating the national and federal features of our system.19 Finally, Dicey observed that the judiciary has a prominent role in federations, making federal systems legalistic forms of government. This is because federations rely on a written division of powers between the national and sub-national governments, and it is the responsibility of the courts to determine the limits of these powers. In Australia, this has been most pronounced with respect to the express division of legislative powers between the Commonwealth and the states,20 although it is also an issue in relation to the division of executive and judicial powers.21 In the Boilermakers’ Case,22 the seminal case on separation of powers in Australia, the High Court used the federal judiciary’s important role in the federal system to secure its independence and separation from the other branches.

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The origins of the Australian federation The similarities shared by the Australian colonies presented a compelling case for their coming together into a single nation. The preference for forming a federal rather than a unitary nation was overwhelming in the late 19th century. There are many reasons for this. First, the colonies had developed distinct identities in the 40 to 110 years that they had been separately established, and, more recently, enjoyed self-government, 18 19 20 21 22

Australian Constitution s 128. See Nicholas Aroney, Constitution of a Federal Commonwealth: The Making and Meaning of the Australian Constitution (Cambridge University Press, 2009) ch 11. See further Chapter 6. See further Chapters 7 and 9. R v Kirby; Ex parte Boilermakers’ Society of Australia (1956) 94 CLR 254, 276 (Dixon CJ, McTiernan, Fullagar and Kitto JJ).

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and they did not want to give up much of their autonomy over their own affairs. By the time of the drafting of the Commonwealth Constitution in the 1890s, they had their own ministers, parliaments and courts. They had developed their own laws and policies, and their colonial governments had different views on some of the most pressing political issues of the day, particularly economic questions (for example, whether to be free trade or protectionist, and the role of trade unions in industrial relations) and social policy (for example, the place of women in civil and political life). The retention of powers by the states provided greater freedom for people to live under policies and rules that reflected their political views and personal values. The Australian framers of the Constitution were strongly influenced by the formation of other federations with which they had a particular sense of identity— the US and Canada. They were less influenced by developments elsewhere such as in Germany, in which a loose confederation of states was unified into the single German Empire in 1871. The federation of Switzerland did have some influence over the founders, who adopted the Swiss double majority referendum requirement for amending all parts of the Australian Constitution. The work of the American founding father James Madison had a strong influence on the Australian debates in the lead-up to the drafting of the Australian Constitution. Madison argued that to ascertain the true character of a system of government there are several features that need to be considered, including ‘the foundation on which it is to be established’; ‘the sources from which its powers are to be drawn’; ‘the operation of those powers’; ‘the extent of them’; and ‘the authority by which future changes in the Constitution are to be introduced’.23 Australian federalism scholar Professor Nicholas Aroney has adopted these five features to analyse the federalist credentials of the Australian Constitution.24 In the discussion of the Australian federation that follows, we will see many of the objectives and characteristics of federal systems discussed in this section being realised, and we will also see how Commonwealth and state governments in the Australian federation have used a range of strategies to overcome the constraints inherent within a federal system of government. According to Aroney, Madison’s first feature of government, ‘the foundation on which it is to be established’, relates to the ‘process by which the Constitution was drafted, ratified and enacted into law’.25 Chapter 2 of this book chronicled the milestones that brought the Australian colonies to federation. There are several features of the Australian story that reinforce the federalist credentials of the Australian Constitution. The delegates to the convention debates that led to the 23 24 25

James Madison, ‘Federalist No. 39’ in Clinton Rossiter (ed), The Federalist Papers (New American Library, first published 1788, 1961), 243–4. Aroney, above n 19. Ibid 21.

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drafting of the Constitution were drawn from the various colonies, and reflected their particular colonial interests; although, as described below, there were also delegates to the conventions who had strong nationalist views. The process of ratification was through separate referendums of the people of each individual colony, not of the people of the new Commonwealth. However, the Constitution was enacted into law as a section of an Act of the UK Parliament; this meant that the formation of the Commonwealth was not directly through an act of will of the Australian people.26 Since the UK Parliament was also the source of authority for the limited power of self-government of the colonial legislatures, the source of the Commonwealth Government’s power was equivalent to that establishing the colonies, and arguably it had no greater claim to power and authority than the states. The framers of the Australian Constitution had a range of visions in relation to the origins and operation of the Australian federation. The strongly federalist views of the UK academic and politician James Bryce (1838–1922) were particularly influential.27 In The American Commonwealth,28 Bryce explained the relationship of national and state governments as running in parallel. Although their legislative powers overlap, Bryce described the aim of a federal constitution as being to create two levels of government that should ‘touch at the fewest possible points’, and thus keep national and state governments as ‘distinct and independent of each other’ as was compatible with the national government being able to govern effectively within its field of influence.29 The framers of the Australian Constitution were very keen to adopt a model of federalism that maintained the autonomy of the states and in which they retained a large number of powers, ceding to the new Commonwealth only those powers necessary to form the federation and achieve its goals. When the framers chose the US model of federal government over that operating in Canada, it was because they feared the Canadian federal model was too highly centralised. Samuel Griffith—Premier of Queensland during the 1880s and 1890s, Chief Justice  of the Supreme Court of Queensland, and first Chief Justice of the High Court of Australia in 1903—was an influential delegate to the 1891 Constitutional Convention. Griffith expressed the guiding principle of federation to be that the states would give up ‘only those powers which may be exercised by the Federal Government with greater advantage than the separate governments’.30 Edmund Barton—the first Australian Prime Minister, later a High Court justice and also an influential framer— shared Griffith’s federalist views. During the period that they sat together on the High 26 27 28 29 30

The Constitution is attached at cl 9 of the Commonwealth of Australia Constitution Act 1900 (Imp). Aroney, above n 19, 34–5, 80–1; Stephen Gageler, ‘James Bryce and the Australian Constitution’ 43(2) Federal Law Review 177. James Bryce, The American Commonwealth (Macmillan, 3rd ed 1908). Ibid 319. Extracted in Aroney, above n 19, 117–18.

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Court, the doctrines of ‘implied immunities of instrumentalities’ (which protected each level of government from the other’s laws) and ‘reserved powers’ (which protected the jurisdiction of the state parliaments) were developed. This initial period of the Australian federation saw the Commonwealth’s powers restrained and the states continue to exercise the predominance of jurisdiction. However, two other men were influential in the convention debates who also went on to become High Court justices. Isaac Isaacs and Henry Higgins believed that federation was simply an interim move towards a robust national government. Higgins believed that the version of the Constitution put to the people in 1899 (and subsequently accepted as the Australian Constitution) gave too much power to the states. He campaigned against acceptance of the Constitution prior to the referendum of the people of Victoria in 1899.31 Isaacs shared Higgins’s views. In his most famous and influential judgment on the High Court in the Engineers’ Case in 1920, Isaacs CJ argued for an interpretation of the Constitution that rejected reserved powers for the states, and rejected any immunity of state government from the full operation of Commonwealth laws.32 An important premise in reaching this decision was that the Constitution was not so much a ‘federal’ compact,33 but a ‘political compact of the whole of the people of Australia’.34 We explore below the extent to which the Engineers’ Case heralded a new phase of centralised federation in Australia. One of the challenges that confronted the Australian framers was how to combine a federal structure (which they borrowed largely from the US Constitution) with the principles of responsible government (which was consistent with their colonial and British heritage and in accordance with the Westminster parliamentary tradition). This tension was apparent in the debates about the powers that would be given to the Senate. Under the Westminster tradition the upper house, as a non-elected house, had more limited powers over money bills than the people’s house, the lower house. Under the new Constitution the Senate would be an elected house, chosen from statewide electorates. It was gloomily pronounced at the 1891 Australasian Federation Conference that ‘either responsible government will kill federation, or federation … will kill responsible government’.35 Nonetheless, the framers persevered, adopting both a federal system and responsible government.36

31 32 33 34 35 36

Aroney, above n 19, 176. Amalgamated Society of Engineers v Adelaide Steamship Company Ltd (1920) 28 CLR 129 (‘Engineers’ Case’), the majority judgment being led and authored by Isaacs CJ. Cheryl Saunders, The Constitution of Australia: A Textual Analysis (Hart Publishing, 2011) 225. Engineers’ Case (1920) 28 CLR 129, 142 (emphasis added). George Stephen Chapman (ed), Official Report of the National Australasian Convention Debates: Sydney 1891 (University of Sydney Library, first published 1891, 1999 ed) 436 (J W Hackett). The question of the Senate’s powers was resolved in s 53, which provides the Senate has limited powers over money bills; it cannot introduce or amend them. The provision is silent on whether it can reject them.

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The text of the Australian Constitution was derived from the debates between these and other leading political figures in the colonies (who at that time were all white men) in the 1890s.37 There are features of the Constitution that reflect their federalist and nationalist aspirations. In the remainder of this chapter, we focus on the federalist features, tracing their origin and purpose, and how they have been developed and adapted by Australian governments, parliaments and courts since 1901.

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The structure of the Australian federation The Australian Constitution establishes a federation of six states (the former colonies). Over time, it has grown to include several internal and external territories, two of which, the Australian Capital Territory and the Northern Territory, have been given powers of self-government by the Commonwealth Parliament.38 On the face of it, there are a number of federalist features of the Constitution that have framed the evolution of the Australian nation. The primary intention of the Constitution is to establish two levels of government: the Commonwealth and the states. Framers and constitutional scholars John Quick and Robert Garran stated in their seminal text published in 1901 that ‘the Federal idea … pervades and largely dominates the structure of the newly-created community, its parliamentary, executive and judiciary departments’.39 Sections 1, 61 and 71 establish the Commonwealth Parliament and the executive, and make provision for the creation of a federal court system. Sections 106 to 108 expressly recognise state constitutions, parliaments and laws. Thus, the co-existence of two levels of government with separate institutions and powers is a foundation of the Constitution. The Constitution establishes a particular relationship between the Commonwealth and state parliaments. Australia’s arrangement for the division of legislative power mirrors that in the US and Swiss constitutions. The legislative power of the Commonwealth Parliament is limited to the enumerated powers in ss 51, 52 and 122 of the Constitution, and the states retain plenary legislative power over all areas except for a few matters reserved exclusively for the Commonwealth—for example, federal control over the armed forces (s 114), the imposition of customs and excise duties and bounties (s 90), and matters relating to the Commonwealth Government (s 52). By way of contrast, the Canadian Constitution contains two separate lists of enumerated powers belonging respectively to the national and provincial governments, with any residual power being left to the national government. 37 38 39

See further discussion of the debates in Chapter 2. Australian Capital Territory (Self-Government) Act 1988 (Cth); Northern Territory (Self-Government) Act 1978 (Cth). John Quick and Robert Garran, The Annotated Constitution of the Australian Commonwealth (Legal Books, first published 1901, 1976 ed) 332.

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The power of the internal territories to make laws is conferred upon them by the Commonwealth Parliament under s 122 of the Constitution and can be removed at any time. Territorial legislation is subject to the Commonwealth Parliament. In 1997, for example, the Commonwealth Parliament overturned Northern Territory legislation that had legalised euthanasia in the territory.40 In 2011, a Commonwealth amendment to the self-government legislation in both the Northern Territory and the Australian Capital Territory removed the power of the Commonwealth to disallow territory legislation (although of course the Commonwealth can still override or remove the legislative power of the territories’ parliaments).41 In the case of an inconsistency between a Commonwealth and a state law, s 109 dictates that the state law is invalid (although the High Court has interpreted this to mean ‘inoperative’ only),42 to the extent of the inconsistency.43 Therefore, the Constitution places the Commonwealth in a limited but powerful position. The wider the courts interpret the ambit of the Commonwealth’s enumerated legislative powers, the greater the potential for inconsistent laws and the greater the potential influence of the Commonwealth in the federation vis-à-vis the states. As we explain further below, the Court’s approach to determining whether there is an inconsistency has also had a profound effect on the balance of power between the Commonwealth and the states. There are several provisions that guarantee representation of the states in the choice of representatives in the Commonwealth Parliament. Section 7 of the Constitution provides that the original states will be equally represented in the upper house of the Commonwealth Parliament (the Senate) and s 28 provides for minimum  representation (of five members) for each original state in the House of Representatives regardless of the size of the state. Under s 29, electoral divisions are not to cross state borders. In the case of a Senate vacancy, s 15 provides that the Parliament of the state from which the senator was chosen shall choose a replacement or, if the Parliament is not in session, the Governor of the state. At federation, there were no self-governing territories and s 7 of the Constitution made no provision for the people of a territory to have representatives in the Senate. Section 122 of the Constitution provides that the Commonwealth Parliament may

40 41 42 43

The Commonwealth passed an amendment to the Northern Territory (Self-Government) Act 1978 (Cth) to limit the territory’s power to pass laws that permit euthanasia: Euthanasia Laws Act 1997 (Cth). Territories Self-Government Legislation Amendment (Disallowance and Amendment of Laws) Act 2011 (Cth). Carter v Egg and Egg Pulp Marketing Board (Vic) (1942) 66 CLR 557, 573 (Latham CJ). Similar inconsistency clauses are included in the territory self-governing legislation. It was this legislation that was applied by the High Court in 2013 to strike down the Australian Capital Territory’s attempt to legislate to allow for same-sex marriage, on the grounds it was inconsistent with the Marriage Act: Commonwealth v Australian Capital Territory (2013) 250 CLR 441.

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make laws for the government of any territory, ‘and may allow the representation of such territory in either House of the Parliament to the extent and on the terms which it thinks fit’. In the 1970s, the Whitlam Government introduced the Senate (Representation of Territories) Act 1973 (Cth) to give the Northern Territory and the Australian Capital Territory two senators each. The Act was subject to a High Court challenge in Western Australia v Commonwealth,44 on the basis that the Commonwealth Parliament did not have the legislative power to pass it. The majority favoured an interpretation of the Constitution that emphasised the principles of democracy and equal franchise among the people of the Commonwealth inherent in s 122,45 while the minority emphasised the principle of federalism and the rights of the states to special representation in the upper house in s 7.46 In his minority judgment, Barwick CJ expressed a concern that the majority’s interpretation of s 122 left open the possibility that the section could be used to stack the Senate with territory senators—either with more senators from the Australian Capital Territory and the Northern Territory, or senators to represent other much smaller territories such as Norfolk Island, Christmas Island or the Cocos Islands.47 In 1977, the electors in the Northern Territory and the Australian Capital Territory were given a voice in amending the Constitution under s 128, which had previously been limited to the electors in each state. The framers considered the make-up of the Commonwealth Senate to be one of the main defences to excessive Commonwealth influence in the federation. However, the Senate has been largely ineffective as a means of protecting the states because of the rise of the influence of party politics; that is, people elected to the Senate owe an allegiance to their party first, and to their state a distant second, and being members of the Commonwealth Parliament, if their party is pursuing a national agenda, then senators will have little choice but to follow the party line. This has meant that it is more likely for senators from minor parties, or independent senators, to represent state interests. In addition to these explicitly federal features in the structure of the Constitution, the Constitution reveals a national orientation through its requirement for a high degree of economic and social union. These provisions attempt to reduce the potential inefficiencies and inequities of a federal structure, while also setting out the structural basis for the fiscal relationship between the Commonwealth and the states. One of the key motivators for federation was the creation of a free-trading economic zone across the Commonwealth. To this end, s 92 of the Constitution 44 45 46 47

(1975) 134 CLR 201. See, eg, ibid 270–86 (Murphy J). See, eg, ibid 227–32 (Barwick CJ). Ibid 230.

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requires that ‘trade, commerce and intercourse’ between the states be ‘absolutely free’. The High Court has interpreted the broad language of the provision as preventing a state from introducing trade policies that protect its industries from competition with traders from the other states,48 referred to as ‘protectionism’.49 Section 90 makes it an exclusive power of the Commonwealth to impose customs duties and excise duties, and grant subsidies to industry (‘bounties’). Section 90’s restriction on states imposing excise duties has been interpreted to prevent the states from raising any taxes on goods from the point of manufacture to the point of consumption.50 In this way, s 90 gives exclusive power to the Commonwealth over the taxation of goods regardless of their place of manufacture. The combined effect of ss 90 and 92 is not just to give the Commonwealth exclusive power to set the tariff policy across Australia, but also to create a national economy under the control of the Commonwealth.51 The incidental effect of the High Court’s interpretation of these provisions has been to reduce the income-base of the states. Section 51(ii) gives the Commonwealth Parliament a very wide power to make laws with respect to taxation (but not so as to discriminate between states or parts of states). With the exception of the exclusive power to levy customs and excise duties under s 90, in the other areas of taxation (such as income tax or land tax) the Commonwealth and the states have concurrent power (at least in theory—this has not occurred in practice, and this is explored further below). In relation to social union, s 117 of the Constitution prevents states from discriminating against residents from other states. In Street v Queensland Bar Association,52 the High Court held that the Queensland Bar Association could not require interstate lawyers to cease their practice in other states in order to be recognised to practise in Queensland. Some benefits provided by states to their residents will not breach s 117, where, for example, those benefits are part of a welfare scheme provided by the states.53 It would be absurd if s 117 required all welfare benefits provided by a state to be available to all residents of Australia. Nonetheless, s 117 raises questions of validity for any state-based regulatory scheme that provides

48

49

50 51 52 53

Note that although the High Court has held that the provision restricts the powers of the Commonwealth as well (James v Commonwealth (1936) 55 CLR 1), the requirement for protectionism means that in practice the provision applies predominantly to the actions of states. See Cole v Whitfield (1988) 165 CLR 360; Castlemaine Tooheys Ltd v South Australia (1990) 169 CLR 436; Betfair Pty Ltd v Western Australia (2008) 234 CLR 418; Betfair Pty Ltd v Racing New South Wales (2012) 249 CLR 217. Note that a similar provision applies to territories, but under federal legislation, eg the Northern Territory Self-Government Act 1978 (Cth) s 49: Sportsbet Pty Ltd v New South Wales (2012) 249 CLR 298. Ha v New South Wales (1997) 189 CLR 465. Capital Duplicators Pty Ltd v Australian Capital Territory (No 2) (1993) 178 CLR 561. (1989) 168 CLR 461. Ibid 492 (Mason CJ), 528 (Deane J).

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a preference to residents of the state, such as transport concessions for local school students, admissions policies to universities that give preference to students who have graduated through the local school system, or internship programs that preference local university graduates over interstate graduates.54 To further economic and social union, there are several provisions in the Constitution that require the Commonwealth to treat the states equally,55 or prohibit discrimination against,56 or preference towards,57 one or more states or parts of states when the Commonwealth passes laws that relate to trade, commerce or revenue (taxation). The states and the Commonwealth are prohibited from levying taxes on each other’s property.58 These provisions are focused directly on maintaining a federal balance. The use of preferential treatment carries the risk of so undermining the position of one or more states vis-à-vis the others that they are not able to function effectively within the federation. However, these provisions have been interpreted narrowly, only serving to prevent laws from discriminating or conferring a preference on their face, as opposed to in their practical operation. Thus, the Commonwealth can impose a tax law of general application that has a disproportionate impact on one state over another because of the local circumstances that exist in that state.59 Further, the High Court has suggested that where differential treatment occurs as ‘the product of distinctions that are appropriate and adapted to a proper objective’, there will be no breach of these provisions.60 Madison’s final indicator of what is the true nature of a system of government, ‘the authority by which future changes are made to the system of government’, points us to the process by which constitutional amendment is achieved. The people of the states are specially represented in referendums to amend the Constitution. Under s 128 of the Constitution, in order to succeed, a proposed constitutional amendment must be first approved by a special majority in the houses of Parliament, and then approved by a majority of qualified voters, as well as by a majority of qualified voters in a majority of states. As we have seen, since 1977, voters in the internal territories are counted in the national majority, but the territories are given no special majority requirements like the states. To give some indication of the significance of the additional majority

54 55 56 57 58 59

60

Saunders, above n 33, 247. Australian Constitution s 88. Ibid s 51(ii). Ibid s 99. Ibid s 114. Colonial Sugar Refining Company v Deputy Federal Commissioner of Taxation (1923) 32 CLR 68; James v Commonwealth (1928) 41 CLR 442, 462 (Higgins J); Fortescue Metals Group Ltd v Commonwealth (2013) 250 CLR 548 (‘Mining Tax Case’). Permanent Trustee Australia v Commissioner of State Revenue (2004) 220 CLR 388, 425 (Gleeson CJ, Gummow, Hayne, Callinan and Heydon JJ); Mining Tax Case (2013) 250 CLR 548, 585–6, [50] (French CJ). Cf ibid 604 [115] (Hayne, Bell and Keane JJ).

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requirement, there have been only eight successful referendums to amend the Constitution since federation, out of 44 attempts. Five of the unsuccessful attempts were carried nationally, but not with a majority of the states.61

The distribution of powers Although there is no doubt that the terms of the Constitution establish a federation, the extent to which the system is truly ‘federal’ in its operation requires further analysis. On one level, the extent of the powers controlled by the Commonwealth and states in our federal system will be dictated by the constitutional text. However, it is also important to understand how the judiciary has interpreted that text and how the powers are being exercised in practice. Thus, these features require an examination of the structure of the federal legislature, the executive and the judiciary, and how the powers of these institutions have been exercised within the federation, and their impact on the powers of the states.62

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Legislative power: distributing jurisdiction In a federal system, there is always a tension caused by the question of how governmental powers should best be distributed across the federal and state governments. This tension is most apparent in the distribution of legislative power, because it is usually the breadth of the legislative power of a polity within a federation that determines its policy influence, although the financial strength of the different polities is relevant also. According to Aroney, an important indicator of the federalist credentials of a Constitution is the extent of the national government’s direct authority over individual citizens.63 As discussed above, the legislative power of the Commonwealth is contained in its enumerated powers in ss 51, 52 and 122 of the Constitution. Skimming through the 40 paragraphs of powers listed in s 51 reveals the type of powers the framers intended to give to the new Commonwealth. These include power over defence, immigration, customs, currency, citizenship, interstate industrial relations, and interstate trade and commerce. There is no power given to the Commonwealth over health, education, the environment or the criminal law, which were areas the framers had thought would remain with the states. In interpreting the breadth of the heads of federal legislative power, the High Court has enormous power to influence the operation of the federal system. As we have indicated above, in the first 20  years of the federation, with a number of the 61 62 63

Data on referendum results is available at Australian Electoral Commission, Referendum Dates and Results (24 October 2012), . See generally, Aroney, above n 19. Ibid.

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key framers of the Constitution on the bench, the High Court held that there was a limitation on Commonwealth legislative power inherent in the Constitution that ‘reserved’ power to the states,64 and that restricted the Commonwealth and the states from passing laws that affected the other level of government (the implied immunities of instrumentalities doctrine).65 However, even during this time the Court indicated that the grants of power in the Constitution must be interpreted broadly. O’Connor J in Jumbunna Coal Mine NL v Victorian Coal Miners’ Association explained: where it becomes a question of construing words used in conferring a power … on the Commonwealth Parliament, it must always be remembered that we are interpreting a Constitution broad and general in its terms, intended to apply to the varying conditions which the development of our community must involve. For that reason, where the question is whether the Constitution has used an expression in the wider or in the narrower sense, the Court should, in my opinion, always lean to the broader interpretation unless there is something in the context or in the rest of the Constitution to indicate that the narrower interpretation will best carry out its object and purpose.66

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Since the Engineers’ Case in 1920, the High Court has given the Commonwealth’s powers an increasingly broad interpretation, refusing to imply limits within the scope of the powers to preserve a place for state regulation. In rejecting the ‘reserved powers’ doctrine, the High Court favoured a literal approach to interpreting the heads of power in s 51, holding that Commonwealth legislative power must be construed on its own terms, uncovering the natural meaning of the grants of power without being influenced by a need to preserve the position of the states.67 This literal approach to the interpretation of Commonwealth power has been extremely influential and remains the dominant form of constitutional interpretation adopted by a majority of High Court justices. On his retirement as Chief Justice in 1981, Sir Garfield Barwick summarised the Court’s approach in the following terms: you take the words, you decide on the Commonwealth power and you do not decide on the Commonwealth power looking over your shoulder as to what effect your decision will have on State power. The Constitution will take care of that.68

In Victoria v Commonwealth (‘Payroll Tax Case’), Windeyer J expressed the view that the decision in the Engineers’ Case and the overturning of the Griffith Court’s

64 65

66 67 68

R v Barger (1908) 6 CLR 41. See, eg, D’Emden v Pedder (1904) 1 CLR 91; Federated Amalgamated Government Railway and Tramway Service Association v New South Wales Railway Traffic Employees Association (1906) 4 CLR 488 (‘Railway Servants Case’). (1908) 6 CLR 309, 367–8. Engineers’ Case (1920) 28 CLR 129, 151–2. Retirement of Sir Garfield Barwick as Chief Justice (1981) 148 CLR v, x.

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doctrines of reserved powers and implied immunities of instrumentalities was not ‘the correction of antecedent errors or … the uprooting of heresy’,69 or even the victory of Isaacs’s view of the federal compact over that of Griffith and Barton. Rather, Windeyer J explained:

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in 1920 the Constitution was read in a new light, a light reflected from events that had, over twenty years, led to a growing realisation that Australians were now one people and Australia one country and that national laws might meet national needs. … In any country where the spirit of the common law holds sway the enunciation by courts of constitutional principles based on the interpretation of a written constitution may vary and develop in response to changing circumstances. This does not mean that courts have transgressed lawful boundaries: or that they may do so.70

Critics of the approach in the Engineers’ Case have argued that it ignores the federal power-sharing relationship upon which the Commonwealth Constitution was founded.71 Commonwealth legislative power with respect to trading, financial and foreign corporations in s 51(xx) and external affairs in s 51(xxix), in particular, has been interpreted in such a way that the Commonwealth has far-reaching power over a range of subject matters that were not envisaged as coming under the control of the Commonwealth Parliament when the Constitution was drafted. Industrial relations regulation in Australia provides a good example of the increasing influence of the Commonwealth within the federation caused by this interpretative trend. The Commonwealth and states shared joint legislative and policy control over industrial relations until 2005. In that year, the Howard Coalition Government introduced legislation that regulated a far greater part of industrial relations against the wishes of the states. From 1904 to 2005, the Commonwealth used its power in s 51(xxxv) to participate in the regulation of industrial relations. The power in s 51(xxxv) is limited in its terms to settling disputes through ‘conciliation and arbitration’ and is also restricted to disputes extending ‘beyond the limits of one state’. The Commonwealth used this power to create courts or administrative tribunals to make industrial awards and settle disputes arising under these awards.72 This left room for the states to have their own awards and dispute mechanisms to deal with internal state disputes, and to regulate aspects of industrial relations not related to arbitration and conciliation. 69 70 71

72

(1971) 122 CLR 353, 396. Ibid 396–7. See, eg, New South Wales v Commonwealth (2006) 229 CLR 1, 319 (‘Work Choices Case’) (Callinan J). See also Greg Craven, ‘Original Intent and the Australian Constitution—Coming Soon to a Court Near You?’ (1990) 1 Public Law Review 166. For a history of the powers and functions of these courts and tribunals in the first 100 years of federation, see Michael Kirby, ‘Industrial Conciliation and Arbitration in Australia—A Centenary Reflection’ (2004) 17 Australian Journal of Labour Law 229.

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The interpretation of s 51(xxxv) expanded over time. In 1920, the Engineers’ Case held that a federal industrial award could bind state government employers.73 In a series of cases from the 1920s to the 1980s, the High Court expanded what constituted an industrial dispute such that by 1988, when the Hawke ALP Government introduced new industrial relations legislation, that legislation was able to focus on enterprise bargaining and individual contracts to establish working conditions, in addition to conciliation and arbitration.74 In 1996, the Howard Coalition Government continued this new focus, but encouraged the use of individually negotiated contracts in place of collective awards or agreements. In 2005, while it enjoyed a majority in both houses, the Howard Coalition Government introduced a further raft of changes to industrial relations. In implementing these changes, the government purported to rely on its power over foreign, trading and financial corporations granted by s 51(xx) rather than its power over conciliation and arbitration in s 51(xxxv). This allowed the Workplace Relations Amendment (Work Choices) Act 2005 (Cth) (‘Work Choices Act’) to deal with all aspects of industrial relations that involved s 51(xx) corporations, not just interstate disputes and not just through the mechanism of conciliation and arbitration. Since the personnel and interests of s 51(xx) corporations are far reaching, the implication was that Commonwealth legislative power could extend to a potentially unlimited range of subject matters. In 2006, all the states and territories and two unions were involved in a challenge to the validity of the Work Choices Act on various constitutional grounds in New South Wales v Commonwealth (‘Work Choices Case’).75 They argued that the High Court must take account of the intended federal balance in interpreting Commonwealth legislative power and that, with this in mind, the corporations power could not be used to legislate on matters relating to industrial relations. From a political perspective, the case was a challenge to the extensive revisions to Australian industrial relations law, with all the states and territories having ALP governments at the time. From a constitutional perspective, the case was significant for its implications for federalism, with the states arguing against the Commonwealth for a limited reading of Commonwealth legislative power. The Court upheld the Work Choices Act by a 5:2 majority (Kirby and Callinan JJ dissenting), confirming that s 51(xx) was not limited by the words of restriction in s 51(xxxv), and further confirming the extent of the Commonwealth’s legislative power with respect to corporations. Since the Work Choices Case, it is commonly accepted that the Commonwealth can enact a law on any subject matter under s 51(xx) as long as the law relates to

73 74 75

(1920) 28 CLR 129. Industrial Relations Act 1988 (Cth). (2006) 229 CLR 1.

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the activities and functions of trading, financial or foreign corporations. Given that corporations are involved in almost all aspects of economic and civil activity, this has enabled the Commonwealth to control other subject areas not otherwise within its legislative competence. In the Work Choices Case, Callinan J described the effect of the High Court’s subsequent application of the Engineers’ Case on the states as follows: There is nothing in the text or the structure of the Constitution to suggest that the Commonwealth’s powers should be enlarged, by successive decisions of this Court, so that the Parliament of each State is progressively reduced until it becomes no more than an impotent debating society. This Court too is a creature of the Constitution. Its powers are defined in Ch III, and legislation made under it. The Court goes beyond power if it reshapes the federation.76

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Kirby J was also critical of the trends in the Court’s constitutional interpretation of federal legislative power: The States, correctly in my view, pointed to the potential of the Commonwealth’s argument, if upheld, radically to reduce the application of State laws in many fields that, for more than a century, have been the subject of the States’ principal governmental activities. Such fields include education, where universities, tertiary colleges and a lately expanding cohort of private schools and colleges are already, or may easily become, incorporated. Likewise, in healthcare, where hospitals (public and private), clinics, hospices, pathology providers and medical practices are, or may readily become, incorporated. Similarly, with the privatisation and out-sourcing of activities formerly conducted by State governments, departments or statutory authorities, through corporatised bodies now providing services in town planning, security and protective activities, local transport, energy, environmental protection, aged and disability services, land and water conservation, agricultural activities, corrective services, gaming and racing, sport and recreation services, fisheries and many Aboriginal activities. All of the foregoing fields of regulation might potentially be changed, in whole or in part, from their traditional place as subjects of State law and regulation, to federal legal regulation, through the propounded ambit of the corporations power.77

The other head of power that has expanded dramatically since federation is the power to make laws with respect to external affairs (s 51(xxix) of the Constitution). In the 1980s, the High Court confirmed that the Commonwealth Parliament could rely on the external affairs power to enact a law implementing international treaty obligations on any subject matter, as long as the treaty created sufficiently specific obligations and the law is reasonably capable of being seen to be appropriate and

76 77

(2006) 229 CLR 1, 322. Ibid 224.

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adapted to implementing those obligations. So, in 1983, the Commonwealth relied on the Convention for the Protection of World Cultural and Natural Heritage—which entered into force on 17 December 1975, and to which Australia was a signatory— to pass the World Heritage Properties Conservation Act 1983 and under that Act to prohibit commercial activities over 11 per cent of Tasmania. This prevented the Tasmanian Government from building a dam across the Gordon and Franklin River System to produce electricity for the state. The extension of the external affairs power to the implementation of treaties and other international agreements has dramatically expanded the power such that ‘the potential scope of Commonwealth legislative power is co-extensive with the potential scope of international agreement’.78 Under the separation of powers in our system, it is the executive arm that has the power to enter into treaties under s 61 of the Constitution. Therefore, according to the High Court’s position, the Commonwealth executive is able to unilaterally extend the scope of the Commonwealth’s legislative power. Australia is a party to hundreds of international treaties on a wide range of subject matters.79 In relation to the subject matter of human rights alone, the Commonwealth is party to 22 multilateral treaties.80 The High Court consistently rejects arguments that federal legislative power should be limited by reference to the assumptions of the framers as to the powers that would be retained by the states. For instance, the traditional division between the control of internal threats through criminal law and external threats through a military paradigm reflects a division in responsibility between the state and federal governments agreed to at the time of federation. But recent developments since the 2001 ‘September 11’ attacks in the US have raised the federal question as to which level of government in the Australian state is, or ought to be, responsible for the protection of the state and the community from the threat of terrorism. If it is considered to be a question of maintaining general law and order, it ought to be left to the states in the federal system. However, the Commonwealth has taken prime responsibility for anti-terrorism measures in Australia, although it has often required close coordination between the jurisdictions as well as, in some instances, referral of powers to the Commonwealth by the states to ensure that the Commonwealth has the necessary powers to respond to the perceived level of danger. This reflects a number of interrelated factors. First, the terrorist threat is perceived through a

78 79 80

Sir Daryl Dawson, ‘The Constitution—Major Overhaul or Simple Tune-up?’ (1984) 14 Melbourne University Law Review 353. See the treaty library available at Australasian Legal Information Institute, Australian Treaties Library, . See further Department of Foreign Affairs and Trade, Australian Government, The Australian Treaties Database, .

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global lens:  terrorists networks extend beyond national borders and form part of an international community that targets nation-states. This requires nationwide responses to the threat. There is also a sense that the threat of terrorism is much more serious than the threat posed by ordinary criminals, warranting a response from the Commonwealth under its defence power. In Thomas v Mowbray,81 a case considered in more detail in our discussion of judicial power in Chapter 9, the High Court had to determine whether the terrorism control order provisions in the federal Criminal Code could be supported by the Commonwealth’s defence power. Under the Commonwealth Constitution, the Federal Parliament is empowered by s 51(vi) of the Constitution to make laws with respect to ‘the naval and military defence of the Commonwealth and of the several States, and the control of the forces to execute and maintain the laws of the Commonwealth’.82 This power is effectively exclusive to the Commonwealth, as s 114 of the Constitution prohibits the states from raising a military or naval force without the consent of the Commonwealth. Traditionally, the defence power was confined to the protection of the Commonwealth from external dangers.83 The defence power is considered different from most of the other heads of Commonwealth power in that it is a ‘purposive’ power.84 This means that for a law to answer the description of being ‘with respect to’ the defence power, the law must have as its purpose the defence of the Commonwealth, and the means that are employed to achieve this purpose must be ‘appropriate’ or ‘sufficient’.85 The measures that will be appropriate and sufficient to achieve the purpose of defending the Commonwealth will change according to the circumstances that Australia faces. In this sense the defence power is ‘elastic’.86 What this means is that during times of war the defence power will support broader and more pervasive measures as appropriate and necessary to achieving a defence purpose than during times of post-war or peace. In making the assessment of the appropriateness and sufficiency of the legislation, the courts show a large measure of deference to the choice of measures taken by Parliament and the executive.87 However, the determination of appropriateness and the validity of any law under s 51(vi) ultimately remains with the judiciary, as the High Court made very clear in the Australian Communist Party v Commonwealth (‘Communist Party

81 82

83 84 85 86 87

(2007) 233 CLR 307. While the power refers to the ‘naval and military’ defence of the Commonwealth, it has been held that these are not words of limitation, and that the power extended to the establishment of the Royal Australian Air Force in 1921: Farey v Burvett (1916) 21 CLR 433, 440. Australian Communist Party v Commonwealth (1951) 83 CLR 1, 192, 194 (Dixon J). Stenhouse v Coleman (1944) 69 CLR 457, 471 (Dixon J). Ibid 470 (Dixon J). Stenhouse v Coleman (1944) 69 CLR 457, 472. Ibid 470 (Dixon J).

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Case’).88 To allow the legislature to determine whether necessary measures for the defence of the Commonwealth are validly enacted within the defence power would, in Fullagar J’s terms, breach the fundamental constitutional doctrine that ‘a stream cannot rise above its source’.89 In Thomas v Mowbray, the majority of the Court accepted the extension of the defence power to federal measures targeting the threat of terrorism. However, Kirby J, in dissent, was alarmed by the developments and their impact on the roles of the states in the ordinary policing sphere, explaining:

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if the Constitution were intended to empower the Commonwealth to make laws for the general safety and protection of the Australian public, irrespective of the source of danger and its targets, it could readily have said so. These being within the essential ‘police powers’ of the States, the rubric of ‘naval and military defence’ is a singularly inapt expression to use to attribute such powers to the Commonwealth.90

In addition to the expansion of existing powers in the Constitution, the Commonwealth has gained new powers as the result of amendments to the Constitution. In 1946, s 51(xxiiiA) was added to the Constitution, providing the  Commonwealth with legislative power over a range of social services after the High Court struck down the federal pharmaceutical benefits scheme as beyond the Commonwealth’s legislative power.91 In 1967, s 51(xxvi) was amended to extend the Commonwealth’s power to make ‘special laws’ for the ‘people of any race’ to Aboriginal and Torres Strait Islander peoples. The Commonwealth has also been able to enact regulatory schemes of national significance despite an insufficiency of legislative power under s 51 of the Constitution. This has been done through a variety of cooperative measures, including intergovernmental agreement and the parallel enactment of legislation across the federation, and the referral of legislative power from the states to the Commonwealth. These cooperative measures were all deployed in the attempt to enact a federal corporations law. In 1989, the Commonwealth passed a comprehensive corporations law relying on s 51(xx), but the High Court held that a part of the law related to the incorporation of companies went beyond the scope of s 51(xx) and was invalid.92 In response, uniform national laws were achieved by the Commonwealth entering an agreement with the states to enact the same legislation in the Australian Capital Territory (where it has plenary power under s 122 of the Constitution), and for the

88 89 90 91 92

(1951) 83 CLR 1. Ibid 258. See also Shrimpton v Commonwealth (1945) 69 CLR 613, 629–30 (Dixon J). Thomas v Mowbray (2007) 233 CLR 307, 401 [264]. Attorney-General (Vic) v Commonwealth; ex rel Dale (1945) 71 CLR 237 (‘Pharmaceutical Benefits Case’). New South Wales v Commonwealth (1990) 169 CLR 482 (‘Incorporation Case’), based on the High Court’s interpretation of the tense of the text ‘corporations formed within the limits of the Commonwealth’.

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states to enact identical legislation in their own jurisdictions. Uniform company law was achieved in this way between 1990 and 1999. This solution to the Commonwealth’s insufficiency of power was partly undermined when the High Court held that federal courts under Ch III of the Constitution could not be invested with state jurisdiction,93 and that members of the Commonwealth executive could not prosecute offences created under state law.94 The High Court was clear that cooperation between the states and the Commonwealth could not overcome inherent limits on Commonwealth powers and institutional functions established in the Constitution.95 The Constitution did, however, contain a remedy. In addition to specific heads of legislative power in s 51, s 51(xxxvii) provides the Commonwealth with legislative power with respect to ‘matters referred to the Parliament of the Commonwealth by the parliament or parliaments of any State or States’. After lying largely dormant for 90  years,96 the power has been used to create a number of legislative schemes of national significance,97 including a new national corporations law in 2001 after the states agreed to confer sufficient power to the Commonwealth to overcome the federal limits to the 1989 version of the law.98 The states are able to make the referrals on any terms they see fit, and to withdraw them at their discretion. When the Rudd ALP Government came to power in 2007, it substantially revised the Howard Government Work Choices Act. Its Fair Work Act 2009 (Cth) continued to rely primarily on the corporations power. However, it went one step further than the Howard Government, by asking the states to refer their power over industrial relations to the Commonwealth in the Fair Work Amendment (State Referrals and Other Measures) Act 2009 (Cth). All states except Western Australia (the only non-ALP state at the time) have made the requested referral.99 With that exception, the Commonwealth now has comprehensive control over industrial relations law and policy. As the High Court’s interpretation of Commonwealth legislative power has grown, this has affected the state parliaments’ power to pass laws in areas of concurrent jurisdiction because of the operation of the inconsistency clause in s 109. In addition

93 94 95

96 97

98 99

Re Wakim: Ex Parte McNally (1999) 198 CLR 511 (‘Cross-vesting Case’). R v Hughes (2000) 202 CLR 535. See, eg, Cross-vesting Case (1999) 198 CLR 511, 578 (Gummow and Hayne JJ): ‘If there is no power for the Commonwealth [to invest federal courts with State jurisdiction] the fact that all the States wish that it could do so or seek to have it do so does not supply that absent power.’ See Greg Craven, ‘Death of a Placitum:  The Fall and Fall of the Reference Power’ (1990) 1 Public Law Review 285. See Andrew Lynch, ‘The Reference Power: The Rise and Rise of a Placitum?’ in Paul Kildea, Andrew Lynch and George Williams (eds), Tomorrow’s Federation: Reforming Australian Government (Federation Press, 2012) 193. Corporations Act 2001 (Cth). See Industrial Relations (Commonwealth Powers) Act 2009 (NSW); Fair Work (Commonwealth Powers) Act 2009 (Qld); Fair Work (Commonwealth Powers) Act 2009 (SA); Industrial Relations (Commonwealth Powers) Act 2009 (Tas); Fair Work (Commonwealth Powers) Act 2009 (Vic). Note that the Commonwealth does not need a referral from the territories as they are already subject to the Fair Work Act 2009 (Cth).

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to the Court’s broad interpretative trend with respect to the Commonwealth’s legislative powers, the Court has also taken an expansive approach to what amounts to ‘inconsistency’ under s 109. Initially, the Court accepted that inconsistency existed when it was impossible for an individual to obey both laws.100 The Court has expanded this to when the state law would ‘alter, impair or detract from’ the federal law.101 The Court found that this will occur in situations where one of the laws modifies a right, privilege, duty or obligation that is given by the other law.102 It also includes cases where the federal law intends to be an exhaustive and exclusive statement of the law in relation to a particular area, and the state Parliament attempts to regulate that area.103 In combination with the predominance of Commonwealth legislative power, through s 109 the expansion of Commonwealth legislative power has resulted in a growing influence and importance of the Commonwealth Parliament compared to the state parliaments. In practice, many s 51 powers—including defence, external affairs and immigration—are exercised only by the Federal Parliament; and in other areas in which the states do still legislate, the Commonwealth is expanding its influence through its financial dominance, discussed below.

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Judicial power: an ‘integrated court system’ In terms of judicial power, the federal design of Australia’s Constitution has influenced the judicial system in a number of ways. We have already seen that the adoption of a federal system necessitated the creation of the High Court, which would have final authority to determine the boundaries dividing power between the Commonwealth and the states. The federal Constitution also required the framers to address the question of how to design the judiciary, and whether to include a unitary, wholly integrated judiciary, or whether to create separate and parallel judiciaries for the Commonwealth and the states.104 The Australian Constitution opted for a design that sat mid-way along this continuum. The High Court was established with original jurisdiction and a general appellate jurisdiction; the state courts were retained and the Commonwealth Parliament could vest these courts with federal judicial power; and, finally, the Commonwealth Parliament was also empowered to create a separate system of federal courts to exercise federal judicial power. The High Court has described this system as establishing an ‘integrated’ court system, identifying

100 101 102 103 104

See, eg, R v Brisbane Licensing Court; Ex parte Daniell (1920) 28 CLR 23. Victoria v Commonwealth (1937) 58 CLR 618, 630 (Dixon J). Clyde Engineering Co Ltd v Cowburn (1926) 37 CLR 466. Ibid 489–490 (Isaacs J); Ex parte McLean (1930) 43 CLR 472, 483 (Dixon J). See further discussion of integrated and dual federal judicial design in Gabrielle Appleby and Erin Delaney, ‘Judicial Systems in Federal Systems’ in Rainer Grote, Frauke Lachenmann, Rüdiger Wolfrum (eds), Max Planck Encyclopedia of Comparative Constitutional Law (Oxford University Press, 2017).

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in particular the High Court’s role as the final court of appeal for federal and state courts,105 and the Commonwealth Parliament’s power to vest federal judicial power in both federal and state courts.106 Matters arising under the Constitution can be heard in state courts, including the lowest such as magistrates courts. A state or federal Attorney-General can intervene in these constitutional matters and seek to have them removed to the High Court.107 This means that state and federal governments have an ability to make arguments in relation to constitutional interpretation and influence the court in matters that might affect the federal balance. It also means that Australia has a decentralised system unlike in Germany where the Constitutional Court exclusively deals with all constitutional matters. There remain important differences across the federal and state court systems. Federal courts are subject to a strict separation of powers doctrine, meaning they can only exercise judicial power, and they are the only federal institution that can exercise judicial power.108 One of the bases on which this strict separation was implied by the High Court was the federal judiciary’s important role in determining disputes about the boundaries of state and Commonwealth power inherent in the federal structure. In contrast, colonial courts were not restricted by a separation of powers doctrine, but the High Court has held that because state courts can exercise federal jurisdiction, they cannot exercise nonjudicial power that is ‘incompatible’ with the exercise of federal judicial power,109 or that would undermine their ‘essential characteristics’ as courts.110 The federal role that state courts play has therefore affected the extent to which state parliaments can change the composition, powers or role of state courts in the state government structure. Further analysis of the exercise of judicial power by federal and state courts is examined in Chapters 9 and 10 of this book.

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Executive power: reinvigorating federalism The Commonwealth and the states retain distinct executive powers. Section 61 of the Constitution vests the Commonwealth executive power in the Queen, exercisable by

105 Section 74 of the Constitution provides for appeals to the Privy Council on certain questions upon leave being granted by the High Court, but the High Court is now in effect the final court of appeal in the Australian hierarchy after appeals to the Privy Council from its decisions were abolished by the Privy Council (Limitation of Appeals) Act 1968 (Cth) and the Privy Council (Appeals from the High Court) Act 1975 (Cth). Appeals directly from state courts to the Privy Council were also abolished in 1986 by the Australia Act 1986 (Cth). 106 Australian Constitution ss 71, 77(iii). 107 See Judiciary Act 1903 (Cth) s 78B. 108 Boilermakers’ Case (1956) 94 CLR 254. 109 Kable v Director of Public Prosecutions (NSW) (1996) 189 CLR 51. 110 See, eg, Forge v Australian Securities and Investments Commission (2006) 228 CLR 45, 76 (Gummow, Hayne and Crennan JJ).

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the Governor-General. Unlike the division of legislative power effected through ss 51, 52, and 122, the federal limits of the Commonwealth’s executive power are not expressed in s 61. Only recently has the High Court explained that there are enforceable federal limits that attach to the breadth of the Commonwealth’s executive power. For many years, it was assumed that the Commonwealth’s executive powers at least extended to authorise actions in areas that could be the subject of a Commonwealth law under ss 51, 52 and 122. That is, it was assumed that the Commonwealth’s executive powers followed the ‘contours’ of the Commonwealth’s legislative powers.111 The Commonwealth went even further, claiming that when the executive power was authorising actions that were within the capacity of an ordinary person—that is, activities such as spending and contracting—there were no federal limits that applied. This led to many years of almost unlimited Commonwealth spending in areas outside its constitutional competency—including areas such as health, education and local government. In a ground-breaking High Court decision in 2012, Williams [No 1], the Court held that the exercise of the Commonwealth’s executive power in s 61 of the Constitution is limited in its breadth by federal concerns; that is, its encroachment into the spheres of the states.112 With only a small number of exceptions, the Commonwealth executive could only spend money where there is authorising federal legislation. Through this requirement, the High Court appears to be reinvigorating the concept of federal balance, at least insofar as it applies to executive power.113 The extent of the Commonwealth and state executive powers is explained in more detail in Chapter 7 of this book.

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Protecting the federation:  implied immunities While the High Court rejected the original doctrine of implied immunity of instrumentalities, the Court has subsequently accepted that the federal and state governments are protected by implied legislative restrictions on the extent to which Commonwealth and state laws can affect the capacities and functions of other levels of government.114 111 Gabrielle Appleby and Stephen McDonald, ‘Looking at the Executive Power through the High Court's New Spectacles’ (2013) 35(2) Sydney Law Review 253, 256. 112 Williams v Commonwealth (‘Williams [No 1]’) (2012) 248 CLR 156. 113 Gabrielle Appleby, Nicholas Aroney and Thomas John, ‘Australian Federalism: Present, Past and Future Tense’, in Gabrielle Appleby, Nicholas Aroney and Thomas John (eds), The Future of Australian Federalism (Cambridge University Press, 2012) 1. 114 Melbourne Corporation v Commonwealth (1947) 74 CLR 31; Austin v Commonwealth (2003) 215 CLR 185; Commonwealth v Cigamatic (1962) 108 CLR 372; Re Residential Tenancies Tribunal of NSW v Henderson; Ex parte Defence Housing Authority (1997) 190 CLR 410 (‘Henderson’s Case’).

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The Commonwealth Parliament is prevented from passing legislation that would place a special burden on state governments, or curtail the capacity of the states  to  function as governments.115 This is commonly known as the Melbourne Corporation doctrine.116 The Melbourne Corporation doctrine rests on the inherently federal nature of the Constitution. Dixon J explained: The foundation of the Constitution is the conception of a central government and a number of State governments separately organized. The Constitution predicates their continued existence as independent entities.117

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In recent times, the doctrine has been invoked to prevent Commonwealth legislation from regulating the conditions of employment of high-level public servants, including state judges and parliamentarians.118 The doctrine does not include protection of the states from legislation that places a burden on them and private individuals alike, such as general tax legislation,119 even where that may have a disproportionate effect on a state government, or on individuals in a particular state.120 The protection is granted to the ‘machinery of the government of the State’, including ‘the constitution of the three branches of government’, ‘the capacity of the State to engage the servants it needs’, ‘the acquisition of goods and services’, and its capacity to ‘acquire the land it need[s] for the discharge of the essential functions of the State’.121 Notably, there is no protection of the states’ powers; the immunity focuses on protecting the state government structure and institutions. The protection given to the Commonwealth and the exercise of its powers is greater than that afforded to the states. In Uther’s Case, Dixon J explained that this was because the state parliaments lacked the power to affect the Commonwealth: The colony of New South Wales could not be said at the establishment of the Commonwealth to have any power at all with reference to the Commonwealth. Like the goddess of wisdom the Commonwealth … sprang from the brain of its begetters armed and of full stature. At the same instant the Colonies became States; but whence did the States obtain the power to regulate the legal relations of this new polity with its subjects? It formed no part of the colonial power. The Federal constitution does not give it.122

115 116 117 118 119 120 121 122

Austin v Commonwealth (2003) 215 CLR 185, 249 (Gaudron, Gummow and Hayne JJ). See Melbourne Corporation v Commonwealth (1947) 74 CLR 31. Ibid 82. Victoria v Commonwealth (1996) 187 CLR 416 (‘Industrial Relations Act Case’); Austin v Commonwealth (2003) 215 CLR 185; Clarke v Commissioner of Taxation (2009) 240 CLR 272. Payroll Tax Case (1971) 122 CLR 353. Western Australia v Commonwealth (1995) 183 CLR 373 (‘Native Title Act Case’); Mining Tax Case (2013) 250 CLR 548. Native Title Act Case (1995) 183 CLR 373, 481 (Mason CJ, Brennan, Deane, Toohey, Gaudron and McHugh JJ). In re Foreman & Sons Pty Ltd; Uther v Federal Commissioner of Taxation (1947) 74 CLR 508, 530 (‘Uther’s Case’).

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Most recently, the High Court has described the operation of the Commonwealth immunity doctrine as protecting the Commonwealth from ‘state laws affecting Commonwealth executive capacities’, but allowing for ‘state laws of general application  regulating activities carried on by the Crown in the exercise of those capacities in the same manner as its subjects’.123 A  distinction is therefore drawn between state legislation that affects the capacities of the Commonwealth and that which merely regulates their exercise. For example, in Henderson’s Case, the High Court accepted that New South Wales residential tenancy legislation regulating the conduct of all real estate agents in the state would bind the Defence Housing Authority, a Commonwealth agency established to provide real estate services to members of the defence forces. In contrast to the protection afforded by the Melbourne Corporation doctrine to the states, the wider protection afforded to the Commonwealth has been heavily criticised as unnecessary for the federation. Latham CJ in Uther’s Case explained that the position of the Commonwealth ‘is very different’, and that through the mechanism provided by s 109 of the Constitution (where Commonwealth legislation prevails over inconsistent state legislation), the Commonwealth can ‘protect’ itself from any state legislation that interferes with the performance of its functions or the exercise of its rights.124

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Federal financial relations Former Chief Justice of the High Court, Sir Harry Gibbs, argued that a polity could not be called federal unless, among other requirements, ‘the [states] have the ability to provide themselves with the finances necessary to enable their powers to be exercised’.125 However, in addition to the broad scope of its legislative power under s 51, the Commonwealth has been able to expand its influence through its greater financial powers in comparison to the states. Section 96 of the Constitution permits the Commonwealth Parliament to grant ‘financial assistance’ to the states on ‘such terms and conditions as the Parliament sees fit’. The Commonwealth has utilised this power to require the states to implement Commonwealth policies as a condition of receiving grant monies from the Commonwealth (tied grants). Through tied grants, the Commonwealth took control of the regulation of Australian universities despite the universities being established under state laws, and required the states to introduce significant hospital and school reforms despite having no dedicated legislative power in these areas.

123 Re Residential Tenancies Tribunal v Henderson; ex parte Defence Housing Authority (1997) 190 CLR 410 (‘Henderson’s Case’). 124 (1947) 74 CLR 508, 520. See also Henderson’s Case (1997) 190 CLR 410, 504–9 (Kirby J). 125 Harry Gibbs, ‘The Decline of Federalism?’ (1994) 18 University of Queensland Law Journal 1, 2.

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Section 96 has proved an effective means for the Commonwealth to influence matters exclusively within state legislative competency because of the disparity between the money raised by the Commonwealth and state governments and the revenue each level of government needs to resource its policy areas, known as a vertical fiscal imbalance (‘VFI’). VFIs are common in federations, but Australia’s VFI is significant even by world standards.126 Several key events led to Australia’s VFI. The Commonwealth gained financial dominance in the federation through taking exclusive control of the imposition of income tax during and after the Second World War. At the time of federation, there were no taxes on income. Between 1910 and 1920, the states and then the Commonwealth began to collect income tax, and it soon became a significant source of revenue. In 1942, the Commonwealth passed legislation that established a monopoly over income tax as a wartime measure, and then continued the scheme on a permanent basis at the conclusion of the war. The monopoly was achieved by setting Commonwealth income taxes at a high rate, requiring individuals to pay the Commonwealth tax before they paid state taxes, and only providing financial assistance to the states under s 96 if they refrained from collecting income tax. The states challenged the scheme during the war and then again in the 1950s. Both times, the High Court found the schemes to be valid.127 Since that time, the Commonwealth has continued to collect all income tax in Australia, and income tax is currently the largest source of government revenue. Another important aspect of Commonwealth financial dominance occurred as a result of the High Court’s interpretation of s 90 of the Constitution. Under s 90, the imposition of customs and excise duties are exclusive to the Commonwealth. At federation, customs and excise duties made up more than three-quarters of government revenue and they remained the principal form of government revenue up to the beginning of the Second World War.128 To compensate states for the large amount of revenue that was immediately transferred to the Commonwealth at federation, s 87 of the Constitution required that for no less than 10 years, at least three-quarters of excise and customs revenue would be returned to the states or would be used to retire state debt assumed by the Commonwealth. The Commonwealth Government terminated this arrangement as soon as the 10-year period ended. In the absence of income tax, after the Second World War a large portion of state revenues was from licence fees imposed on businesses for the right to sell

126 Twomey and Withers, above n 6, 37–8. 127 South Australia v Commonwealth (1942) 65 CLR 373 (‘First Uniform Tax Case’); Victoria v Commonwealth (1957) 99 CLR 575 (‘Second Uniform Tax Case’). 128 Russell Matthews, ‘The Development of Commonwealth–State Financial Relations in Australia’ in Australian Bureau of Statistics, Year Book Australia (1988).

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commodities. However, in 1997, the High Court held that many of these licence fees were excise taxes, and could only be imposed by the Commonwealth.129 As a result, the states lost a significant proportion of their total tax revenue. The Commonwealth responded to the loss in state revenue by increasing the rate of Commonwealth customs and excise duties on tobacco and petrol, and increasing the rate of wholesale sales tax on alcohol, which further exacerbated the VFI at the time. The revenue collected by the Commonwealth was returned to the states under the States Grants (General Purposes) Amendment Act 1997 (Cth). In 2000, the Commonwealth introduced a 10 per cent goods and services tax (‘GST’) and returned the money collected to the states as untied grants to compensate the states for the huge loss to revenue that they had suffered. VFI is only a concern for those who take a federalist perspective of the Australian federation. From a nationalist perspective, VFI enables the central government to implement a coherent national social and economic agenda, and equalise wealth across the federation by focusing resources on poorer states (that is, to respond to horizontal fiscal imbalance, or HFI, in the federation). In Australia, the Commonwealth has achieved a high level of horizontal fiscal equalisation by using grants to ensure that the provision of basic government services is relatively uniform across the nation. While this achieves a minimum level of service delivery across the Commonwealth, it also reduces the impetus for states to innovate and compete with each other, leading to allegations that some of the poorer states are being subsidised by the wealthier states. The Commonwealth established the Commonwealth Grants Commission in 1933 to determine the distribution of grant monies to the states. The main function of the Commission is to review the formula (the ‘per capita relativity formula’) under which a proportion of Commonwealth revenues is divided among the states.130 Right from its inception, an important role of the Commission has been to promote political stability through fiscal equalisation. While there are constant shifts in the relative economic strength of the states, currently the Northern Territory, South Australia, and Tasmania are significant beneficiaries of horizontal fiscal equalisation. In 2017 the state contributing the greatest cross-subsidy to these states as a proportion of overall income was Western Australia.131 In addition to the concerns that arise from a federalist perspective, another of the difficulties of the Commonwealth using its financial strength in these ways has been the confusion it creates between the roles and responsibilities of each tier of government. This leads to blame shifting between levels of government, often leaving 129 Ha v New South Wales (1997) 189 CLR 465. 130 Commonwealth Grants Commission Act 1973 (Cth). 131 Commonwealth Grants Commission, Australian Government, Report on GST Revenue Sharing Relativities: 2017 Update (2017) 1–2.

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the voters unable to distinguish clearly the responsibility of the different governments for particular policies, and undermining the people’s ability to hold government to account through the electoral process. Whether the centralisation of power in the Commonwealth is efficient or effective is a matter of considerable dispute in Australia. There is a difficult balance to be struck between the efficiency of uniform laws and the responsiveness of laws to local conditions. Centralisation is not inevitable, and given that the position of the states is entrenched in the Constitution, the challenge is to make federalism work.

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The practice of Commonwealth–state relations A number of approaches to Commonwealth–state relations are evident in the Australian federation. There are areas of regulation in which the states and the Commonwealth remain independent and autonomous in their own fields of responsibility. For example, the states control residential tenancy laws and the Commonwealth controls defence. This type of relationship has been described as ‘coordinate federalism’.132 Coordinate federalism requires little interaction between Commonwealth and state governments as the fields of regulation do not overlap and therefore there is no need for compromise. However, even in areas where the states have traditionally acted autonomously, there is an increasing need to recognise the laws of other states, as businesses and individuals become more mobile and the internet makes geographical distance irrelevant. For example, states have their own accreditation and licensing schemes for trades and professions, including for the legal profession.133 For some of these, there has been a movement towards nationalising the schemes. For others, the states have referred power to the Commonwealth for the mutual recognition of regulatory standards for certain occupations.134 Such agreements are an example of what has been termed ‘cooperative federalism’.135 Cooperation between the Commonwealth and the states has been crucial in order to overcome constraints on power within the federal system that prevent the Commonwealth from implementing a single approach to issues that the Commonwealth and states now agree are of national significance. As the federation

132 See K C Wheare, Federal Government (Oxford University Press, 4th ed, 1963) 9–10. 133 In relation to the regulation of the legal profession, see Legal Profession Act 2004 (NSW); Legal Profession Act 2007 (Qld); Legal Practitioners Act 1981 (SA); Legal Profession Act 2007 (Tas); Legal Profession Act 2004 (Vic); Legal Profession Act 2008 (WA). 134 Mutual Recognition Act 1992 (Cth). 135 See R v Duncan; Ex parte Australian Iron and Steel Pty Ltd (1983) 158 CLR 535, 589 (Deane J).

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has matured and the Commonwealth has grown in stature and dominance, the number of issues that are considered of national significance has also grown. However, the formal constitutional architecture of Commonwealth–state relations has altered little since federation to accommodate this growth. One of the marked features of Australian federalism has been its ability to adapt over time—both through the High Court’s interpretation of the constitutional provisions and through innovative federal practice—to maintain a working federation in the absence of fundamental reform.136 Stephen Gageler, now a justice of the High Court of Australia, has argued that the High Court’s rejection of ‘federal balance’ as an interpretative principle in favour of a broad and flexible reading of Commonwealth power has allowed the Constitution to adapt across changing social, economic and political circumstances. By not imposing narrow legal limits on the Commonwealth’s powers, the units of the federation can achieve ‘balance’ through political practice, compromise and cooperation, as emerging circumstances require.137 The most significant mechanism for joint action between Commonwealth and state governments has been the Council of Australian Governments (‘COAG’), which is attended by the Prime Minister, the premiers of all the states, the chief ministers of the Northern Territory and the Australian Capital Territory, and the President of the Australian Local Government Association. In addition to COAG there are ministerial councils across other areas, such as finance, law and justice, energy and resources, education, policing and health. COAG pursues issues of importance to the nation that require the agreement of all levels of government. A persistent criticism of COAG is that it enables the different levels of government to reach agreement without the input of the Commonwealth and state parliaments, and once executive agreement is reached, parliaments often feel pressured to implement the agreed actions. As an executive body, it lacks democratic accountability in its decision making.138 Another problem with COAG is that it relies on the participation of all the states to work effectively. There is a constant challenge of providing the states with an incentive to engage in national reform processes. The Council has worked best when most or all of the states are of the same political persuasion and are therefore able to negotiate with the Commonwealth from a stronger position. Where the state governments are of a different political persuasion from the federal

136 Alan Fenna, ‘Adaptation and Reform in Australian Federalism’ in Paul Kildea, Andrew Lynch and George Williams (eds), Tomorrow’s Federation: Reforming Australian Government (Federation Press, 2012) 26–7. 137 Stephen Gageler, ‘The Federal Balance’ in Gabrielle Appleby, Nicholas Aroney and Thomas John (eds), The Future of Australian Federalism: Comparative and Interdisciplinary Perspectives (Cambridge University Press, 2012) 27. 138 Paul Kildea, ‘Making Room for Democracy in Intergovernmental Relations’ in Paul Kildea, Andrew Lynch and George Williams, Tomorrow’s Federation:  Reforming Australian Government (Federation Press, 2012) 73.

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government, it can be more difficult to achieve cooperation in areas of federal policy. For example, during the later years of the Howard Government and the early years of the Rudd Government in the early 2000s, all the states had ALP governments. During the Howard Government period, the Federal Government blamed the Labor state governments for poor administration, and used this as traction for federal takeovers in many areas. However, when Prime Minister Rudd took office, there was initially a period of considerable activity within COAG as state ALP governments worked with the federal ALP Government to address national policy issues. Rudd indicated that he was going to elevate COAG to become the ‘workhorse of the nation’.139 But it must be questioned whether overly easy cooperation between the state and Commonwealth governments equates to good federalism, or a monopoly of power that the principle of federalism seeks to avoid. Prime Minister John Howard suggested the latter when, in the lead-up to the 2007 federal election, he warned that if the ALP won, it would create ‘wall-to-wall Labor Governments without a check or balance’.140 Cooperative federalism relies heavily on the broader political climate and not just on party politics. The ‘cooperative federalism’ pledges that characterised the early months of the Rudd Government in 2007 were quickly undercut when the government needed to be seen to respond quickly and decisively to the Global Financial Crisis, and when Rudd felt he needed to be seen to act innovatively and boldly politically, such as in a unilateral announcement of the federal takeover of public hospitals and school reform.141 As described above, the Commonwealth’s dominant financial position in the federation has meant that it has not always had to rely on the states’ agreement to regulate areas outside of its legislative authority. The use of tied grants under s 96 to require the states to implement reforms as a condition of receiving essential financial resources has been termed ‘coercive federalism’.142 The term is not in truth a type of federal practice at all, but a description of Commonwealth behaviour to avoid

139 Kevin Rudd, ‘Transcript of Joint Press Conference with Premiers and Chief Ministers’ (Joint Press Conference, 20 December 2007) cited in Mary-Ann McQuestin, ‘Federalism under the Rudd and Gillard Governments’ in Paul Kildea, Andrew Lynch and George Williams (eds), Tomorrow’s Federation: Reforming Australian Government (Federation Press, 2012) 6. 140 Dennis Shanahan, ‘Politically Correct will Stay in the Doghouse’, The Australian (online), 23 November 2007, . 141 Brian Galligan ‘Fiscal Federalism: Then and Now’ in Gabrielle Appleby, Nicholas Aroney and Thomas John (eds), The Future of Australian Federalism: Comparative and Interdisciplinary Perspectives (Cambridge University Press, 2012)  320, 323–4. See also Alan Fenna and Geoff Anderson, ‘The Rudd Reforms and the Future of Australian Federalism’ in Gabrielle Appleby, Nicholas Aroney and Thomas John (eds), The Future of Australian Federalism: Comparative and Interdisciplinary Perspectives (Cambridge University Press, 2012) 393. 142 R L Mathews, ‘The Development of Australian Federalism’ in R L Mathews (ed), Federalism in Australia and the Federal Republic of Germany: A Comparative Study (ANU Press, 1980) 3.

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constraints to the centralisation of power. Since the 1990s there has been some attempt to reduce the number of tied grants and replace them with ‘block grants’, with fewer and more generally framed conditions attached. In 2008, the Commonwealth and the states entered into the Intergovernmental Agreement on Federal Financial Relations,143 in which the system of tied grants was consolidated from over 90 Specific Purpose Payments (‘SPPs’) to a smaller number of larger block grants, still known as SPPs, but now governed by six ‘National Agreements’. There is currently a National Agreement for each of Health Reform, Education, Skills and Workforce Development, Disability, Affordable Housing and Indigenous Reform. Payments have become linked to outcomes rather than conditions on expenditure. The introduction of block grants has afforded the states greater autonomy in regulation, but in return for this autonomy, the Commonwealth has required a greater level of accountability through performance reporting.144 On its face, the new system appears more streamlined and its introduction recognises that there is a degree of inefficiency in imposing regulation through the mechanism of grants to the states. However, alongside these block grants are National Partnership Payments (‘NPPs’)—highly conditional grants that look very similar to the former SPPs.

The future of Australian federalism

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There have been many attempts at federal reform in Australia. The most recent was the 2014 White Paper process, which was to be guided by a series of principles, including: (a)

subsidiarity, whereby responsibility lies with the lower level of government possible, allowing flexible approaches to improving outcomes;

(b)

equity, efficiency and effectiveness of service delivery, including a specific focus on service delivery in the regions;

(c)

‘national interest’ considerations, so that where it is appropriate, a national approach is adopted in preference to diversity across jurisdictions;

(d)

accountability for performance in delivering outcomes, but without imposing unnecessary reporting burdens and overly prescriptive controls;

(e)

durability (that is, the allocation of roles and responsibilities should be appropriate for the long-term); and

(f )

fiscal sustainability at both Commonwealth and State levels.145

143 Standing Council on Federal Financial Relations, Intergovernmental Agreement on Federal Financial Relations, . 144 Fenna, ‘Adaptation and Reform’, above n 136, 35. 145 Department of Prime Minister and Cabinet, Australian Government, A Federation for our Future: Reform of the Federation White Paper Issues Paper 1 (12 September 2014) vi.

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Despite a significant period of consultation, the White Paper process was officially abandoned in 2016 with no reform being achieved.146 The questions it raised for reform of the federation thus remain unresolved. There remains much discontent over the current distribution of powers between the Commonwealth and the states. As a consequence of the interpretation of federal powers, and the practice of federal–state relations, today it is hard to find an area of regulation in which the Commonwealth does not have at least some influence. As constitutional scholar Professor Cheryl Saunders puts it, ‘[the Australian Federation] now operates in many respects as an integrated model in which policies are formulated by the Commonwealth but implemented by the States and territories’.147 In hindsight, the expansion of Commonwealth authority in the federation was perhaps a predictable development as the stature of the Australian nation grew. There are areas of regulation that at the time of federation may not have seemed obviously national but are clearly best suited to a national coordinated response in the 21st century. Saunders has noted that there were always ‘countervailing forces’ to federalism in the development of a national identity, the requirements of responsible government, and what Saunders describes as ‘constitutional pragmatism’—the drive to find concrete results to immediate problems, with limited attention to ‘the flow-on consequences for the operation of the system of government’.148 Nonetheless, many still believe that there is a pressing need to revisit the division of legislative and financial powers across the Commonwealth and states to reduce duplication, enhance productivity and accountability, and ensure the benefits of federalism are being achieved. What areas are better left to local regulation and what areas are more appropriately determined at a national level? What areas will benefit from diversity, innovation, competition and democratic participation, and what areas will benefit from equal and uniform regulation? Even if we conclude that there are matters that are best suited to local regulation, there is a question as to whether state government is the appropriate level for this regulation or whether the second tier of government should operate at the local community level. In addition to the concerns around the distribution of powers, there are also substantial concerns held about the division of fiscal power, and the states’ lack of financial power to implement the policies for which it is jurisdictionally responsible. This, it is argued, leads to federal fiscal involvement in areas outside of constitutionally

146 Mark Bruerton and Robyn Hollander, ‘Introduction’ in Mark Bruerton, Tracey Arkley, Robyn Holander and Ron Levy (eds), A People’s Federation (2017) 1. 147 Saunders, above n 33, 229. 148 Ibid 227.

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granted federal jurisdiction, a lack of clear delineation of responsibility for policy outcomes in these areas, and the political blame shifting such a situation creates. This has led to loud calls for reform of Australia’s fiscal relations, either by returning taxation power to the states, or by creating taxation sharing arrangements between the Commonwealth and the states.149 There is also substantial concern about the operation of Australia’s cooperative federalism mechanisms. In particular, there have been regular calls to reform COAG to enhance its transparency and its democratic accountability.150 It is often argued that a federal system is no longer necessary or appropriate for Australia, as we lack diversity across the states to justify it. These arguments are based on the perceived homogeneity of the Australian people. There certainly are many similarities that are shared across Australia and at first blush the cultural and socio-economic demographics of the states may appear homogeneous—for example, through the shared national language. Certainly, Australia is less diverse than federations such as Canada, with its French-speaking population concentrated in the province of Quebec, or even the US, where cultural, economic, religious and political divisions can be traced across state borders. Within the Australian federation, however, there remains significant diversity. There is diversity across ethnic, religious and even language lines, although there is no threat to the national dominance of English. Geography has also contributed to economic divisions, with different industries and commerce dominating the economies of different states, and different balances between urban and rural populations.151 In any event, to dismiss the need for a federal system in Australia because of lack of diversity across the states is to misunderstand many of the reasons for adopting a federal system. Across the Australian federation, states and territories demonstrate federal experimentation, innovation, and the importance of local involvement and ownership of government policies. The introduction of the Human Rights Act 2004 (ACT) in the Australian Capital Territory and the Charter of Human Rights and Responsibilities Act 2006 (Vic) in Victoria while a similar instrument has been rejected at the federal level is just one demonstration of the expression given to local communities in a federal system.

149 See, eg, Alan Fenna, ‘The Fiscal Predicament of Australian Federalism’ in Mark Bruerton, et al (eds), A People's Federation (Federation Press, 2017) 134. 150 See generally, Kildea, above n 138. 151 See Nicholas Aroney, Scott Prasser and Alison Taylor, ‘Federal Diversity in Australia:  A Counternarrative’ in Gabrielle Appleby, Nicholas Aroney and Thomas John (eds), The Future of Australian Federalism: Comparative and Interdisciplinary Perspectives (Cambridge University Press, 2012) 272.

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Since 2008, a team led by constitutional law professor A  J Brown has been undertaking extensive surveys of the Australian people.152 The survey asked the Australian public about their opinions and satisfaction with the present federal system, and what system they thought Australia ought to adopt in the future. The data continues to suggest substantial support for restructuring Australia’s federal system, to the extent of abolishing the states and replacing them with local or regional governments, restructuring the states to increase their number, or expanding the power of local or regional governments.153 Such reforms closely mirror the vision of ALP Prime Minister Gough Whitlam who, during the 1970s, attempted to implement a ‘new federalism’ policy, establishing regional councils to implement nationwide policy initiatives funded by the Commonwealth Government. Local government’s role, funding, responsibilities and accountability within the federal system is another issue with which reformers have grappled. Referendums to recognise local government in the Constitution have twice been put to the Australian people. In 1974, the Whitlam Government put forward a proposal to amend the Constitution to recognise the Commonwealth’s power to make direct grants to and borrow on behalf of local governments. In 1988, the Hawke Government put forward a proposal to recognise the democratic nature of local governments. Both referendums failed. In 2013, a proposal to alter the Constitution to empower the Commonwealth Parliament to grant financial assistance directly to local governments was passed by the Federal Parliament but never put to the people at a referendum.154 Realistically, it is hard to imagine the states agreeing to abolish themselves to achieve a new structure of federal government. Therefore, reform is more likely to be achieved through the structures and channels that already exist. Politically creative use can be made of entrenched federal structures, including the ministerial councils and COAG. Local government will continue to perform an important, if not constitutionally recognised, function within local communities.

Conclusion On reading the Australian Constitution, it is hard to escape the statement of Quick and Garran that the federal idea pervades and dominates our constitutional document.155

152 The Australian Constitutional Values Survey. In 2015, for the first time, it also conducted a survey of policy makers and practitioners: the Future of Australia’s Federation Survey: Australian Policymakers and Practitioners Study. 153 A J Brown ‘Escaping Purgatory: Public Opinion and the Future of Australia’s Federal System’ in Gabrielle Appleby, Nicholas Aroney and Thomas John (eds), The Future of Australian Federalism: Comparative and Interdisciplinary Perspectives (Cambridge University Press, 2012) 368. 154 Constitutional Amendment (Local Government) Act 2013 (Cth). 155 Quick and Garran, above n 39.

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This is evident in its creation, its purpose, its text and structure, and the locus of the power of amendment. However, in many respects this federal idea has been overtaken by a centralist tendency in the High Court’s interpretation of the text of the Constitution. Furthermore, Australian governments have established deft  political strategies to circumvent many of the restrictions and controls inherent in the federal structure in the name of efficiency and equity. There is no doubt that in the future the structures will continue to be bent towards the plural outcomes that our diversity demands.

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DISCUSSION QUESTIONS 1

Is the trend towards centralisation in the Australian federation inexorable?

2

Consider whether Australia should continue to have a federal constitution or whether we would be better served by a unitary system.

3

How does the state in which you live differ socially, culturally and economically from other states in Australia? Are there any laws you know of that are unique to your state?

4

Locate a copy of the federal Budget Paper No. 3: Australia’s Federal Relations, available at , for the current financial year. How much funding does the Commonwealth provide to the states (in total)? To what extent is this tied or untied? How does this affect the functioning of our federal system?

5

If Australia is to retain a federal structure, what areas would you reform and how would you implement these reforms? Would you replace the states (and, if so, what with)? Would you change the fiscal balance (and, if so, how)?

6

Explain the different ways in which the constitutional text has influenced how Australia’s federation operates in practice.

FURTHER READING Gabrielle Appleby, Nicholas Aroney and Thomas John (eds), The Future of Australian Federalism: Comparative and Interdisciplinary Perspectives (Cambridge University Press, 2012) Nicholas Aroney, The Constitution of a Federal Commonwealth: The Making and Meaning of the Australian Constitution (Cambridge University Press, 2009) Mark Bruerton, Tracey Arklay, Robyn Hollander and Ron Levy (eds), A People’s Federation (Federation Press, 2017) Paul Kildea, Andrew Lynch and George Williams (eds), Tomorrow’s Federation:  Reforming Australian Government (Federation Press, 2012)

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Cheryl Saunders, The Constitution of Australia: A Textual Analysis (Hart Publishing, 2011) Adrienne Stone and Cheryl Saunders, The Oxford Handbook of the Australian Constitution (Oxford University Press, 2016) Part VI, ‘Federalism’, 725–902

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Anne Twomey and Glenn Withers, Federalist Paper 1: Australia’s Federal Future (Council of the Australian Federation, 2007)

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The People and their Government CHAPTER 5 DEMOCRACY AND REPRESENTATIVE GOVERNMENT

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CHAPTER 6 PARLIAMENTARY PROCESS AND LEGISLATIVE POWER

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5

CHAPTER OVERVIEW Introduction

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Who are ‘the people’?

164

Effective democratic representation

165

Plebiscites as a form of representation

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The constitutional foundations of representative government

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Standing for election

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The extent of the franchise

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The value of the franchise

183

The franchise and voting systems

183

The franchise and electoral boundaries

185

Free speech and democracy The implied freedom of political communication

186 187

Formulating the test

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What communication is protected?

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Laws that have infringed the implied freedom

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Electoral funding and the implied freedom

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Political protest and the implied freedom

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Freedom of association

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Protecting Australia’s democracy

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Referendums

200

Electoral governance

201

The Australian Electoral Commission

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The Joint Standing Committee on Electoral Matters

202

The Court of Disputed Returns

202

The integrity of political parties

202

Political advertising

203

Public funding of political parties

203

Political donations

204

The media and democracy

205

Government media and the control of information

205

Online information and communication

211

Conclusion

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Introduction In Part II, we begin our discussion of the three institutions of government—the Parliament, the executive and the judiciary—and their role in Australian public law. The institutions themselves can only be understood within the system of government that gives rise to them. In Australia that system is democracy. Democracy literally means power (kratos) of the people (demos). The people exercise the power either directly (direct democracy), or more commonly, as in Australia, through representatives (representative democracy). Our democracy is a ‘liberal’ democracy, meaning that the key values underpinning it are freedom and equality, discussed in Chapter 1. Democracy is not the only system of government capable of supporting the values of freedom and equality. In theory, it is possible for a highly centralised, non-democratic regime to grant extensive individual rights.1 Conversely, it is possible to have an ‘illiberal’ democracy; that is, a system of government with free and fair elections, but with authoritarian rule.2 There is, however, a natural relationship between liberalism and democracy, since democracy functions most effectively if people are free and equal and, conversely, a well-functioning democracy can ensure the rights of the people are promoted and secured. In Part II, our focus is on the Parliament. One of the key limitations of the social contract (discussed in Chapter 1) as an explanation for the foundations of the state and its law is that it cannot explain how agreement and consensus can or ought to be reached in a large polity. In this chapter, we draw on ideas of democracy to explain what it is that provides government with its legitimacy to govern. Through voting, people register some degree of acceptance to being governed. We explore the processes for electing representatives that make this acceptance meaningful and authoritative, and the different roles of the Parliament and the courts in ensuring the integrity of the democratic process. We also explore other mechanisms by which the people express their will to their representatives:  through direct participation in plebiscites. And finally, we consider other ways by which the representative government is protected in the Australian constitutional system. In Chapter  6 we consider how the Parliament, as the representative voice of the people, functions to make laws on behalf of the people. Parliament—literally a place for ‘parley’ (or discussion)—is deliberative in its structure and purpose, with all its members contributing to debate over the merits of potential laws and the

1 2

John Dryzek and Patrick Dunleavy, Theories of the Democratic State (Palgrave Macmillan, 2009) 23. Ibid 24–5.

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effectiveness of government.3 In Chapter 6 we explore the formal mechanisms that promote deliberation in Australian parliaments, and how effective these have been. The concepts explored in Chapters 5 and 6—of participation and deliberation— are not mutually exclusive. Conceptually, the question of who has the opportunity to participate, and to what extent, affects the dynamics of deliberation. There are clearly participatory issues involved in the operation of parliamentary processes, such as the extent to which opposition and minor parties have a voice. There are also many issues related to the quality of the people’s deliberation in the public sphere, such as the quality and diversity of information they receive upon which to form opinions and to influence their political representatives. In practice, Members of Parliament (‘MPs’) divide their time between deliberating in Parliament, and attending to and participating in their local electorates. The importance of constituency work has been increasingly recognised, both in its role in the electoral prospects of candidates and in strengthening the links between Parliament and the people.4 Despite this overlap, the separate concerns of Chapters 5 and 6—on the people and participation on the one hand, and on Parliament and deliberation on the other—emphasise that, although connected, there are key differences in the roles of the people and their representatives in an effective democracy.

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Who are ‘the people’? At any point in time a society must choose who is a member of that society and entitled to full participation in its system of government, particularly who is entitled to vote in the election of the government, and who is not. In Australia, membership has evolved dramatically from the time of first settlement. This is reflected in changes to the law on who is a citizen, and the steady expansion of who are the ‘people’ entitled to voting rights. At the time representative legislatures were established in the colonies, those entitled to participate fully in politics were confined to property-owning men. With only some exceptions, Aboriginal and Torres Strait Islander people and women were excluded from voting and other forms of democratic participation, such as standing for election. In 1900, only males 21 years of age or older were eligible to participate in the referendum on the formation of the Commonwealth, except in South Australia and Western Australia, in which women had recently been granted the vote.

3 4

John Uhr, Deliberative Democracy in Australia: The Changing Place of Parliament (Cambridge University Press, 1998) 24–6. Malcolm Aldons, ‘Responsible, Representative and Accountable Government’ (2001) 60 Australian Journal of Public Administration 34, 36.

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Eligibility to vote has been considerably extended in Australia since federation, though some aspects of this voting franchise remain controversial such as compulsory voting. Even when the franchise is broad, there are questions over the nature and value of voting as an effective form of democratic participation. There is a body of work on participatory democracy premised on the idea that democracy works most effectively and legitimately if citizens are engaged in the democratic process, sharing their views and increasing the range of opinions in the public domain.5 This branch of scholarship looks to strategies for overcoming ignorance and apathy among the citizenry, and empowering citizens to engage in the processes of forming government. It focuses on citizens’ involvement in public affairs beyond the electoral cycle. In the Australian Constitution, it is the ‘people’ who are entrusted with ‘directly choosing’ their representatives. Although the Constitution empowers the Parliament to determine eligibility to vote, the High Court has held that there are limits on Parliament’s power to exclude classes of people from voting. There is then a strongly democratic understanding of the concept of the ‘people’ which acts as a protection of the democratic institutions of government. However, this democratic conception of the people still begs the question of who is necessarily included within the concept of ‘the people’. Could women be excluded? Or prisoners? Or naturalised citizens? Or British subjects? Over time the High Court has offered guidance on who is constitutionally protected within the concept through its consideration of the extent of the electoral franchise. 6

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Effective democratic representation Democratic representation plays a number of roles in the functioning of government. It empowers government, providing it with a mandate to govern on behalf of the people who elected it, and it requires a level of accountability of government to the people commensurate with the extent of the trust the people have placed in the government. In what sense do governments ‘represent’ the people? In Aristotle’s time, Athenians preferred to select representatives through lot.7 Representatives did not promote partisan interests. This is consistent with an understanding of representatives as delegates of the people. In all modern democracies, the major parties contending to form government have relatively clear and contrasting political views. The people 5 6 7

See, eg, Carol Pateman, Participation and Democratic Theory (Cambridge University Press, 1970); Marian Sawer, Norman Abjorensen and Phil Larkin, Australia: The State of Democracy (Federation Press, 2009). See, eg, Elisa Arcioni, ‘The Core of the Australian Constitutional People—“The People” as “The Electors”’ (2016) 39(1) University of New South Wales Law Journal 421. Aristotle, The Politics (T A Sinclair trans, Penguin Books, 1992) Book 4, pt IX.

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choose a party that conforms most closely to their own ideology or policy preferences. The prize for a party winning the election is the opportunity to pursue its political agenda for the next term of government. Forming government is not, then, about building a consensus of the people. Although in theory the government represents all the people, in many respects it represents the interests of little more (and sometimes less) than half the electorate. John Stuart Mill (1806–73) recognised that effective representation is more than simply a numbers game. He argued that unconstrained majority rule was undesirable and in fact illiberal.8 A  more nuanced idea of representation takes into account diversity in the community along various lines, including geography, gender, culture, religion and regional interest. The political theorist Anne Phillips argues that for effective representation, the identity of elected representatives should reflect the identity of the population more widely: the identity of representatives should be valued independently of their policies, so that the more diverse the gender, class and culture of our representatives, the more dynamic will be our experience of being represented.9 This idea is reflected partly in the election of members to the Senate, in which, at least in theory, their identity as representatives of a state is regarded more highly than the extent of their popular support. To maintain the equal representation of the states, we tolerate a difference in the voting value of electors in Tasmania and New South Wales of more than 13 to 1.10 This idea is also reflected in calls by Aboriginal and Torres Strait Islander peoples for greater political representation, discussed further in Chapter 3. Despite the claims for diverse representation, there was a concerted push in Australia from the 1970s to the 1990s to make the voting rights of each individual (often referred to as the voting ‘franchise’) as equal as possible in lower house elections.11 ‘One vote, one value’, as it is popularly known, places particular emphasis on equality of the voting franchise. It suggests that representation is of individuals in a national polity, and it further suggests that personal interest and ideology are the core values to be represented. The members of the Australian Parliament have a clear, and perhaps predictable, profile. After the 2004 election, research revealed that nearly 80 per cent had a tertiary education, with 29 per cent having law degrees.12 Most were men of British and Irish heritage. On the other hand, identifiable groups are routinely underrepresented in the Commonwealth Parliament, including women, Australians from non-English-speaking 8 9 10 11 12

John Stuart Mill, ‘On Liberty’ in Conrad Johnson (ed), Philosophy of Law (Macmillan, 1993) 7. Anne Phillips, Politics of Presence (Clarendon Press and Oxford University Press, 1995), 41–5. Australian Electoral Commission, Size of the Electoral Roll and Electoral Rate 2017 (9 January 2018), . Graeme Orr, The Law of Politics: Elections, Parties and Money in Australia (Federation Press, 2010) 23–5. Sawer, Abjorensen and Larkin, above n 5, 122.

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backgrounds, and Aboriginal and Torres Strait Islander peoples. In relation to women, in October 2017, Australia ranked 50th in the world in the representation of women in national parliaments.13 There have been eight Aboriginal and Torres Strait Islander representatives in the Commonwealth Parliament, six since 2010.14 Ed Husic was the first Muslim elected to Federal Parliament at the 2010 election for the Australian Labor Party, and retained his seat in 2013 and 2016.15 Recently, democracy scholars have been concerned about the rise of ‘populism’ and its distortion of democratic representation. Populism, as American political scientist Cas Mudde explained, sets up the idea of the ordinary people against a corrupt, outof-touch elite.16 The concern is that this manipulates the electors’ choice and corrupts the democratic system. This has led to the study of how to improve democracies, and strengthen them against this manipulation. For instance, constitutional law experts Dr Ron Levy and Professor Graeme Orr have turned to the need to reform democratic systems so as to make them more ‘informed, reflective and flexible’,17 and more genuinely inclusive of a plurality of views in the community, without leading to greater division and polarisation. They argue that a more deliberative form of democracy is needed, one that is supported and protected by a legal framework. This framework, they propose, might regulate the reporting of opinion polls during election campaigns, truth in political advertising, and free TV and radio advertising to ensure equal access by parties to this form of communication with the people. In this chapter we look at different ways that democracy is protected in Australia, including the role of courts, restrictions on political advertising, regulation of donations and the role of the media.

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Plebiscites as a form of representation Although law and policy-making decisions are entrusted to the elected representatives in the Australian system of government, the Commonwealth and state governments have occasionally used separate votes of the people to gauge the people’s acceptance of certain proposed changes to law and policy. In Australia, these are known as

13 14

15

16 17

Inter-Parliamentary Union, Women in National Parliaments:  World Classification (1 December 2017), . David Kennedy (House, 1969–72); Neville Bonner (Senate, 1971–83); Aden Ridgeway (Senate, 1989– 2005); Ken Wyatt (House, 2010–present); Nova Peris (Senate, 2013–16); Jacqui Lambie (Senate, 2014– 17); Joanna Lindgren (Senate, 2015–16); Patrick Dodson (Senate 2016–present), Linda Burney (Senate, 2016–present); Malarndirri McCarthy (Senate, 2016–present). Susan McDonald, Ed Husic, Australia’s First Muslim Frontbencher, says Koran Backlash ’Extreme‘ but Democratic (ABC News, 2 July 2013), . Cas Mudde, ‘The Populist Zeitgeist’ (2004) 39(4) Government & Opposition, . Ron Levy and Graeme Orr, The Law of Deliberative Democracy (Routledge, 2016).

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‘plebiscites’ to distinguish them from ‘referendums’, which are a form of plebiscite required to change the Constitution. We discuss referendums as a form of direct democratic participation, and their role in protecting representative government, later in this chapter. In Australia, there have been four plebiscites held at the national level: whether there should be conscription into the armed forces (1916, defeated); whether Australia’s armed forces committed to fighting in the First World War should be increased (1917, defeated); what should be Australia’s national anthem (1977, ‘Advance Australia Fair’ was chosen); and whether to alter the Marriage Act 1961 (Cth) to recognise samesex marriage (2017, accepted). At the state level there have been plebiscites on the hours for drinking alcoholic beverages, whether to introduce daylight saving, the relationship between religion and schools, adopting a new voting system and the amalgamation of local governments.18 The same-sex marriage plebiscite was held as a postal vote between September and November 2017. The survey was administered by the Australian Bureau of Statistics. Citizens on the electoral role were eligible to vote and received a ballot paper at the address they had registered on the electoral role. Participation was optional, but 80 per cent of voters returned the survey. Sixty-two per cent of those who participated voted in favour of marriage equality and 38 per cent voted against. Soon after, the Turnbull Government introduced a Bill amending the Marriage Act to Parliament. The Bill passed both houses and was enacted into law in December 2017. Although the same-sex marriage plebiscite was hailed as a success, it was subject to sustained criticism on a number of grounds, many of which go to the role of plebiscites within the Australian democratic system of government. First, it was argued that plebiscites have no place in our constitutional order. There is no set process for holding a plebiscite, either in the Constitution or in legislation.19 They add nothing to, and arguably detract from, the existing well-established method of determining the will of the people through the electoral cycle and the participation of elected representatives in the Parliament. By deferring to the people in a plebiscite, it is argued that the Parliament is off-loading its responsibility for making law and policy decisions at considerable cost (the postal survey cost $122 million).20 In response to this, it has been argued that the existing process does not necessarily indicate the will 18

19 20

Brenton Holmes, A Quick Guide to Plebiscites in Australia (Parliament of Australia, 30 June 2011), . Paul Kildea, ‘Constitutional and Regulatory Dimensions of Plebiscites in Australia’ (2016) 27 Public Law Review 290. See, eg, Senate Legal and Constitutional Affairs Reference Committee, Parliament of Australia, Matter of a Popular Vote in the Form of a Plebiscite or Referendum, on the Matter of Marriage in Australia (2015) 12–16.

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of the people on particular issues, and on occasions issues are of sufficient import to organise a separate vote of the people to gauge their support. Alternatively, as was the case in the First World War, urgent and unanticipated issues arise between electoral cycles upon which the government may wish to know the view of the people. Second, if the purpose of a plebiscite is to gauge the will of the people, it is an inadequate mechanism for doing so. In the case of the same-sex marriage issue, opinion polls gave a strong indication that the majority of Australians supported same-sex marriage. These opinion polls are careful to survey a cross-section of the Australian community and, as long as they are methodologically sound, will provide a more accurate guide to the community’s opinion on issues than a voluntary vote. The danger of a voluntary vote is that a particular sub-section of the population will not vote, skewing the results. There were also concerns that on an issue of sensitivity, such as marriage equality, opponents and proponents for the change would use the debates around the largely unregulated plebiscite process to incite intolerance and bigotry, adding to the vulnerability of some groups. From a public law perspective, one of the clear learnings from the same-sex marriage plebiscite was that there is a strong case for clarifying the rules around the function and operation of plebiscites in Australia, including use of compulsory voting, the relationship between the plebiscite and the law-making process of Parliament, and the regulation of campaigns for and against the proposition, including the information provided and the extent of public funding.

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The constitutional foundations of representative government For representative government to work effectively, it is of great importance that the system of electing governments is perceived to be transparent and fair, so that the people accept the result of elections and government remains stable. Political parties and individuals do what they can within the electoral law (and sometimes outside it) to advance their political fortunes. A major focus of laws implementing the system of representative government is to prevent candidates from gaining an unfair electoral advantage. Australia has been at the forefront of democratic development since the formation of representative assemblies in the colonies in the 1850s. Colonial constitutions were some of the first to require electoral divisions of nearly equal numbers, so that the value of each person’s vote was the same. The secret ballot was introduced in the colonies between 1856 and 1877, and is still known in some

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places as the ‘Australian ballot’.21 South Australia and Western Australia were at the vanguard of extending the voting franchise to women in the late 19th century.22 South Australia led the world in requiring elections to be held on Saturdays.23 In 1870, Victoria was a pioneer in the payment of MPs, meaning that poor people could also afford to run for office.24 Although these democratic developments in the colonies were largely adopted by the Commonwealth, they were not entrenched in the Commonwealth Constitution (the more liberal franchises that existed prior to federation were protected only for those people who had the vote at federation by s 41 of the Constitution).25 The Constitution set up the minimum requirements for the system of representative government and left it to Parliament to establish the details of the system in legislation (which it duly did in the Commonwealth Electoral Act 1902 (Cth)). Chapter I of the Constitution establishes a bicameral Parliament whose members are to be ‘directly chosen by the people’ under ss 7 and 24. In a series of cases from the early 1990s, the High Court has held that this constitutional requirement of directly choosing members establishes a system of representative government. As we see below, this principle has been held to constrain Parliament in its regulation of political speech, voter enrolment and the extent of the voting franchise.26 Section 25 makes it clear that the method of ‘choosing’ representatives is by vote at an election.27 Section 6 states that senators are to have a fixed six-year term beginning on the first day of July,28 and s 28 states that the maximum duration of the House of Representatives is ‘three years from the first meeting of the House’. Under s 9, the power to determine the times and places of Senate elections is given to the states and not the Commonwealth, although in practice an election of the members of the House of Representatives is usually accompanied by a half Senate election. This means that the other half of the Senate, elected at the previous election, remains in Parliament. The longer term for senators as well as the staggering of the House and Senate terms serve as a constraining influence on the executive government formed in the lower house. 21 22

23 24 25 26 27 28

See Graham Maddox, Australian Democracy in Theory and Practice (Pearson Education, 5th ed, 2005) 46. This occurred in South Australia in 1894 and in Western Australia in 1899. The only other polities to introduce the vote to women prior to the 20th century were New Zealand (1893) and some American states: ibid. This occurred in 1896. The Commonwealth introduced the requirement for elections to be held on Saturdays in 1911, and the requirement is now in the Commonwealth Electoral Act 1918 (Cth) s 158 Payment of Members Act 1870 (Vic). See the interpretation of this provision as a transitional provision only in R v Pearson; Ex parte Sipka (1983) 152 CLR 254. Australian Capital Television Pty Ltd v Commonwealth (1992) 177 CLR 106, 137; Roach v Electoral Commissioner (2007) 233 CLR 162; Rowe v Australian Electoral Commission (2010) 243 CLR 1. Australian Capital Television Pty Ltd v Commonwealth (1992) 177 CLR 106, 137 (Mason CJ). With the exception of where senators are elected at a double-dissolution election, where half of the senators will be given a three-year term.

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The Constitution does not set out how many members are to be in each House of Parliament, but it does require that the number of members in the House of Representatives ‘shall be in proportion to the respective numbers of [the people in each state]’, with a minimum of five members from each original state (s 24). There must be the same number of senators from each original state (s 7), and the number of members in the House of Representatives must be ‘as nearly as practicable’ twice the number of the senators (s 24). The federal nature of Australia’s system of government means there are two themes of representation in the Australian Constitution—national and federal. National representation is evident in the fact that government is formed in the House of Representatives when a party or a coalition of parties receives a majority of the seats across the nation, regardless of where those seats are located. It is also evident in the requirement in s 128 that there be a majority of voters throughout the nation for a referendum to be successful. Federal representation focuses on representation of the states and their people, which is manifested in the requirement in s 7 that the states be equally represented in the Senate, and also in the requirement in s 128 that a majority of people in a majority of the states must approve any change to the Constitution. Among upper houses in the Westminster system of government, the Australian Senate is particularly strong. This strength comes from the fact that it is elected (unlike in the UK and Canada) and from the fact that it has the same powers as the lower house except in relation to money Bills (that is, Bills that impose taxation or authorise government spending).29 In the discussion that follows, the themes of national and federal representation will be present, and it will be evident that these themes can come into conflict in various ways. State constitutions establish similar systems of government to the federal system, although there are a few notable variations. Queensland has only a single House of Parliament, the Legislative Council having been abolished in 1921.30 The Northern Territory and Australian Capital Territory parliaments are also unicameral.31 The Legislative Assemblies in the state parliaments have four-year terms, most of which are fixed terms, with the exception of Queensland which has three-year terms.32 29 30

31 32

Australian Constitution s 53. The relationship between the lower and upper houses of the Commonwealth Parliament are discussed in Chapter 6. Constitution Amendment Act 1921 (Qld). Note that there are advocates for restoring an upper house to the Queensland Parliament. See Nicholas Aroney and Scott Prasser, Balancing the Power:  Queensland Needs an Upper House’ (On Line Opinion, 20 April 2006), . Northern Territory Self-Government Act 1978 (Cth) s 17; Australian Capital Territory (Self-Government) Act 1988 (Cth) s 10. Australian Capital Territory (Self-Government) Act 1988 (Cth) s 100; Northern Territory Self-Government Act 1978 (Cth) s 17(2); Constitution Act 1902 (NSW) s 24(1); Constitution Act Amendment Act 1890 (Qld) s 2; Constitution Act 1934 (SA) s 28(1); Constitution Act 1975 (Vic) s 38(2). Terms are not fixed in Western Australia and Tasmania: Constitution Act 1934 (Tas) s 19(1); Constitution Acts Amendment Act 1899 (WA) s 21(1).

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Members of the Legislative Council in South Australia and New South Wales have eight-year terms, in Tasmania they have six-year terms, and in Western Australia and Victoria they have four-year terms. Beyond the basic framework of the system of representative government established in the Commonwealth and state constitutions, it is up to the respective parliaments to establish the rules for representation. A  fundamental public law issue is the extent to which parliaments are constrained by Commonwealth and state constitutions in the way that they establish the requirements for democratic government in Australia. In relation to the Commonwealth Constitution (as we discuss below), the High Court, as the final guardian of the Constitution, has regularly been called upon to illuminate the requirements for representative government, and on occasions has been prepared to declare limits on Parliament’s power to pass laws that affect the system of representation. The Court determines whether laws that affect fundamental principles such as representative government are constitutional by asking whether encroachment of the principle is ‘reasonably appropriate and adapted’ or ‘proportional’ to a legitimate end to be achieved by the law. These tests provide the Court with a measure for determining the extent of Parliament’s power to define democracy. It has been postulated that the Court’s supervision of the Parliament’s power to define, and therefore potentially manipulate, representation is the most fundamental of the Court’s powers of judicial review. This view was most famously expounded by US constitutional scholar John Hart Ely in his 1980 book, Democracy and Distrust: A Theory of Judicial Review. Ely, speaking of the American constitutional system, put forward the view that generally speaking, the court’s role was to defer to the choices of the democratic institutions of government, at least in so far as those institutions were making choices within the realm of rationality. Where, however, the democratic institutions are making decisions where their representative and majoritarian nature gives rise to the possibility of abuse, the Court has a much more interventionalist role. For instance, Ely argues for courts to exercise greater scrutiny over legislative choices that might infringe the freedom of speech under the First Amendment, because such legislation can itself undermine the democratic process.33 Stephen Gageler, writing before his appointment to the High Court, argued for a similar approach to be adopted in the Australian system: You start with the notion that the Constitution sets up a system to enlarge the powers of self-government of the people of Australia through institutions of government that are structured to be politically accountable to the people of Australia. You recognise that, within that system, political accountability provides the ordinary constitutional

33

John Hart Ely, Democracy and Distrust: A Theory of Judicial Review (Harvard University Press, 1980).

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means of constraining governmental power. You see the judicial power as an extraordinary constitutional constraint operating within that system, not outside it. You see the judicious use of the judicial power as tailoring itself to the strengths and weaknesses of the ordinary constitutional means of constraining governmental power. You see judicial deference as appropriate where political accountability is inherently strong. You see judicial vigilance as appropriate where political accountability is either inherently weak or endangered.34

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Standing for election Section 34 of the Constitution sets the qualifications for election in the Commonwealth Parliament ‘until the Parliament otherwise provides’. The Parliament has subsequently provided for this in s 163(1) of the Commonwealth Electoral Act 1918 (Cth), which states that people are eligible to stand for election for the Senate or the House of Representatives if they are Australian citizens who have reached the age of 18 years. Similar requirements exist in the states, and there is an additional requirement that people be living in the state in which they seek election.35 In addition, the constitutions of the Commonwealth and the states place a number of further restrictions on candidates’ eligibility. Citizens can only run for office in one House of Parliament at a time,36 and cannot be a member of state and Commonwealth parliaments simultaneously.37 Section 44 of the Commonwealth Constitution lists five grounds upon which people are ineligible to be chosen and to sit as MPs. The grounds include when a person is under any ‘acknowledgement of allegiance … to a foreign power’ (s 44(i)); ‘is attainted of treason, or has been convicted and is under sentence, or subject to be sentenced, for any offence punishable under the law of the Commonwealth or of a State by imprisonment for one year or longer’ (s 44(ii)); holds an ‘office for profit under the Crown’ (s 44(iv)); and has ‘any direct or indirect pecuniary interest in any agreement with the Public Service of the Commonwealth’.38 Questions of eligibility to stand for election were historically determined by the House of Parliament in which the person had been elected. However, recognising the problem of partisan influence, after federation the Parliament quickly established 34 35 36 37 38

Stephen Gageler, ‘Beyond the Text: A Vision of the Structure and Function of the Constitution’ (2009) 36 Bar News 30, 37. See, eg, Constitution of Queensland Act 2001 (Qld) ss 21, 64; Constitution Act 1975 (Vic) s 44. See, eg, Australian Constitution s 43; Constitution Act 1934 (SA) s 43A; Constitution Act 1899 (WA) s 34(2). See, eg, Constitution Act 1934 (SA) s 47; Constitution Act 1934 (Tas) s 31(1); Constitution Act 1975 (Vic) s 47; Constitution Act 1899 (WA) s 34(1). For examples of the grounds for qualification of members under state constitutions, see Constitution Act 1902 (NSW) s 13; Constitution of Queensland 2001 (Qld) s 21; Constitution Act 1934 (SA) ss 43A, 45; Constitution Act 1975 (Vic) s 44.

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the High Court as a Court of Disputed Returns. Today, questions of qualification and disqualification of an MP can be resolved in the house in which the MP sits,39 or the house can refer the matter to the Court of Disputed Returns,40 or individuals can petition the Court challenging an election result within 40 days of the return of writs.41 In Alley v Gillespie, the High Court does not have jurisdiction to determine disqualification under a common informer action against a sitting member, thus precluding the ability of individuals to challenge the qualification of MPs outside of this time limit.42 In its capacity as the Court of Disputed Returns, the High Court has heard several challenges to the qualification of candidates.43 One of the most important cases was that of Sykes v Cleary. In 1992, Phil Cleary was elected as an independent candidate in a by-election held for the seat of Wills, after the former Prime Minister Bob Hawke resigned from Parliament. Cleary was a secondary school teacher employed by the Victorian Government under the Teaching Service Act 1981 (Vic). He had taken leave without pay for two years prior to the election, but only resigned his position when his election was assured. Cleary was therefore still employed under the Act when he lodged his nomination and on the day of the election. His election was successfully challenged on the basis that he held an ‘office for profit under the Crown’ within the meaning of s 44(iv). In Sykes v Cleary,44 as well as declaring Cleary’s election void, the High Court considered the eligibility of the Liberal and ALP candidates for the seat of Wills. The ALP candidate, Bill Kardamitsis, was born in Greece in 1952, migrated to Australia in 1969 and became an Australian citizen in 1975. The Liberal candidate, John Delacretaz, was born in Switzerland in 1923, migrated to Australia in 1951 and became an Australian citizen in 1960. The Court held that both candidates were ineligible to stand for election because they had not taken steps to renounce their citizenship of Greece and Switzerland respectively, and therefore continued to be entitled to the rights and privileges of a citizen of a ‘foreign power’ in contravention of s 44(i).45 In the course of the judgment, the majority of the High Court clarified that whether a person was a foreign citizen would be determined by the operation 39 40 41 42 43

44 45

Australian Constitution s 47. See also Sue v Hill (1999) 199 CLR 462, 479–80 [24] (Gleeson CJ, Gummow and Hayne JJ), 516 [133], 517 [136] (Gaudron J). Commonwealth Electoral Act 1918 (Cth) s 376. Commonwealth Electoral Act 1918 s 353(1). Alley v Gillespie [2018] HCA 11. The election to the Senate of James Webster for the Victorian Country Party in 1974 was unsuccessfully challenged on the grounds that he had a ‘direct or indirect pecuniary interest in any agreement with the Public Service of the Commonwealth’ under s 44(v):  Reference Pursuant to Section 204 of the Commonwealth Electoral Act; Re Webster (1975) 132 CLR 270. The 1987 election of Robert Wood as a senator for New South Wales was held to be void because he was not an Australian citizen: Re Wood (1988) 167 CLR 145. (1992) 176 CLR 77. Ibid 103–7.

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of foreign law, and that a person must take ‘all reasonable steps’ to renounce their foreign citizenship to be eligible for election. As a result of this case, the three most prominent candidates in the seat of Wills were declared ineligible to run for election.46 In 1998, Heather Hill was elected as a senator for Queensland for Pauline Hanson’s One Nation Party. Hill was born in the UK in 1960 and migrated to Australia in 1971. She became an Australian citizen in 1988. However, only after her election did Hill renounce her UK citizenship by handing over her UK passport to the British High Commission and completing a declaration of renunciation of citizenship. Hill’s election was challenged on the basis that she owed an allegiance to the UK at the time of her election. The issue the Court had to decide was whether the UK was, in fact, a ‘foreign power’. The Court held that it was in a judgment that clarified the path to Australia’s independence from the UK.47 This aspect of the case is discussed in Chapter 2. The impact of the strict requirements in s 44(i), in particular, led to a situation in the 45th Parliament in 2017 when seven MPs were referred to the High Court as potentially breaching the eligibility requirements in s 44(i). The Court held that five were in breach. The Court has held that Australian citizens who are dual citizens must have divested themselves of the non-Australian citizenship before running for Parliament. A  dual citizen is ineligible even if they did not know they held another citizenship, and they must follow the law of the foreign country to divest themselves of that citizenship before running for Parliament, unless the foreign law imposes unreasonable requirements for the divesting of citizenship.48 In 2018, the Court clarified that even where individuals have lodged an application to renounce foreign citizenship before nomination, this will be insufficient to meet the requirements of s 44(i).49 The so-called ‘Citizenship Seven’ case continued to have political and legal reverberations throughout 2017 and 2018. Following the case, other sitting members announced their actual or possible ineligibility under s 44(i), resulting in further Court decisions. The government and opposition have agreed to a process by which sitting MPs must declare their ancestry and any dual citizenships they may have held prior to the 2016 election to ensure their eligibility to hold their seat. The High Court’s strict interpretation of s 44(i) brings into question the original purpose of that sub-section,50 as well as the section more broadly. The Parliament

46 47 48 49 50

The High Court decision in Sykes v Cleary (1992) 176 CLR 77 was delivered shortly before the 1993 federal election, and so no further by-election was held. Cleary ran for office again in 1993, and was duly elected. Sue v Hill (1999) 199 CLR 462. Re Canavan (2017) 91 ALJR 1209. Re Gallagher [2018] HCA 17. See generally Gerard Carney, ‘Foreign Allegiance:  A Vexed Ground of Parliamentary Disqualification’ (1999) 11 Bond Law Review 245; Cheryl Saunders, ‘The Cleary Case: Who Should be Eligible to Stand for Parliament?’ (1992) 1 Constitutional Centenary 1; John Chesterman, ‘Sue v Hill:  One Nation, Two Citizenships, Three Strikes’ (2000) 35 Australian Journal of Political Science 135.

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has referred the possible reform of s 44 to the Joint Standing Committee on Electoral Matters (we explain the role of the Committee in more detail later in this chapter). This is not the first inquiry into the provision: in 1997, following the disqualification of Jackie Kelly to the seat of Lindsay at the 1996 federal election as a result of her membership of the Royal Australian Air Force, two parliamentary inquiries recommended substantial amendments to s 44.51 The ban on dual citizens and on those owing allegiance to a foreign power is aimed at ensuring there are no subversive elements in the Commonwealth Parliament who might act against Australia’s interests while holding a position at the centre of government. It also ensures that MPs will not have obligations to a foreign power such as military service which are incompatible with their full-time participation in the Australian Parliament. Several arguments are raised against the dual citizenship prohibition in s 44(i). First, it is argued that the section is unnecessary. Parliamentarians are open to scrutiny for adverse foreign allegiance both through the Parliament itself, and Australia’s security agencies. Subversive activity is not confined to people with official links to another country. Indeed, official links might act as a protection against subversion. Also, if a person has obligations to a foreign power which are inconsistent with their duties to the Australian Parliament, such as military service, they can be required to resign. Second, it is argued that the section is unworkable. The interpretation of s 44(i) means that the determination of a person’s non-Australian citizenship, and how a person divests themselves of that citizenship, is reliant on the laws of foreign countries, which may vary widely, and may be difficult to understand and comply with. MPs may find it hard to determine their citizenship status in a foreign country, and may find it time consuming and expensive to divest themselves of it. Third, it is argued that the section is out of date. Australia is a highly diverse, multicultural nation in which half of its citizens were either born overseas or have parents who were born overseas. Therefore, a significant proportion of Australians have connections to other countries, including being citizens of those countries. The Australian nation is far more diverse now than at federation. We celebrate this diversity. Requiring MPs to divest themselves of alternative citizenships is contrary to the spirit of this national diversity. There are other ways of achieving the objectives behind s 44(i). For instance, equivalents to s 44(i) in state constitutions only render a member’s seat vacant if the 51

Commonwealth, Inquiry into all Aspects of the Conduct of the 1996 Federal Election and Matters Related Thereto: Joint Standing Committee on Electoral Matters, Parl Paper No 93 (1997); Commonwealth, Aspects of Section 44 of the Australian Constitution: House of Representatives Standing Committee on Legal and Constitutional Affairs, Parl Paper No 85 (1997).

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member performs some positive act acknowledging an allegiance to a foreign power after their election.52 In 1988, a Constitutional Commission recommended the repeal of s 44(i) so that the only requirement for eligibility was being an Australian citizen. Sub-section 44(i) is not the only provision in s 44 that has drawn calls for reform. The requirement in s 44(iv) that a person is ineligible if they hold an ‘office of profit under the Crown’ has been heavily criticised, particularly in that it renders ineligible lower level public officeholders, such as military officers and schoolteachers,53 unless they first resign. This asks them to make a significant economic sacrifice based on the mere possibility of winning a seat. This is likely to discourage highly qualified candidates, who might, for instance, be reluctant to resign their position until elected because of their financial situation. In this way, it problematically privileges independently wealthy candidates. In this respect, the 1988 Constitutional Commission recommended that s 44(iv) be amended such that a person holding an office of profit under the Crown be deemed to have vacated that office upon election to the Parliament. So far, none of these recommended changes to s 44 of the Constitution have ever been put to the Australian people at a referendum.

The extent of the franchise

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Australian voting rights have increased over time as ideological barriers to participation in government have been removed; in particular, discrimination on the grounds of class, gender and race have been removed. Key advances of the franchise in Australia have included removing property qualifications from the franchise,54 extending the vote to women,55 extending the franchise to all Aboriginal and Torres Strait Islander people,56 and lowering the voting age from 21 to 18.57 In 2002, another important change to the franchise was an amendment to the Australian Citizenship Act 1948 (Cth) to allow Australians to take on dual citizenship and thereby to vote in Australian elections as well as the elections of the country of their other citizenship.58 Prior to this

52

53 54 55 56

57 58

Australian Capital Territory (Self-Government) Act 1988 (Cth) s 14; Northern Territory (Self-Governing) Act 1978 (Cth) ss 20–21; Constitution Act 1902 (NSW) ss 13–13A; Constitution of Queensland Act 2001 (Qld) ss 64–65; Constitution Act 1934 (SA) ss 43A–45; Constitution Act 1934 (Tas) ss 30–34; Constitution Act 1975 (Vic) ss 8–61A; Constitution Act 1899 (WA) ss 31–39. Although not local councillors: Re Lambie [2018] HCA 6. South Australia was the last state to remove a property qualification for voting in the Legislative Council in the Constitution and Electoral Acts Amendment Act 1973 (SA). Commonwealth Electoral Act 1902 (Cth). The vote was extended to Aboriginal and Torres Strait Islander people in an amendment to the Commonwealth Electoral Act 1902 (Cth) in 1962. Voting was made compulsory for Aboriginal and Torres Strait Islander people in 1984. See further discussion in Chapter 3. This occurred in New South Wales and Western Australia in 1970; in South Australia in 1971; for Commonwealth elections in 1973; and in the remaining states soon after this time. Australian Citizenship Legislation Amendment Act 2002 (Cth), repealing Australian Citizenship Act 1948 (Cth) s 17.

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change, if Australians took on the citizenship of another country they had to renounce their Australian citizenship, and with it their entitlement to vote in Australia. The extent of participation in elections was taken to a new level in Australia in 1924 when compulsory voting was introduced for federal elections. Section 245(1) of the Commonwealth Electoral Act 1918 (Cth) currently states, ‘It shall be the duty of every elector to vote at each election’. The penalty for failing to vote is $20 if a voter cannot give ‘a valid and sufficient reason’. In practice, the requirement means that eligible voters must turn up to a polling booth, have their name marked off the electoral roll and deposit their ballot paper in the ballot box. However, voters need not register a formal vote. In a secret ballot, how voters mark their ballot papers is entirely a matter for them. There have been several challenges to the legislative requirement for compulsory voting. In Judd v McKeon,59 the High Court upheld the validity of the predecessor to s 245 and this case has stood as the authority for the validity of compulsory voting ever since. 60 In addition to requiring registered voters to turn up to a polling station and cast a vote, s 240 of the Commonwealth Electoral Act requires voters in Commonwealth elections to vote for every candidate in order of preference (although in the Senate, where there can be more than 100 candidates running in a state electorate, voters can either vote ‘above the line’, by numbering at least six boxes above the line on the ballot paper, representing parties or groups; or ‘below the line’, by numbering at least 12 boxes for individual candidates). One of the consequences of this voting system in the House of Representatives where voters must number all of the boxes is that if electors lodge a formal (valid) vote, they will always end up giving a preference to one of the major parties, even though they may not wish to vote for either of them. Albert Langer challenged the validity of this system of voting, arguing that for representatives to be ‘directly chosen by the people’ under ss 7 and 24 of the Constitution, the people must be free not to choose some candidates standing for election. In the 1993 election, Langer distributed material that encouraged electors to vote ‘1, 2, 3, 3’ with the major parties being placed equal last. In Langer v Commonwealth,61 the High Court upheld the validity of full preferential voting under s 240. The Court also upheld the validity of s 329A, which made it an 59 60

61

(1926) 38 CLR 380. The most recent challenge to the system of compulsory voting was by Nils Anders Holmdahl. Holmdahl was convicted of an offence under s 245, his appeal to the Full Court of the Supreme Court of South Australia was dismissed and leave to appeal to the High Court was refused. Holmdahl v Australian Electoral Commission [No  2] [2012] SASCFC 110 (24 September 2012); Transcript of Proceedings, Holmdahl v Australian Electoral Commission [2013] HCATrans 72 (12 April 2013). (1996) 186 CLR 302.

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offence to ‘print, publish or distribute … any matter or thing with the intention of encouraging persons … to fill in a ballot paper otherwise than in accordance with [s 240]’. Even though s 270(2) saved a ‘1, 2, 3, 3’ vote, as a result of s 329A it was still an offence to encourage people to vote in this manner. The Electoral and Referendum Amendment Act 1998 (Cth) repealed s 270(2), so that a Langer-style informal vote was no longer saved by s 270. The Act also repealed s 329A to remove the offence of encouraging others to vote informally. Compulsory voting remains a controversial part of Australia’s electoral system. Graham Maddox described it as of ‘doubtful “democratic” validity’ because there is little evidence that people compelled to vote do so after properly appraising the issues.62 Compulsory voting brings into conflict the fundamental principles underpinning our democratic system discussed in Chapter  1—on the one hand, liberty; and, on the other, equality and community. On one view of liberty, there is no more fundamental freedom than the choice not to participate in politics. If voting is the most fundamental and important form of political communication that a citizen has to exercise, it is equally fundamental for a citizen to be free to choose not to exercise it. Conversely, participation in the choosing of representatives might be considered the most fundamental duty of citizenship. A duty to vote reinforces that we do not live in the state as a group of autonomous individuals, but that we are bound together by a commitment to live together and are equally responsible for the terms of our joint living.63 Further, political scientist Professor Lisa Hill has explained that compulsory voting is not just a virtue as representing a fundamental civic duty, but also because it ensures government is equally responsive to different demographics in the population. She shows that governments pay attention and spend money on those groups of people who are most likely to turn out and vote for or against them. Under a system of optional voting, if large groups of eligible voters—such as young people, or socially disadvantaged groups—are not voting, the government is not likely to pay political attention to them. Developed systems that adopt compulsory voting are therefore less likely to have inequalities in government spending and wealth.64 However one might feel about the legal requirement to vote in theory, in practice it has led to a much higher level of participation in elections than in countries in which voting is voluntary. At the 2016 election, 91 per cent of voters turned out to

62 63 64

Maddox, above n 21, 46. See generally Lisa Hill, ‘On the Justifiability of Compulsory Voting’ (2010) 40(4) British Journal of Political Science 917. Lisa Hill, ‘Compulsory Voting in Australia:  A Basis for a “Best Practice” Regime’ (2004) 32 Federal Law Review 22. See also Jason Brennan and Lisa Hill, Compulsory Voting: For and Against (Cambridge University Press, 2014).

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vote, the lowest voter turnout since the introduction of compulsory voting in 1925.65 Of those who turned out, 13,541,101 (94.95 per cent) cast valid votes and 720,915 (5.05 per cent) voted informally.66 In the US presidential election in November 2016, 58.1 per cent of those eligible to vote cast a ballot.67 In the UK election of 2017, voter turnout was 68.7 per cent.68 Although compulsory voting contributes to a high turnout of eligible voters, not all eligible voters are on the roll. Prior to the 2016 election, 95 per cent of the eligible adult voting population were on the roll, compared with 92 per cent for the 2013 election.69 In addition, there are many people on permanent resident visas who live and work in Australia, contributing to the community through paying taxes and participating in its social, cultural and economic life, but who are not eligible to vote. In the last 10 years there has also been a rapid increase in the number of temporary skilled and unskilled migrants living and working in Australia for up to four years, who are also ineligible to vote. Although Parliament is responsible for determining the legislative scope of the franchise, the High Court has held that the constitutional requirement that Parliament be ‘directly chosen by the people’ acts as a constraint on Parliament’s power to restrict the franchise. Although the franchise has tended to increase over time, and there would seem to be a commitment in the Australian electoral system to a broad base of participation in elections, there is no express constitutional guarantee that the franchise will not be restricted in the future.70 In 2006, Parliament amended the Commonwealth Electoral Act 1918 (Cth) to disqualify any prisoner serving a sentence of imprisonment, regardless of its length, from voting in Commonwealth elections.71 Immediately prior to this amendment, the restriction was limited to prisoners serving a sentence of three years or more. In Roach v Electoral Commissioner,72 a convicted prisoner challenged the amendment and the High Court held that the amendment was invalid. In a landmark decision, Gleeson CJ held that Parliament can only remove the right to vote from adult citizens if there is a ‘substantial reason’ for denying them the vote. The 65 66 67 68 69 70 71 72

Australian Electoral Commission, Voter Turn Out:  2016 House of Representatives and Senate Elections (2016), . Australian Electoral Commission, First Preferences by Party (8 August 2016), Tally Room: 2016 Election, . Penn State University Libraries, Post-Election 2016 Recap and Resources (2 January 2018), . UK Political Info, Voter Turn Out 1945–2017, . Australian Electoral Commission, 2016 Election Key facts and figures (11 August 2016), . Section 41 of the Australian Constitution, which provides for the right to vote of electors in the states, has been held to be transitional: R v Pearson; Ex parte Sipka (1983) 152 CLR 254. Commonwealth Electoral Act 1918 (Cth) s 93(8)(b). (2007) 233 CLR 162.

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joint judgment of Gummow, Kirby and Crennan JJ explained that whether there was a  ‘substantial reason’ would turn on whether the reason is ‘reasonably appropriate and adapted to serve an end which is consistent or compatible with the maintenance of the constitutionally prescribed system of representative government’.73 This was, in effect, the High Court implying, from the words ‘directly chosen by the people’ in ss 7 and 24 of the Constitution, a right to vote in the Constitution. The disenfranchisement of all prisoners failed this test.74 In the course of his Honour’s judgment, the Chief Justice stated:  ‘I see no reason to deny that, in this respect, and to this extent, the words of ss 7 and 24, because of changed historical circumstances including legislative history, have come to be a constitutional protection of the right to vote.’75 It is a clear consequence of Roach that the Parliament cannot, as it has in the past, restrict voting rights on the basis of gender, race or class. The constitutional protection of the right to vote in the Commonwealth Constitution has not been extended to protecting the franchise in state elections. In McGinty v Western Australia,76 the High Court indicated that any constitutional protection of the franchise in state elections should be derived from state constitutions.77 While there has been no confirmation from the High Court, the same protections are likely to exist in state constitutions as well. State constitutions have similar requirements for the election of representatives, and use similar language to express these requirements. The Commonwealth Constitution’s protection of the franchise has extended beyond protecting the qualifications of voters. In 2006, the Howard Coalition Government amended the Commonwealth Electoral Act 1918 (Cth) so that the electoral roll closed on the day that an election was called. No new applications for enrolment could be received from that time, and updates to enrolment needed to be completed within three days. The government’s rationale for the change was to ensure the integrity of the electoral roll.78 This amendment had the potential to significantly reduce enrolments, as it is common for people eligible to vote to turn their mind to enrolment only when an election is called. Prior to the 2010 federal election, Shannon Rowe and Douglas Thompson brought an action in the High Court

73 74 75 76 77 78

Ibid 199. Ibid 182 (Gleeson CJ), 202 (Gummow, Kirby and Crennan JJ). Ibid 174. (1996) 186 CLR 140. Ibid 178 (Brennan CJ), 222 (Gaudron J). In fact, the Australian National Audit Office concluded in a review of the Australian electoral roll that it was ‘one of high integrity and could be relied on for electoral purposes’, and its recommendations, which were endorsed by the Joint Standing Committee on Electoral Matters, outlined alternative strategies for maintaining this integrity: see Auditor-General, Integrity of the Electoral Roll (Audit Report No 42, Australian National Audit Office, 18 April 2002); Commonwealth, Audit Report No 42 of 2001–2002, Integrity of the Electoral Roll: Joint Standing Committee on Electoral Matters, Parl Paper No 501 (2002).

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challenging the constitutional validity of the 2006 amendments on the basis that they were an unreasonable restriction on their entitlement to vote. In Rowe v Electoral Commissioner,79 the High Court upheld the challenge by a 4:3 majority. The majority held that the clear practical impact of the amendments to the Act was to ‘diminish opportunities for enrolment and transfer of enrolment that existed prior to their enactment’.80 This impact was disproportionate to the benefits the amendments might have had of ensuring the integrity of the enrolment process. The immediate effect of the decision was that approximately 100,000 additional enrolments were processed for the 2010 federal election.81 In 2012, the Federal Government introduced various reforms to electoral law aimed at increasing participation in Commonwealth elections. The Electoral and Referendum Amendment (Protecting Elector Participation) Act 2012 (Cth) enables the Australian Electoral Commission (‘AEC’) to initiate voter enrolment if it is satisfied that an Australian citizen has lived at an address for at least one month.82 The Electoral and Referendum (Maintaining Address) Act 2012 (Cth) allows the Commission to update people’s enrolment information when they change address without them having to make a fresh application for enrolment.83 In addition, on 17 June 2013, Special Minister of State Mark Dreyfus launched new applications for enrolling on mobile phones and tablets.84 Prior to the 2013 federal election, the Electoral Commissioner announced that the electoral roll had increased by over 624,000 since the last election, significantly more than in the previous comparable period from 2007 to 2010 when the increase was 440,000.85 Between the 2013 and 2016 federal elections, the electoral roll increased by a further 963,860 voters.86 Despite these increasing numbers, there have been further challenges to the system. Before the 2016 election, the High Court dismissed a challenge to legislation suspending the processing of voting applications and transfers from seven days after the issue of the writs for election. Relying on the decision in Rowe, the plaintiffs argued that there was no substantial reason for restricting the franchise in this way because technological advancements were such that there was no longer any reason

79 80 81 82 83 84

85 86

(2010) 243 CLR 1. Ibid 38 [78] (French CJ). See Orr, above n 11, 51. Inserting Commonwealth Electoral Act 1918 (Cth) s 103B. Inserting Commonwealth Electoral Act 1918 (Cth) s103A. Mark Dreyfus, ‘New Online Enrolment Makes it Easier for 1.4 Million Missing Voters’ (Media Release, 17 June 2013), . Australian Electoral Commission, ‘Online Enrolment Drives Record 14.7 Million Australians Ready to Vote’ (Media Release, 16 August 2013), . Australian Electoral Commission, 2016 Election Key facts and figures (11 August 2016), .

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to close the rolls so early. Indeed, the plaintiffs pointed to the position in three of the states, where these restrictions had been removed. The Court, however, was reluctant to second-guess Parliament’s judgment that the closing of the rolls was reasonably necessary to ensure their accuracy and certainty on polling day, and also reluctant to force Parliament to enact legislation to keep abreast of changing technological advancements.87

The value of the franchise In a system of government based on a principle of equality, not only a person’s opportunity to vote, but also the value of their vote is relevant to the extent of their democratic representation. Even in a voting system that guarantees universal suffrage, the value of an individual’s voting franchise can be affected by the voting systems that are used, and the way electoral boundaries are determined.

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The franchise and voting systems In relation to voting systems, there are two main systems used in Australian electorates. In the lower houses of all Australian parliaments except those of Tasmania and the Australian Capital Territory, there are single-member electorates in which the person with the majority of votes after the allocation of preferences is the  elected representative for that electorate.88 If a party wins a majority of the seats in the house, it governs in its own right. If no party wins a majority, but a party nonetheless has the ‘confidence’89 of a majority of members of the house, that party can form a minority government; or if parties are able to negotiate terms for governing together, then they can form a governing coalition. Federally, centre-right parties, currently the Liberal Party and the National Party, have been in some form of coalition since the 1920s. In voting systems with single-member electorates, the parties with majority support win the overwhelming majority of the seats. For example, in the 2013 federal election, 76.5 per cent of people gave their first preferences to the Liberal/National Coalition or to the ALP, but members of these parties won just under 97 per cent of the seats

87 88

89

Murphy v Electoral Commissioner (2016) 334 ALR 369. For detail on the voting systems in all Australian parliaments, see the Electoral Council of Australia and New Zealand, Electoral Systems:  Electoral Systems of Australia’s Parliaments and Local Governments (16 November 2009), . At any time, an MP can call for a vote on the floor of the Parliament to ascertain the support enjoyed by the government. This is called a confidence vote. A member expresses confidence in the government by supporting the government in this vote. Importantly, a vote of confidence in the government is not an endorsement of the government’s political agenda. It simply means that the government can continue to govern through introducing legislation, and maintaining control of the executive government and the public service. If a majority of the members in the House vote against the government (a vote of no confidence), then a new government must be formed with the confidence of a majority of the House of Representatives or a general election must be called.

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(145 of 150) in the House of Representatives. Conversely, 10.23 per cent of people gave their first preference to the Greens, but the Greens only won a single seat in the house. A proportional voting system was introduced to the Senate in 1948. In this system, electorate sizes are much larger, and each electorate has multiple members. In the Commonwealth Parliament, the states themselves are the electorates. In a system of proportional representation, there is a greater chance of minority representation. This has certainly proved to be the case in the Commonwealth Parliament, with minor parties holding between seven and 20 seats in the Senate since it was increased to 76 members in 1984. Minor parties did exceptionally well in the 2016 federal election, filling 20 of the 76 vacancies at the full Senate election. Only once since 1984 has a government had a majority in the Senate: the term of the Howard Coalition Government between 2005 and 2007. On all other occasions, a combination of minor parties and independents have held the balance of power. When minor parties and independents hold the balance of power in the Senate, they attain a measure of influence over government policy if the government and the opposition are divided on a legislative initiative. In 1992, Prime Minister Paul Keating famously described the minor parties and independents in the Senate as ‘unrepresentative swill’.90 In the Australian Capital Territory and Tasmania, a proportional electoral system has also been adopted in their lower house (although in the Australian Capital Territory, there is only one house of Parliament). This has had an important effect on the political representation in the lower house, and challenged the dominance of the two major political parties. The system adopted is known as the Hare–Clark electoral system, after Thomas Hare, a nineteenth-century Englishman who originally proposed the system, and Andrew Inglis Clark, who introduced it into Tasmania in the late 19th century and went on to be one of the most influential drafters of the Australian Constitution. Today in Tasmania, there are five electorates in the House of Assembly that return five members who reach the required quota of votes (16.7 per cent of the formal votes). Votes for candidates who do not gain the required quota will be redistributed according to their preferences. This allows candidates to be elected to Parliament based on the proportion of their support in the electorate, and is therefore less likely to return a Parliament that is dominated by one or other of the major parties. Indeed, it will often return a hung Parliament, requiring the formation of a minority government. For instance, in the 2014 Tasmanian election, the Liberals received 51 per cent of the vote and received 60 per cent of the seats; the Labor Party received 27 per cent of the votes and received 28 per cent of the seats; and the Greens received 13.8 per cent of the vote and 12 per cent of the

90

Commonwealth, Parliamentary Debates, House of Representatives, 4 November 1992, 2547 (Paul Keating, Prime Minister).

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seats. In contrast, in New South Wales, in the 2015 election, while the Greens received 10 per cent of the votes, they only received 3 per cent of the seats. As stated earlier, electoral law—including the voting system—is largely a product of legislation. Whenever an incumbent government amends this law there is the suspicion that the government is trying to manufacture an electoral advantage. In 1973, the Whitlam Labor Government introduced the Senate (Representation of Territories) Act 1973 (Cth) to add four Senators to the upper house—two each from the Australian Capital Territory and the Northern Territory. This occurred at a time when the government did not have a majority in the upper house, and its legislative program during its first term of government had been frustrated by the Senate failing to pass many of its initiatives. The ALP traditionally had stronger support than the Liberal and National parties in the Australian Capital Territory and the Northern Territory. The opposition Liberal party challenged the validity of the Act. The High Court dismissed the challenge. The details of the case, which pitted principles of democracy and federalism against each other, are discussed in Chapter 4.

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The franchise and electoral boundaries There are two ways in which the value of an individual’s franchise can be affected through the drawing of electoral boundaries. One is through arranging the boundaries of electorates in such a way that it concentrates the votes of one party, and keeps the votes of another party more evenly distributed. To achieve this, electoral boundaries might end up having an unusual shape as they twist around areas with different voter profiles. The modification of electoral boundaries to gain an electoral advantage is known as ‘gerrymandering’. ‘Gerrymandering’ is a portmanteau of the name of Massachusetts Governor Elbridge Gerry and salamander, because during Gerry’s term in office in the early 19th century, the shape of a new voting district he drew was said to resemble a salamander, and to favour his political party. A second way of affecting the value of the franchise is by having electorates of different numerical size. This is known as a ‘malapportionment’. There is no requirement in the Commonwealth Constitution that electorates be a regular shape or of equal numerical size.91 However, it is now a legislative requirement that the electorates in the lower houses of all Australian parliaments be, as far as possible, the same numerical size.92 In practice, this means that there may be a variation of no

91

92

In Attorney-General (Cth); Ex rel McKinlay v Commonwealth (1975) 135 CLR 1, the Commonwealth election of 18 May 1974 was challenged on the basis that electoral districts were not of equal size, and that this infringed the requirement in s 24 of the Constitution that the Members of the House of Representatives be ‘directly chosen by the people’. Only Murphy J accepted this argument (at 65–73). See, eg, Commonwealth Electoral Act 1918 (Cth) s 48; Electoral Act 1992 (Qld) s 45; Electoral Act 1907 (WA) s 16G.

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more than 10 per cent in the size of electorates, with exceptions in Queensland and Western Australia for geographically large rural electorates.93 Since 1984, Australia has had an independent statutory body, the AEC, to monitor electoral boundaries for Australian elections in order to protect against gerrymanders and malapportionments that contravene the accepted limits. The AEC periodically reviews and moves electoral boundaries to keep electorates within the legislative requirements of relative numerical equality.94 We explain in more detail the role of the AEC later in this chapter. At the state level, Western Australia was the last state to require electorates to be of equally numerical size. At the 1993 state election in Western Australia, the largest (metropolitan) electorate had 26,580 enrolled voters, while the smallest (rural) electorate had 9135 enrolled voters. Like the Commonwealth Constitution, the Western Australian Constitution required that the members of the houses of Parliament be ‘directly chosen by the people’. James McGinty, the ALP Opposition Leader in Western Australia, challenged the electoral boundaries on the basis that these words required an equality of voting power among electors. The High Court rejected the argument.95 In 2005, with the ALP in power and with the same James McGinty as Attorney-General, the Western Australian Parliament passed an amendment to the Electoral Act 1907 (WA), which established a maximum variation of 10 per cent from the quota, with an exception for electorates which are 100,000 square kilometres or more, in which case the variation could be up to 20 per cent below the quota.

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Free speech and democracy Freedom of speech is a long-cherished principle, regarded as necessary to live a dignified human life, to enable the discovery of truth, and to maintain democratic institutions of government.96 Without the ability to access ideas and to communicate about them freely, people are not able to judge the policies of those running for office and, as a result, are not able to cast a fully informed vote. In most liberal democratic constitutions, speech is expressly protected. For example, the First Amendment to the US Constitution97 states:

93 94 95 96 97

Electoral Act 1992 (Qld) s 45; Electoral Act 1907 (WA) s 16G. Commonwealth Electoral Act 1918 (Cth) pt IV. McGinty v Western Australia (1996) 186 CLR 140. Sharon Butler and Des Roderick, Australian Media Law (Lawbook, 4th ed, 2012) 5–11. The US Constitution was adopted in 1787. There have been 27 amendments to the Constitution. The first 10 were ratified together in 1791, and are commonly known as the Bill of Rights.

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Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

This provision has been fundamental to shaping the institutions of democracy in the US. In the Australian Constitution, there is a clause guaranteeing freedom of religion against various encroachments by the Federal Parliament (s 116), but no mention of free speech. Given the fundamental relationship between free speech and the legitimacy of the democratic institutions of government, it is perhaps not surprising that the High Court has been called upon to determine whether, and to what extent, the Commonwealth Constitution nonetheless protects speech from government regulation in the absence of an express freedom.

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The implied freedom of political communication In a series of cases in the early 1990s, the High Court established that the Constitution requires at least a limited protection of freedom of speech. The first of these cases were Australian Capital Television Pty  Ltd  v Commonwealth98 and Nationwide News v Wills, decided on the same day in September 1992. In 1989, Maxwell Newton had written an article in The Australian newspaper that described the right to work in Australia as ‘regulated by a mass of official controls, imposed by a vast bureaucracy in the ministry of labour and enforced by a corrupt and  compliant “judiciary” in the official Soviet-style Arbitration Commission’.99 Newton was prosecuted under s 299(1)(d)(ii) of the Industrial Relations Act 1988 (Cth), which prohibited expression that brought ‘a member of the [Industrial Relations] Commission or the Commission into disrepute’. The owner of The Australian newspaper, Nationwide News, brought an action challenging the prosecution. In Nationwide News Pty Ltd v Wills,100 the majority of the High Court held that s 299(1) (d)(ii) was unconstitutional on the ground that it infringed an implied freedom of political communication. In Australian Capital Television Pty Ltd v Commonwealth, the High Court considered the constitutionality of a new legislative regime, introduced by the Hawke Labor Government in 1991, that restricted political advertising on television and radio.101 The government claimed that the new regime was designed to enhance political communication by reducing the corrupting influences of money in politics.

98 99 100 101

(1992) 177 CLR 106. See Nationwide News Pty Ltd v Wills (1992) 177 CLR 1, 62 (Deane and Toohey JJ). Ibid. Broadcasting Act 1942 (Cth) pt IIID.

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However, the High Court was unconvinced that the regime was designed to achieve these objectives, particularly because the allocation of the limited permitted advertising favoured the established political parties and discriminated against new and independent candidates. In Nationwide News, the majority described the important role of political communication for the functioning of Australian democracy. Deane and Toohey JJ stated:

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The people of the Commonwealth would be unable responsibly to discharge and exercise the powers of governmental control which the Constitution reserves to them if each person was an island, unable to communicate with any other person. … The ability to cast a fully informed vote in an election of members of the Parliament depends upon the ability to acquire information about the background, qualifications and policies of the candidates for election.102

Despite noting the importance of political communication, however, the Court held that the freedom to communicate about political matters was not absolute, and that it had to be weighed against the protection of other public interests. As Mason CJ put it in Australian Capital Television Pty Ltd v Commonwealth: ‘If the restriction imposes a burden on free communication that is disproportionate to the attainment of the competing public interest’, then it will be contrary to the constitutional freedom.103 At the time it was first propounded in Australian Capital Television and Nationwide News,104 the implied freedom of political communication was highly controversial. Many academic and political commentators believed that it was not for the High Court to develop a principle that was not expressly stated in the Constitution.105 On the contrary, to do so was in itself a fundamental breach of a different constitutional doctrine: the doctrine of the separation of powers. If the people want a freedom of political communication to be a constitutional principle, it is for them to change the Constitution using the method prescribed for such change in s 128. In the meantime, it is up to the Parliament to make the difficult judgments about when regulation of speech is reasonable. Following this criticism, the High Court, in a subsequent judgment, explained that the implied constitutional principle was grounded, not on the principle of ‘representative government’ generally, but on the ‘text and structure’ of the Constitution. That is, the Court claimed that it had not created the implication from vague, extraneous doctrines, but, rather, the implication was founded in the words of the Constitution itself. 102 103 104 105

Nationwide News Pty Ltd v Wills (1992) 177 CLR 1, 72. (1992) 177 CLR 106, 143–4. Nationwide News Pty Ltd v Wills (1992) 177 CLR 1. See, eg, Greg Craven, ‘The High Court of Australia: A Study in the Abuse of Power’ (1999) 22 University of New South Wales Law Journal 216, 242.

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Formulating the test Following a series of judgments in the first half of the 1990s, in Lange v Australian Broadcasting Corporation, a unanimous High Court formulated a two-part test for determining whether the implied freedom has been breached:

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First, does the law effectively burden freedom of communication about government or political matters either in its terms, operation or effect? Second, if the law effectively burdens that freedom, is the law reasonably appropriate and adapted to serve a legitimate end the fulfilment of which is compatible with the maintenance of … the system of government prescribed by the Constitution? If the first question is answered ‘yes’ and the second is answered ‘no’, the law is invalid.106

Lange formed part of a series of cases that considered whether the implied freedom could be used as a defence to actions for defamation, either by operating to invalidate any laws that impaired freedom of speech, at least in respect of Commonwealth political matters, or through developing the common law defence of qualified privilege in light of the constitutional freedom.107 Lange was remarkable not only for setting out what has been an enduring formulation for the test for when the implied freedom of political communication will be breached, but in determining the interrelationship between the common law of defamation and the implied freedom. Lange clarified that the common law must conform to the Constitution, and that it must therefore develop a defence of qualified privilege, to apply to political communications where the publication had been ‘reasonable in all of the circumstances’ of the case. The Lange formulation of the test for when the implied freedom will be breached has been remarkably stable, although there have been some clarifications and tweaks. In the 2005 decision of Coleman v Power, the Court clarified that the second limb should read:  ‘if the law effectively burdens that freedom, is the law reasonably appropriate and adapted to serve a legitimate end in a manner which is compatible with the maintenance of … the system of government prescribed by the Constitution?’ (changes underlined).108 In more recent cases, greater clarification has been added in two respects. The first is to break the second limb of Lange into two distinct steps. In Brown v Tasmania, Kiefel CJ, Bell and Keane JJ stated these two steps as follows: 2.

If “yes” to question 1, is the purpose of the law legitimate, in the sense that it is compatible with the maintenance of the constitutionally prescribed system of representative and responsible government?

106 (1997) 189 CLR 520, 567–8. 107 Theophanous v Herald & Weekly Times Ltd (1994) 182 CLR 104; Stephens v West Australian Newspapers Ltd (1994) 182 CLR 211; Lange v Australian Broadcasting Corporation (1997) 189 CLR 520, 564–66. 108 (2004) 220 CLR 1.

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If “yes” to question 2, is the law reasonably appropriate and adapted to advance that legitimate object in a manner that is compatible with the maintenance of the constitutionally prescribed system of representative and responsible government?109

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The second clarification was advanced in the case of McCloy v New South Wales,110 where a majority of the Court developed a particular approach to applying the appropriate and adapted dimension of the test. Although, in the subsequent case of Brown v Tasmania, the joint judgment clarified that this approach provided a tool of analysis for approaching the second limb, but not the only one.111 This clarification followed a number of debates among academics and in the judgments themselves, as to what type of test was embodied in the appropriate and adapted statement, and particularly whether it required the Court to undertake a ‘proportionality’-type balancing test between competing values involved; that is, the freedom of political communication on the one hand, and the government’s competing objective on the other.112 In McCloy, a four-judge majority confirmed that a proportionality test, similar to that adopted in Europe in relation to the protection of rights, should be used. Proportionality testing, their Honours explained, encompasses three steps: •

suitable—as having a rational connection to the purpose of the provision;

•

necessary—in the sense that there is no obvious and compelling alternative, reasonably practicable means of achieving the same purpose which has a less restrictive effect on the freedom;

•

adequate in its balance—a criterion requiring a value judgment, consistently with the limits of the judicial function, describing the balance between the importance of the purpose served by the restrictive measure and the extent of the restriction it imposes on the freedom.113

While the first of these two steps largely mirrored the steps that had been taken in earlier judgments in answering the question of whether a measure was appropriate and adapted, the important revelation was that a majority of the judges accepted that there was, within the Lange test, a ‘value judgment’, in the form of a balancing test. Gageler J disagreed with the adoption of the three-step proportionality test, claiming in the later case of Brown v Tasmania that he had ‘never considered it to be a particularly useful tool’.114 At the crux of Gageler J’s criticism of the three-step Brown v Tasmania (2017) 91 ALJR 1089, 1112 [104]. (2015) 257 CLR 178. Ibid 1116 [125]. See Adrienne Stone, ‘The Limits of Constitutional Text and Structure: Standards of Review and the Freedom of Political Communication’ (1999) 23 Melbourne University Law Review 668; Elisa Arcioni, ‘Before the High Court: Politics, Police and Proportionality: An Opportunity to Explore the Lange Test: Coleman v Power’ (2003) 25 Sydney Law Review 379; Coleman v Power (2004) 221 CLR 1, 46–8 [83]–[87] (McHugh J). 113 McCloy v New South Wales (2015) 257 CLR 178, 193–5 [2] (French CJ, Kiefel, Bell and Keane JJ). 114 Brown v Tasmania (2017) 91 ALJR 1089, 1119 [156]. 109 110 111 112

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proportionality test is that it provides no real guidance for judges when exercising their supervisory jurisdiction. Rather, Gageler J emphasised that judges must, on a case-by-case basis, identify the level of scrutiny (or ‘tiers of scrutiny’) required in any particular case by reference to the nature of the law in question.115

What communication is protected?

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A preliminary consideration in applying the implied freedom is the nature of the communication that is protected. The High Court has held that communication relating to the election of representatives is central to the implied freedom, but that it extends to other political communication as well.116 In Theophanous v Herald & Weekly Times Ltd, Mason CJ, Toohey and Gaudron JJ explained how broad the concept was. They indicated it was not limited to matters relating to the public affairs of the Commonwealth, but also extended to the states.117 They also indicated that because ‘it is not possible to fix a limit to the range of matters that may be relevant to debate in the Commonwealth Parliament’, it was also difficult to draw a clear line as to what fell within the protected realm of political communication.118 They distinguished entertainment from political speech, and commercial speech from political speech, although they accepted that even these lines could very easily become blurred. An attempt to draw some definition of political discussion was made: For present purposes, it is sufficient to say that ‘political discussion’ includes discussion of the conduct, policies or fitness for office of government, political parties, public bodies, public officers and those seeking public office. The concept also includes discussion of the political views and public conduct of persons who are engaged in activities that have become the subject of political debate, eg, trade union leaders, Aboriginal political leaders, political and economic commentators. Indeed, in our view, the concept is not exhausted by political publications and addresses which are calculated to influence choices.119

There has been some debate in the cases as to whether commentary and discussion about judicial officers are ‘government and political’ matters. In APLA Ltd v Legal Services Commissioner (NSW),120 the Court rejected an argument that the implied freedom was attracted by legislation that was designed to reduce litigation. 115 McCloy v New South Wales (2015) 257 CLR 178, 238–9 [152]. 116 Lange (1997) 189 CLR 520, 559–60. 117 Theophanous v Herald & Weekly Times Ltd (1994) 182 CLR 104, 122. Confirmed to extend also to local government in Lange v Australian Broadcasting Commission (1997) 189 CLR 520, 571–2; and finally confirmed most recently in Unions NSW v New South Wales (2013) 252 CLR 530. 118 Theophanous v Herald & Weekly Times Ltd (1994) 182 CLR 104, 123. 119 Ibid 124. 120 (2005) 224 CLR 322.

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In the course of that case, McHugh J explained that while the implied freedom did not, generally, extend to the exercise of judicial power, there would be exceptions. His Honour explained: Discussion of the appointment or removal of judges, the prosecution of offences, the withdrawal of charges, the provision of legal aid and the funding of courts … are communications that attract the Lange freedom. That is because they concern, expressly or inferentially, acts or omissions of the legislature or the Executive Government. … However, communications concerning the results of cases or the reasoning or conduct of the judges who decide them are not ordinarily within the Lange freedom. In some exceptional case, they may be. But when they are, it will be because in some way such communications also concern the acts or omissions of the legislature or the Executive Government.121

In Coleman v Power,122 the High Court divided on the question as to whether legislation that prohibited threatening, abusive or insulting words infringed the implied freedom, with a majority holding that it was open to Parliament to pass legislation of this type. Heydon J interpreted political communication very narrowly, holding that some communications, such as insults, are not covered because they do not advance political debate: Insulting words damage, rather than enhance, any process that might lead to voter appreciation of the available alternatives. … The terms of insulting words are usually so offensive and violent that they do not carry any reasonable possibility of throwing ‘light on government or political matters’.123

Kirby J had a contrary view:

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Australian politics has regularly included insult and emotion, calumny and invective, in its armoury of persuasion. They are part and parcel of the struggle of ideas. Anyone in doubt should listen for an hour or two to the broadcasts that bring debates of the Federal Parliament to the living rooms of the nation.124

These opposing views reflect different understandings of communication. From one perspective, communication is political by its very nature, regardless of the content of an opinion, and the judgment of the worthiness of communication should occur in the course of political debate, not outside it. From another perspective, ‘threatening, abusive or insulting’ speech might, as Heydon J suggests, undermine debate by silencing those wishing to participate in it. This is a particular risk when

121 Ibid, 361. This position has been positively referred to by other members of the High Court in Hogan v Hinch (2011) 243 CLR 506, 554 (Hayne, Heydon, Crennan, Kiefel and Bell JJ). 122 (2004) 220 CLR 1. 123 Ibid 126. 124 Ibid 91.

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those in a position of power are able to use such tactics to discredit others with opinions outside the existing orthodoxy.125 In Monis v The Queen,126 a six-member127 High Court split 3:3 on the validity of s 471.12 of the Criminal Code 1995 (Cth), which prohibited communication by post that ‘reasonable persons would regard as being, in all the circumstances, menacing, harassing or offensive’. Monis had written letters to the families of Australian soldiers killed in Afghanistan that were critical of the soldiers’ participation in the conflict. The Court agreed that the letters were highly offensive, and in breach of s 471.12 of the Code. The issue was whether s 471.12 was unconstitutional for infringing the implied freedom of political communication. The Court recognised that the term ‘offensive’ was potentially very broad and would cover a wide range of speech. Crennan, Kiefel and Bell JJ held the section did infringe the implied freedom, whereas French CJ, Hayne and Heydon JJ held that it did not. The main point of distinction between positions taken in the different judgments in the High Court was that Crennan, Kiefel and Bell JJ put more weight on the fact that the political communication being restricted was a particular mode of communication— unsolicited communication that was entering a person’s home through the post. They held that protecting the private sphere in this way was not incompatible with the implied freedom.128 In contrast, French CJ, Hayne and Heydon JJ focused more broadly on whether it was legitimate to prohibit ‘highly offensive’ political communication at all, regardless of the mode of communication. They concluded that restricting highly offensive communication was incompatible with Australia’s system of democratic government. As French CJ explained, ‘a broad imputed awareness of the nature of Australian political debate and communications’ meant that ‘reasonable persons would accept that unreasonable, strident, hurtful and highly offensive communications fall within the range of what occurs’ in ordinary public communication.129 For Hayne J, history demonstrated that offensive speech in political discourse was both inevitable, and often effective.130 The implied freedom extends to non-verbal political communication. In Levy v Victoria,131 Laurence Levy claimed that the implied freedom invalidated Victorian Wildlife regulations that prevented him from entering an area set aside for the shooting

125 See generally Mill, above n 8. 126 (2013) 249 CLR 92. 127 The seventh member of the High Court, Gummow J, did not sit, due to his Honour’s pending retirement from the bench. 128 Monis v The Queen (2013) 249 CLR 92, 215 [349] (Crennan, Kiefel and Bell JJ). 129 Ibid 131–2 [67]. 130 Ibid 136 [85]. See also ibid 174 [220]. 131 (1997) 189 CLR 579.

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of game birds such as ducks. He wanted to enter the restricted area to retrieve the bodies of dead birds in order to display them on television as part of a protest against the Victorian Government’s failure to ban game bird shooting. The High Court held that a permit system to control access to the area was a reasonable restriction on the implied freedom. The Court confirmed, however, that the implied freedom extended to the protection of non-verbal communication such as that planned by Levy.

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Laws that have infringed the implied freedom Constitutional challenges have been brought against a wide variety of regulatory regimes that have been alleged to infringe the implied freedom of political communication. In most, although not all, instances, the real issue has turned on whether the law was a proportionate response to a legitimate government objective. In this chapter, we consider two major areas of law that have raised this question: electoral funding, and political protest. Before we turn to these two issues, it is worth considering some other contexts in which the implied freedom has been argued. We have already seen the implied freedom raised in relation to the prohibition of criticism of government institutions,132 the regulation of political advertisements,133 defamation,134 a prohibition on insulting words in public places,135 a restriction on the offensive use of the postal service,136 and the regulation of access to duck shooting areas.137 In Hogan v Hinch, the High Court held that legislation empowering courts to make suppression orders to protect parties appearing before them did not breach the implied freedom.138 In Wotton v Queensland,139 the High Court held that provisions of the Corrective Services Act 2006 (Qld), which authorised parole orders that restricted prisoners’ political communication, such as through attending rallies or being interviewed by the media, were valid. In Attorney-General (SA) v Corporation of the City of Adelaide,140 the majority of the High Court held that a local government bylaw that prevented persons ‘preaching, canvassing or haranguing’ others on roads in the local government area did not infringe the implied freedom. Although the law did burden political communication, the law was reasonably and appropriately adapted to the legitimate end of protecting others on the road from unsolicited communications that were causing a public nuisance. It was important for the Court that the by-law

132 133 134 135 136 137 138 139 140

Nationwide News v Wills (1992) 177 CLR 1. ACTV v Commonwealth (1992) 177 CLR 106. Lange v ABC (1997) 189 CLR 520. Coleman v Power (2004) 220 CLR 1. Monis v The Queen (2013) 249 CLR 92. Levy v Victoria (1997) 189 CLR 579. (2011) 243 CLR 506 (2012) 246 CLR 1. (2013) 249 CLR 1.

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did not ban communication, but required speakers to gain permission to engage in preaching in the relevant public spaces.141

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Electoral funding and the implied freedom Australian Capital Television, one of the first two implied freedom of political communication cases, involved an attempt by the Parliament to restrict the influence of money in politics through the regulation of electoral advertising. Mason CJ accepted that its intention was ‘to safeguard the integrity of the political process by reducing pressure on parties and candidates to raise substantial sums of money, thus lessening the risk of corruption and undue influence.’142 Nonetheless, the Court struck down the restricted advertising regime on the basis of its discriminatory operation, and particularly its impact on new parties and independents trying to enter the political process, thus undermining the equality of opportunity to participate in the democratic system. Since Australian Capital Television, there have been no further attempts to regulate political advertising in this fashion. There have, however, been attempts to directly restrict the ability of political parties to raise funds through restrictions on political donations. The High Court has considered such restrictions in two cases, Unions NSW v NSW143 and McCloy.144 Both concerned 2012 amendments that were made to the New South Wales regime for restricting political donations in the Election Funding, Expenditure and Disclosures Act 1981 (NSW). They resulted in markedly different outcomes that are instructive for future attempts to regulate electoral funding. The first case, Unions NSW, concerned two key parts of the legislation. Section 96D prohibited anyone other than an enrolled elector from making a political donation. Section 95G(6) required political expenditure by an ‘affiliated organisation’ of a political party to be counted in determining whether a political party had reached its expenditure cap set in the legislation. Affiliated organisations were defined in such a way as to apply almost exclusively to trade unions, which were deemed affiliated organisations of the Australian Labor Party. Unions NSW, representing the unions of that state, challenged the legislation. The High Court struck down both provisions. The Court accepted that the restriction on campaign financing affected the capacity of political parties to engage in political communication. It also accepted, however, that the legislation had a general

141 142 143 144

Ibid. Australian Capital Television (1992) 117 CLR 106, 144. (2013) 252 CLR 530. McCloy v New South Wales (2015) 257 CLR 178.

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anti-corruption purpose in restricting the distorting influence of money in politics. In relation to s 96D, it did not accept that there was sufficient evidence to give rise to a legitimate reason to restrict eligibility to make a donation to electors on the electoral roll. It said that the basis for restricting corporations and other entities, which might have legitimate interest in political matters, was not apparent. In relation to s 95G(6), the Court was concerned that the legislation targeted the affiliation between the unions and the Australian Labor Party without sufficient evidence on which to base such a discriminatory operation. In the second case, McCloy v NSW, the High Court upheld a challenge to other key provisions of the 2012 amendments to the Election Funding, Expenditure and Disclosures Act. The key provisions in issue in this case was a provision prohibiting political donations from property developers, and a general cap on the amount that a person could make as a political donation. The Court again accepted that these provisions amounted to a burden on political communication. However, it accepted that there was sufficient evidence to justify the measures as proportionate responses to genuine concerns about large political donations undermining the integrity of the political system, and the peculiar and concerning influence of property developments. In considering whether the prohibition on donations by property developers was justified, the Court pointed to ‘recent history in New South Wales’, and specifically the adverse findings of the Independent Commission Against Corruption (‘ICAC’) and other bodies concerning corruption in relation to land development.145 The contrasting outcomes in Unions NSW and McCloy reveal that the High Court is willing to accept that limits on electoral donations and campaign expenditure are a burden on political communication, but that it also accepts that there are legitimate reasons for regulating campaign financing in this way to ensure the integrity of the electoral system. The central issue is whether there is sufficient evidence to demonstrate the need for particular restrictions, particularly if they operate in a discriminatory manner against or in favour of particular groups of political donors. Later in this chapter we consider the current regimes that apply to electoral funding across the Commonwealth and the states.

Political protest and the implied freedom A series of cases have challenged the validity of laws aimed at limiting political protest. As well as Levy and Coleman, already mentioned above, more recently has been the case of Brown v Tasmania.146 This case concerned a challenge by former Greens leader Dr Bob Brown and Ms Jessica Hoyt to the Tasmanian Government’s

145 McCloy v New South Wales (2015) 257 CLR 178, 208 [49]–[50]. 146 (2017) 349 ALR 398.

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attempt to restrict political protests in certain forestry areas under the Workplaces (Protection from Protestors) Act 2014  (Tas). This legislation targeted ‘protestors’, who were defined by reference to their political, environmental, social, cultural and economic objectives, and restricted their conduct insofar as it disrupted the business activities of forestry operators. Brown and Hoyt had been arrested separately for their protest activity in northwest Tasmania to protect the Lapoinya Forest from expanded logging operations in the area (although by the time of the High Court case, the charges against each had been dropped). A majority (5:2) of the Court struck down the Tasmanian legislation. Significantly, however, the majority accepted that the purpose of the Act, to protect against conduct that would damage a business or disrupt its activities, and specifically targeting protesters as a potential source of such harm, was compatible with the constitutionally prescribed system of government. But the majority thought that the legislation was not appropriate and adapted to achieving these purposes. For the joint judgment, this was particularly because of the significant but uncertain extension of previous restrictions on entry to forestry land. Because of the uncertain application of the restrictions, the joint judgment was concerned that it would have a chilling effect on political communication beyond its intended operation. Gageler J, joining the majority, focused on the discriminatory application of the legislation to target environmental protestors. Gageler J emphasised the importance of the wider political context and history of protest into which the Tasmanian provisions had been enacted: More significant to an assessment of the relevant burden imposed by the impugned provisions is the long history of political protest on Crown land in Australia. … The special case reveals that, since 2006, 37 protests have taken place in Tasmania in areas that have subsequently been granted legislative or regulatory environmental protection. The communicative power of on-site protests, the special case emphasises and common experience confirms, lies in the generation of images capable of attracting the attention of the public and of politicians to the particular area of the environment which is claimed to be threatened and sought to be protected.147

As Gageler J’s judgment makes reference to, there is a long history of political protest and agitation in Australia that has often been the catalyst for significant and lasting reform. Professor Clive Hamilton has argued that ‘protests have been inseparable from the nation’s social and political history’.148 He chronicles Australia’s social movements and protests across six key areas: anti-war and anti-conscription protests; protests seeking women’s emancipation; those seeking equality for the LGBTIQ community; the fight for Indigenous rights; protests against inequality,

147 Ibid 440–1 [191]. 148 Clive Hamilton, What do we Want? The Story of Protest in Australia (NLA Publishing, 2016) vii.

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particularly in relation to racism and migration policies; and environmental protest. Protest has been particularly important as a vehicle for the views of those people who may not have the independent wealth to achieve political influence in other ways, such as through donations or access to broadcast media. The Brown case is significant for an increasing number of pieces of legislation across Australia that restrict, in a targeted way, political protest. Like the Tasmanian law, some of these laws restrict protest that targets business and industry. New South Wales moved to restrict such protest in 2016,149 and Western Australia in 2015.150 The New South Wales legislation is currently under challenge.151 Other laws have targeted anti-abortion protests outside of abortion clinics,152 which have also been the subject of constitutional challenge and at the time of writing had been removed to the High Court.153 There are others that are less directly targeted at the physical protests themselves, but have restricted the ability of non-government organisations, including charities, to advocate law reform.154

Freedom of association In Kruger v Commonwealth, Gaudron J held that a freedom of association and movement was required for effective political communication and so could also be derived from the constitutionally mandated system of representative government:

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[J]ust as communication would be impossible if ‘each person was an island’, … so too it is substantially impeded if citizens are held in enclaves. … Freedom of political communication depends on human contact and entails at least a significant measure of freedom to associate with others. And freedom of association necessarily entails freedom of movement.155

149 Inclosed Lands Protection Act 1901 (NSW), as amended by the Inclosed Lands, Crimes and Law Enforcement Legislation Amendment (Interference) Act 2016 (NSW). 150 Criminal Code Amendment (Prevention of Lawful Activity) Bill 2015 (WA). 151 This is a challenge in the New South Wales District Court by three protesters charged under the laws: Kathleen Ferguson, Court Case Dubbed as First Test Against NSW Anti-Protest Laws (ABC News, 17 May 2017), ; Joanne McCarthy, ‘The Wilpinjong Three Tell Court Mine Protest Was a Political Act’, The Singleton Argus (online), 9 February 2018, . 152 In Victoria and Tasmania:  Reproductive Health (Access to Terminations) Act 2013 (Tas); Abortion Law Reform Act 2008 (Vic). 153 This argument was made unsuccessfully in 2017 before a Victorian magistrate: Gina Rushton, A Melbourne Mother Has Been Fined $5,000 for Breaching Victoria’s Safe Access Zones Which Protect Patients and Staff From Harassment at Abortion Clinics (BuzzFeed News, 12 October 2017), . The matters pending in the High Court are Clubb v Edwards (M46/2018) and Preston v Avery (H2/2018). 154 Krystian Seibert, ‘Letting Charities be Political:  An Economic Rationale for a Liberalised Approach to Advocacy’ (2015) 40 Alternative Law Journal 199, 203. 155 (1997) 190 CLR 1, 115.

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Gaudron J noted that whereas not all communication is political, any restriction on movement and association affected the ability for the people to communicate about political matters, and would need to satisfy the test for proportionality. In Mulholland v Australian Electoral Commission, the Court reinforced the existence of a freedom of association. However, Gummow and Hayne JJ stated that its existence was wholly derived from the freedom of political communication and was therefore subject to the Lange test.156 The whole Court held that a requirement imposed by the AEC that the names of members of a political party be disclosed did not burden any freedom of association. The existence of a freedom of association has become important in determining the validity of state legislation responding to the threat of organised crime. In Wainohu v New South Wales legislation conferred power on a court to prohibit the association of members of organisations that had been declared to be criminal. While they struck the legislation on a different basis under Chapter III (see further discussion in Chapter 10), six members of the Court reinforced Gummow and Hayne JJ’s formulation of the freedom from Mulholland. In Tajjour v New South Wales, the Court upheld s 93X of the Crimes Act 1900 (NSW), which made it an offence to ‘habitually consort’ with convicted offenders after receiving an official warning. ‘Habitually’ consorting was defined as consorting with at least two convicted offenders on at least two occasions each. The majority of the Court upheld the legislation and were of the view that there was no free-standing freedom of association, although association would be protected insofar as it fell within the freedom of political communication. Their Honours accepted that the legislation burdened political communication, but held that the burden was proportionate to a legitimate end of crime prevention. In dissent, Gageler J reiterated Gaudron J’s position on the existence of a free-standing freedom of association. His Honour held the legislation in Tajjour infringed the freedom, but only to the extent that it applied to associations that were for the purpose of communication on governmental or political matters.157 His Honour held the legislation could be read down so that it did not apply to communication of this type.

Protecting Australia’s democracy As we have already seen with the High Court’s development of the protection of the franchise and freedom of political communication, there is a particular difficulty with leaving it to the incumbent government of the day and the Parliament to protect

156 Mulholland v Australian Electoral Commission (2004) 220 CLR 181. 157 Tajjour v New South Wales (2014) 254 CLR 508, 576–9.

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the system of representative government. The High Court, as guardian of the Constitution, has a vital responsibility to step in to preserve the system of government the Constitution establishes. In addition to the Court’s role in protecting the building blocks of Australia’s democracy, there are many other ways by which it is protected. In this final section of the chapter, we consider the role that constitutional referendums, electoral governance structures (such as the AEC, the Joint Standing Committee on Electoral Matters, and the Court of Disputed Returns), attempts to ensure the integrity of political parties (and particularly the regulation of money in politics), and the media play in protecting and promoting democracy in Australia.

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Referendums The people of the Commonwealth are the ultimate protectors of Australia’s democracy. This is because constitutional change, including change that would undermine the democratic safeguards in the Constitution, cannot occur without a referendum. Section 128 provides a mechanism for altering the Constitution that requires both an absolute majority of both houses of Parliament to pass the Bill proposing the change to the Constitution, and then a majority of the people as a whole and a majority of the people in a majority of the states to vote in favour of the proposed alteration at a referendum. As such, the constitutional amendment mechanism engages both the representative democratic institution of the Parliament and the direct democratic process of a referendum. It has proved difficult to change the Constitution under s 128. Forty-four proposed amendments have been put to the people, and eight have been successful. Among these proposed amendments, there have been attempts to change some of the entrenched constitutional requirements for elections, most of which have been unsuccessful.158 The last referendum proposal put to the people was a proposal to amend the Constitution to change Australia to a republic in 1999. The gap between that republic referendum and the present is the longest period between referendums since federation. Constitutional law professor George Williams and barrister David Hume have identified what they claim are five factors that affect the likely success of a constitutional referendum.159 These are bipartisan support of the proposal through the Parliament and in the referendum campaign; popular ownership of the referendum proposal; an effective popular education campaign; sound and sensible proposals put in the referendum; and a modern referendum process.

158 Data on the referendum results are available at Australian Electoral Commission, Referendum Dates and Results (24 October 2012), . 159 George Williams and David Hume, People Power: The History and Future of the Referendum in Australia (University of New South Wales Press, 2010) ch 7.

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Key to a modern referendum process will be ensuring an inclusive and deliberative public education campaign. Unfortunately, Australia’s current process falls short of facilitating this goal in many respects. The Referendum (Machinery Provisions) Act 1984 (Cth) sets out compulsory voting in referendums, as well as the public funding for the ‘yes’ and ‘no’ case in the referendum. The government funds a pamphlet of up to 2000 words for the ‘yes’ and no’ cases. This also contains the proposed changes to the Constitution, and is sent out to all electors. The ‘yes’ and ‘no’ cases are written by the MPs who voted for or against the proposal in the Parliament. This means that, as occurred in 1967 in the referendum to remove the discrimination against Aboriginal people in the Constitution, where there are no MPs who vote against the proposal, there will be no Commonwealth-funded ‘no’ case. This system has also meant that many of the ‘yes’ and ‘no’ cases have been highly partisan, and have been accused of misleading voters, rather than playing an educative role. Other criticisms that have been made of the current system for voter education prior to constitutional referendums is that the distribution of the pamphlet via the post is now an outdated mode of communication, and fails to take advantage of the technological innovations that would allow the government to reach more people. There have also been calls to remove parliamentary control over the referendum process and allow for citizeninitiated referendums.160

Electoral governance To remain healthy, democratic institutions need constant review and renewal. In Australia there are several bodies responsible for ensuring the effectiveness and integrity of Australian democracy.

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The Australian Electoral Commission The AEC was established as a statutory authority in 1984.161 It succeeded the Australian Electoral Office, which was established in 1902 to oversee matters in relation to Commonwealth elections. The AEC is headed by a Chairperson who is a judge or a retired judge of the Federal Court, the Electoral Commissioner and a third member who is the holder of the office of an Agency Head (usually the Australian Statistician).162 Each state has its own Australian Electoral Officers, who manage the electoral activities of their state from regional offices of the AEC.

160 See reform suggestions relating to these and other matters, eg, in Paul Kildea and George Williams, ‘Reworking Australia’s Referendum Machinery’ (2010) 35 Alternative Law Journal 22. See also House of Representatives Standing Committee on Legal and Constitutional Affairs, A Time for Change:  Yes/No? Inquiry into the Machinery of Referendums (2009). 161 Commonwealth Electoral Act 1918 (Cth) ss 6–38. 162 Ibid s 6; Australian Electoral Commission, Overview of the AEC (17 November 2010), .

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The stated aim of the AEC is to ‘maintain an impartial and independent electoral system for eligible voters through active electoral roll management, efficient delivery of polling services and targeted education and public awareness programs’.163

The Joint Standing Committee on Electoral Matters The Joint Standing Committee on Electoral Matters, established in 1983, conducts inquiries into electoral matters. The Committee reports on the conduct of all federal elections. It has also conducted specific inquiries, such as those into Civics and Electoral Education (2007), the Disclosure of Donations to Political Parties and Candidates (2006), and the Integrity of the Electoral Roll (2002). As a parliamentary committee, the Committee has greater powers of inquiry than the AEC.164

The Court of Disputed Returns

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Challenges to election results or to the qualification of elected members can be heard by the Court of Disputed Returns. The High Court performs this function for Commonwealth elections,165 and state Supreme Courts perform the function in relation to state elections.166 Most jurisdictions also make provision for the review of voter and party registration. The jurisdiction over disputed returns is an exclusive jurisdiction; that is, the only place to challenge the results of an election is by application to a Court of Disputed Returns. In contrast, the houses of Parliament have retained the power to determine disputes over the eligibility of their members, although they can, should they choose, refer the question to the Court for determination. In 2017 and 2018, when a large number of these disputes arose, the houses referred all matters to the Court. The unprecedented number of referrals in relation to disqualification under s 44 of the Constitution in 2017 and 2018 led to calls for constitutional change to reform the eligibility requirements, a matter that was referred for inquiry to the Joint Standing Committee on Electoral Matters.

The integrity of political parties Political parties need resources to sell their political message. Parties hire out venues for campaign launches and other public events. They print and distribute leaflets, and display signs on street posts and billboards. They buy advertising space in newspapers,

163 164 165 166

Australian Electoral Commission, above n 162. The powers of parliamentary committees are discussed further in Chapter 6. Commonwealth Electoral Act 1918 (Cth) ss 353–4, 376. Electoral Act 1992 (ACT) pt 16 div 4; Parliamentary Electorates and Elections Act 1912 (NSW) pt 6 div 2; Northern Territory Electoral Act 1995 (NT) pt 12 div 2; Electoral Act 1992 (Qld) pt 8 div 3; Electoral Act 1985 (SA) s 103; Electoral Act 1985 (Tas) pt X; Constitution Act Amendment Act 1958 (Vic) pt 5 div 22(2); Constitution Act 1975 (Vic) s 45; Electoral Act 1907 (WA) s 157.

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and on radio and television. Increasingly, the internet is used to sell a political message and garner the support of voters. As we have already seen in our discussion of the implied freedom of political communication, political parties’ need for money brings with it concerns over the corrupting influence of money. A number of attempts have been made to limit this corrupting influence, including regulating political advertising, publicly funding political parties, and regulating political donations.

Political advertising By far the largest expense is buying advertising space in the broadcast media. In response to concern over the reliance of the major political parties on corporate donors to fund advertising campaigns, in 1991 the Hawke ALP Government introduced legislation banning political advertising in the broadcast media. The legislation established a scheme whereby during elections, television and radio broadcasters were prohibited from broadcasting advertisements of individuals, political parties and governments that contained ‘political matter’.167 Instead, parties were granted free broadcasting time in line with the proportion of the vote they received at the previous election. As discussed above, in Australian Capital Television Pty Ltd v Commonwealth,168 the legislation was held to infringe the implied freedom of political communication, with the Court particularly concerned with the discriminatory operation the legislation would have on new parties and candidates. There has been no attempt to regulate party political advertising since this time. By way of contrast, in the UK, the Communications Act 2003 bans political advertising in the broadcast media. The ban applies not only to advertisements that carry political matters, but also to ‘advertisements by bodies whose objectives are wholly or mainly of a political nature’.169

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Public funding of political parties Political parties are required to be registered to participate in Commonwealth elections. To be registered, a party needs a list of 500 members and a written constitution. Registration costs $500.170 Parties and candidates who receive at least 4 per cent of

167 Broadcasting Act 1942 (Cth) pt IIID. 168 (1992) 177 CLR 106. 169 Communications Act 2003 (UK) c 21, s 321. The House of Lords dismissed a challenge to the validity of s 321 in the case of R (on the application of Animal Defenders International) v Secretary of State for Culture, Media and Sport [2008] 1 AC 1312. 170 Commonwealth Electoral Act 1918 (Cth) s 126(2). Parties also need to be registered in all the states and territories, but the minimum number of members required for registration varies from 750 members in New South Wales to 100 members in Tasmania and the Australian Capital Territory.

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the vote in Commonwealth elections receive public funding.171 From January to June 2018, the rate of funding was 270.479 cents per eligible vote received.172 In general terms, the rationale for public funding is that running election campaigns is a public affair. The state needs a government, and therefore needs people prepared to run for office. When public funding was introduced for Commonwealth elections in 1984, two justifications were offered: first, that parties and candidates would be less dependent on political donations, and therefore the influence of large donors; and second, that public funding would lead to greater political equality.173 It is questionable whether public funding has achieved these objectives. As a result of public funding, parties have tended to increase their expenditure on campaign initiatives.

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Political donations Another means of preventing undue influence on political parties by those supporting them is to impose limits on donations and to require disclosure of donors’ names and the extent of their contributions. As we explained above, in 2012, New South Wales amended the Election Funding, Expenditure and Disclosure Act 1981 (NSW) to place a limit on donations to individuals of $2000 and to parties of $5000. It also banned completely donations from property developers. These restrictions on donations were upheld by the High Court in McCloy v New South Wales.174 At the federal level there are no limits on the amount of donations parties can receive, and there are no limits on the amount parties and candidates can spend on their campaigns.175 However, in December 2017, the government introduced the Electoral Legislation Amendment (Electoral Funding and Disclosure Bill 2017 (Cth), which bans donations from foreign entities. It also creates new categories of political actors who must register their activities with the AEC. These include entities involved in political campaigning and entities deemed to be associated with political parties. Registered entities are prohibited from receiving foreign donations for political purposes, and have onerous disclosure obligations. There is considerable concern about the effect of the Bill on charitable organisations.176

171 Ibid s 294. Public funding is also provided in New South Wales, Victoria and Queensland, but not the other states or territories. 172 Australian Electoral Commission, Current Funding Rate (2018), . 173 Orr, above n 11, 248. 174 McCloy v New South Wales (2015) 257 CLR 178. 175 See generally Deborah Cass and Sonia Burrows, ‘Commonwealth Regulation of Campaign Finance: Public Funding, Disclosure and Expenditure Limits’ (2000) 22 Sydney Law Review 447; Graeme Orr, ‘The Currency of Democracy: Campaign Finance Law in Australia’ (2003) 26 University of New South Wales Law Journal 1; Joo-Cheong Tham, Money and Politics: The Democracy We Can’t Afford (University of New South Wales Press, 2010). 176 See, eg, Alice Husband, Strict New Laws to Scrutinise Advocacy by Charities (CRHLaw, 15 December 2017), .

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At the federal level, there are requirements for the disclosure of funds received and expended, but only individual donations of more than $13,500 need to be declared,177 and the annual returns disclosing receipts and expenditure only need to be furnished to the AEC 15 weeks after the election.178 All states except Tasmania have donation disclosure requirements, but the frequency and timing requirements for disclosure vary widely. In Queensland, New South Wales and the Australian Capital Territory, the disclosure threshold for donations, gifts and loans is $1000.179 In Western Australia, all donations over $2100 have to be identified.180 South Australia has a disclosure cap of $5000 for parties, candidates and third party donors. The Victorian Labor Government has promised to introduce donation laws before the November 2018 state election with a disclosure cap of $4000.181

The media and democracy Government, media and the control of information In September 2011, following the News of the World phone-hacking scandal in the UK—which brought the news media in that country into disrepute and led to a range of reforms to media regulation—the Australian Minister for Broadband, Communications and the Digital Economy, Senator Stephen Conroy, appointed Ray Finkelstein QC to report into regulation of the Australian media. The executive summary of the report opened with the following statement:

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There is common ground among all those who think seriously about the role of the news media and about journalistic ethics that: •

a free press plays an essential role in a democratic society, and no regulation should endanger that role

•

a free press has a responsibility to be fair and accurate in its reporting of the news

•

a free press is a powerful institution which can, and does, affect the political process, sometimes in quite dramatic ways

177 Commonwealth Electoral Act 1918 (Cth) s 304. Section 304 states that donations of $10,000 need to be declared, but this is indexed annually and the amount for 2017–18 is $13,500. 178 Ibid s 309. 179 Electoral Act 1992 (ACT) s 217(c); Election Funding, Expenditure and Disclosures Act 1981 (NSW) s 86; Electoral Act 1992 (Qld) ss 253–66. 180 Electoral Act 1907 (WA) pt IV. 181 Andrew Roberts, ‘Victoria to have Nation’s Strictest Donation Laws’ (Media Release, 18 September 2017), .

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•

a free press can cause harm—sometimes unwarranted—to individuals and organisations

•

a free press should be publicly accountable for its performance

•

codes of ethics regarding accuracy, fairness, impartiality, integrity and independence should guide journalists and news organisations.182

If it were not for the media, the government—with its considerable financial resources—would have an unhealthy control over the information to which the public has access. The spectre of ‘Big Brother’ controlling how we think is one of the most frightening images of authoritarian regimes. Not surprisingly, then, a key indicator of a healthy democracy is the freedom of its media sources. Free media are an important counterbalance to the control the government could otherwise exercise over the dissemination of information and opinions. However, large media groups are themselves extremely powerful and are not subject to the same accountability as government through periodic elections or through the scrutiny of Parliament. If a small number of voices have control over what ideas are disseminated to the public, they can have a disproportionate influence over the people at the expense of good government. So there exists an ever-present tension between ensuring the freedom of the media, and controlling their excesses. In Australia, the media are controlled through a regulatory regime. Publishers and broadcasters require licences, which come with conditions attached. The Hawke ALP Government introduced the Broadcasting Services Act 1992 (Cth), which aimed to prevent a concentration of media ownership in Australia. The Act prohibited companies controlling more than one commercial television licence, newspaper licence or commercial radio licence in the same market.183 In 2006, the Howard Coalition Government relaxed these requirements, removing the restriction in relation to ownership of print media altogether. In 2017, the Turnbull Coalition Government relaxed the rules further, removing a rule that the same owner could not own a newspaper, radio station and television station in the same city, and abolishing a rule that prevented a single broadcaster from reaching more than 75 per cent of the population.184 Even before the relaxing of the rules, there was a high concentration of media ownership in Australia. There are currently three major media proprietors that own the vast majority of newspapers, and television and radio stations: News Corporation, Publishing and Broadcasting Limited, and Fairfax Media. This concentration of

182 Robert Finkelstein, Report of the Independent Inquiry into the Media and Media Regulation (‘Finkelstein Report’) (2012) 7. 183 Broadcasting Services Act 1992 (Cth) pt IV. 184 Broadcasting Legislation Amendment (Broadcasting Reform) Act 2017 (Cth).

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media ownership gives the large media proprietors an enormous amount of political influence in Australia;185 however, with the advent of online media, discussed below, the extent of this influence is now less certain. The Finkelstein Report concluded that existing regulation of the media through the Australian Press Council and the Australian Communications and Media Authority was ‘not sufficient to achieve the degree of accountability desirable in a democracy’,186 and recommended the establishment of a ‘News Media Council’ to ‘set journalistic standards for the news media in consultation with the industry, and handle complaints made by the public when those standards are breached’.187 The report recommended that the Council be funded by government, but otherwise be completely independent of government in holding the media to account.188 These recommendations were greeted with mixed reactions from the media themselves,  with concern being expressed about the impact on free speech and robust media inquiry.189 One of the main tensions between government and the media surrounds access to information. On the one hand, governments control information for various reasons, such as for national security, or to facilitate frank and fearless discussion within government on the formation of policy. On the other hand, democracy is founded on a principle of open government, in which the people are able to judge the performance of their representatives. The independent media are an important means of disseminating government information and criticising government policy. To perform this role effectively, the media need access to government information, as well as the ability to freely investigate events and ideas using their own resources. It is not surprising, then, that the media are the greatest users of freedom of information laws, discussed in Chapter 8. Governments are sensitive to criticism, and use various means to contain the media. One way is to threaten journalists with a defamation action for their criticisms of government. This tactic was used freely by Governor Ralph Darling against the fledgling press in the colony of New South Wales from 1826 to 1831.190 Another is to protect government institutions from criticism, such as the Commonwealth’s attempt to protect the Industrial Relations Commission from criticism in the media through creating the offence of bringing the Commission into disrepute.191 185 See Tim Dwyer, ‘Australia’s Lamentable Media Diversity Needs a Regulatory Fix’, The Conversation (online), 21  March 2013, . 186 Finkelstein, above n 182, 8. 187 Ibid. 188 Ibid 9–10. 189 Drum Wrap, Media Inquiry: Recommendations and Reactions (ABC News, 9 March 2012), . 190 James Spigelman, ‘Foundations of Freedom of Press in Australia’ (2003) 47(3) Quadrant 9, 19. 191 Discussed above in relation to Nationwide News v Wills (1992) 177 CLR 1.

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A further way to control the media is to restrict press reporting of government activity. Anti-terror laws since 2001 have seen a new wave of restrictions on the reporting of government intelligence and security activities. The attempt to control the coverage of asylum seeker boat arrivals in 2001 led to the infamous ‘Children Overboard’ affair, and its subsequent investigation by a Senate Select Committee. The report of this Committee on ‘a Certain Maritime Incident’ is discussed further in Chapter 6.192 The same control of information was used by government when it introduced Operation Sovereign Borders in 2013 to intercept asylum seeker boats and either turn them back or transfer asylum seekers to other nations for processing. The Immigration Minister, Scott Morrison, accompanied by a representative from the Royal Australian Navy, held weekly briefings to control the flow of information and used national security concerns as a reason to withhold information about operational matters.193 From 2001 to 2007 and again from 2013 to the present, Australia has maintained a system of offshore processing on the Pacific Island nation of Nauru, and on Manus Island in Papua New Guinea. There are aspects of the detention regime that clearly breach Australia’s international obligations under such international conventions as the International Covenant on Civil and Political Rights (‘ICCPR’).194 Offshore detention and processing of asylum seekers makes it much more difficult for the media to report on this controversial policy. In addition to the sheer practical challenges of gaining access to the offshore detention centres, s 42 of the Border Force Act 2015 (Cth) makes it an offence, punishable by two years’ imprisonment, for people working in these centres, even as contractors, to disclose information about what is happening in the centres. In October 2016, in the face of a constitutional challenge by healthcare workers working in the detention centres claiming that the provision infringed the implied freedom of political communication, the government created an exception for this group, but the prohibition otherwise remains in place. There are various ways in which the media are protected from government interference. Since 1992, the constitutional freedom of political communication has limited the extent to which government can restrict the expression or reporting of political ideas in the media. In 2011, s 126H of the Evidence Act 1995 (Cth) was introduced to include a new provision that protected journalists’ sources of information. Under s 126H, neither journalists nor their employers can be compelled to disclose the identity of their informants unless, on the application of a party, a court determines that the public interest in disclosure outweighs the possible adverse

192 Senate Select Committee on a Certain Maritime Incident, Parliament of Australia, Majority Report (2002). 193 See further examination of these policies in Alexander Reilly, Gabrielle Appleby, Rebecca LaForgia, ‘To Watch, to Never Look Away: The Public's Responsibility for Australia's Offshore Processing of Asylum Seekers’ (2014) 39(3) Alternative Law Journal 163. 194 See, eg, Australian Human Rights Commission, Immigration Detention and Human Rights (2014), .

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effects to the informant or other persons. Although this reform was welcomed by media proprietors and journalists, Matthew Ricketson, co-author of the Finklestein Report, has noted that such laws are difficult to apply in practice.195 Although there is a tension between the government’s desire to control the release of information (sometimes for important public policy reasons) and the media’s desire for unrestricted access to information, government and the media are also co-dependent. Government needs the media to disseminate its message, and the media need stories of government activity to garner public interest, which is crucial for maintaining their advertising revenue. This co-dependence has led to a number of formal and informal arrangements between government and the media for their mutual benefit. A  good example is the relationship between the police and the media. Federal and state police all have media liaison teams that constantly feed stories to the media of accidents and crimes. The media are saved the time and expense of investigating these stories themselves, and the police are saved the trouble and inconvenience of having the media turn up before or even during a dangerous criminal investigation. These arrangements can quickly unravel, however, when the media demand more access to information than the police are willing to give. Politicians also have a close relationship with the media. Senior government and opposition members have a regular media team accompany them as they journey the country, creating photo opportunities and providing a forum for the announcement of new policies. Another example of co-dependence between the media and government is in the area of government advertising. The government’s deep pockets mean it can buy space in the media to communicate to the electorate. Government is one of the largest purchasers of advertising space in all forms of media.196 Some of this advertising is uncontroversial; on occasion, for example, governments need to communicate important information to the electorate such as changes to road speed limits, or changes in public health practices. But there are occasions when government communication is more partisan and amounts to a form of propaganda. In fact, a number of large government advertising campaigns have been shamelessly partisan, and highly criticised as a result.197 195 Matthew Ricketson, Leaks, Sources and Passing the Salt (Inside Story, 29 June 2011), . 196 See generally Sally Young, The Persuaders:  Inside the Hidden Machine of Political Advertising (Pluto Press, 2004). 197 For example, in 2005 the Howard Government spent up to $100 million advertising the benefits of new workplace relations laws before the laws were even enacted. The expenditure of this money was challenged unsuccessfully in the High Court on the basis that there was no provision for the expenditure in the federal budget. See Combet v Commonwealth (2005) 224 CLR 494. A similar advertising campaign was used by the Rudd Labor Government to persuade people of the merits of its proposed new mining tax in 2010. See Sabra Lane, ‘Government Mining Tax Ad Blitz to Cost $38m’, ABC News (online), 29 May 2010, .

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Two separate concerns are raised about this type of government advertising. The first relates to the accountability of the government for the spending of money on this advertising. Unlike other public spending, it is difficult to assess the public benefit, if any, of such advertising. Electoral benefit to the government does not, of course, count as a beneficial outcome of the spending in accounting terms. The second and more fundamental concern is the impact of government advertising on the democratic process. The ability to use government money to sell a political message gives an enormous advantage to incumbent governments.198 Ominously, expenditure on government advertising tends to spike in election years.199 Currently the Australian Government self-regulates its use of advertising. Under the Public Governance, Performance and Accountability Act 2013 (Cth), government departments and agencies are required to place their campaign and non-campaign advertising through the Central Advertising System that is administered by the Department of Finance. Departments and agencies must comply with ‘Guidelines on Information and Advertising Campaigns by Australian Government Departments and Agencies’.200 There have been regular inquiries considering the need for stronger guidelines and independent scrutiny of government advertising, either through Parliament, the Ombudsman, the Auditor-General, or some other body independent of government. In 2010, Greens Senator Bob Brown introduced the Preventing the Misuse of Government Advertising Bill to the Parliament, and in 2011, independent Senator Nick Xenophon introduced the Government Advertising (Accountability) Bill. Neither Bill received the support of the major parties.201 There is much greater scrutiny of government advertising in other democracies. For example, in Canada, guidelines require full public disclosure for the reasons for a particular advertising campaign, an explanation of the target audience, the campaign objectives and evaluation, and full disclosure of the costs.202 In the US, appropriations of money are subject to ‘publicity or propaganda prohibitions’ enforced by the Government Accountability Office.203

198 Sally Young, ‘Killing Competition:  Political Communication in Australia’ (2003) 75(3) AQ:  Journal of Contemporary Analysis 9, 13–14. 199 Richard Grant, ‘Federal Government Advertising’ (Research Paper No 62, Parliament of Australia, 2003–04). 200 Department of Finance, Central Advertising System (26 February 2018), . 201 Senate Finance and Public Administration Legislation Committee, Report on Preventing the Misuse of Government Advertising Bill 2010 (Cth); Senate Finance and Public Administration Committee, Parliament of Australia, Inquiry into the Government Advertising (Accountability) Bill 2011 (2011). 202 Treasury Board of Canada Secretariat, Communications Policy (11 August 2006), . 203 Kevin Kosar, Public Relations and Propaganda:  Restrictions on Executive Agency Activities (Report, Congressional Research Service, 21 March 2005) .

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A major barrier to the reform of government expenditure on advertising is that incumbent governments stand to gain so much from its use. Parties that propose significant reforms to the system of self-regulation while in opposition often do not implement them when in government. Furthermore, the issue of government advertising is one area in which even free and robust media might not be expected to hold the government to account, being the primary financial beneficiary of government advertising campaigns.

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Online information and communication The explosive growth of the internet and the World Wide Web in the 1990s has profound implications for democracy. It has changed the traditional relationship between government and media outlets, reducing the control each is able to wield over political information. Online media is not conducive to regulation through the licensing schemes used to regulate print and broadcast media. Nor is it clear what, if any, regulation is warranted in response to this new media source. The most obvious impact of the internet has been the enormous growth in the number and diversity of freely available sources of political information that are accessible all around the world. It is still unclear to what extent this is changing the shape of democracy. Some believe the internet has the potential for significant democratic renewal, and there is a new field of study in e-democracy, which is concerned with the effective use of online communication and information in relation to democratic institutions and processes.204 On the other hand, Matthew Hindman contends that in relation to political information, the internet has done little to change audiences, or diversify the material available to existing audiences.205 Only a very small proportion of internet use is devoted to accessing news and political information, and those who are using the internet in this way are the existing educated elite who already access equivalent sources of information offline. Hindman also suggests that although there is a wide range of material and opinions available on the internet, only a small number of sites are visited regularly, and these sites are owned by the existing media interests and influences. There is no doubt, however, that the internet is revolutionising methods of campaigning and ways of communicating with the electorate. The 2008 and 2012 presidential campaigns of Barack Obama made extensive use of the internet. Obama’s

204 See, eg, Knight Commission on the Information Needs of a Community in a Democracy, Informing Communities:  Sustaining Democracy in the Digital Age (2009) ; Martin  Hilbert, ‘The Maturing Concept of E-Democracy:  From E-Voting and Online Consultations to Democratic Value out of Jumbled On-line Chatter’ (2009) 6 Journal of Information Technology and Politics 87. 205 Matthew Hindman, The Myth of Digital Democracy (Princeton University Press, 2009).

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campaign team used social networking tools such as Facebook, MySpace and Twitter to mobilise support, and his speeches were made available on YouTube. The 2008 Obama campaign registered 1.5  million volunteers and raised US$600  million dollars from three million people. Half of all online political advertising for the year 2008 supported the Obama campaign.206 President Trump uses a personal Twitter account to reach a global audience, communicating government action, spruiking his achievements and pronouncing on domestic and international affairs. In December 2017, his account had 45.4 million followers. In Australia too, political parties and their leaders maintain a high-profile online presence. Federal and state MPs, including prime ministers and premiers, have a presence on Facebook, MySpace, Twitter and Flickr. They send regular messages to their followers updating their activities. The internet has also provided the opportunity for grassroots political organisations such as GetUp to mobilise people in support of specific campaigns. GetUp claims to have over a million online members who receive regular updates on its campaigns via email and on its website.207 It is able to raise considerable sums of money quickly to support political action such as buying advertising space in broadcast and print media. The rise of social media as a key source for news, including political news, has not been without its critics. There have been two major causes of concern. The first is that the increased reliance on social media to access political news means that people are no longer exposed to a variety of political views; rather, the selective nature of social media relationships and posts, and the various algorithms that determine which news items are shown to users, mean that a user will be primarily exposed to news items that reinforce their biases about the perceptions and interpretation of political events. The second is more ominous—the allegation that the business models and algorithms of social media platforms such as Facebook have been used to publicise incorrect news stories to achieve political objectives. Most prominent among these allegations are the claims that the Facebook business model was manipulated during the Brexit referendum in the UK and the 2016 US presidential election to disseminate what has been referred to as ‘fake news’. Citizens are also able to conduct much more of their business with government online. Freedom of information applications, complaints to the Ombudsman, applications for licences, communication with elected representatives and even enrolling to vote can all be done online. This increased interaction with government

206 Jemima Kiss, ‘Why Everyone’s a Winner’, The Guardian (online), 10 November 2008  . 207 GetUp!, Annual Report 2015–16, .

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has, however, created the potential for government (and others) to compile information on citizens who engage with different government departments. Governments have access to information on employment status, health and criminal record, as well as banking details. While this information may exist in discrete government databases, civil liberties groups worry that it provides government with the power to intrude into the lives of citizens unreasonably. In June 2013, Edward Snowden, an American contractor with the National Security Agency, revealed that the US government was collecting data from a wide range of sources through a clandestine mass electronic surveillance data mining program called PRISM. Whether Snowden was a whistleblower or a traitor was hotly debated in the US.208 It is notable, however, that the US government has introduced a range of reforms as a result of the Snowden revelations, to guard against privacy abuses in intelligence gathering. Even if governments can be trusted not to use the information they gather unlawfully, there is a question as to whether governments are competent to keep this information safe. In 2007 in the UK, the government misplaced two computer discs holding the names, addresses, dates of birth, National Insurance numbers and, in many cases, the bank details of 25 million people.209 The discs were never found.

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Conclusion The health of any democratic system of government depends on a wide range of factors, from voting systems, to adequate protection of citizens’ civil and political rights; from the maintenance of a free and robust press, to adequate controls on party and government spending on political advertising. There is no perfect democracy. As this chapter has shown, the development of democratic institutions in Australia has involved weighing different and sometimes conflicting interests—including national against federal representation, and freedom of the press against its proper regulation. In our system, this weighing is the responsibility of both the Parliament and the courts. The health of our democracy is also monitored by a wide variety of other actors and mechanisms, including the public itself, the media, and dedicated officers such as the AEC. The effectiveness of the people’s participation depends on the interaction of these institutions achieving an appropriate balance of these interests.

208 See, eg, Thomas L Friedman, ‘Obama, Snowden and Putin’, The New York Times (online), 13 August 2013, . 209 Patrick Wintour, ‘Lost in the Post—25 Million at Risk after Data Discs go Missing’, The Guardian (online), 21 November 2007, .

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DISCUSSION QUESTIONS 1

Is it important for effective democratic representation for Parliament to contain representatives across the gender, culture, education and socio-economic spectrum of Australian society? Explain your answer.

2

Consider the arguments for and against compulsory voting. In your view, does it enhance or detract from Australian democracy?

3

Is there a case for extending voting rights to permanent residents, and even to temporary residents?

4

To what extent does the greater diversity of representation in the Senate enhance Australian democracy?

5

Propose a new set of criteria for being qualified to stand for election to the Australian Parliament, and explain the justification behind each one.

6

Can representative government be guaranteed in the absence of a constitutional protection of political communication? Why or why not?

7

Find the Joint Standing Committee on Electoral Matters on the Australian Parliamentary website (www.aph.gov.au). What is it currently investigating? Why did this particular electoral matter come before the Committee?

8

Visit the AEC website (www.aec.gov.au) and find out how to enrol to vote online. Is the process simple? Is there scope for fraudulent enrolments?

9

How significant is a free press to holding government accountable? What laws assist the press in fulfilling this role?

FURTHER READING Copyright © 2018. OUPANZ. All rights reserved.

John Dryzek and Patrick Dunleavy, Theories of the Democratic State (Palgrave Macmillan, 2009) Graeme Maddox, Australian Democracy in Theory and Practice (Pearson Education, 5th ed, 2005) Graeme Orr, The Law of Politics:  Elections, Parties and Money in Australia (Federation Press, 2010) Graeme Orr, Bryan Mercurio and George Williams (eds), Realising Democracy: Electoral Law in Australia (Federation Press, 2003) Marian Sawer, Norman Abjorensen and Phil Larkin, Australia:  The State of Democracy (Federation Press, 2009) Joo-Cheong Tham, Money and Politics: The Democracy We Can’t Afford (University of New South Wales Press, 2010) John Uhr, Terms of Trust: Arguments over Ethics in Australian Government (University of New South Wales Press, 2005)

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6

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CHAPTER OVERVIEW Introduction

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Australian parliaments

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Parliamentary privileges

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Parliamentary sovereignty in Australia

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Binding future parliaments

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Extra-territoriality

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Constitutional limits

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Extreme laws

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The relationship between the houses of Parliament

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Parliament and the executive: the quest for control

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Control of the legislative process

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Control of information

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Question time

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The role of the presiding officers

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Parliamentary committees

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Legislative scrutiny by committees

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Scrutiny of executive action by committees

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Estimates committees and annual reports

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Powers of committees

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Voting in parliament

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Introduction Australian parliaments are a product of their history, borrowing heavily from the Westminster and US constitutional systems. From the US, Australia has refashioned federalism to suit our context and, from the UK, we have applied the principles of responsible and representative government. Chapter  5 discussed the mechanisms by which people participate in choosing their parliamentary representatives. In this chapter, we focus on the mechanisms by which Australian parliaments, once chosen, represent the people. The chapter examines the powers of the Australian parliaments and the limits to those powers. It explores how the scope and limits of legislative power have been determined through the resolution of particular legal dilemmas, including the power of parliaments to bind themselves for the future, the power of parliaments to make laws beyond the territorial boundaries of the polity, and the power of parliaments to alter their own makeup. The chapter then addresses two core issues that shape the exercise of legislative power in Australia: the relative powers of the houses of Parliament, and the relationship between Parliament and executive government. Executive dominance of Parliament in Australia has led to the development of uniquely Australian mechanisms for holding the executive to account through the legislature, including a strong upper house culture—with the Senate being willing to obstruct the legislative program of the government and even, on one occasion in 1975, to force the government to an election midway through the electoral cycle.1 Another way the Parliament interacts with the executive is through its system of committees, which not only review proposed legislation, but also launch inquiries into executive government action. However, as we will see, the executive’s dominance means it is also able to exert control of Parliament through the imposition of strong party discipline by the two major parties, particularly in relation to voting lines in Parliament. The framework of these parliamentary processes and practices is outlined in this chapter, laying the foundation for a discussion of executive accountability in Chapter 8.

Australian parliaments The Commonwealth, the six states and the two internal territories all have their own parliaments. Australian parliaments are ‘bicameral’, having two houses, except for Queensland, the Northern Territory and the Australian Capital Territory, which are unicameral, having only one house. In the Commonwealth Parliament, the two houses

1

The Senate’s decision to block supply in 1975 and the ensuing constitutional crisis is discussed later in this chapter.

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are known as the House of Representatives and the Senate, and in state parliaments they are the House of Assembly, or sometimes the Legislative Assembly, and the Legislative Council. In addition to the houses, Commonwealth and state parliaments include a representative of the Crown (the Governor-General and the Governor, respectively) who, on advice, signs and assents to Bills in order for a Bill to become law. In the Northern Territory the Administrator is the indirect representative of the Crown, being appointed by the Governor-General.2

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Parliamentary privileges When we think of the role of parliaments, we think primarily of the role of parliaments in making laws. However, parliaments are also responsible for the very important task of holding the executive government to account. They have myriad powers that assist them in performing both their legislative and accountability functions.. For example, they have special powers and immunities known as ‘parliamentary privileges’, which derive from the customs and practices of the UK Parliament and are found in part in statutes such as the Bill of Rights 1689 (Imp). These privileges include the power to call people before the house; the power to require the production of documents; the power to order the arrest and imprisonment of people whom the house has found guilty of contempt without showing any particular grounds for the arrest and imprisonment;3 and the power to regulate its own proceedings. The immunities include an immunity of members for statements made in the course of parliamentary proceedings; an immunity of members from arrest for civil causes while they attend Parliament; and an immunity of others from arrest in civil cases while acting as witnesses before the house.4 In 1704, the English Parliament declared that Parliament could not create any new privileges. The most it could do was to codify existing privileges in legislation, or abolish privileges no longer deemed necessary or appropriate. This declaration, in removing Parliament’s ability to create new powers and immunities for itself, is consistent with the fundamental principle that no institution or person is above the law. Section 49 of the Australian Constitution grants to the Australian Federal Parliament the same privileges as the UK Parliament until it declares its

2 3 4

The Parliament of the Australian Capital Territory does not have a Crown representative. The Parliament’s power to imprison people for contempt is an exception to the general rule that only federal courts can exercise judicial power. See further discussion in Chapter 9. For a fuller list of these powers and immunities, see John Quick and Robert Garran, The Annotated Constitution of the Australian Commonwealth (Legal Books, first published 1901, 1976 ed) 501–2. See also Harry Evans and Rosemary Laing (eds), Odgers’ Australian Senate Practice (Department of the Senate, 14th ed, 2016) ch 2.

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own privileges. The section does not restrict the Federal Parliament to declaring privileges that are within the bounds of the privileges of the UK Parliament, and it would therefore appear that the Federal Parliament has an unrestricted authority to define its own powers.5 The Federal Parliament exercised the power to declare its privileges in 1987, with the enactment of the Parliamentary Privileges Act 1987 (Cth). The privileges of most state parliaments are expressed either in their constitutions or in legislation.6 Prior to the passage of the Parliamentary Privileges Act, the Commonwealth Parliament demonstrated the extent of its powers in 1955 when it ordered the arrest and imprisonment of Frank Browne and Raymond Fitzpatrick. Browne had published an article in a journal owned by Fitzpatrick making serious allegations against a Member of Parliament, Charles Morgan. Browne and Fitzpatrick were called before the House of Representatives and sentenced to six months’ imprisonment on a general warrant that did not specify the details of their offence. The Speaker of the House of Representatives commanded that the two men be taken into custody. The High Court dismissed Browne and Fitzpatrick’s challenge to their imprisonment in the case of R v Richards; Ex parte Fitzpatrick & Browne.7 The Court held that if the warrant had set out the particulars of the allegations, it could have reviewed the terms of the allegations, but as the warrant was in general terms, it was conclusive. Section 9 of the Parliamentary Privileges Act now requires that any warrant emanating from Parliament that commits a person to imprisonment must set out the particulars of the matters considered to constitute the offence. This means that a decision to imprison a person for contempt of Parliament is now subject to judicial review. Freedom of speech and debate within Parliament has been described as the ‘single most important parliamentary privilege’.8 However, there is a tension: as President Fitzgerald of the Queensland Court of Appeal noted in Rowley v O’Chee, this area of law involves ‘a collision between a citizen’s rights to his or her reputation and to use the courts and their process to vindicate that reputation, and parliamentary privilege, including protecting freedom of speech’.9 At the Commonwealth level, this privilege is set out in s 16 of the Parliamentary Privileges Act. It protects Members of Parliament (‘MPs’) from legal liability for statements they make during the proceedings of Parliament. In 1994, Bob Katter, an independent Queensland member of the Commonwealth Parliament, made allegations of misconduct on 5 6 7 8 9

Quick and Garran, above n 4, 506. See, eg, Constitution Act 1934 (SA) s 9; Constitution Act 1975 (Vic) ss 19, 19A; Parliamentary Privileges Act 1891 (WA). (1955) 92 CLR 157. Joint Committee on Parliamentary Privilege, First Report, House of Lords Paper No 43 – I, House of Commons Paper 214 – I, Session 1998–99 (1999) [36]. [2000] 1 Qd R 207, 210.

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the part of Peter Laurance, a company director. Katter made the statements inside Parliament, and then again outside Parliament on television and radio. Laurance sued Katter for defamation, and Katter relied on s 16 as a defence to the defamation action. In Laurance v Katter,10 the Queensland Court of Appeal rejected Katter’s reliance on s 16. Davies JA held that s 16 was confined to statements made in Parliament,11 while Pincus JA held that s 16 was invalid for infringing the implied freedom of political communication.12 In the same year, however, in Rann v Olsen,13 the Supreme Court of South Australia upheld the validity of s 16 in similar circumstances and gave it a broader scope than had Davies JA in Laurance v Katter. To prevent the abuse of this freedom, some legislatures have developed standing orders that restrict what can be said about others, or have allowed a right of reply by a person named.14 It is rare for the courts to test the existence or the extent of Parliament’s privileges, as the internal affairs of Parliament have generally been regarded as ‘non-justiciable’; that is, not reviewable in the courts. However, in some instances, the matters have been able to come before the courts. In 1998, in the case of Egan v Willis,15 the High Court held that parliamentary privileges may be justiciable when they are part of a dispute arising under the general law. Michael Egan was Treasurer in the Carr ALP Government in New South Wales, and the senior member of the government in the Legislative Council, in which the government did not have a majority. The Legislative Council passed a resolution requiring Egan to table information before the house relating to a goldmine at Lake Cowal. This was part of a long-running dispute between the government and the Legislative Council in which the government became increasingly unwilling to table government documents. On this occasion, when Egan refused to table the requested documents, the Council passed a resolution that held Egan to be in contempt, and suspended him from the house for the remainder of the day. When Egan refused to leave the house, the Usher of the Black Rod (an officer of the Legislative Council) escorted him out of the chamber and onto the footpath. The fact that Egan had been taken beyond the precinct of Parliament meant that he was able to bring a claim in the court that a trespass had been committed against him under the general law. Although the New South Wales Supreme Court agreed that a trespass had been committed against Egan, both the New South Wales Supreme Court and the High Court held that the Council’s resolution holding Egan in contempt 10 11 12 13 14 15

[2000] 1 Qd R 147. Ibid 202–4. On this point see also ABC v Chatterton (1986) SASR 1, 35. Ibid 199–200. (2000) 76 SASR 450. For example, The Senate and House of Representatives in the Commonwealth Parliament have allowed this right of reply since 1988 and 1997 respectively. (1998) 195 CLR 424, 438–9 (Gaudron, Gummow and Hayne JJ).

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and suspending him from the house was valid, thus confirming the existence of the Parliament’s privilege to do so.16

Parliamentary sovereignty in Australia In the UK, ‘parliamentary sovereignty’ is the term traditionally used to describe the supremacy of Parliament. The concept was described by the British constitutional theorist Albert Venn Dicey (1835–1922) in these terms:

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The principle of Parliamentary sovereignty means … that Parliament … has, under the English constitution, the right to make or unmake any law whatever: and, further, that no person or body is recognised by the law of England as having a right to override or set aside the legislation of Parliament.17

In Australia, the concept of parliamentary sovereignty remains incredibly influential, although its existence, under a written Constitution, is necessarily in limited form. In Australia, Parliament makes law through the enactment of statutes, although it can and frequently does delegate law-making to the executive.18 Although the common law exists as a separate source of law, Parliament can change the common law through the enactment of inconsistent legislation. Parliament’s law-making role gives it a particular influence over the other branches of government. The Parliament can be thought in this sense to be supreme over the executive, as legislation is the main source of executive power. Although the executive has various powers that exist outside legislation (nonstatutory powers, introduced in Chapter 7), these powers can be modified or abolished by statute. Parliament can also be considered to be supreme over the judiciary in the sense that the courts are limited to interpreting the laws of Parliament. There is one exception to Parliament’s supremacy over the judiciary—the judicial function of interpreting the constitutional limits of Parliament’s power. The jurisdiction of the High Court to conduct constitutional judicial review cannot be removed by Parliament. It is often referred to as ‘inherent’, and is protected in the Commonwealth Constitution through the entrenched principle of the separation of judicial power. Despite these manifestations of parliamentary sovereignty, there are a number of constraints on the law-making power of Commonwealth and state parliaments. In Australia, parliamentary sovereignty has always been a modified concept because the colonial parliaments were creatures of the UK Parliament.19 Today, there are a number

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Egan v Willis (1996) 40 NSWLR 650; Egan v Willis (1998) 195 CLR 424. Albert Venn Dicey, Introduction to the Study of the Law of the Constitution (Macmillan, 8th ed, 1915) 3–4. This remains a delegation of legislative power rather than the exercise of executive power. See further discussion in Chapter 7. Attorney-General (NSW) v Trethowan (1931) 44 CLR 394, 418 (Rich J), 425–6 (Dixon J).

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of limits on parliamentary sovereignty at both Commonwealth and state levels, most of which come from the Commonwealth Constitution. For instance, there are those that relate to the constitutional division of legislative power in Australia between the Commonwealth and the states (these limits were introduced in Chapter 4), and the limits that exist because of the separation of powers, and particularly, the separation and protection of judicial power (these are introduced in Chapters 9 and 10).

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Binding future parliaments Even leaving aside the constitutional limits on parliamentary sovereignty in Australia, there is a necessary theoretical limit to parliamentary sovereignty. If the original Parliament is absolutely sovereign, and can pass any law whatsoever, then it can pass laws limiting absolutely the power of its successors, and parliamentary sovereignty would be short-lived. If, on the other hand, the original Parliament is limited in its capacity to bind its successors, then its law-making power is not absolute. Australian parliaments have on occasion sought to affect the power of their successors by imposing special requirements for the passing of some laws. These requirements, known as ‘manner and form’ provisions, entrench legislative provisions so that if a future Parliament wishes to change that law, it must do so in the relevant manner and form set down. The existence of valid manner and form requirements will determine whether a constitution is rigid or flexible—a rigid constitution is difficult to amend formally because it is entrenched by a manner and form requirement (or requirements). An example of a rigid constitution is the Australian Constitution, which is wholly entrenched by s 128 of the Constitution, requiring a special parliamentary procedure and a referendum to amend it.20 Some constitutions even have provisions that are super-entrenched so as to be incapable of amendment.21 Rigid constitutions are often criticised because they do not allow the document to ‘grow’ with the society it governs, and therefore adapt to changes in social, economic or other circumstances. This problem of rigidity is, however, partly ameliorated through the use of progressive approaches to interpretation by the courts, which update constitutional provisions and underlying principles, which we discuss further in Chapter 11. One of the difficulties with manner and form provisions is the question of who should have the power to pass them; and, if it is the ordinary Parliament, why should 20

21

There is some academic debate that there may exist alternative ways of amending the Constitution. See, eg, Christopher Gilbert, ‘Section 15 of the Australia Act: Constitutional Change by the Back Door?’ (1989) 5 Queensland University of Technology Law Journal 55. This debate, however, seems wholly academic; as a political matter, any attempt to change the Constitution outside s 128 would be politically unpalatable to any government or Parliament. See, eg, Grundgesetz für die Bundesrepublik Deutschland [Basic Law of the Federal Republic of Germany] art 79(3), which makes it impermissible to make amendments affecting the federal structure, the human rights set out in the Constitution, and the basic principles of the Constitution.

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one Parliament as representative of a particular constituency at a particular time have the power to bind a future Parliament, which is representative of the people at that later time? Section 5 of the Colonial Laws Validity Act 1865 (Imp) conferred on colonial parliaments the power to pass binding manner and form requirements to entrench parts of their constitutions—at least those parts that related to the constitution, powers and procedure of the legislature. It provided that the colonial legislatures had ‘full Power to make Laws respecting the Constitution, Powers and Procedure of such Legislature; provided that such Laws shall have been passed in such Manner and Form as may from Time to Time be required’. Colonial parliaments were thus able to bind their successors. For example, if a Parliament enacted a manner and form provision that required a referendum of the electors to pass a Bill that abolished or amended the powers of the upper house, and a subsequent Parliament wanted to abolish that house, it could not do so until it abided by the referendum requirement enacted by the first Parliament. Today, a similar provision is now found in s 6 of the Australia Act 1986 (Cth) and s 6 of the Australia Act 1986 (UK) (‘Australia Acts’). There are two differences of significance between the provisions of the Colonial Laws Validity Act and the Australia Acts. First, the reference in s 6 of the Australia Acts is to laws ‘made’ rather than ‘passed’; this recognises that some manner and form provisions may not require passage through Parliament. Second, in s 6, reference is made only to manner and form provisions made by the state Parliament. Any manner and form provisions made by imperial statutes or other instruments are no longer binding by force of s 6. Section 6 of the Australia Acts remains an important constitutional provision for the states, and many provisions of the state constitutional statutes entrench manner and form provisions, relying on s 6 for their validity.22 Manner and form requirements are only effective if the special procedure also applies to the amendment or repeal of the manner and form provision itself (this is known as ‘double entrenchment’). If a manner and form provision is not protected in this way, a Parliament can simply amend or repeal the manner and form provision through the ordinary legislative process and therefore avoid its requirements.23 A manner and form requirement may take the form of a special majority of the houses of Parliament before a Bill will pass, or it might even require that the Bill be passed by a majority of the electors at a referendum before it becomes an Act.24 22

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See, eg, Constitution Act 1902 (NSW) ss 7, 7A, 7B; Constitution Act 1867 (Qld) s 53; Constitution Amendment Act 1934 (Qld) s 3; Constitution Act 1934 (SA) ss 8, 10A, 88; Constitution Act 1934 (Tas) s 41A; Constitution Act 1975 (Vic) s 18; Constitution Act 1889 (WA) s 73. Attorney-General (NSW) v Trethowan (1931) 44 CLR 394. However, despite this, a number of manner and form provisions in state constitutions are not double entrenched. Ibid, affd Attorney-General (NSW) v Trethowan [1932] AC 526 (Privy Council), Attorney-General (NSW) v Trethowan (1932) 47 CLR 97 (High Court).

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Some requirements, however, cannot be validly included in manner and form provisions. First, a manner and form provision cannot be too difficult to fulfil so as to amount to a prohibition on amending a constitutional provision rather than a special procedure to do so. Whether a manner and form provision is too difficult to satisfy is a question of fact and degree, and this is also informed by the importance of the constitutional provision being protected.25 So, for example, a manner and form provision protecting the representative nature of the houses of Parliament could be protected by a more difficult manner and form requirement than one protecting the qualifications of MPs. Second, a manner and form provision cannot amount to an abdication of power by Parliament; that is, Parliament cannot give its power to amend the Constitution away to a third party or body outside the ordinary parliamentary process, such as the executive or a private corporation.26 However, the courts have held that a referendum requirement is a valid manner and form requirement even though it occurs outside Parliament, because the electors are part of the overall legislative function.27 Another important issue that arises with manner and form provisions is whether they establish a mandatory or ‘imperative’ procedure, which leads to invalidity of the legislation if not complied with; or a discretionary or ‘directory’ procedure, which does not go to validity. In Clayton v Heffron,28 the High Court considered the validity of the passage of legislation that had attempted to abolish the Legislative Council pursuant to s 5B of the Constitution Act 1902 (NSW), which established a procedure to resolve deadlocks between the houses of Parliament. The Court held that a requirement that members of both houses attend a ‘free conference’ as part of the procedure in s 5B was not mandatory. Although the Court held that s 5B had established a valid, alternative means by which legislation could be passed, it noted that since the free conference required the cooperation of both houses of Parliament, declaring it to be a mandatory requirement would frustrate the operation of the deadlock provisions.29 The major question raised by s 6 of the Australia Acts is its scope; that is, what are the ‘constitution, powers or procedures’ of the legislature? As a preliminary point, it is important to remember that to fall within s 6, the law which must be characterised as being with respect to the ‘constitution, powers or procedures’ of the legislature is

25 26 27 28 29

West Lakes v South Australia (1980) 25 SASR 389, 396–7 (King CJ). Ibid 398 (King CJ). Attorney-General (NSW) v Trethowan (1931) 44 CLR 394, 419–20 (Rich J); West Lakes v South Australia (1980) 25 SASR 389, 397 (King CJ). (1960) 105 CLR 214. Ibid 246–7.

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the law trying to amend or repeal the constitutional provision.30 The ‘constitution’ of Parliament refers to its composition. It has been held to include the abolition or addition of houses of Parliament, or other bodies to enact legislation;31 or the manner by which members of a house shall be elected;32 but not the qualifications of those members.33 In Attorney-General (WA) v Marquet,34 the High Court was asked by the Clerks of the Western Australian Parliament to consider whether the Electoral Distribution Repeal Act 2001 (WA) and the Electoral Amendment Act 2001 (WA) had been validly passed. The combined effect of these Acts was to alter the electoral districts and regions in Western Australia to bring them closer to a ‘one vote, one value’ ideal. The Bills had been passed by an absolute majority in the House of Assembly, but only by a simple majority in the Legislative Council. This was not in accordance with s 13 of the Electoral Distribution Act 1947 (WA), which required ‘any Bill to amend this Act’ to be passed by an absolute majority of both houses. The question was whether the manner and form requirement was valid under s 6 of the Australia Acts, and this turned on whether the Acts were regarding the ‘constitution, powers or procedure’ of the legislature. Gleeson CJ, Gummow, Hayne and Heydon JJ in the majority refused to define exhaustively what was meant by the expression ‘constitution, powers or procedure’ of a legislature. However, they did say that the ‘constitution’ referred to the features of the legislature that ‘go to give it and its Houses a representative character’.35 This would include, for example, the method of voting, so that a change from proportional representation to a ‘first past the post’ system would change the constitution of the legislature. They held that the 2001 Acts did change the constitution of the legislature by changing the districts and regions. If a law is found to be in breach of a manner and form requirement, then pursuant to s 6 of the Australia Acts it will be ‘of no force or effect’. The High Court has, however, expressed reluctance to interfere, through the issue of an injunction, in the making of a law that is not in accordance with a valid manner and form requirement. This was the remedy sought by the plaintiffs in the case of Clayton v Heffron.36 This highlights

30 31

32 33 34 35 36

West Lakes v South Australia (1980) 25 SASR 389, 419 (Matheson J). Taylor v Attorney-General (Qld) (1917) 23 CLR 457, 470 (Barton J); Attorney-General (NSW) v Trethowan (1931) 44 CLR 394, 418 (Rich J), 431 (Dixon J); Attorney-General (NSW) v Trethowan [1932] AC 526, 540 (Lord Sankey LC); Clayton v Heffron (1960) 77 WN (NSW) 767, 799 (Herron J). Doyle v Attorney-General (1933) 33 SR (NSW) 484, 499 (Harvey ACJ); McDonald v Cain [1953] VLR 411, 429 (Martin J). Clydesdale v Hughes (1934) 51 CLR 518, 528 (Rich, Dixon and McTiernan JJ); Western Australia v Wilsmore (1982) 149 CLR 79, 102 (Wilson J). (2003) 217 CLR 545. Ibid 573. (1960) 105 CLR 214, 234–5 (Dixon CJ, McTiernan, Taylor and Windeyer JJ). See also Hughes & Vale Pty Ltd v Gair (1954) 90 CLR 203, 204 (Dixon J).

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the operation of the separation of powers doctrine,37 and the reluctance of the Court to compromise its independence by interfering with the parliamentary process. It remains uncertain whether the state parliaments can pass valid manner and form requirements beyond the scope of s 6 of the Australia Acts, or whether the Commonwealth can pass manner and form requirements that bind its successors. Such provisions have been enacted:  for example, at the Commonwealth level the form of the national flag is purportedly entrenched by the Flags Act 1953 (Cth), requiring a referendum to change the design;38 and local government is purportedly entrenched in many state constitutions.39 At the state level, these types of provisions have been argued to be valid on the basis of s 106 of the Commonwealth Constitution because of the operation of the ‘Ranasinghe principle’, traced back to a 1965 House of Lords decision.40 However, it would appear that the High Court is more likely to accept that the only power to pass manner and form requirements is found in s 6 of the Australia Acts.41 Accepting s 6 of the Australia Acts as the only source of enacting manner and form requirements for the states would reflect a compromise between competing public law principles. Section 6 empowers the state legislatures to entrench fundamental features of their constitutional systems (the ‘constitution, powers or procedure’ of the Parliament). This ensures stability in governance structure and also provides some safeguard against the abolition of principles—such as representative government— that are fundamental to our system of liberal democracy. However, it also ensures that beyond these core features of the system, the legislature of today is unable to impose its will upon the legislature of tomorrow, meaning that the statute books of the states are able to grow and transform with the societies they govern.

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Extra-territoriality In Chapter 2, we explained that the colonial parliaments were creatures of the UK Parliament and part of the British Empire. The colonies were wholly reliant on the UK to conduct foreign relations, and there was no power therefore for the colonies to legislate beyond their territorial boundaries.

37 38 39 40

41

The operation of this doctrine is further explained in Chapters 9 and 10. Flags Act 1953 (Cth) s 3(2). See, eg, Constitution Act 1867 (Qld) s 78; Constitution Act 1934 (SA) s 64A; Constitution Act 1975 (Vic) s 18 (entrenching pt IIA of that Act). See Bribery Commissioner v Ranasinghe [1965] AC 172. In Ranasinghe, the House of Lords held that a manner and form provision in the Ceylon Constitution was mandatory, and legislation that failed to comply with its provisions was invalid. The result in this case has come to stand for the principle that manner and form provisions in state constitutions are mandatory. See, eg, McGinty v Western Australia (1996) 186 CLR 140, 297 (Gummow J); Attorney-General (WA) v Marquet (2003) 217 CLR 545, 574 [80] (Gleeson CJ, Gummow, Hayne and Heydon JJ), 616 [214]–[215] (Kirby J). See also Anne Twomey, The Constitution of New South Wales (Federation Press, 2004) 297–8.

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Territoriality is no longer a limitation on the Commonwealth or state legislatures. Section 3 of the Statute of Westminster 1931 (UK) removed any restrictions upon the Federal Parliament in regard to extra-territorial legislation.42 At the state level, this restriction was removed in 1986 by s 2(1) of the Australia Acts, although there is a view that this restriction had, by this time, already been removed through common law development.43 While both the state and Commonwealth parliaments now have the power to legislate extra-territorially, there is a presumption of statutory interpretation that, in the absence of clear words, the statute will apply within the territorial limits of the jurisdiction.44 There are therefore two questions that must be asked: whether the Act was intended to operate extra-territorially, and, if it was, whether the Parliament has the constitutional capacity to legislate extra-territorially.45 For state legislation, there remains a requirement for a ‘sufficient nexus’ between the extra-territorial subject matter of the legislation and the state, but this test is applied liberally.46 Indeed the High Court has held that ‘even a remote and general connection … will suffice’.47 At the Commonwealth level, the High Court remains undecided as to whether a similar restriction exists on the Commonwealth Parliament’s power to legislate under s 51(xxix), with respect to ‘external affairs’.48 While passing extra-territorial legislation may be possible for federal and state legislatures, there are political and practical constraints on such legislation. Governments are limited in their power to enforce any law that applies in a foreign jurisdiction,49 and the states may be constrained from passing legislation into other Australian states by an implied constitutional principle of state immunity.50

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Constitutional limits The limits of Commonwealth legislative power are stated expressly in the Commonwealth Constitution. At the state level, it is necessary to look at both the Commonwealth Constitution and the state constitutions to understand the constitutional limits on the source and scope of state legislative power. Prior to federation, colonial constitutions conferred upon state legislatures a general or plenary power over all subject matters 42 43 44 45 46 47 48 49 50

Adopted in Australia by the Statute of Westminster Adoption Act 1942 (Cth). See Croft v Dunphy [1933] AC 156, which was applied in Australia in Pearce v Florenca (1976) 135 CLR 507. Jumbunna Coal Mine NL v Victorian Coal Miners’ Association (1908) 6 CLR 309, 363 (O’Connor J). Dennis C Pearce and Robert S Geddes, Statutory Interpretation in Australia (LexisNexis, 8th ed, 2014) 219–21 [5.9]–[5.10]. Union Steamship Co of Australia Pty Ltd v King (1988) 166 CLR 1. Ibid 14. See Horta v Commonwealth (1994) 181 CLR 183, 194; XYZ v Commonwealth (2006) 227 CLR 532. For example, consider a law that outlawed the dropping of litter on a Parisian street. Brennan J used this example of an extra-territorial law in Polyukhovich v Commonwealth (1991) 172 CLR 501, 552. Mobil Oil v Victoria (2002) 211 CLR 1.

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expressed in a grant of power to make laws for the ‘peace, order and good government’ of the colony, sometimes expressed as the ‘peace, welfare and good government’ of the colony. While described as plenary, this grant of power was subject to a number of limitations because of the status of the colonial parliaments as creatures of the UK Parliament. At the time of federation, the colonial constitutions and laws were ‘saved’ by s 106 of the Commonwealth Constitution, when the colonies were converted into states. Similarly, s 107 of the Constitution saved the power of the state Parliaments. In regard to state legislative power, s 2(1) of the Australia Acts states: ‘It is hereby declared and enacted that the legislative powers of the Parliament of each State include full power to make laws for the peace, order and good government of that State’ (emphasis added). At the state level, there is a further implied constitutional limitation that relates to whether state parliaments can abolish themselves entirely (at the federal level, of course, Parliament is entrenched in s 1 of the Commonwealth Constitution). While this has never been attempted, in Taylor v Attorney-General (Qld),51 the High Court noted in obiter dicta that the power of parliaments is unlikely to extend to their own abolition. Further, in the 2001 case of Durham Holdings Pty Ltd v New South Wales Kirby J commented:

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In Australia, a State is not free-standing. Nor is it merely an historical colony given a different name. It is a State of the Commonwealth. It derives its constitutional status, as such, from the federal Constitution. It may be inferred, from that Constitution, that a State is a polity of a particular character. Thus s 107 of the Constitution provides, and requires, that each State should have a parliament. Such parliaments must be of a kind appropriate to a state of the Commonwealth and to a legislature that can fulfil functions envisaged for it by the Constitution.52

This statement suggests that a legislature can reconstruct itself as long as this reconstruction does not involve a complete abdication of its legislative power and is compatible with our system of representative democracy. There is a potential limit on legislative power in the wording of the conferral of power in constitutions. In Australian constitutions, the conferral of legislative power is for ‘peace, order and good government’ (or ‘peace, welfare and good government’ in the New South Wales Constitution). For example, in Building Construction Employees and Builders’ Labourers Federation of New South Wales v Minister for Industrial Relations (‘BLF Case’),53 Street CJ used the famous judgment of Coke CJ in Dr Bonham’s Case to support the proposition that legislative power must be limited by fundamental common law principles. 54 His Honour said the words would prevent 51 52 53 54

(1917) 23 CLR 457. (2001) 205 CLR 399, 431 (emphasis added). (1986) 7 NSWLR 372, 386. (1610) 8 Co Rep 114; 77 ER 646. See Chapter 2.

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‘tyrannous excesses on the part of a legislature that may have fallen under extremist control’.55 Street CJ went on: laws inimical to, or which do not serve, the peace, welfare and good government of our parliamentary democracy … will be struck down by the courts as unconstitutional. There is here a field of constitutional jurisprudence which has not yet been explored and developed. It may well be significant in the years ahead.56

Despite Street CJ’s predictions, the words ‘peace, order and good government’ have never been held to place any limits on state legislative power.57 In Grace Bible Church v Reedman,58 for example, White J explained the potential for chaos that such vague words could lead to if read as a limitation on legislative power: If the court could substitute its own opinion for the Parliament’s opinion as to what is a law for the peace, welfare and good government of the State (or if a judge could uphold every man’s opinion that a particular law was invalid because it was not a good law) we would not be living under the rule of law but in a state of chaos.59

White J’s point is that courts could use these words to read in a natural law concept of fundamental rights or principles. This would undermine the democratically elected legislature which, under our system of government, has the primary responsibility for protecting rights (we discuss this further in Chapter 12). In Union Steamship Co of Australia v King, the High Court stated that the words ‘peace, order and good government’ in the Commonwealth Constitution are a conventional formula used by the UK Parliament when conferring plenary power.60 The Court did, however, leave open the possibility that there may be some limitation on state legislative power rooted in the common law, or perhaps in the democratic system of government.61

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Extreme laws The absence of an express limit on legislative power in Commonwealth and state constitutions leaves open the question: What are the limits of Parliament’s legislative

55 56 57 58 59 60

61

(1986) 7 NSWLR 372, 386. Ibid 387. See, eg, Union Steamship Co of Australia Pty Ltd v King (1988) 166 CLR 1, 9–10. (1984) 68 SASR 200. Ibid 210. (1988) 166 CLR 1. But see Durham Holdings Pty Ltd v New South Wales (2001) 205 CLR 399. The strongest argument for these words being read as a limitation on state legislative power can be found in the judgment of Street CJ in Building Construction Employees and Builders’ Labourers Federation of New South Wales v Minister for Industrial Relations (1986) 7 NSWLR 372 (‘BLF Case’). (1988) 166 CLR 1, 10. Such a limit was referred to by Gaudron, Gummow and Hayne JJ in Durham Holdings Pty Ltd v New South Wales (2001) 205 CLR 399, 410, but again the justices found it unnecessary to consider the possibility in any depth.

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power? Is there anything, for example, to prevent Parliament passing an extreme law? According to Dicey, sufficient controls exist outside the law in the operation of the administrative state and through the will of the people in the democratic process to protect the state and its people from the passing of extreme laws by Parliament.62 As an example of an extreme law, Dicey drew on a scenario discussed by Leslie Stephen of a law requiring the death of all blue-eyed babies. In the face of such a law, Dicey was content to rely on the fact that ‘legislators must go mad before they could pass such a law, and subjects be idiotic before they could submit to it’.63 This response rather begs the question. For in the absence of criteria for assessing the sanity of Parliament, or some guarantee that the people will never be sufficiently dull to allow the passing of an extreme law, the question remains whether there are inherent legal limits to Parliament’s law-making power. This question has occupied the constitutional courts in many jurisdictions, with judges around the world divided on the existence of inherent limits on legislative power. In states such as the UK, without a written constitution, limits must be found in the rule of law. In Australia, the High Court has suggested that the rule of law is an implicit part of the Australian constitutional system.64 However, the High Court has never relied on the rule of law to invalidate a law of the Parliament.65 The question of implied limits on Parliament’s power arose during argument in Kartinyeri v Commonwealth,66 a case concerning the extent of the power of Parliament to make laws detrimental to Aboriginal and Torres Strait Islander peoples under s 51(xxvi) of the Constitution (which gives the Commonwealth Parliament the power to make laws with respect to ‘the people of any race for whom it is deemed necessary to make special laws’).67 The issue led to the following exchange: Kirby J: … is the Commonwealth’s submission that it is entirely and exclusively for the parliament to determine the matter upon which special laws are deemed necessary … or is there a point at which there is a justiciable question for the Court? I mean, it seems unthinkable that a law such as the Nazi race laws could be enacted under the race power and that this Court could do nothing about it.

62 63 64

65 66 67

Dicey, above n 17, ch 1. Leslie Stephen, The Science of Ethics (Smith, Elder and G P Putnam’s Sons, 2nd ed, 1907) 143. See, eg, Australian Communist Party v Commonwealth (1951) 83 CLR 1, 193 (‘Communist Party Case’) (Dixon J): ‘[The Constitution] is an instrument framed in accordance with many traditional conceptions, to some of which it gives effect, as, for example, in separating the judicial power from other functions of government, others of which are simply assumed. … Among these I think that it may fairly be said that the rule of law forms an assumption.’ See further discussion in Lisa Burton-Crawford, The Rule of Law and the Australian Constitution (Federation Press, 2017). (1998) 195 CLR 337. Section 51(xxvi) is discussed further in Chapter 3.

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Griffith QC [Commonwealth Solicitor-General]:68 Your Honour, if there was a reason why the Court could do something about it, a Nazi law, it would, in our submission, be for a reason external to the races power. It would be for some wider over-arching reason.69

The Solicitor-General did not concede that there were limits to Parliament’s power to make laws inherent in the terms of the grant of power, but hinted at other limits that might exist in the Constitution, perhaps in the rule of law, as discussed above.

The relationship between the houses of Parliament

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Since federation, the Commonwealth Parliament has passed an average of 108 Acts per year, with 10 per cent of these being initiated in the Senate. On average, four Bills per year are initiated by private members.70 In 2015, out of 208 presented Bills, 177 were enacted and 31 of these Bills were amended, with a total of 195 agreed amendments.71 Of these 208 presented Bills, 109 of these Bills were referred to a parliamentary committee.72 In the same year, the Senate tabled over 170 reports, received 13,657 submissions and heard 8808 witnesses.73 In contrast, in the 2015/ 16 financial year, the House of Representatives tabled 72 committee reports. While these statistics are somewhat crude, they indicate the nature and volume of work undertaken by each of the two houses, with the upper house, the Senate, being the house of review and the lower house being the main house for initiating Bills. Although Parliament speaks as a single entity through enacted legislation, this hides a complex relationship between the two elected houses in Australia’s bicameral parliaments.74 As a result of pre-federation colonial struggles (which we discussed further in Chapter 2), Australia has a model of elected upper houses in its bicameral parliaments, which contribute robustly to the workings of Parliament. Upper houses 68

69 70 71 72 73 74

The Solicitor-General is one of the government’s most senior lawyers. They provide legal advice to the executive on important issues and represent the executive in the High Court, particularly in constitutional matters:  Gabrielle Appleby, The Role of the Solicitor-General:  Negotiating Law, Politics and the Public Interest (Hart Publishing, 2016). Transcript of Proceedings, Kartinyeri v Commonwealth [1998] HCATrans 13 (5 February 1998). See Department of the House of Representatives, Parliament of Australia, Legislation Statistics (1 March 2018). See Parliament of Australia, Senate Statistics for 2015, . Parliament of Australia, Bills or Provisions of Bills Referred to Committees 2015, . Senate, Parliament of Australia, Consolidated Statistical Overview (year) 1 January 2015–31 December 2015, . All but three Australian parliaments are bicameral—Queensland, the Northern Territory and the Australian Capital Territory are the exceptions.

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commonly reject legislation and frustrate the legislative agenda of governments formed in the lower house. According to constitutional law expert Professor Cheryl Saunders, there is ‘deep ambivalence in Australia about the role of the Senate’. This is because, on the one hand, it ‘clearly runs counter to majoritarian democracy’ while, on the other hand, it ‘dilutes the concentration of authority in an executive government’.75 The generally equal power of the upper houses in Australia’s parliaments is unusual among democracies with their origin in Westminster. By way of comparison, the upper house in the UK Parliament—the House of Lords—is made up of about 800 people, most of whom are appointed to the house by the monarch on the advice of the Prime Minister (life peers), 92 people who have inherited a peerage and have been called to sit in the House of Lords by a writ of summons (hereditary peers),76 and 26 archbishops and bishops of the Church of England (spiritual lords). The House of Lords scrutinises legislative proposals, but cannot reject them. At most, the Lords can delay a Bill for a year, after which the House of Commons can reintroduce it for royal assent without it passing through the House of Lords. In relation to money Bills (Bills that impose taxation or that appropriate money for government expenditure), once the Bill has entered the upper house it must receive royal assent within a month, even if the Lords have not passed it.77 Members of the Senate in the Canadian Parliament are appointed by the Governor-General on the advice of the Prime Minister who is advised by the Independent Advisory Board for Senate Appointments, established in 2016. Appointment is until the age of 75. Although the Canadian Senate has the same powers as the Canadian House of Commons except in relation to money Bills, it is rare for the Senate to reject legislation originating in the Commons, and its function is more akin to that of the House of Lords in the UK Parliament. The convention of upper house deference to the lower house in the UK and Canada is consistent with their lack of democratic legitimacy. The Commonwealth Constitution has a provision for dealing with legislative deadlocks between the federal Houses of Parliament through s 57 of the Constitution. If the Senate rejects a Bill originating in the House of Representatives twice with an  interval of three months between each rejection, s 57 provides a procedure by which  the Governor-General can dissolve both houses of Parliament. In the new Parliament, if the government is returned to office, it may again try to pass the proposed law. If the Senate rejects the Bill a third time, the Governor-General may convene a joint sitting of the houses. Similar provisions exist in state constitutions. 75 76 77

Cheryl Saunders, The Constitution of Australia: A Contextual Analysis (Hart Publishing, 2011) 128. Note that the place of hereditary peers in the House of Lords is progressively decreasing. The powers of the House of Lords are set out in the Parliament Act 1911, 1  & 2 Geo 5, c 13, and the Parliament Act 1949, 12, 13 & 14 Geo 6, c 103.

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The procedure in s 57 effectively creates a single house for the deliberation of proposed  laws that fail to pass both houses during the normal course of the lawmaking process. While the double dissolution process has taken place seven times, with the last time being in 2016 when the Turnbull Coalition Government was successfully re-elected, a joint sitting has only occurred once, in 1974. In Australia, the upper house is subordinate to the lower house in regard to money Bills: that is, tax Bills and supply, or appropriation, Bills. For instance, under s 53 of the Commonwealth Constitution, proposed laws relating to the raising of monies through taxation (tax Bills) and the appropriation of monies for expenditure on government programs (supply Bills) cannot originate in the Senate, and the Senate cannot amend proposed laws on these two subject matters that have been passed by the House of Representatives. Money Bills are clearly fundamental to the ability of an elected government to function. There is good reason, then, for the House of Representatives to have more control over tax and appropriation laws than ordinary legislation. Surprisingly, while s 53 creates a special procedure for the passing of money Bills, it is silent on the question of whether the Senate can reject money Bills, and it does not expressly require the Senate to bring them on for debate in the house. Only once has the Senate of the Commonwealth Parliament exercised its power to refuse to pass an appropriation Bill. This event occurred during the term of the Whitlam ALP Government in the 1970s. The Whitlam Government, elected on 2 December 1972, was the first national ALP Government for 23 years. It came to office with an ambitious legislative agenda but without a majority in the Senate. As discussed in Chapter 5, the six-year term for senators is by nature a conservative innovation, and can act as a significant brake on an ambitious first-term government. During the course of the Whitlam Government’s first year in office, the Senate rejected many Bills sent to it from the lower house. Whitlam sought a double dissolution election under s 57 in relation to six Bills that the government claimed had been twice rejected by the Senate. The Governor-General Sir Paul Hasluck granted a double dissolution election in relation to the six Bills on 11 April 1974. At the election held on 18 May 1974, the ALP was returned to office, with a majority of five seats in the House of Representatives. The Senate was evenly balanced, with the ALP securing 29 seats, the Liberals 23 seats and the Country Party six seats. Two independents held the balance of power in the house of 60 members. After the Senate had once again rejected the six Bills, the new Governor-General, Sir John Kerr, granted a joint sitting of the houses to be held on 6 August 1974, the first and only joint sitting of the Commonwealth Parliament to date. Five days before the joint sitting, two Liberal Party senators brought an action in the High Court seeking a declaration that the proclamations granting the election and the joint sitting were

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invalid on the basis that the procedure in s 57 had not been satisfied. The High Court refused to intervene on the basis that the matter was still before Parliament and it would be inappropriate for it to interfere directly in its affairs.78 At the joint sitting, all six Bills were passed into law, including the Senate (Representation of Territories) Act 1973 (Cth), discussed in Chapters 4 and 5. However the validity of one of the Acts, the Petroleum and Mineral Authority Act 1974 (Cth), was challenged successfully in 1975 in Victoria v Commonwealth and O’Connor (‘PMA Case’) on the basis that the procedure in s 57 had not been complied with.79 As stated above, the Senate was evenly balanced in 1974. The death of an ALP Senator in June 1975 and his replacement with a senator who did not support the Labor Government meant that the opposition had the numbers in the Senate to block supply. Throughout 1975, the government had been rocked by political and economic scandals that resulted in the resignation of senior ministers, and it was widely believed that the opposition would easily win an election if one were to be held in 1975. After the government delivered its budget on 19 August 1975, the opposition parties in the Senate made the decision to defer (and not pass) the appropriation Bills in the hope that this would force the government to call an election. The Senate passed the following motion:

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This Bill be not further proceeded with until the Government agrees to submit itself to the judgment of the people, the Senate being of the opinion that the Prime Minister and his Government no longer have the trust and confidence of the Australian people because of—

78 79

80

(a)

the continuing incompetence, evasion, deceit and duplicity of the Prime Minister and his Ministers as exemplified in the overseas loan scandal which was an attempt by the Government to subvert the Constitution to by-pass Parliament and to evade its responsibilities to the States and to the Loan Council;

(b)

the Prime Minister’s failure to maintain proper control over the activities of his Minister and Government to the detriment of the Australian nation and people; and

(c)

the continuing mismanagement of the Australian economy by the Prime Minister and this government with policies which have caused a lack of confidence in this nation’s potential and created inflation and unemployment not experienced for 40 years.80

Cormack v Cope (1974) 131 CLR 432. (1975) 134 CLR 81. In relation to the Petroleum and Mineral Authority Bill 1973 (Cth), the Senate had deferred consideration of the Bill in December 1973, and Parliament was dissolved before the Senate had considered the Bill a second time in the next parliamentary session. See the extract in Sir John Kerr, Matters for Judgment: An Autobiography (MacMillan, 1978) 260.

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Whitlam advocated a political solution to the crisis, while the Governor-General, Kerr, would eventually turn to a legal solution in the exercise of the reserve powers, demonstrating appeals to different aspects of the public law of the state. The view of the Whitlam Government was that since the lower house was the popularly elected house in which government was formed, it was undemocratic and possibly unconstitutional for the opposition to block supply in the Senate. It refused to resign, demanding that the opposition pass the appropriation Bills. In the meantime, the government looked for ways to secure supply, such as calling a half Senate election, or using other means to raise money to allow the government to operate in the absence of supply. The opposition asserted its constitutional right to block supply. It argued that without supply, the government was obliged to call a general election. The period between the deferral of the appropriation Bills on 16 October 1975 and the resolution of the issue on 11 November 1975 is commonly referred to as a time of ‘constitutional crisis’, with a stand-off between the houses. The future of effective government was in jeopardy until the Prime Minister agreed to call an election, or the Senate agreed to pass the appropriation Bills. The crisis was resolved when the Governor-General exercised the reserve powers to dismiss the Whitlam Government, and appoint Malcolm Fraser, then Leader of the Liberal/National Coalition Opposition, as caretaker Prime Minister on the condition that he would secure supply (which was possible given that he had the support of a majority of members in the Senate), and that he would immediately request the dissolution of the Parliament for a general election to be held. This duly occurred and the Fraser Liberal/National coalition won the ensuing election. After the constitutional crisis of 1975, it is still open to the Senate to delay the passage of supply Bills under s 53. If circumstances similar to 1975 were to occur again, there is no obvious legal solution to the crisis. However, if the government were to keep the Governor-General within its confidence—which many consider to be Whitlam’s most important tactical error in 197581—an exercise of the reserve powers to resolve a similar crisis might not be so readily available. The solution to avoiding a future constitutional crisis of this nature thus appears to be political, not constitutional.

Parliament and the executive:  the quest for control In Australia, the site of legislative power cannot be properly understood without a close analysis of the relationship between the executive and the Parliament. The 81

See generally Paul Kelly, The Dismissal: Australia’s Most Sensational Power Struggle: The Dramatic Fall of Gough Whitlam (Angus & Robertson, 1982).

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embedding of the executive in the Parliament is a defining feature of the Westminster system. It has several implications. First, it means that actions of the executive government are done with the confidence of Parliament; that is, since the executive government is constituted of members from the majority in the lower house, and since the members of the ruling party as a whole support the policy decisions of the Prime Minister and Cabinet, those decisions effectively have the endorsement of the popularly elected House of Parliament. From another perspective, the embedding of the executive in the Parliament has contributed to the executive dominance of Parliament, with only government members having an effective voice in the lower house.

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Control of the legislative process Although it is Parliament as a whole that makes laws, the executive government is in control of the legislative process. The government has at its disposal the departments of the state with their policy makers, researchers and legislative drafters to turn ideas into Bills for the Parliament to consider, and is thus able to generate the bulk of business for Parliament. About two-thirds of parliamentary sitting time is devoted to government business and one-third to matters raised by private members,82 committee business and other non-government matters.83 Without the backing of at least some members of the governing party, private members do not have the numbers to carry a motion to bring Bills to the Parliament for consideration, let alone pass the Bills into law. Since 1988 there has been a dramatic increase in the number of private members’ Bills introduced into the House. From federation to 1988, 103 private members’ Bills were introduced into the House, but by the end of 2015 this figure had risen to 453.84 Australia’s 43rd Parliament (2010–13) was a hung Parliament and in both 2011 and 2012 the number of private members’ Bills presented (23 in each year) was the most in any year since the Parliament was established.85 A report of the Australian Parliamentary Library found that in the first year of the hung Parliament, ‘the time devoted to private members’ business more than doubled’ in comparison with the previous Parliament.86 Despite this, since 1901, only 28 non-government

82 83

84 85 86

A private member is defined as any member of the House of Representatives other than the Prime Minister, the Speaker, a Minister or a Parliamentary Secretary. Parliament of Australia, House of Representatives Infosheet 6: Opportunities for Private Members, . Ibid. Parliament of Australia, Legislation Statistics 1901–2012, . Janet Wilson, The Hung Parliament: The First Year (FlagPost, 12 October 2011), .

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Bills have passed into law,87 indicating that the executive generally holds tight control of both the legislative agenda and process.

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Control of information To hold the executive to account, Parliament needs information about the decisions and actions of the executive. There is a constant tension between the executive government and Parliament over control of information. From Parliament’s point of view, it can only effectively hold the government to account for its policy decisions if it has access to information relevant to those policy decisions. While it is open to MPs to do their own research and rely on their own information, they cannot possibly hope to gather the depth or breadth of information that is available to the government. Parliament uses various mechanisms to gain access to government information. We have already discussed earlier in this chapter parliamentary privilege, and how the New South Wales Legislative Council used its privileges to hold the Treasurer Michael Egan in contempt and have him suspended from Parliament for failing to table government documents that the house had requested. The Senate in the Commonwealth Parliament can similarly request information from a government Minister by passing a motion asking for its disclosure, and has the power to hold ministers in contempt for failing to disclose requested information. A Minister faced with a request for information can claim public interest immunity over a limited category of official state documents, but legal professional privilege cannot be claimed to resist a parliamentary call for documents.88 The mere fact of a document being an official state document is not, however, sufficient to sustain a claim for immunity. The executive can only claim immunity for Cabinet documents,89 and the courts have been clear that any immunity is limited to ensuring the effective working of government, and not to protecting ministers or other public servants.90 In relation to determining whether such a claim is validly made, the courts have indicated they will generally leave this question to the Parliament.

87

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89 90

Of these 28 Bills, 22 were introduced by private members or private senators and six by the Speaker or President of the Senate:  Parliament of Australia, above n 86. The reforms in the Agreement for a Better Parliament, 20 October 2010—agreed to by the Liberal and ALP Parties and three independent members during the negotiations to form a government in the hung Parliament following the 2010 election—included new rules for the consideration of private members’ Bills. See Agreement for a Better Parliament (2010), . But see Sir Anthony Mason, ‘The Parliament, the Executive and the Solicitor-General’ in Gabrielle Appleby, Patrick Keyzer and John M Williams (eds), Public Sentinels: A Comparative Study of Australian Solicitors-General (Ashgate, 2014) 49. Egan v Chadwick (1999) 46 NSWLR 563, 574–575 (Spigelman CJ), 597 (Meagher J). Sankey v Whitlam (1978) 142 CLR 1, 40 (Gibbs ACJ).

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In Egan v Chadwick, Spigelman CJ of the New South Wales Court of Appeal explained: Where the public interest to be balanced involves the legislative or accountability functions of a House of Parliament, the courts should be very reluctant to undertake any such balancing. This does not involve a constitutional function appropriate to be undertaken by judicial officers.91

Following this case, in New South Wales, the balancing exercise is undertaken by way of the procedure set out in Legislative Council Standing Order 52.92

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Question time Question time is an important mechanism by which Parliament can request information from the government and hold it to account for the implementation of its programs and for its policy decisions. When Parliament is in session, question time occurs daily, enabling members to ask questions of ministers. Questions alternate between non-government and government members. Non-government members use question time to seek information from ministers on the implementation of policy. They target policies in which the Minister, the relevant department, or the government as a whole is considered to be vulnerable to criticism; or, worse, to be misleading Parliament. Opposition members generally frame their questions in such a way that they can air their grievances openly and forcefully. Ministers are required to answer questions; however, it is often alleged that their answers do not properly address the question asked. Questions from the government side are generally self-serving, giving ministers the opportunity to outline their achievements. Ministers commonly prepare questions for government members to ask them; these questions are known as ‘Dorothy Dixers’.93 In response to proposals in the Agreement for a Better Parliament,94 the Gillard ALP Government introduced a series of reforms to question time.95 The government imposed stricter time limits on questions and answers, and altered the rules around the use of supplementary questions. The House Standing Committee on Procedure, Inquiry into Procedural Change, noted that stricter time limits on questions and answers had 91 92 93

94 95

(1999) 46 NSWLR 563, 574. Anne Twomey, ‘Executive Accountability to the Senate and the New South Wales Legislative Council’ (2008) 23 Australasian Parliamentary Review 257. Dean Jaensch, The Politics of Australia (Macmillan, 2nd ed, 1997)  110; Michael Barker, ‘Accountability to the Public:  Travelling Beyond the Myth’ in P D Finn (ed), Essays on Law and Government, Volume 1: Principles and Values (Lawbook , 1995) 228, 245. Agreement for a Better Parliament: Parliamentary Reform, above, n 86. House of Representatives Standing Committee on Procedure, Parliament of Australia, Inquiry into the Procedural Changes Implemented in the 43rd Parliament: 4th Report (2012) 31 [4.3].

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had a tangible effect on the length of both questions and answers, thus potentially enabling more questions to be asked and addressed during the question time period each sitting day.96 It also noted a substantial increase in supplementary questions from government, opposition and non-aligned members.97 In relation to content of questions and answers, the Speaker always faces a difficult challenge to keep questions focused on aspects of government activity, and to keep answers relevant to responding to questions. In response to the Agreement for a Better Parliament, the House of Representatives standing orders were amended to reflect a renewed emphasis on relevance.98 However, the Inquiry into Procedural Changes noted that Speakers continued to experience difficulty in applying the concept of relevance to questions and answers.99 Another important parliamentary mechanism for expressing disapproval of the government or of individual ministers is the censure motion. Such motions are used to censure the government or a Minister in relation to particular failures in public administration, or for failing to respond to requests from Parliament. Censure motions are usually only successful in the Senate, where the government does not necessarily have a majority. However, in the case of a hung Parliament in the House of Representatives, an independent member in the governing majority may agree to suspend Parliament and entertain a censure motion, while refraining from entertaining a vote of no confidence in the government.100 Censure motions might be accompanied by Senate committee inquiries into ministerial conduct. Such inquiries are conducted by committees of the Senate and are discussed below. Even the prospect of an inquiry can encourage greater government accountability.101

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The role of the presiding officers In the Commonwealth Parliament, the Presiding Officer of the House of Representatives is known as the Speaker, and the Presiding Officer of the Senate is known as the President. These officers have responsibilities calling on items of business, determining who has the right to speak, enforcing the rules of the house (the Standing Orders), and

96 97 98

Ibid 32 [4.4]–[4.8]. Ibid 36–7 [4.22]. House of Representatives, Parliament of Australia, Standing and Sessional Orders, 4 December 2017, O 104(a); Agreement for a Better Parliament: Parliamentary Reform, above n 86, 3 (cl 4.5). 99 House of Representatives Standing Committee on Procedure, above n 98, 37–8 [4.26]. 100 During the term of the ALP minority government of 2010–13, Andrew Wilkie, the independent member for Denison, considered voting to censure the government while maintaining his confidence in the government. See Paul Osborne, ‘Labor Lift as Abbott Seeks Censure Motion’, Sydney Morning Herald (online), 30 January 2012, . 101 Harry Evans and Rosemary Laing, ‘Relations with the Executive Government’ in Harry Evans and Rosemary Laing (eds), Odgers’ Australian Senate Practice (Department of Senate, 14th ed, 2016) ch 19.

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overseeing voting in the house. The Speaker and the President also act as the house’s spokesperson, including between the houses, and are responsible for the administration of the Department of Parliamentary Services, as well as the departments of the House of Representatives and the Senate respectively. The officers are elected from the floor of the house; indeed, electing a Presiding Officer is the first action that a house will take following an election. In Australia, presiding officers continue to be members of their political party, with some even continuing to attend party meetings. This practice has proven particularly controversial in relation to the Speaker in the House of Representatives, with allegations that the Australian speaker is not sufficiently independent to impartially enforce the parliamentary rules against government members. In contrast, in the UK, the Speaker, upon being elected, resigns from their political party. In future elections, the Speaker then runs for the role of Speaker, and not as a member of a political party. By convention, the major parties do not run candidates against the Speaker. Thus, the Speaker is said to speak ‘for Parliament, not for the government’, and is able to enhance Parliament’s capacity to hold the executive to account.102

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Parliamentary committees In the financial year 2006–07, the Commonwealth Parliament enacted 8198 pages of legislation as well as 31,439 pages of other legislative instruments.103 It would clearly be impossible for a single member of Parliament to be able to read and scrutinise this volume of law. The need to scrutinise the increasing volume of law, in addition to the activities of the government, was one of the reasons given for the birth of the parliamentary committee system in the 1920s whereby small groups of senators scrutinise law and report back to the Senate as a whole. Committees perform many important functions on behalf of Parliament and, at any one time, in the Commonwealth Parliament there are often over 60 committees functioning. The role of committees can broadly be divided into two categories: scrutiny of legislative action and scrutiny of executive action, with a special role for committees in the scrutiny of the government’s budget and expenditure through the estimates committees. At the federal level, each house has its own committees and there are joint committees, such as the Joint Standing Committee on Treaties, which draw their membership from both houses. The two main types of committees are standing 102 Ryan Goss, ‘A Truly Independent Speaker Could Renew Australia’s Parliamentary Democracy’, The Conversation (online), 21 July 2015, . 103 Productivity Commission, Australian Government, Performance Benchmarking of Australian Business Regulation: Quantity and Quality (2008) xv.

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committees (appointed for the life of a Parliament) and select committees (appointed for a specific purpose). As the ‘house of review’, the Senate has the stronger system of committees which aim to better inform the Parliament of the views of experts or the community. Serving on committees is important particularly for backbenchers, who may sit on up to 10 committees at a time.104 Many members may have expertise relevant to the committee while others may be primarily interested in promoting partisan politics.

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Legislative scrutiny by committees Some committees are involved in the legislative function of scrutinising proposed laws. For instance, both the Senate Standing Committee for the Scrutiny of Bills and the Parliamentary Joint Committee on Human Rights scrutinise each and every Bill for their implications respectively. The Scrutiny of Bills Committee looks at the Bill by reference to whether it unduly trespasses on personal rights and liberties, how it frames administrative powers and whether they are subject to review, and the appropriate delegation of legislative powers. The Parliamentary Joint Committee on Human Rights looks at whether the legislation infringes international human rights. These are known as legislative scrutiny committees and they make particular use of the explanatory memoranda and statements of (human rights) compatibility that accompany all introduced Bills (see Chapter  12 in regard to the latter). These committees regularly engage with the executive in seeking further information or explanations from ministers and their departments. The oldest legislative scrutiny committee is the Senate Standing Committee on Regulations and Ordinances, which monitors subordinate legislation—such as regulations, determinations, orders, guidelines and standards—made by the executive under existing legislation. These are very detailed instruments in contrast to the broad principles set out in legislation. Given the delegated nature of these instruments, they must be tabled in both houses of Parliament and can be disallowed by either house. With the assistance of an independent legal adviser, the Committee checks all these ‘disallowable instruments’,105 which is on average about 2000 a year, to ensure that they accord with their relevant Act, that they do not trespass on personal rights and liberties, that there is a possibility of administrative review, and that they should not be more appropriately enacted as part of legislation.

104 In the Commonwealth Parliament, most MPs sit on committees with the exception of ministers and parliamentary secretaries. 105 ‘Disallowable instruments’ are ‘all regulations, ordinances and other instruments made under the authority of Acts of the Parliament, which are subject to disallowance or disapproval by the Senate and which are of a legislative character’: see Senate Standing Order 23(2). See Chapter 7 for more discussion of delegated legislation.

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In addition to the scrutiny that is conducted of every legislative instrument by these generalist committees, half of all Bills introduced into the Senate are referred to a more specialised policy committee.106 While Senate committees themselves cannot amend any Bills, the Senate can choose to pass a motion to adopt a committee’s report and thereby adopt any amendments recommended by the committee.107 Not all committees make recommendations; some, such as the legislative scrutiny committees, simply ‘alert’ Parliament so as to draw its attention to an issue. At the state level, only the larger parliaments as well as the ACT Parliament have legislative scrutiny committees to scrutinise each and every bill in light of common law rights and, in the case of Victoria and the Australian Capital Territory, in light of legislative human rights.108 The smaller jurisdictions, such as South Australia, do not have such Bill scrutiny committees; this means that there is no mechanism to monitor Bills that trespass on personal rights and liberties, or other fundamental principles.109

Scrutiny of executive action by committees

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The committee system is perhaps the most important and best-functioning aspect of the parliamentary accountability system.110 One role of committees in recent times has been to investigate particular incidents involving the executive. In performing this function, committees are quite different from executive-appointed commissions of inquiry, such as royal commissions. This is because when the government does not have a majority in the Senate, the Senate can form a committee with a majority of non-government members, and therefore establish its own terms of reference that focus on bringing the executive to account. The Senate Select Committee on a Certain Maritime Incident is a good illustration of a committee established to scrutinise executive action,111 and the difficulties such committees face. The Committee was appointed to inquire into the so-called ‘Children

106 This percentage has risen dramatically after 1990 following a 1988 report of the Select Committee on Legislation Procedures. See Rosemary Laing, ‘Legislation’ in Evans and Laing, above n 101, ch 12. 107 Ibid. 108 For example, the Australian Capital Territory has a Justice and Safety Committee, New South Wales has a Legislative Review Committee under s 8A of the Legislation Review Act 1987 (NSW), Queensland has a Scrutiny of Legislation Committee under s 80 of the Parliament of Queensland Act 2001 (Qld), and Victoria has a Scrutiny of Acts and Regulations Committee under s 17 of the Parliamentary Committees Act 2003 (Vic). See Chapter 12 in regard to the Victorian and Australian Capital Territory Bills of Rights frameworks. 109 Note that these smaller parliaments do have committees to scrutinise all subordinate legislation. See Laura Grenfell, ‘An Australian Spectrum of Political rights Scrutiny: ‘Continuing to Lead by Example?’’ (2015) 26 Public Law Review 19. 110 Michael L Barker, ‘Accountability to the Public: Travelling beyond the Myth’ in P D Finn (ed), Essays on Law and Government: Volume 1—Principles and Values (Lawbook, 1995) 228, 248. 111 Senate Select Committee on a Certain Maritime Incident, Parliament of Australia, Majority Report (2002), xxviii.

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Overboard’ incident, among other matters relating to the procedures by which asylum seekers were processed in Australia at that time. The ‘Children Overboard’ incident refers to an announcement by the Minister for Immigration on 7 October 2001 that ‘a number of children had been thrown overboard’ from a vessel on its way to Australia carrying asylum seekers. It was a story that was repeated by the Prime Minister, the Minister for Defence and other ministers leading up to the federal election on 10 November 2001. The story was untrue. The issue the Committee was required to investigate was how the story had originated, at what point the government knew the story to be untrue, and why it took so long to correct the story. Ultimately, the Committee was investigating whether the ministers knew the story was untrue well before they revealed this to Parliament and the Australian people. Despite the Committee’s powers (which we consider in greater depth, below), throughout its investigations it had enormous difficulty accessing departmental witnesses and documents, severely undermining its investigations and its ability to draw conclusions about the knowledge of the Prime Minister or other ministers regarding the truth of the ‘Children Overboard’ incident.112 There are a number of examples of this. First, on three separate occasions Peter Reith, the Defence Minister at the time of the ‘Children Overboard’ incident, was formally requested to appear. Each time he rejected the request. While the Committee had legal advice that it had power to compel Reith to appear, it decided not to on the basis that any summons would likely have resulted in a legal challenge and protracted litigation that would cost the taxpayer a large amount of money.113 Another reason for the decision not to challenge the Minister’s refusal to appear may have been that opposition parties are tentative about deploying all of Parliament’s powers against the executive for fear of establishing a precedent that could be used against them when they are in government. Second, a Cabinet decision ordered ministerial staff and public servants working in the ministerial office at the time of the ‘Children Overboard’ incident not to appear before the Committee. Third, the Defence Minister at the time of the Committee hearings, Senator Robert Hill, also denied the Committee access to members of the Australian Defence Organisation. Fourth, the Committee sought to interview many of the asylum seekers involved in the incident. However, they refused as they were being detained outside Australia, and therefore their evidence could not be guaranteed the protection of parliamentary privilege.114 Finally, the Committee requested documents

112 Ibid xxiv. 113 Ibid xv. 114 Ibid xvi.

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from the Department of Defence, but ‘key documents were withheld for an inordinate length of time’ .115 The Chair’s Foreword to the Committee’s report concluded: ultimately the Executive, in the form of the Cabinet, checked the inquiry’s ability to examine relevant witnesses. This meant the Executive was able to exercise its power to prevent full parliamentary scrutiny of itself. This is not open government.116

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The Committee’s findings were also undermined by the partisan split between its government and non-government members. The government members issued a separate dissenting report. It referred to the majority report in the following terms: ‘The “Children Overboard” Inquiry was nothing more and nothing less than a political show-trial, driven by the misplaced sense of self-righteous outrage by the ALP at its defeat at the 2001 Federal elections’ .117 The language of the minority report highlights the partisan politics that can infiltrate the committee system and parliamentary accountability mechanisms more generally. The control of Parliament by the executive is of fundamental concern in the context of Parliament’s role in holding the executive to account. The executive necessarily controls the House of Representatives, but also has other powers over Parliament. Committees are often dominated by the government’s political party, and rely heavily on matters referred from the main parliamentary chamber, which will also be influenced by political agendas.118 In late 2010, the New South Wales Keneally ALP Government was involved in an incident that demonstrates how parliamentary committees mesh with this political agenda. The Premier advised the Governor to prorogue Parliament three months before the state election; many believe this was to avoid the scrutiny of a Legislative Council committee inquiring into the government’s privatisation of the state’s electricity business.119 Upper house committees are harder for the government to control and hence they are generally considered to be more capable of holding the executive to account.

Estimates committees and annual reports In regard to scrutiny and oversight, Senate committees play a significant role in inquiring and reporting on government budget proposals. These are known as estimates of expenditures, and can be found in the appropriation Bills introduced

115 116 117 118

Ibid xiv. Ibid xvii. Ibid 477 [2]. Marian Sawer, Norman Abjorensen and Phil Larkin, Australia: The State of Democracy (Federation Press, 2009) 155. 119 Imre Salusinzky, ‘Premier Admits to Power Play’, The Australian, 18 January 2011, 7.

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as part of the budget every May and in the additional appropriation Bills introduced each November. Operating on a twice-yearly basis, the estimates function of Senate committees does not require references from the main chamber. These estimates hearings are important as they provide an opportunity for nongovernment senators to question directly officers of the public service who are proposing the items of expenditure under consideration.120 The questioning during estimates hearings is wide ranging, and questions are not confined to the financial information in the estimates but often focus on broader issues of policy. While the majority of questions are answered by officers of the public service, the responsible Minister usually attends the public hearings to respond to questions about policy matters. Senate committees also monitor the performance of government departments and agencies by examining their annual reports.121 The theory is that Senate committees will ensure that each annual report is satisfactory, and may follow up any issues with an inquiry. In practice, however, limited attention is given to annual reports because of the finite time and resources of committees and the fact that such reports are often seen as public relations devices rather than accountability mechanisms.122 Thus, according to Paul Thomas, the potential for these reports as a mechanism for holding the executive to account is ‘not fulfilled’.123

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Powers of committees Committees table their reports in the house in which their membership is constituted. By convention, the government has a responsibility to respond to committee reports, but these responses are often delayed and there is no formal convention by which the committees can hold the government to account over its response or its failure to implement the committee’s recommendations.124 Timing is particularly a concern for the legislative scrutiny committees; at times the Parliamentary Joint Committee on Human Rights has tabled its report after a Bill has been passed, often because it has attempted in vain to seek further explanation from a Minister.125

120 Senate Standing Order 26(5) provides that the committees ‘may ask for explanations from ministers in the Senate, or officers, relating to the items of proposed expenditure’. 121 See Senate Standing Order 25(20). 122 Paul G Thomas, ‘Parliament Scrutiny of Government Performance in Australia’ (2009) 68 Australian Journal of Public Administration 373, 386, 392. 123 Ibid 393. 124 One of the reform proposals in the Agreement for a Better Parliament was to make it a requirement that the government respond to committee reports within six months. The Inquiry into the Procedural Changes Implemented in the 43rd Parliament noted that this reform has not led to an appreciable improvement in government response times:  House of Representatives Standing Committee on Procedure, above n 98, ch 5. 125 George Willams and Daniel Reynolds, ‘The Operation and Impact of Australia’s Parliamentary Scrutiny Regime for Human Rights’ (2016) 41(2) Monash University Law Review 469.

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Parliamentary committees can conduct public hearings, where a range of witnesses can communicate their views on the merits of legislation directly to MPs, and have their views placed on the public record. Through public hearings, committees provide a ‘bridge’ or ‘interface’ between the community and Parliament.126 This public consultation function of parliamentary committees is not a separate role of these committees, but is integral to their work. Inquiries conducted by parliamentary committees can be distinguished from other public inquiries, such as media investigations, as parliamentary committees enjoy the same privileges, immunities and powers as their houses. This means that committees can summon witnesses and require the production of documents. Witnesses appearing before committees can be compelled to give evidence and to do so under oath, and can be assured that they are immune from prosecution for the evidence they give to committees.127 As we have already seen in relation to the Senate Select Committee inquiry into ‘A Certain Maritime Incident’, committees rarely use their extensive powers. Most parliamentary committees conduct inquiries where witnesses voluntarily appear and produce documents. However, when witnesses refuse to appear or to give evidence, committees rarely impose a penalty.128 This is particularly the case when the witnesses are ministers or high-level public servants whom the government has requested not to appear before a Senate committee. In line with the particular role of the Commonwealth Senate in holding the government to account, Senate committees examine the performance of government agencies and their programs. In this role, Senate committees perform a similar function to other overseeing institutions such as the Ombudsman and the AuditorGeneral, described in Chapter  8, but with the advantage of having the powers of Parliament to facilitate their inquiries. Also, where the government does not control the Senate, Senate committees can conduct inquiries with wider terms of reference than those of the lower house, where in practice the terms of reference are developed by negotiation with the Minister responsible for the subject area of the inquiry.

126 Commonwealth, Building a Modern Committee System:  An Inquiry into the Effectiveness of the House Committee System:  House of Representatives Standing Committee on Procedure, Parl Paper No 144 (2010) 41. 127 There are some important limits to the powers of committees. Federal committees cannot compel members of state parliaments and state office holders to appear before them because of the constitutional principle of intergovernmental immunity, and there is some doubt as to whether a committee in one house can compel a member from the other house to appear before it. This was the subject of debate and legal opinion in the Senate Select Committee on a Certain Maritime Incident, Parliament of Australia, Majority Report (2002), which is discussed above. 128 Parliamentary Privileges Act 1987 (Cth) ss 4, 7. Under this Act, the Senate can impose a penalty of six months’ imprisonment or a fine of up to $5000 for individuals or $25,000 for corporations.

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Ultimately, the effectiveness of parliamentary committees depends on a range of factors, including political will within the executive, and which party controls the upper house (if there is one), as well as the time, resources, motivations and capabilities of individual members of these committees. In 2006, when it had a majority in the Senate, the Howard Government restructured the committees of the Senate, reducing the number of committees, shortening the number of days available for estimates hearings, and ensuring that government members chaired all committees. Despite these changes, Harry Evans, former Clerk of the Senate, argued that ‘estimates hearings [remained] a highly effective accountability mechanism and a source of much accountability-related information’.129

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Voting in Parliament One of the reasons why the executive retains tight control of Parliament is that Australia’s major parties impose strong party discipline on their members in the manner in which they vote in Parliament. In fact, Australian political parties have some of the strongest party discipline among their Westminster cousins in the UK, Canada and New Zealand.130 Members who do not vote according to party policy and who ‘cross the floor’ can face expulsion from the party, particularly members of the Labor party.131 In Australia the term ‘conscience vote’ is used to describe a free vote, the rare occasions when parties do not oblige their members to follow a party line but to vote according to their own moral, political, religious or social beliefs. Free votes are not allowed when the party has a clear policy on an issue. The infrequency of such votes is indicated by the fact that between 1996 and 2008 there were five conscience votes in Federal Parliament dealing with euthanasia and complex issues of biotechnology and medical science.132 The free vote on same-sex marriage in December 2017 was one of the most keenly observed in Australia and for both major parties it was a means of avoiding party breakdown on this issue. When it comes to conscience votes, there is debate as to whether such votes improve the quality of

129 Harry Evans, ‘Clerk’s Review’ in Department of the Senate, Annual Report 2006–07 (2007) 3, 4, . 130 John Hirst, ‘A Chance to End the Mindless Allegiance of Party Discipline’, The Sydney Morning Herald (Sydney), 25 August 2010; Bruce Stone, ‘Size and Executive-Legislative Relations in Australian Parliaments’ (1998) 33 Australian Journal of Political Science 37, 38. 131 For a comparison of how Australian political parties respond to their members crossing the floor of Parliament at the federal level, see Parliamentary Library, Parliament of Australia, ‘Rebels with a Cause’ (2006) 26 About the House 47. 132 See Deidre McKeown, Rob Lundie and Guy Woods, ‘Conscience Votes in the Federal Parliament since 1996’ (2008) 23 Australasian Parliamentary Review 172.

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debate in Parliament given that individual members are free to articulate the reasons which support their own position.133 The ability of Parliament and its members to deliberate on and justify enacted laws is part of how we can assess Parliament’s accountability to those affected by its laws. The work of political scientist Professor John Uhr focuses on the extent to which Parliament is capable of being a forum for public deliberation.134 In this context, deliberation is the articulation of competing justifications for policy positions. Competing arguments need to be fully weighed and balanced in public forums such as the floor of Parliament as well as parliamentary committee hearings and reports so that the public can understand whether and how the merits, risks and costs of a policy proposal have been balanced. Often such deliberation in Federal Parliament is boosted by rigorous and informative reports tabled in good time by parliamentary committees who are able to engage with a wide range of experts and submission makers. However, in general, the executive is keen to avoid any perception of disunity within government ranks in Parliament and hence, apart from infrequent conscience votes, it seeks to limit opportunities for full and public deliberation.

Conclusion

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Parliament is at the apex of our system of government. It is the site of democratic legitimacy. And yet, as this chapter has shown, its effectiveness as a deliberative body is highly dependent on the effectiveness of its processes. Although Parliament itself controls these processes, in a system of government dominated by two parties that periodically hold the seat of government, the will to bolster Parliament’s effectiveness is tempered for these parties by the prospect of being in control of an executive government that is not burdened by a strong and effective Parliament. On the executive’s dominance of Parliament, the former long-time Clerk of the Senate Harry Evans has observed: Instead of executive governments being responsible to parliaments, parliaments have become responsible to executive governments, the body which is supposed to be scrutinised and controlled by parliament has actually come to control the body which is supposed to be doing the scrutinising and controlling—a reversal of roles.135

133 Helen Pringle, ‘The Greatest Heights of Parliament? Conscience Votes and the Quality of Parliamentary Debate’ (2008) 23 Australasian Parliamentary Review 195, 200. 134 John Uhr, Deliberative Democracy in Australia: The Changing Place in Parliament (Cambridge University Press, 1998). See also Dominique Dalla-Pozza, ‘Refining the Australian Counter-Terrorism Legislative Framework: How Deliberative has Parliament Been?’ (2016) 27 Public Law Review 271. 135 Harry Evans, ‘Parliament:  An Unreformable Institution?’ (Papers on Parliament No 18, Parliament of Australia, December 1992).

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This ‘reversal of roles’, whereby the executive has come to dominate Parliament, is a major tension in Australian public law. It is important that Parliament never becomes a rubber stamp nor is perceived as such. This chapter shows that parliamentary committees are one of the most important mechanisms for scrutinising the actions of the government, but the scope of accountability these committees can achieve is limited by various dynamics including, in particular, strong party discipline. The next Part of the book sets out the extensive powers of the executive and discusses some of the other mechanisms designed to keep the executive accountable, including through the Parliament, as well as through the other branches of government and directly to the public.

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DISCUSSION QUESTIONS 1

Consider the legal and political mechanisms to prevent a Commonwealth or state Parliament passing an extreme law. Are the safeguards sufficient? What else could be done?

2

Compare the power of the House of Lords in relation to money Bills in the UK Parliament, and the power of the Australian Senate under s 53 of the Constitution. Should the Senate have any say over the passing of money Bills?

3

Does the presence of the executive government in the Parliament increase or decrease the Parliament’s ability to contribute to the law-making process and to hold the government to account for its implementation of policy?

4

How important are the parliamentary mechanisms for holding the executive government to account? Would our system of government work tolerably well, or even better, without them?

5

Look through some counter-terrorism debates in Hansard (eg Australian Citizenship Amendment (Allegiance to Australia) Act 2015 (Cth); Counter-Terrorism Legislation Amendment (Foreign Fighters) Act 2014 (Cth)) and see if you can identify some well-reasoned justifications for rights incursions offered in the speeches made by members and senators. Do any of these speeches refer to the reports made by parliamentary committees such as the Parliamentary Joint Committee on Intelligence and Security (PJCIS)? Check out the website of the PJCIS (www.aph.gov.au/pjcis) and see the number of current inquiries, submissions made and public hearings held for each inquiry. How useful is the work of such parliamentary committees? How do they engage with experts and the community?

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FURTHER READING Nicholas Aroney, Scott Prasser and J R Nethercote (eds), Restraining Elective Dictatorship: The Upper House Solution? (University of Western Australia, 2008) Enid Campbell, Parliamentary Privilege (Federation Press, 2003) Gerard Carney, Members of Parliament: Law and Ethics (Prospect Media, 2000) Albert Venn Dicey, Introduction to the Study of the Law of the Constitution (Macmillan, 10th ed, 1995) Harry Evans and Rosemary Laing (eds), Odgers’ Australian Senate Practice (Department of the Senate, 14th ed, 2016) Geoffrey Lindell and Robert Bennett, Parliament:  The Vision in Hindsight (Federation Press, 2001) John Uhr, Deliberative Democracy in Australia: The Changing Place of Parliament (Cambridge University Press, 1998)

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B C Wright (ed), House of Representatives Practice (Department of the House of Representatives, 6th ed, 2012)

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CHAPTER 7 THE EXECUTIVE

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CHAPTER 8 EXECUTIVE ACCOUNTABILITY

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THE EXECUTIVE

7

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CHAPTER OVERVIEW Introduction

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The Crown and the executive

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Executive power and accountability

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Sources and types of executive power

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Constitutional powers and the Governor-General

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Statutory powers

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Delegated legislation

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Prerogative powers

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Common law capacities of the Crown

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Executive nationhood power

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Regulating executive power: the legislature

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Conclusion

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Introduction In this part, we turn our focus to the executive branch of government. In this branch we see very clearly the public law tensions between empowerment and constraint:  the executive must have sufficient power to protect individuals and communities from myriad harms, including natural disasters and human actions; to build public institutions; and to provide public services that society expects from its government. At the same time, and as a result of these necessarily broad-ranging powers, the executive must be sufficiently accountable, and individuals who suffer harm because of an abuse of executive power must have appropriate and effective avenues of redress. This chapter starts by introducing the various actors in the executive arm; this is important to understand because it often dictates the types of powers they exercise and their level of accountability. Next, the chapter considers the difficult question of the extent to which the executive needs to be empowered to fulfil its role, and the necessity of calling the executive’s exercise of power to account. The chapter then explains the different types of executive power by reference to the federal executive, including the powers conferred directly by the Constitution; the statutory powers, which are by far the most plentiful and include delegated legislative powers; the prerogative powers, which originally come from the common law of England; the common law capacities of the Crown (such as the power to contract or own land); and an implied power sometimes referred to as the ‘nationhood power’, which is said to be derived from the nature and status of the Commonwealth as a national polity. The chapter concludes by analysing the instances when a non-statutory executive power may cease to exist because of its control by the legislature, including, for instance, because it has been replaced by a statutory power. The second chapter in the part, Chapter 8, analyses the manner by which the exercise of executive power is called to account through the Parliament, the judiciary, the executive itself, and directly to the public, and also how this accountability is facilitated through, for example, freedom of information regimes.

The Crown and the executive The ‘Crown’ is a very difficult entity to define. In layperson’s terms it refers to a ‘piece of jewelled headgear’ belonging to the monarch.1 In public law it has other meanings,2 its most common being the executive arm of government—the ‘Crown in right of 1 2

Town Investments Ltd v Department of the Environment [1978] AC 359, 397 (Lord Simon). Sue v Hill (1999) 199 CLR 462, 497–500 (Gleeson CJ, Gummow and Hayne JJ).

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CHAPTER 7: The Executive

the Commonwealth’ refers to the Commonwealth executive and the ‘Crown in right of the states’ refers to the state executives. The executive arm is also known as the ‘Commonwealth’ or the ‘state’, or simply the ‘executive’ or the ‘government’. In this book, we use the term ‘executive’, to clearly distinguish between the three arms of government:  the Parliament, the executive and the judiciary. The executive is the machinery of government—the great cogs and wheels that allow the government to perform its varied functions under the Constitution, statute and the common law. The executive itself is a difficult entity to define exhaustively, partly because, at least at the periphery, its composition continues to change. At its core, the executive includes the Queen herself, and her servants and agents. Her representative in Australia is the Governor-General at the federal level and the governors at the state level. In the Northern Territory, this role is performed by the Administrator.3 Ministers sit at the very core of the executive, as it is through the ministers that the government is called to account to the Parliament and ultimately the people. The ministers are thus the political officers within the executive, democratically elected and accountable to the Parliament. One of the conventions of responsible government requires that the Queen and her representatives (who are not elected) act on the advice of senior government ministers (including the Prime Minister at the federal level or the Premier at the state level). This group is known as the Cabinet. In the Constitution there is no reference to the Cabinet. It refers rather to the ‘Executive Council’, a larger body made up of the ministers and presided over by the Queen’s representative. The Cabinet is usually made up only of the senior ministers, and is where important policy decisions are made. Government departments have no legal existence separate from the Minister in charge of them, meaning departments cannot sue or be sued, or enter into contracts. These functions must be performed by the Minister or sometimes the secretary of the department. Below the Ministers, the executive includes all the personnel in the departments: the public service and other public officers; the police force; and the members of the army, navy and air force, known collectively as the Australian Defence Force (‘ADF’). In contrast to ministers, public servants and public officers are apolitical:  they are not elected or accountable to the people, and they serve across government administrations, regardless of the political party in power. The political neutrality of the public service is a fundamental tenet in Australia’s parliamentary system, as it ensures that the political officers (the ministers) receive robust, sometimes referred to as ‘frank and fearless’, advice. However, as we will see in the next chapter, more recently the political neutrality of the public service has been challenged through the

3

There is no equivalent to the Queen’s representative in the Australian Capital Territory.

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appointment of personal political staff to ministers (ministerial advisers) and also the weakening of the conventions of ministerial responsibility for the actions of their departments. There have also been challenges to public service neutrality because of the increased reliance on contractual positions for senior public servants, such as secretaries of departments, which allows for incoming governments to hire new staff into these positions, bringing with it dangers of politicisation of appointments and the chilling of robust advice to ministers. The executive also includes myriad offices and bodies that assist the executive to fulfil its duties, but that fall outside the formal department system. Agencies that are established by statute to assist the executive in performing its functions are part of the executive. The nature of these agencies varies greatly, from the Australian Securities and Investments Commission (ASIC), which aids in the government regulation of corporations and the administration of the Corporations Act 2001 (Cth), to the intelligence and security agencies, including the Australian Security Intelligence Organisation (‘ASIO’),4 which is tasked with gathering domestic intelligence, and the Australian Secret Intelligence Service (‘ASIS’),5 which gathers overseas intelligence. In the state context, the executive includes local government officers and employees, as these bodies, while they have their own democratic mandate, are established under state law. The executive also includes statutory office holders, such as the Ombudsman and the Auditor-General, and administrative tribunals that—as we will see in Chapter 8—form part of the executive but notionally operate independently because their role is to review the actions of the executive.

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Executive power and accountability The executive is often described as the most powerful organ of government, although it must be seen in the context of the functions of the other arms of government: the legislature, which creates the laws and can direct and restrict the powers of the executive, and the judiciary, which is the ultimate interpreter of the laws that govern the executive’s powers. The executive sits alongside but also overlaps both of these branches:  generating policy that becomes legislation; making delegated legislation; interpreting and administering the laws as they apply to individuals; and even exercising powers outside statute. It enforces judgments, but also delivers a form of judgments through the administrative tribunal system. Chapter  1 established that public law is based on an idea that public institutions must be created to achieve collective needs. As society has grown more complex, and the community expects 4 5

Under the Australian Security Intelligence Organisation Act 1979 (Cth). Under the Intelligence Services Act 2001 (Cth).

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greater intervention and benefits from its governing institutions, the executive’s powers have continued to expand, to the point where the executive intervenes in many aspects of community life. This is often called the rise of the modern administrative state.6 More recently, many of government’s functions have been contracted out to the private sector, which is now often exercising public power on behalf of the state. New challenges to understanding the exercise of executive power and ensuring its accountability are always emerging:  most recently there have been concerns that government decisions are being made using computer algorithms, employed because of their apparent efficiency, but they have proven to be the cause of widespread errors, raising questions about the fairness, transparency, legality and accountability of such decisions.7 Of all the branches of government, the executive’s actions have the most direct and pervasive influence over the individual sphere. A person interacts with the executive when they apply to the transport department for a licence to drive an automobile, or to the immigration department for a visa to stay in Australia, or to a local government for permission to build a house. Fines or other penalties for breaking the rules are administered at first instance by the executive—so every time a person receives a speeding fine they are interacting with police officers as agents of the executive. Access to benefits and services is also controlled by the executive:  the assessment of an individual’s eligibility for unemployment benefits is conducted by the public servants in a government department, which will then also deliver those benefits. Public hospitals and schools are staffed by nurses, doctors and teachers employed by the executive. Legislation often entrusts the executive with broad discretion to make decisions that affect people’s rights and interests in particular cases. While it is the Parliament’s role to set out the broad policy and principles, it is often difficult to predict the plethora of circumstances to which legislation may apply. Therefore, by vesting the executive with the discretion to apply these broad principles to particular cases, appropriate decisions that reflect the complexities of an individual’s circumstances can be made. Furthermore, for states to be governed in an efficient and effective manner, the executive needs to have the power to respond to situations that may not be covered by the written law and to make decisions quickly. When a natural disaster or a security threat occurs, the community expects that the executive is able to respond to protect

6 7

H W R Wade and C F Forsyth, Administrative Law (Oxford University Press, 10th ed, 2009) 1–2; Carol Harlow and Richard Rawlings, Law and Administration (Cambridge University Press, 3rd ed 2009) 52. See further Melissa Perry and Alexander Smith, ‘iDecide: the Legal Implications of Automated Decisionmaking’ (Speech delivered at the Cambridge Public Law Conference, University of Cambridge, 15–17 September 2014); Matthew Butt, Administrative Law and Centrelink’s ‘robodebt’ system (AUSPUBLAW, 8 March 2017), .

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the individuals within that community. The executive therefore must have at its disposal broad and discretionary powers that can increase in times of crisis. Some of this power will be inherent power that the executive possesses outside of legislation to respond to natural disasters or threats to the security of the community. There are also specific laws that have been enacted to give the executive broad, sweeping powers that override the regular law in times of crisis. Sometimes when these powers are invoked it is called a ‘state of emergency’. The threat of terrorism and organised crime in Australia, in recent years, has been the basis of a raft of new legislation expanding executive power and executive discretion. The existence of power and wide discretions, however, creates the possibility of abuse and the arbitrary exercise of power. Sometimes, even the very existence of these broad powers can restrict legitimate actions and speech of individuals within society, which is referred to as the ‘chilling effect’. For instance, following the establishment of ASIO in 1949, concerns emerged about the closeness of the Prime Minister to the Director-General of ASIO, sparking allegations that ASIO was operating as ‘a purely political arm of the Liberal Government’ and acting as a ‘political police force’ to assist the Menzies Government’s crusade against the Communist Party.8 When the Whitlam ALP Government took power, Attorney-General Lionel Murphy found himself in direct conflict with ASIO, and it was found that the organisation maintained files on the basis of people being ‘left-wing’ as opposed to subversive, and often leaked this information to media sources.9 ASIO’s broad powers of surveillance were challenged in Church of Scientology v Woodward.10 The majority of the High Court upheld the powers of ASIO, but Murphy J, by then on the High Court, dissented. He was concerned that the very existence of this power would intimidate people into changing their lawful behaviour, and that such a power carried with it large potential for abuse.11 It is clearly necessary to have a system of supervision of executive power by reference to enforceable limits. When emergency powers are exercised, there is a question whether this occurs within or as an exception to the law. In Australia, the High Court has made it clear that the exercise of executive power in times of emergency is justiciable, and must occur within the law. In the case of A v Hayden,12 the High Court held that the executive acted beyond the law when the ASIS carried

8 9 10 11 12

Bruce McFarlane, ‘ASIO: The Past’ in Patrick Flanagan (ed), Big Brother or Democracy? The Case for the Abolition of ASIO (University of Adelaide, 1979) 8, 12. See extracts in Jenny Hocking, Terror Laws:  ASIO, Counter-Terrorism and the Threat to Democracy (University of New South Wales Press, 2004) 47. (1982) 154 CLR 25. Ibid 66, quoting Canada, Commission of Inquiry Concerning Certain Activities of the Royal Canadian Mounted Police, Parliament and Security Matters, Reports (1979). (1984) 156 CLR 532.

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out a training exercise in the Sheraton Hotel in Melbourne. ASIS simulated a hostage scenario without notifying the Victorian Police or Government or even the hotel management. During the exercise the ASIS team, wearing masks and wielding submachine guns and other weapons, used a sledge hammer to gain entry to a hotel suite. When leaving the hotel, there was a confrontation with hotel staff and the getaway car was later stopped by the Victorian Police. The High Court affirmed that no one is empowered to break the law, including Australia’s security and military services, the Governor-General, Cabinet and every other member of the executive. Brennan J stated:  ‘No agency of the Executive Government is beyond the rule of law.’13 Murphy J elaborated:

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The Executive power of the Commonwealth must be exercised in accordance with the Constitution and the laws of the Commonwealth. … I restate these elementary principles because astonishingly one of the plaintiffs asserted through counsel that it followed from the nature of the executive government that it is not beyond the executive power, even in a situation other than war, to order one of its citizens to kill another person. Such a proposition is inconsistent with the rule of law. It is subversive of the Constitution and the laws. It is, in other countries, the justification for death squads.14

One limit on the executive is that, before it can do something, there must be a source of executive power—be that in the form of constitutional powers, statute, or the common law. Executive power is subject to express limitations as well, such as legislation that requires the executive to act in accordance with human rights norms when it exercises its powers. So the executive is limited in two ways: first by the outer limits of the laws that empower it and, second, by laws specifically enacted to limit its powers. The tension between empowerment and constraint of the executive underlies the distinction between a number of theories of the state, some of which have already been discussed in Chapter 1. For example, liberalism holds that the public good lies in the existence of individual freedom and that the executive should only be empowered to the extent necessary to protect this freedom. If the public good can only be achieved by facilitating the attainment of goals in the individual sphere, then it is of fundamental importance to have ascertainable and legally enforceable limits on executive power. Administrative law originally developed as a body of legal controls and supervisory mechanisms to prevent governments from abusing their power over individuals.15

13 14 15

Ibid 588. Ibid 562. Wade and Forsyth, above n 6, 4–5.

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There is a further inherent tension in constitutionalism between ‘the need to hold the exercise of public power to account and the need to allow it to be exercised effectively for the public good’.16 The executive holds power on trust from the people to be exercised in the public interest, and therefore must be broadly empowered.17 That is, to be able to serve the public effectively, the executive needs wide-ranging powers over all aspects of public life. The idea of trust is useful because it suggests the community itself has a role in holding the government accountable for the exercise of that power.18 The goals of openness, accountability and integrity provide the foundation for public trust and confidence in the executive.19 This theory considers administrative law as the examination of the quality and impact of government action with the aim of facilitating better government. It attempts to find balance between, on the one hand, empowerment to provide for the ‘good life’, ensuring that the executive is able to operate efficiently and effectively; and, on the other, the existence of appropriate and varied accountability mechanisms to promote the proper use of those powers and, where necessary, access to redress for individuals who may be aggrieved by government action.

Sources and types of executive power This chapter will focus predominantly on the Commonwealth executive. The Commonwealth executive power is sourced in the sparsely worded s 61 of the Constitution:

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The executive power of the Commonwealth is vested in the Queen and is exercisable by the Governor-General as the Queen’s representative, and extends to the execution and maintenance of this Constitution, and of the laws of the Commonwealth.20

16

17

18 19 20

Simon Evans, ‘Continuity and Flexibility: Executive Power in Australia’ in Paul Craig and Adam Tomkins (eds), The Executive and Public Law:  Power and Accountability in Comparative Perspective (Oxford University Press, 2006)  89, 123; Western Australia, Royal Commission into Commercial Activities of Government and Other Matters, Report (1992) vol 2, [3.1.2]. Western Australia, above n 16, vol 2, [1.2.5]–[1.2.6]. See also David Kinley, ‘The Duty to Govern and the Pursuit of Accountable Government in Australia and the United Kingdom’ (1995) 21 Monash University Law Review 116, 128–31. Western Australia, above n 16, vol 2, [3.1.5]. Ibid. In the states there are no constitutional provisions that expressly vest or define the executive power. The executive power of the states came originally from Letters Patent from the Queen, or from constitutional implications, the common law and constitutional convention:  Anne Twomey, The Constitution of New South Wales (Federation Press, 2004) 584. Section 7(2) of the Australia Act 1986 (Cth) and its identical counterpart in the Australia Act 1986 (UK) now grant the state governors the power and functions of Her Majesty in respect of the state. Also note the Constitution of Queensland 2001 (Qld) s 51, which says, without limiting the state’s powers, ‘The Executive Government of the State of Queensland has all the powers, and the legal capacity, of an individual’.

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The executive requires discretion and flexibility to deal with the many exigencies that may arise in the course of governing society. This is why in the Constitution, and in many other constitutions around the world, executive power is very broadly defined.21 This means that working out the extent of ‘executive power’ is notoriously difficult. As we have seen, however, at a general level, executive power is the power to administer the state, police the laws, and create rights and obligations in a particular case through application of the law. Priestley JA of the New South Wales Court of Appeal described the power as follows:

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The function of the Executive is to administer the carrying out of existing law in accordance with its policy from time-to-time, to keep all its administrative policies under review, and to formulate further policy which it thinks desirable in the public interest which can be put into effect either on the basis of the law as it stands, or if parliament passes legislation which will enable the further policy to be lawfully carried out. All of this is to be done in the public interest.22

Section 61 is said to be the sole source of federal executive power in Australia.23 However, its broad language contemplates different types of powers that are derived from the Constitution, statute, the prerogatives, the common law capacities and a power that the Commonwealth executive derives from the status of Australia as a sovereign nation. With respect to executive power, Professor George Winterton observed that two enquiries are relevant: the first looks at the ‘depth’ of the power and the second its ‘breadth’.24 The depth of executive power describes the types of activities that the executive may undertake, such as spending, contracting or more coercive activities, such as detention and penalising individuals. The limitations on the types of executive activity have their origins in the early attempts by Sir Edward Coke to limit the powers of the King in the Case of Proclamations.25 As Chapter 2 explained, this case prevented the executive (the King) from proclaiming offences in the absence of statute. The restrictions on the depth of executive power are related to the effective separation of the powers of the three arms of government and maintaining the accountability of the executive to the Parliament for the exercise of particular powers. One of the

21

22 23 24

25

In fact, Mason CJ, Deane and Gaudron JJ have said that the ‘scope of the executive power of the Commonwealth has often been discussed but never defined’:  Davis v Commonwealth (1988) 166 CLR 79, 92. Egan v Chadwick (1999) 46 NSWLR 563, 592. Ruddock v Vadarlis (2001) 110 FCR 491, 537–8 (French J). George Winterton, Parliament, the Executive and the Governor-General:  A Constitutional Analysis (Melbourne University Press, 1983); George Winterton, ‘The Limits and Use of Executive Power by Government’ (2003) 31 Federal Law Review 421, 428. (1611) 12 Co Rep 74; [1610] 77 ER 1352.

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most controversial types of coercive action is the power to detain individuals. At the federal level in Australia, whether and when the executive may exercise this power is constitutionally limited by the principle of the separation of powers, because in some instances only the judiciary can make orders for detention of an individual.26 There is no known equivalent limit at the state level. This will be discussed in more depth in Chapters 9 and 10. The breadth of executive power describes the subject matter over which executive activities may be carried out.27 The question of breadth is essentially a federal one: it is concerned with which subject areas fall to the Commonwealth executive, and which to the state executives.28 At federation, the original draft clause that became s 61 defined executive power to be co-extensive with the legislative powers of the Commonwealth Parliament.29 These limits were removed in the final draft. For many years it was assumed that federal executive power was at least as broad as the legislative powers of the Commonwealth set out in ss 51, 52 and 122 of the Constitution, and that it also extended beyond this to include the executive nationhood power, which is discussed below. However, in 2012, this assumption was largely rejected in the case of Williams v Commonwealth (‘Williams [No 1]’),30 the reasoning and effect of which is explored in more detail later in this chapter.

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Constitutional powers and the Governor-General The first two types of executive power and their depth and breadth are relatively easy to identify because they are governed by the words of the Constitution or statutes. The powers directly conferred on the executive by the Constitution are generally vested in the Governor-General as the Queen’s representative (or the Governor-General in Council). The Governor-General is empowered to prorogue, dissolve and summon Parliament (s 5 of the Constitution); issue writs for a general election (s 32)  or for vacancies (s 33); recommend money votes (s 56); convene joint sittings of the two houses (s 57); assent to Bills (s 58); command the defence forces (s 68); appoint and remove judges (s 72); and appoint and remove members of the Inter-State Commission (s 103).31 In practice, the Queen’s role has been reduced to the appointment and 26 27 28 29 30 31

See Evans, above n 16, 96–7. Winterton, Parliament, the Executive and the Governor-General, above n 24, 45. Cheryl Saunders, ‘The Sources and Scope of Commonwealth Power to Spend’ (2009) 20 Public Law Review 256, 260. Draft Adopted by the Constitutional Committee (Sydney, 1891) ch II, cl 8, extracted in John M Williams, The Australian Constitution: A Documentary History (Melbourne University Press, 2005) 289. (2012) 248 CLR 156. The Inter-State Commission is a body provided for in s 101 of the Constitution to  administer  and adjudicate  matters relating to trade and commerce. Despite provision for it in the  Constitution,  the Commission has never become part of Australia’s permanent public law framework. It was briefly established in 1912, but the conferral of judicial power on it was found to be constitutionally invalid

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removal of the Governor-General (on the advice of her Australian federal ministers), even though the Constitution gives her more powers.32 There is, for example, a power in s 59 for the Queen to disallow any law within one year from the Governor-General’s assent. It is a power that has never been exercised and may now be redundant.33 According to the Constitution, the Governor-General has a predominant role in the exercise of executive powers. However, in practice the Governor-General has little autonomous power.34 The role of the Queen’s representative has been described as ‘to question, warn and advise’ the government only.35 Beyond this, the GovernorGeneral’s role is to exercise the powers in the Constitution on the advice of the Commonwealth ministers, and only in very rare instances does the office play a role beyond a purely formal and symbolic one. This is not explicitly stated in the Constitution, but arises from a number of its provisions that are interpreted in light of an unwritten convention that the Governor-General acts on the advice of the government ministers. Section 62 creates the federal Executive Council, and s 63 provides that where the Constitution gives power to the Governor-General in Council, this means the Governor-General acting with the advice of the federal Executive Council. The federal Executive Council is a constitutional institution that has been outdated by practice. Under the Constitution it consists of all of the ministers.36 In practice, however, it is the Cabinet that advises the Governor-General. Thus, the Cabinet is the body that determines government policy and makes government decisions. It is the ‘real core and essence of the Government’,37 even though it is not mentioned in the Constitution. By requiring that the Governor-General act on the advice given by the Cabinet, the elected ministers take responsibility for the actions of the Governor-General. Two of the defining characteristics of the Cabinet are the unanimity and secrecy of its decisions. These are guaranteed by the constitutional convention known as ‘collective responsibility’, which requires ministers to accept responsibility to Parliament collectively for the decisions of the Cabinet. To operate effectively, the convention requires Cabinet decisions to be unanimous. Ministers must not vote against Cabinet decisions in Parliament or speak out against them publicly. To ensure

32 33 34 35 36 37

in 1915 in New South Wales v Commonwealth (1915) 20 CLR 54 (‘Wheat Case’), and it was eventually abolished in 1950. It was briefly re-established in 1983 but again abolished in 1989. See further discussion of the Wheat Case in Chapter 9. Winterton, Parliament, the Executive and the Governor-General, above n 24, 20. In the proposed amendments that were considered at the 1999 republic referendum, s 59 was simply removed as a consequential amendment on becoming a republic. See New South Wales v Commonwealth (1975) 135 CLR 337, 364–5 (‘Seas and Submerged Lands Case’) (Barwick CJ). Twomey, above n 20, 622. Australian Constitution s 64. Edward Jenks, The Government of Victoria (Australia) (Macmillan and Co, 1891) 275.

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this, but also to encourage free and frank discussion on the issues before a Cabinet position is determined, one of the principles of the convention is that any discussion prior to the final Cabinet decision remains confidential.38 There are some exceptional circumstances in which the Governor-General will not act on the advice of the government; these are known as the reserve powers. The reserve powers operate to ensure the proper operation of the system of responsible government. They include the power to appoint and dismiss a Prime Minister, to refuse to dissolve the Parliament or to force its dissolution, and to ensure that the government is acting legally. The power to appoint a Prime Minister (or Premier at the state level) is exercised after an election. The exercise of this power by the Governor-General (or Governor) is only controversial where there is no parliamentary party that has a clear majority in the lower house, in what is known as a hung Parliament. In the past, the strong political party system and the preferential voting system in the lower house of most jurisdictions in Australia meant that this was an uncommon occurrence.39 However, hung parliaments are becoming increasingly common. In the case of a hung Parliament, a number of matters guide the Governor-General in determining whom to appoint as the Prime Minister, including that the Governor-General should take into account the questions of incumbency and support in the lower house.40 Often a political compromise is reached between different political parties and independent Members of Parliament as to who will have majority support in the lower house, and this compromise is presented to the Governor-General. This was illustrated in Tasmania in 2010, when the ALP Government and the Liberal opposition both won 10 seats in the lower house, with the remaining five seats won by the Greens. The Liberal Party received 38.99 per cent of the primary vote while the ALP only received 36.88 per cent. The ALP Premier advised the Governor to commission the Leader of the Liberal Party to form government on the basis that they had won the popular vote.41 The Governor refused to follow his advice, instead recommissioning the incumbent ALP Government on the basis that the Governor was not satisfied that the Liberal Party could form a stable government.42

38 39 40 41

42

Geoffrey Marshall (ed), Ministerial Responsibility (Oxford University Press, 1989) 2–4. Twomey, above n 20, 636–7. Anne Twomey, ‘The Governor-General’s Role in the Formation of Government in a Hung Parliament’ (2011) 22(1) Public Law Review 52 . Matthew Denholm, ‘Bartlett’s Labor gives up power in Tasmania to Will Hodgman’s Liberals’, The Australian (online), 1 April 2010, . See Governor of Tasmania, The Reasons of the Governor of Tasmania, the Honourable Peter Underwood AC, for the Commissioning of the Honourable David Bartlett to form a Government following the 2010 House of Assembly Election (2010). See also ABC, ‘Tasmanian Governor Explains Why He Picked Labor’, PM, 9 April 2010 (Peter Underwood), .

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The other powers are also rarely used. When they are, they tend to attract criticism and controversy.43 The power to dismiss a Prime Minister and the Federal Government (or a Premier and state government by the Governor at state level) is probably the most controversial because it is the dismissal of an elected government by an appointed official. It has been exercised on just two occasions in Australia, one at the state level and the other at the federal level; both remain controversial. In 1932 the New South Wales Governor dismissed Premier Jack Lang on the basis that he had acted illegally. Lang had issued a directive to state public servants instructing them to disobey, in effect, a federal law requiring moneys to be paid to the Commonwealth by the banks in balance of the state’s debts. The Governor’s dismissal of Lang was prior to any charge having been brought against Lang in the courts, and many argue therefore that it was premature.44 In 1975 the Governor-General dismissed Prime Minister Gough Whitlam, an event that has already been described in some depth in Chapter 6. The government was in a political situation where it could not guarantee supply; that is, the Senate refused to pass the government’s budget Bills (also called appropriation Bills) and there was therefore no parliamentary authorisation to draw further funds from the Treasury.45 This meant the government was not able to guarantee that even fundamental expenditures such as the wages of the public service would be paid. The Governor-General’s use of the reserve powers to dismiss the government was controversial for a number of reasons—most relevantly, there was doubt about whether the reserve powers could be exercised to dismiss a Prime Minister when the Senate, not the House of Representatives, blocked supply. While ministers can be appointed from both houses, the government is determined by the support of the lower House of Parliament. Therefore the customary indication that a Prime Minister is no longer able to lead the government is their standing in this house. Refusal to pass supply by the House of Representatives is characterised as a vote of no confidence. Where the Prime Minister is the subject of a vote of no confidence, this will engage the reserve powers.46 It is common, however, for governments not to have a majority in the Senate.

43

44 45 46

The ability to challenge the use of the reserve powers in a court is disputed, which probably contributes to political and academic disgruntlement over their exercise. See Leslie Zines, Zines’ The High Court and the Constitution (Federation Press, 6th ed, 2008)  369–70. See also Geoff Lindell, ‘Judicial Review and the Dismissal of an Elected Government in 1975: Then and Now?’ (Speech delivered at the 4th George Winterton Memorial Lecture, Sydney, 14 February 2013). H V Evatt, The King and His Dominion Governors (Cass, 2nd ed, 1967)  171–2, 174; Twomey, above n 20, 646. Parliamentary supervision of executive spending is further discussed below, in the discussion of the common law capacities of the Crown. See the discussion in Geoffrey Lindell, Responsible Government and the Australian Constitution— Conventions Transformed into Law? (Federation Press, 2004) 20–4.

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The retention of the reserve powers under any new head of state was an important facet of the debate prior to the unsuccessful 1999 republic referendum. One question was whether, if the republican head of state were to retain the reserve powers, they would be codified, wholly or partially. The main argument for codification of the powers was that it was in the public interest to have the executive power clearly defined in order to avoid uncertainty, particularly in times of constitutional crisis, which may lead to damaging debates about the legitimacy of the actions of the head of state.47 The main argument against codification was that it would produce rigidity in these fundamental powers of the head of state and restrict the ability of the powers to apply and evolve in new situations.48 Ultimately, the Bill that was put before the electors of Australia at the 1999 referendum included a provision that preserved the powers of the Governor-General in the new office of the President; it stated that ‘the President may exercise a power that was a reserve power of the Governor-General in accordance with the constitutional conventions relating the exercise of that power’.49

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Statutory powers Most executive power is conferred pursuant to the laws of Parliament. These include many of the most familiar executive functions. The executive issues a broad range of licences pursuant to legislation—for example, to operate a vehicle or a business, or to take water from a river. The government pays benefits to individuals, such as social security payments, under statute. The police are empowered to make arrests and issue fines under statute. The Australian Taxation Office processes tax returns under the taxation legislation; the Australian Electoral Commission determines the electoral boundaries under the Commonwealth Electoral Act 1918 (Cth); and Department of Immigration and Citizenship officers can detain and remove non-citizens who have entered Australian territory under the Migration Act 1958 (Cth). One of the widest statutory powers is that conferred on members of the ADF by the Defence Act 1903 (Cth). This gives the Governor-General the power to ‘do all matters and things deemed by him [or her] to be necessary or desirable for the efficient defence and protection of the Commonwealth or of any State’. 50 During times of war these powers will expand, as more actions become necessary or desirable for the defence of Australia.51 During times of peace, the ADF may also be called

47 48 49 50 51

Ibid 98. Ibid 99. Constitutional Alteration (Establishment of Republic) Bill 1999 (Cth) cl 59. Defence Act 1903 (Cth) s 63. There are also specific powers that only exist during war, such as powers to control railways and billet troops.

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upon to assist in the execution and maintenance of the laws of the Commonwealth,52 or to protect a state or territory from invasion or domestic violence53 that is beyond the capacity of the state or territory law enforcement agencies.54 These ‘civil call out’ powers of the military are extensive—greater than those of the police in many circumstances;55 and the use of the ADF to combat internal civilian threats raises the prospect of martial law and the authorisation of unchecked military power over citizens.56 Statutory executive power has many benefits. Its creation is subject to the scrutiny and publicity of parliamentary processes, and its limits are usually clearly defined. However, undermining this second benefit is an increasing trend for discretions to be bestowed on government decision makers in the absence of detailed criteria, or any criteria at all. For instance, the conferral of discretions that must be exercised in the ‘public interest’ has been an increasing cause of concern on the grounds it provides no guidance for decision makers and little constraint on power that can be challenged by those affected by the exercise of the power.57 Another advantage of statutory powers is that, at least at  the Commonwealth level, most administrative decisions made under an enactment are reviewable under the Administrative Decisions (Judicial Review) Act 1977 (Cth).58 These advantages are particularly important when statutes authorise the executive to engage in coercive action, such as the detention of criminal suspects by the police. The extent to which non-statutory powers can authorise the executive to engage in coercive activities— that is, the depth of non-statutory powers—is addressed in detail below. The ability of the Commonwealth Parliament to confer statutory powers on the executive is limited in breadth by the federal division of legislative power, introduced

52

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53 54 55 56

57

58

Australian Constitution s 51(vi). For the general regulation of the use of military for civilian purposes, see Defence Act 1903 (Cth) ss 51–51Y. This is the language used in the Constitution. ‘Domestic violence’ in this context means violence caused from within a state. Australian Constitution s 119. Michael Head, ‘Calling out the Troops—Disturbing Trends and Unanswered Questions’ (2005) 28(2) University of New South Wales Law Journal 479, 481. Prior to federation, military forces were used in Australia on several occasions to quell civil unrest. In 1854, martial law was declared in Victoria to put down the Eureka Stockade, a protest by miners regarding over-regulation, corruption and the lack of democratic rights; while in 1891, military forces were used to suppress a sheep shearers’ strike in Queensland. Since federation, the ADF has been deployed in civilian settings in a number of instances. It was deployed in 1923 during a police strike, and again in 1949 to break a coal strike. In 1978, after the Sydney Hilton Hotel bombing, the ADF was deployed to protect the leaders at the Commonwealth Heads of Government meeting, and in 2007 it participated in the Northern Territory Emergency Response measures discussed in Chapter 3. See further Gabrielle Appleby and Alexander Reilly, ‘Unveiling the Public Interest:  The Parameters of Executive Discretion in Australian Migration Legislation’ (2017) 28 Public Law Review 293; Bret Walker and David Hume, ‘Broadly Framed Powers and the Constitution’ in Neil Williams (ed), Issues in Public Law (Federation Press, 2017) 144. The Administrative Decisions (Judicial Review) Act 1977 (Cth) is returned to in Chapter 8.

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in Chapter  4. The Commonwealth also has the power under s 51(xxxix) of the Constitution to make laws with respect to ‘matters incidental to the execution of any power vested by this Constitution … in the Government of the Commonwealth, or any department or officer of the Commonwealth’. This is known as the incidental power, and can be used to support the codification of non-statutory powers.

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Delegated legislation Often the executive is delegated legislative power under statute. This is one example of how in Australia there is no strict separation of powers between the executive and Parliament.59 Delegated, or subordinate, legislation is ubiquitous and takes many forms—regulations, rules, ordinances, Orders-in-Council and by-laws are some of the names used to describe it. There are legitimate reasons for the delegation of legislative power. Many pieces of legislation require detailed complexity to be added that would simply take too much of Parliament’s time; or additional provisions that may need specific expertise beyond that of Parliament; or amendment at short notice that Parliament, because of its processes, is not able to facilitate. The High Court has placed very few limitations on the ability of Parliament to delegate its power.60 In fact, delegated legislation may even be authorised by Parliament to override primary legislation. This is known as a ‘Henry VIII clause’, named after a mechanism that gave Henry VIII the power to override statutory provisions by royal proclamations during his reign in the 16th century. At the federal level, delegated legislation, like the primary legislation it relies on for its validity, must be with respect to a constitutional grant of power and made within constitutional limits. Furthermore, delegated legislation must be made within the limits set by Parliament and is subject to parliamentary oversight and judicial review (although the grounds of review are more restricted than for the review of an exercise of administrative power). Provisions conferring delegated legislative power are often expressed at a high level of generality and their limits are therefore difficult to ascertain. For example, s 504 of the Migration Act 1958 (Cth) gives the GovernorGeneral power to make regulations (which will occur in practice on the advice of the Cabinet) prescribing all matters that are required or permitted to be prescribed by the

59 60

Victorian Stevedoring and General Contracting Co v Dignan (1931) 46 CLR 73, 117–8 (Evatt J); Communist Party of Australia v Commonwealth (1951) 83 CLR 1, 256–7 (Fullagar J). The relevant limits are that the regulation-making power in the principal Act must be a valid law of the Commonwealth; that the regulations must be consistent with the regulation-making power in the principal Act; and that while Parliament can delegate legislation-making power, it cannot abdicate its powers to the executive. See the discussion in Victorian Stevedoring and General Contracting Co v Dignan (1931) 46 CLR 73, 101, 121 (Dixon J); 119–20 (Evatt J).

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Act, or which are ‘necessary or convenient’ to be prescribed for carrying out or giving effect to the Act. Without limiting the generality of this delegation, s 504 then lists a number of specific types of regulations that may be made. ‘Necessary or convenient’ is a common formulation by which delegated legislative authority is given. The High Court has indicated that in determining whether a regulation falls within a ‘necessary and convenient’ power, the question will be whether the regulation is strictly ancillary to the granted power, merely complementing it without adding to it, or whether it goes beyond the power by extending the scope or general operation of the primary Act; that is, whether it supplements it.61 Much of the criticism of delegated legislation centres on the removal of the legislative power from the democratic and transparent mechanisms of Parliament.62 David Hamer has commented that ‘uncontrolled delegated legislation offers a fertile field for government despotism and bossy interference by bureaucrats’.63 There have been increasing efforts to ensure that the exercise of the power remains supervised by Parliament and subject to disallowance by it. At the federal level, this occurs pursuant to Part  2 of the Legislation Act 2003 (Cth), and similar schemes exist in the states and territories.64 The role of Parliament and its committees in scrutinising delegated legislation is described in more detail in Chapter 6.

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Prerogative powers There are three other main types of executive power that are not expressly given to the executive in statute or the Constitution: the prerogative powers, the common law capacities of the Crown and the executive nationhood power. All of these powers are exceptional in the sense that they are less commonly used than the constitutional and statutory powers. They are also, by their very nature, more difficult to define and therefore to review and bring to account. The prerogative powers are unwritten powers, immunities and privileges that were enjoyed by the Crown of England under the common law. These prerogatives formed part of the common law that was received into the colonies at settlement, and

61

62 63 64

Shanahan v Scott (1957) 96 CLR 245, 250; Carbines v Powell (1925) 36 CLR 88, 92 (Isaacs J). For a fuller discussion of the limits of different types of delegated legislative power provisions, see Dennis Pearce and Stephen Argument, Delegated Legislation in Australia (LexisNexis Butterworths, 5th ed, 2017). Ibid 10–11 [1.12]. David Hamer, Can Responsible Government Survive in Australia? (Department of the Senate, 2nd ed, 2004) 303. Legislation Act 2001 (ACT) s 65; Interpretation Act 1987 (NSW) s 41; Interpretation Act 1978 (NT) s 63(9); Statutory Instruments Act 1992 (Qld) s 50; Subordinate Legislation Act 1978 (SA) s 10(5a); Acts Interpretation Act 1931 (Tas) s 47(4); Subordinate Legislation Act 1994 (Vic) s 23; Interpretation Act 1984 (WA) s 42.

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upon federation the Commonwealth executive received some of the prerogatives in s 61 of the Constitution.65 William Blackstone, in his influential Commentaries on the Laws of England, defined the prerogatives as only those powers that are enjoyed by the Crown alone. He described those powers that are shared with ordinary citizens (such as the power to own land or enter into a contract) as the common law capacities of the Crown.66 While others, including A  V Dicey, have referred to both of these powers as ‘the prerogatives’ more broadly,67 we will adopt Blackstone’s classification. According to Evatt J in Federal Commissioner of Taxation v Official Liquidator of EO Farley Ltd,68 the prerogatives are composed of three categories (although the final two categories are not properly called ‘powers’, but rights and privileges): 1

the royal or executive prerogatives, including the power to declare and wage war, or make peace, enter into treaties, grant pardons and establish royal commissions of inquiry;

2

preferences or immunities, including the immunity from prosecution, the presumption against the application of legislation, and the right to have preference as a creditor; and

3

proprietary prerogatives, including the right to precious metals,69 royal fish and treasure.

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Prerogatives may lapse due to disuse. In Ruddock v Vadarlis (‘Tampa Case’),70 discussed further later in this chapter, the Commonwealth argued that there was an ancient prerogative power to exclude aliens which included a power to detain them to achieve this. French J, in the majority of the Full Federal Court, found that there was such a power, at least to exclude aliens, although it was derived from the status of Australia as a sovereign nation rather than the prerogative as such (we discuss this power in the next section).71 Black CJ, in dissent, did not have to determine conclusively whether a prerogative existed, but did refer to the argument that ‘a long

65

66 67 68 69 70 71

Barton v Commonwealth (1974) 131 CLR 477, 498 (Mason J). Contra Re Ditfort; Ex parte Deputy Commissioner of Taxation (1988) 19 FCR 347, 368–9 (Gummow J) and in Ruddock v Vadarlis (2001) 110 FCR 491, 540 (French J), where it was commented that the executive power in s 61 is not to be determined by reference to the prerogatives. For criticism of these comments, see Bradley Selway, ‘All at Sea—Constitutional Assumptions and “The Executive Power of the Commonwealth” ’ (2003) 31 Federal Law Review 495, 505; Leslie Zines, ‘The Inherent Executive Power of the Commonwealth’ (2005) 16 Public Law Review 279, 281. William Blackstone, Commentaries on the Laws of England (Clarendon Press, first published 1765–69, 1827 ed) Book 1, s 232. See, eg, A V Dicey, Introduction to the Study of the Law of the Constitution (Macmillan, 10th ed, 1995) 424; Davis v Commonwealth (1988) 166 CLR 79, 107–9 (Brennan J). (1940) 63 CLR 278, 320–1. See also H V Evatt, The Royal Prerogative (Lawbook, 1987), 30–1. This prerogative was considered in Cadia Holdings Pty Ltd v New South Wales (2010) 242 CLR 195. (2001) 110 FCR 491. Ibid 543.

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period of disuse extinguishes the prerogative’.72 The last time a prerogative to expel or exclude aliens was used in England was 1771, when the Crown ordered Jews ‘unable to pay the usual freight’ to be excluded from English territory unless they were in possession of a passport from an ambassador.73 The depth of the prerogatives is limited. While the prerogatives can be used to some extent to engage in coercive activities, such as prosecuting a war, they cannot be used to create offences, impose taxes or dispense with statutes. These limits were established in England by a number of milestones, which are discussed in Chapter 2, including the Magna Carta in 1215, Sir Edward Coke’s declaration in the Case of Proclamations in 1611,74 and the Bill of Rights in 1689. Examples of these limits are those that apply to the coercive powers of commissions of inquiry, including royal commissions (the role of these bodies, which perform an important investigative role into exercises and abuse of government power, are considered in greater detail in Chapter  8). There is some debate about whether a commission’s power to inquire is sourced in the ‘the prerogative of the Crown’,75 or whether it is ‘not a prerogative right’ but a capacity of the Crown that is shared with every individual citizen.76 Regardless of which view is correct—that the power to inquire is a prerogative or a capacity of the Crown—the power is limited as to its depth because of its non-statutory nature. This means that it cannot be used to transgress fundamental common law rights of citizens—such as the right to property—except with the express authorisation of statute. The High Court has therefore held that a commission of inquiry can only exercise certain powers with statutory authority—the power to compel testimony, to provide privilege from prosecution, or to punish for contempt. These limits exist to ensure there is a check on the power of the executive, protecting the rights of individual citizens against arbitrary interference. At the Commonwealth level, the Royal Commissions Act 1902 (Cth) confers a number of powers on commissions established under the Act or otherwise, including the power to summon witnesses to give evidence and produce documents, and the creation of offences for acting in contempt of a royal commission. Insofar as the subject matter or purpose of a commission of inquiry lies within the Commonwealth’s legislative powers (in ss 51, 52 and 122 of the Constitution), the statutory conferral of compulsive powers on a commission is constitutionally valid. However, where the Commonwealth establishes a commission to inquire into

72 73 74 75 76

Ibid 498. Ibid 499. (1611) 12 Co Rep 74; [1610] 77 ER 1352. See, eg, McGuinness v Attorney-General (Vic) (1940) 63 CLR 73, 93–4 (Dixon J). Clough v Leahy (1904) 2 CLR 139, 156 (Griffith CJ).

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matters that are largely outside the Commonwealth’s legislative powers, the position is less clear. Prerogatives are also limited because they cannot be created—they remain the ancient powers enjoyed by the monarch.77 Further, as discussed below, they are subject to control by Parliament. Parliament can enact legislation that abrogates or curtails the operation of the prerogatives.78 Some of the prerogatives are very beneficial for the Crown—for example, the immunity from prosecution and the presumption against the application of legislation. This has led to much litigation about whether a particular entity is part of the Crown and enjoys these benefits. This can be a difficult question. There are an increasing number of ‘independent statutory authorities’ that notionally operate within government, but have independent statutory mandates. With the emphasis on the role of the market and competition to achieve efficiencies in government, the executive now relies heavily on government business enterprises (‘GBEs’) to provide many of its services, and these operate in a commercial environment. Private enterprises are increasingly engaged in conduct that was once seen as the province of government, whether they are contracted to do so by government or not. Are these organisations ‘the Crown’, or are their activities understood as being undertaken by the ‘Crown’? There is also a question about whether the traditional accountability mechanisms apply to these activities.79 This second question is considered in greater depth in the next chapter. The High Court confronted the question of who receives the benefits of the executive prerogatives in Bropho v Western Australia.80 The issue in this case was whether the Aboriginal Heritage Act 1972 (WA) was binding on the Western Australian Development Corporation, a state GBE that wanted to redevelop the old Swan Brewery site in Perth. As mentioned above, one of the Crown’s prerogatives is the presumption that legislation will not be binding upon it (this is sometimes referred to as the ‘shield of the Crown’). This is only a presumption, and it can be rebutted. Historically, however, it could only be rebutted by express words,81 or by an implication that was ‘manifest from the very terms of the statute’,82 and, if such an implication did not exist, the ‘purpose of the statute being otherwise wholly frustrated’.83

77 78 79

80 81 82 83

Burmah Oil Co Ltd v Lord Advocate [1965] AC 75. Attorney-General v De Keyser’s Royal Hotel Ltd [1920] AC 508. Evans, above n 16, 108. See also Administrative Review Council, The Contracting out of Government Services, Report No 42 (1998); Administrative Review Council, Government Business Enterprises and Commonwealth Administrative Law, Report No 38 (1995). (1990) 171 CLR 1. Bradken Consolidated Pty Ltd v Broken Hill Proprietary Co Ltd (1979) 145 CLR 107. Province of Bombay v Municipal Council [1947] AC 58, 61. Ibid 63.

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In Bropho, the High Court made rebutting the presumption easier. The majority reasoned that the expansion of government and bodies exercising government power undermined the rationale for having a strict presumption that statutes did not bind the Crown in all of its manifestations. They said it was ‘largely inapplicable to conditions in this country where the activities of the executive government reach into almost all aspects of commercial, industrial and developmental endeavour’.84 The Court said each statute must be considered individually; and that the strength of the presumption would depend on all the circumstances, including the content and purpose of the provision and the identity of the entity seeking the benefit of the presumption. There would, for example, be only a weak presumption that a statute did not apply where there was a GBE engaging in commercial activities, but a strong presumption where criminal liability was attached to the monarch.85 The question of the breadth of the prerogatives was addressed by Evatt J in Federal Commissioner of Taxation v Official Liquidator of E O Farley Ltd.86 He divided the prerogatives between the Commonwealth and the state executives, following the constitutional division of legislative powers. His Honour thought most of the royal or executive prerogatives were possessed by the Commonwealth alone—for example, the capacity to wage war or make peace and enter into treaties—although the prerogative to grant pardons and establish royal commissions is necessarily shared by both the Commonwealth and the states. Evatt J considered that preferences and immunities were held by both the Commonwealth and the states, while the proprietary prerogatives were generally held by the states.87

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Common law capacities of the Crown Individuals and corporations have the power to enter into contracts, to buy, sell and hold land, to spend money, and to sue and be sued. It is accepted that the British Crown enjoys these powers on the basis that it is either properly regarded as a natural person or a corporation sole or aggregate. These powers, according to Blackstone, are the Crown’s ‘common law capacities’.88 The common law capacities are not unique to the Crown; rather, they are shared with all other persons. Their very nature means therefore that they are unable to support coercive action of any kind:  just as an individual cannot (legally) force another person to enter a contract or sell land, neither can the executive.

84 85 86 87 88

Bropho v Western Australia (1990) 171 CLR 1, 19 (Mason CJ, Deane, Toohey, Gaudron and McHugh JJ). Ibid 21. However, in South Australia, the position was modified following the Bropho decision:  Acts Interpretation Act 1915 (SA) s 20. (1940) 63 CLR 278, 320–1. See also Evatt, above n 70, 30–1. See also Evatt, ibid; although note the comments in Cadia Holdings Pty Ltd v New South Wales (2010) 242 CLR 195, 210–11 [30]–[34] (French CJ), 226–7 [87]–[89] (Gummow, Hayne, Heydon and Crennan JJ). Blackstone, above, n 67.

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The colonial governors were able to exercise the common law capacities because their powers derived from the powers of the British Crown. The source of the Commonwealth’s capacities, however, must be found in the words of s 61 of the Constitution. In a federal system, the overlay of the two orders of government raises a complex question about the breadth of the common law capacities of the state and the Commonwealth governments. On one view, there ought to be no limit, on the basis that the common law capacities are not peculiarly governmental functions and have no coercive aspect. On this view, there is no danger that the capacities of the Commonwealth and the states will cause a conflict in the same way that the exercise of Commonwealth and state legislative power might. Therefore, constitutional division of power has no role to play. The difficulty with this view is that it is inconsistent with the overall scheme of the Constitution, and it may undermine the division of powers between the Commonwealth and the states. Another common view was that the breadth of the capacities of the Commonwealth executive followed the ‘contours’ of the legislative competencies of the Commonwealth;89 that is, those subject areas and purposes listed in ss 51, 52 and 122 of the Constitution, and also activities that fall within the executive nationhood power, discussed below. This meant that in determining whether an exercise of a Commonwealth common law capacity was within the Commonwealth’s competence, the question became whether a hypothetical Commonwealth law, enacted under one of the heads of power, could support it. Both of these views were displaced in 2012 in the High Court’s decision in Williams v Commonwealth (‘Williams [No  1]’).90 In that case, the High Court considered a constitutional challenge to the Commonwealth’s National School Chaplains program brought by Mr Ron Williams, the parent of children at a public school in Queensland. Through this program, the Commonwealth directly funded school chaplaincy providers at schools that had applied to be part of the program. The funding agreement between the Commonwealth and the chaplaincy provider incorporated guidelines and a code of conduct by which chaplains had to abide, and imposed reporting obligations on the chaplaincy providers. The program was funded by the Commonwealth pursuant to a legislative appropriation, but no other piece of legislation supported it. The challenge was brought on two constitutional grounds. First, it was alleged that the program breached s 116 of the Constitution because it created a religious test for an office under the Commonwealth. This argument was dismissed quickly by the

89 90

Winterton, Parliament, the Executive and the Governor General, above n 24, 30. (2012) 248 CLR 156.

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High Court, which accepted that the chaplaincy position, while ultimately funded by the Commonwealth grant, was not an office under the Commonwealth. The second challenge was that the Commonwealth’s expenditures on the program were beyond the executive power of the Commonwealth. The High Court accepted this argument in a 6:1 decision. In an earlier decision from 2009, Pape v Commissioner of Taxation,91 the High Court had held that the Commonwealth’s power to spend money was not sourced in appropriation legislation (this is the legislation that authorises the drawing of funds from the Consolidated Revenue Fund, also known as the CRF). Rather, parliamentary appropriations were required by ss 81 and 83 of the Constitution as part of the Parliament’s supervisory function—these sections did not authorise expenditures, but demonstrated Parliament’s consent to the withdrawal of funds. Therefore, the Commonwealth executive’s power to spend money had to be sourced elsewhere, such as in the common law capacities of the Crown as incorporated into s 61 of the Constitution. In Williams [No  1], a four-justice majority of the High Court (French CJ, Gummow, Crennan and Bell JJ) rejected both of the previous understandings about the breadth of the Commonwealth’s capacities.92 They rejected the contention that the Commonwealth enjoyed the capacities of natural persons unlimited in their breadth, and they rejected the argument that the Commonwealth enjoyed capacities that were co-extensive with the breadth of the legislative powers of the Commonwealth. They did so on grounds related to both the federal structure established by the Constitution and the importance of responsible government within it. These judges held that unlimited Commonwealth capacities would mean that the executive could, through spending and contracting, regulate areas solely within the states’ jurisdictions. Commonwealth capacities that mirrored the Commonwealth’s legislative power but required no legislative backing would mean that the Commonwealth executive could regulate areas through spending and contracting without the oversight of Parliament, which had representatives of the states in the Senate.93 The majority in Williams [No 1] had to replace the previous understandings of the breadth of the Commonwealth’s capacity to spend and contract with a new principle. They held that the executive power in s 61 must be understood as incorporating the

91 92 93

(2009) 238 CLR 1. (2012) 248 CLR 156. Like the majority, Hayne and Kiefel JJ held that the Commonwealth’s capacities were limited by the federal division of powers. However, because they found that the National School Chaplaincy Program could not be supported by any Commonwealth legislative power, their Honours did not have to decide whether the capacities required legislative backing. Heydon J dissented, finding that the program could be supported by the Commonwealth’s legislative power to provide benefits to students (s 51(xxiiiA) of the Constitution), and this was sufficient to support the spending.

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power to spend and contract pursuant to statutory authority—and in only limited circumstances, without statutory authority—where it is in connection with ‘the ordinary and well-recognised functions of government’.94 The Commonwealth Government had to respond quickly to Williams [No  1] to save many of its funding programs—most of which had no legislative support. It enacted amendments to the Financial Management and Accountability Act 1997 (Cth).95 Section 32B (of the newly named Financial Framework (Supplementary Powers) Act 1997 (Cth)) now provides that the Commonwealth has the power to make, vary or administer arrangements, including contracts, agreements or deeds, or make grants to the states, territories or individuals, where those arrangements or grants are listed in the Financial Framework (Supplementary Powers) Regulations 1997 (Cth). The amending legislation inserted over 400 arrangements and grants into the regulations, including the national school chaplaincy scheme that was the subject of the 2012 challenge. Despite this remedial action, serious constitutional questions still hung over these funding schemes: many of the schemes had no connection to a head of Commonwealth legislative power in ss 51, 52 or 122, and there were concerns that the mechanism chosen—that is, the delegation of spending authorisation—did not address the constitutional concerns raised in the High Court’s judgment. The Commonwealth seemed keenly aware of the possibility that many of the schemes ‘authorised’ by these amendments may still fail to meet the constitutional requirements. In the lead-up to the 2013 election, the government had proposed to hold a referendum on whether to add the power to make direct grants to local government bodies to the Commonwealth’s power to make grants to the states under s 96 of the Constitution. This would have ensured the constitutionality of many important schemes that are funded directly by the Commonwealth to councils, such as the nationwide Roads to Recovery program. Despite the enabling legislation passing through Parliament, the referendum was never held, and the possibility of a constitutional referendum on this issue has not been actively pursued by any party. In 2014, Mr Williams brought a second challenge, this time against the payments that were purportedly authorised by s 32B of the Financial Framework (Supplementary Powers) Act. In the Williams [No  2],96 the High Court unanimously endorsed the position of the majority in the first decision:  that, except in a limited range of circumstances, federal spending and contracting required statutory authority. The 94

95

96

(2012) 248 CLR 156, 211–12 [74], 214–15 [79], 216–17 [83] (French CJ), 233 [139] (Gummow and Bell JJ), 354 [530] (Crennan J). This term stems from an earlier decision: New South Wales v Bardolph (1934) 52 CLR 455, 496 (Rich J), 502–3 (Starke J), 508 (Dixon J, Gavan Duffy CJ agreeing), 517–18 (McTiernan J). This legislation was largely replaced by the Public Governance, Performance and Accountability Act 2013 (Cth), but s 32B was retained in the newly named Financial Framework (Supplementary Powers) Act 1997 (Cth). Williams v Commonwealth [No 2] (2014) 252 CLR 416.

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Court found that the provisions authorising the program were not valid laws of the Commonwealth because they did not have a sufficient connection to any federal head of legislative power. The Court did not address the overarching concerns with the constitutionality of the delegation mechanism, stating ‘it is not necessary to determine whether, as Mr Williams and some of the interveners submitted, s 32B of the [Financial Framework (Supplementary Powers) Act] is wholly invalid because it constitutes an impermissible delegation of legislative power.’97 While s 32B of the Financial Framework (Supplementary Powers) Act purports to authorise hundreds of federal spending programs, Williams [No 2] raises ongoing concerns about the legality of many, if not all, of them. The immediate response of the Commonwealth to Williams [No 2] was to reroute payments to the chaplaincy services through the states via the mechanism of s 96 of the Constitution. As we explained in Chapter 4, this allows the Commonwealth to provide financial grants to the states on ‘such terms and conditions as the Parliament sees fit’, and has been used as a vehicle for the Commonwealth to achieve, through financial measures, policies that would otherwise fall outside of its constitutional jurisdiction.

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Executive nationhood power The third type of power not expressly contained in either the Constitution or statute (after the prerogative powers and the common law capacities of the Crown) is a power ‘derived from the distribution of legislative powers effected by the Constitution itself and from the character and status of the Commonwealth as a national polity’.98 This has sometimes been referred to as the executive ‘nationhood’ power and is captured by the terms ‘execution and maintenance’ in s 61 of the Constitution.99 The ability of this power to support coercive actions (its depth) has been the subject of much debate. In Davis v Commonwealth,100 Mason CJ, Deane and Gaudron JJ found that the executive nationhood power could support legislation enacted pursuant to the incidental power that was coercive,101 but that any activity must be proportionate to the purpose for which the power is conferred, and that any infringement on individual rights, such as freedom of expression, must be 97 98

Ibid 455. Davis v Commonwealth (1988) 166 CLR 79, 93 (Mason CJ, Deane and Gaudron JJ). The executive nationhood power was initially considered as a power vested in the Commonwealth for self-protection, for example against subversion and sedition: Australian Communist Party v Commonwealth (1951) 83 CLR 1 (‘Communist Party Case’); Burns v Ransley (1949) 79 CLR 101, 109–10, 116; R v Sharkey (1949) 79 CLR 121, 148–9. Its scope was expanded by many of the justices in Victoria v Commonwealth (1975) 134 CLR 338 (‘AAP Case’) and this expanded conception of the power was adopted in Davis v Commonwealth. 99 AAP Case (1975) 134 CLR 338, 405–6 (Jacobs J); Davis v Commonwealth (1988) 166 CLR 79, 103 (Wilson and Dawson JJ), 110 (Brennan J). 100 (1988) 166 CLR 79. 101 Ibid 99.

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reasonably and appropriately adapted to that purpose.102 Davis concerned legislation commemorating the Australian Bicentenary enacted pursuant to the incidental power and the nationhood power in s 61. Mason CJ, Deane and Gaudron JJ held invalid a provision that proscribed the use of a number of expressions in business or trade, including ‘Bicentenary’, ‘200 years’, ‘Australia’, ‘Sydney’, ‘Melbourne’, when used in conjunction with ‘1788’, ‘1988’ or ‘88’. Their Honours held that the provision was a disproportionate impingement on freedom of expression unnecessary for protecting the integrity of the commemoration of the Bicentenary. In Ruddock v Vadarlis (‘Tampa Case’),103 the Federal Court considered the executive’s action in response to the arrival of a Norwegian container ship, the MV Tampa, in Australian waters. Before entering Australian waters, the Tampa had responded to a request from the Australian coastguard to assist a boat in difficulty in the international waters between Indonesia and Australia. This boat was carrying 433 asylum seekers—men, women and children—mainly from Afghanistan and Iraq. The Tampa picked up the asylum seekers and, while still in international waters, the captain of the Tampa requested permission to enter Australian waters to offload the asylum seekers. Permission was refused but, claiming a medical emergency on board, the Tampa entered anyway. Once the ship came into Australian waters, SAS troops from the Australian Navy immediately boarded the Tampa and took control of it. In the background to the dramatic events on the ground, the Australian Government hastily entered into an arrangement with the Pacific nation of Nauru to accept the asylum seekers, on the basis that their claims would be processed there with the assistance of the Australian Government. While the asylum seekers were being held on board the Tampa in Australian territorial waters, lawyers in Australia brought an action on their behalf challenging the Commonwealth’s power to expel the asylum seekers from Australian territory. The action was brought on the basis that the executive’s power to deal with the asylum seekers came exclusively from the Migration Act 1958 (Cth). In response, the Commonwealth asserted that it had a prerogative power to expel people at the border and that this had survived and operated alongside its powers under the Migration Act. The Commonwealth denied that the asylum seekers were being detained, because they were free to go anywhere in the world other than Australia. The challenge therefore rested on two relevant questions: first, whether there was a prerogative (or other executive) power to exclude, expel and detain aliens (although this turned on a further question of whether the asylum seekers had been detained); and, second, whether, if such a power existed, it had been abrogated by the prescriptive scheme

102 Ibid 100. 103 (2001) 110 FCR 491.

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that had been created for the processing of aliens and immigration detention in the Migration Act. During the trial, the asylum seekers were transferred (by agreement between the parties) from the Tampa to the HMAS Manoora, an Australian Navy vessel that was better equipped to accommodate and feed the asylum seekers while the legal action proceeded. North J (at first instance) found that the asylum seekers had been detained and was doubtful that a prerogative power existed that supported this action. Even if it did, he found that it had been supplanted by the extensive statutory regime in the Migration Act.104 The Commonwealth appealed, and the Full Court divided 2:1, with both Beaumont and French JJ holding that there existed a non-statutory executive power to engage in the relevant actions that had not been abrogated by the Migration Act. Black CJ dissented on both points. French J (in the majority) found that the executive had a coercive, non-statutory power to detain and expel aliens.105 While French J could find no case law to support this proposition, his Honour focused on the importance of the power to the Australian nation. His Honour said: ‘The power to determine who may come into Australia is so central to its sovereignty that it is not to be supposed that the government of the nation would lack … the ability to prevent people not part of the Australian community, from entering’.106 This power would allow the executive to bar the entry of vessels into Australia, and to adopt the means necessary to achieve that result. It would extend to restraining a person or boat from coming into Australia, or compelling it to leave.107 In contrast, Black CJ (in dissent) disagreed that such a power would come under the rubric of ‘national interest’ so as to fall within s 61. Black CJ held that the power was probably never considered important enough to exist as a royal prerogative, and even if it had been a prerogative power at some earlier stage, it had not been used for centuries.108 In any event, Black CJ held that it was unlikely that s 61 alone would support powers for coercive purposes such as deportation, detention, extradition, arrest, denial of mail and telephone services, and compulsion to attend and give evidence or produce documents.109 His Honour said:  ‘There is no doubt that, as a general principle of law, there is no executive authority, apart from that conferred by statute, to subject anyone in Australia, citizen or non-citizen, to detention.’110

104 Victorian Council for Civil Liberties Inc v Minister for Immigration and Multicultural Affairs (2001) 110 FCR 452, 481–2. 105 (2001) 110 FCR 491, 543. 106 Ibid. 107 Ibid 544. 108 Ibid 501. 109 Ibid 501. See also Simon Evans, ‘Rule of Law, Constitutionalism and the MV Tampa’ (2002) 13 Public Law Review 94, 97. 110 (2001) 110 FCR 491, 495.

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Therefore, in Black CJ’s opinion, the executive could only justify detention for the purpose of preventing the unlawful entry of non-citizens by relying on a statute authorising that detention. In fact, there already was a statute authorising detention of non-citizens:  the Migration Act. The relationship between the non-statutory executive power and the statutory regime is considered in more depth below. When the majority of the Full Federal Court upheld the executive power to expel aliens from the border in the Tampa Case, HMAS Manoora immediately took the asylum seekers to Nauru. The Commonwealth Parliament passed the Border Protection (Validation and Enforcement Powers) Act 2001 (Cth), which provided retrospective authority for the actions of the Commonwealth’s SAS troops during the crisis. These swift responses meant that the High Court refused leave for an appeal to be heard in this case, and it has not subsequently had an opportunity to consider the extent of this particular type of executive power outside statute. The questions that were raised in the case—and that divided French and Beaumont JJ on the one hand and Black CJ and North J on the other—therefore remain unanswered. Further debate about the nationhood power has centred on its breadth. It remains unclear how to determine whether a subject area falls within the nationhood power.111 Some examples of areas that are generally agreed to fall within the power are national symbols such as the flag and national anthem, nationally significant celebrations such as the Bicentenary,112 scientific and technical research, public health and exploration.113 Some judges attempt to define and limit the breadth of the power by reference to the federation, on the basis that the executive power of the Commonwealth will be strongest in areas where there is no state power.114 Judges have also asserted that the breadth of the power will change as Australia develops: things that may not have previously held national significance may evolve to do so.115 For example, a century ago the effect of human-made climate change was unheard of, but many today accept its existence and its potential national (and international) significance. Limits on the breadth of the nationhood power are difficult to apply. In the 2009 decision of Pape v Commissioner of Taxation,116 a majority of the High Court

111 Winterton, ‘The Limits and Use of Executive Power by Government’, above n 24, 426. 112 Davis v Commonwealth (1988) 166 CLR 79. 113 Communist Party Case (1951) 83 CLR 1; Burns v Ransley (1949) 79 CLR 101, 109–10, 116; R v Sharkey (1949) 79 CLR 121, 148–9; Pape v Commissioner of Taxation (2009) 238 CLR 1; Davis v Commonwealth (1988) 166 CLR 79, 110–11 (Brennan J); AAP Case (1975) 134 CLR 338, 362 (Barwick CJ), 397 (Mason J), 412–13 (Jacobs J); Commonwealth v Tasmania (1983) 158 CLR 1, 252 (‘Tasmanian Dam Case’) (Deane J). 114 AAP Case (1975) 134 CLR 338, 398 (Mason J), 362, 364 (Barwick CJ), 378 (Gibbs J); Davis (1988) 166 CLR 79, 93–4 (Mason CJ, Deane and Gaudron JJ), 104 (Wilson and Dawson JJ); Pape v Commissioner of Taxation (2009) 238 CLR 1, 90–1 [239] (Gummow, Crennan and Bell JJ), 118–19 [335]–[337] (Hayne and Kiefel JJ). 115 AAP Case (1975) 134 CLR 338, 397–8 (Mason J), 412–13 (Jacobs J). 116 (2009) 238 CLR 1.

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adopted the test of Mason J in Victoria v Commonwealth (‘AAP Case’):  that the power includes ‘enterprises and activities peculiarly adapted to the government of a nation and [that] cannot otherwise be carried on for the benefit of the nation’.117 However, Pape demonstrates that even the High Court continues to diverge in applying the test. As already mentioned, in Pape, a narrow majority found that the incidental power and the executive nationhood power supported a statutory scheme for the payment of so-called ‘tax bonuses’ under the Tax Bonus for Working Australians Act (No 2) 2009 (‘Tax Bonus Act’) (Cth).118 The Tax Bonus Act was part of the government’s response to what has been termed the ‘Global Financial Crisis’ (‘GFC’). The High Court in Pape considered the breadth of the executive’s power to spend money. A  broad executive spending power was once considered to rest upon some combination of two constitutional provisions: ss 61 and 81. These were thought to create a spending power because s 81 (together with s 83) gives the power to the Federal Parliament to authorise the executive to take (or ‘appropriate’) money out of the Treasury: the CRF. Parliament is thus given the power to appropriate money ‘for the purposes of the Commonwealth’. Section 61 was then thought to allow the executive to spend that money for any purpose stipulated by Parliament in the appropriation. Pape clarified that s 81 has no role in conferring any substantive spending power on the executive. All of the justices agreed that the section was not itself a power to authorise the executive’s spending, but was instead the constitutional recognition of the UK convention that Parliament must approve all purposes of executive expenditure. An appropriation is only a parliamentary permission to withdraw funds from the CRF and does not empower the executive to perform any action in which it would otherwise not be able to engage.119 The actual power to spend these funds must therefore be found elsewhere in the Constitution. Four justices found that s 61 itself, when supported by the incidental legislative power, gave the Commonwealth the power to pass the Tax Bonus Act. French CJ said that s 61 extended to spending money for: the purpose of avoiding or mitigating the large scale adverse effects of the circumstances affecting the national economy disclosed on the facts of this case, and which expenditure is on a scale and within a time-frame peculiarly within the capacity of the national economy.120

117 AAP Case (1975) 134 CLR 338, 397 (Mason J). 118 The majority consisted of French CJ, Gummow, Crennan and Bell JJ. 119 In this vein, appropriations legislation has been referred to as no more than ‘earmarking’ the money: AAP Case (1975) 134 CLR 338, 412 (Jacobs J). In Commonwealth v Colonial Ammunition Co (1924) 34 CLR 198, 224, Isaacs and Rich JJ noted that an appropriation ‘neither betters nor worsens transactions in which the Executive engages within its constitutional domain’. 120 Pape v Commissioner of Taxation (2009) 238 CLR 1, 23–4 [8].

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French CJ did not consider that the executive power would extend to a general power to manage the national economy,121 nor that it would expand indefinitely into the jurisdiction of the states under the rubric of ‘national concern’ or ‘national emergency’.122 French CJ stressed that the Tax Bonus Act contained short-term measures that would not ‘in any way’ interfere with the constitutional distribution of powers between the Commonwealth and the states.123 Gummow, Crennan and Bell JJ, also in the majority, concluded that the tax bonus scheme, because of the aggregation of fiscal power in the hands of the Commonwealth over the last century, was ‘an example of the engagement by the executive government in activities peculiarly adapted to the government of the country and which otherwise could not be carried on for the public benefit’.124 So for each of the justices in the majority it was pivotal that the actions required to alleviate the effects of the GFC were on such a scale that only the national government could implement them. Interestingly, the application focused on the practical capacities of the states and the Commonwealth, rather than their legal competencies. This means that the scope of executive power can in some instances be determined by reference to whether the Commonwealth is the only government with the resources at its disposal to achieve a necessary outcome. The historical aggregation of financial resources at the Commonwealth level in the Australian federation, discussed in more depth in Chapter 4, will therefore determine in some instances the breadth of Commonwealth executive power. The dissenting judgments found that there was no power in s 61 that supported the legislation. Hayne, Kiefel and Heydon JJ also noted that there were other ways by which a comparable injection of funds into the national economy could have been achieved and that therefore reliance upon the nationhood power was unnecessary and, because of this, invalid. These judges said that, for example, the states could have administered a stimulus payment scheme through s 96 grants, or the Commonwealth could have used its taxation power (s 51(ii)) or social welfare benefits power (s 51(xxiii) and (xxiiiA)).125 Hayne and Kiefel JJ also criticised the majority for upholding an executive power that relied on the existence of an ‘emergency’ or ‘crisis’. For Hayne and Kiefel JJ, the idea of requiring an ‘emergency’ or ‘crisis’ was ‘protean and imprecise’. They thought the proposition that executive power expanded during times of emergency carried with it ‘difficulties and dangers that raise fundamental questions about the

121 122 123 124 125

Ibid 63–4 [133]. Ibid 60 [127]. Ibid. Ibid 90–1 [242]. See also ibid 89 [233]. Ibid 122 [349]–[350], 123–4 [355]–[356] (Hayne and Kiefel JJ), 178–80 [513]–[517] (Heydon J).

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relationship between the judicial and other branches of government’.126 This last comment expresses discomfort about the judiciary engaging in determinations about the necessity and appropriateness of executive policies in times of emergency. These decisions are highly political, and generally not part of the exercise of judicial power. Hayne and Kiefel JJ considered that if the judiciary could not police the limits of executive power, it was undesirable that the power exist at all.

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Regulating executive power: the legislature In Brown v West the High Court said: ‘Whatever the scope of the executive power of the Commonwealth might otherwise be, it is susceptible of control by statute.’127 The regulation of the non-statutory executive powers by Parliament is a fundamental manifestation of the rule of law, responsible government and parliamentary supremacy.128 Parliamentary supremacy over executive power means that legislatively based executive power—which has the advantage of scrutiny in the open, transparent and democratic processes of Parliament—trumps non-statutory executive power, which is often ill defined, with limits that are difficult to ascertain.129 It also avoids the inconvenience and uncertainty that the operation of two concurrent powers may cause, particularly where the power has the potential to affect the liberty of individuals.130 However, consideration of this principle in two cases, the Tampa Case131 and Cadia Holdings v New South Wales,132 leaves some doubt about its application. The facts of the Tampa Case are set out above. The leading decision of the Full Federal Court was delivered by French J. As discussed above, on the question of whether a power ‘to prevent non-citizens and do such things necessary to effect such exclusion’ existed, French J did not rely on the prerogative, but on a more general executive power coming from Australia’s status as a sovereign nation; that is, the nationhood power.133 Turning to the second question—as to whether executive power had been abrogated, modified or regulated by statute—French J held that this was primarily one of statutory construction. His Honour employed a presumption of statutory interpretation that Parliament would not lightly displace an executive power,134 particularly where the

126 127 128 129 130 131 132 133 134

Ibid 122–3 [352]–[353]. See also ibid 193–4 [551]–[552] (Heydon J). (1990) 169 CLR 195, 202. See Evans, above n 111, 94–5. Ibid. Ibid 99. Tampa Case (2001) 110 FCR 491. (2010) 242 CLR 195. (2001) 110 FCR 491, 542–3. His Honour relied upon the earlier decision of Barton v Commonwealth (1974) 131 CLR 477, 488 (Barwick CJ).

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power was ‘intimately connected to Australia’s status as an independent, sovereign nation State’.135 Using this rule of interpretation, French J denied that the Migration Act 1958 (Cth) manifested an intention to displace the executive power. His Honour considered the Act ‘facultative’—conferring an alternative power, but not evincing ‘an intention to take it away’.136 The Tampa Case is authority that the High Court will not lightly construe legislation to have expressly or by necessary implication modified the executive power. It creates a situation where the executive may choose to rely upon a statutory power to achieve an action, or if the constraints imposed by that power are too great, fall back on amorphous undefined powers in s 61, including the prerogative and powers derived from nationhood.137 In contrast to the Tampa Case, in Cadia Holdings the High Court found that the relevant legislation had modified the executive prerogative. The plaintiff argued that the states’ proprietary prerogative to ownership of gold and silver had been removed by a subsequent UK statute, the Royal Mines Act 1688. Section 3 of that Act provided: ‘That no mine of copper, tin, iron, or lead, shall hereafter be adjudged, reputed, or taken to be a royal mine, although gold or silver may be extracted out of the same.’ French CJ found that it was necessary to construe the Act broadly because of its underlying, beneficial purpose: to encourage copper mining. The words ‘mine of copper’ in the legislation should be interpreted to the benefit of private interests in line with this overarching purpose of the legislation.138 The joint judgment in the majority also construed the Act in light of its purpose, and found that a mine would still be a copper mine for the purposes of the Act even if it was also a goldmine, thus abrogating the prerogative in a greater number of cases.139 The different outcomes reached in the Tampa Case and Cadia Holdings seem to rest upon two distinctions, although these do not appear entirely satisfactory. The first relates to the type of prerogative or executive power in question: French J indicated in the Tampa Case that the more important an executive power is to the independent status of Australia as a nation, the clearer a statute must be to modify or abrogate it. The second relates to the importance of the purpose of the statute itself: all the members of the High Court in Cadia Holdings indicated that a statute intended to confer benefits upon private individuals will be interpreted broadly, abrogating

135 (2001) 110 FCR 491, 540. 136 Ibid 545. 137 See also Mokbel v Attorney General (Cth) (2007) 162 FCR 278, where the Federal Court found that the executive power to extradite an individual contained in s 61 of the Constitution was not limited by a ‘machinery provision’ in s 40 of the Extradition Act 1988 (Cth) that required all requests for extradition to be made with the authority of the Attorney-General. 138 (2010) 242 CLR 195, 218–19 [58]. 139 Ibid 230 [102]–[103] (Gummow, Hayne, Heydon and Crennan JJ).

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prerogatives where necessary to fully achieve this purpose. How this sits with the Tampa Case, however, is unclear. On one view, the Migration Act also operates to confer benefits on asylum seekers, arguably more important than financial benefits, although these benefits are only for non-citizens. However, there was no indication in the Tampa Case that this was a relevant consideration. The general rule is that executive power is subject to control by statute. However, because some executive power is conferred directly by the Constitution, it has been argued that Parliament cannot completely control these powers.140 While it is unlikely that Parliament would be able to remove these powers entirely, regulation of such powers is probably permissible. For example, the appointment of High Court justices by the Governor-General in Council under s 72 of the Constitution has been regulated by s 6 of the High Court of Australia Act 1979 (Cth), which requires consultation by the federal Attorney-General with the state attorneys-general prior to such appointment.

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Conclusion The broad language of s 61 of the Constitution means that questions about the depth and breadth of executive power can be difficult to answer with precision. Most times, the answer will be found in the words of the Constitution or legislation. In  these instances, questions about the depth and breadth of the power seem relatively straightforward. However, there are a number of powers that are not codified in this way and that, while not often exercised in practice, can have far-reaching consequences. They include the reserve powers of the Governor-General to dismiss a government, the prerogatives and the common law capacities of the Crown, and the powers of the federal executive derived from nationhood. These powers raise complex questions about the limits of executive power, and therefore pose difficulties when bringing the exercise of the power to account. The tests that the courts have used—particularly in determining the extent to which coercive actions can be supported, and whether a non-statutory power has been abrogated or regulated by statute—adds confusion to these limits. Despite these concerns about the present state of the law, it must be remembered that society is constantly evolving, and new issues are emerging that government must face. The materialisation of unforeseen exigencies requires flexibility in the executive’s powers. It is therefore necessary that some powers will lack precise

140 See discussion in Winterton, Parliament, the Executive and the Governor-General, above n 24, 98–100; Winterton, ‘The Limits and Use of Executive Power by Government’, above n 24, 438.

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definition so that they can evolve with society. As French CJ stated in Pape v Commissioner of Taxation: While history and the common law inform [the content of executive power], it is not a locked display cabinet in a constitutional museum. It is not limited to statutory powers and the prerogative. It has to be capable of serving the proper purposes of a national government.141

To ensure that executive power is exercised properly, in accordance with its public purpose and within its legal limits, the existence of strong accountability mechanisms will be paramount. It is to these mechanisms that the next chapter turns.

DISCUSSION QUESTIONS 1

Consider the advantages and disadvantages of statutory and non-statutory executive powers. Should non-statutory powers be abolished?

2

What function does the nationhood power perform in our constitutional system? Is it necessary? What are the dangers associated with such a power?

3

Do you agree with the majority of the High Court in Williams [No 1] that the power of the Federal Government to spend money requires, in most instances, statutory authorisation? Why or why not? In your answer, consider the practical implications of requiring such authorisation.

4

Find the regulations that have been made under s 32B of the Financial Framework (Supplementary Powers) Act 1997 (Cth). Which, if any, of these spending programs do you think are constitutional?

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FURTHER READING Gabrielle Appleby and Stephen McDonald, ‘Looking at the Executive Power through the High Court’s New Spectacles’ (2013) 35 Sydney Law Review 85 Simon Evans, ‘Rule of Law, Constitutionalism and the MV Tampa’ (2002) 13 Public Law Review 94 Simon Evans, ‘Continuity and Flexibility:  Executive Power in Australia’ in Paul Craig and Adam Tomkins (eds), The Executive and Public Law: Power and Accountability in Comparative Perspective (Oxford University Press, 2006) 89 H V Evatt, The Royal Prerogative (Law Book Co, 1987)

141 (2009) 238 CLR 1, 38 [60].

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Peter Gerangelos, ‘The Executive Power of the Commonwealth of Australia: Section 61 of the Commonwealth Constitution, “Nationhood” and the Future of the Prerogative’ (2012) Oxford University Commonwealth Law Journal 1. Nicholas Seddon, Government Contracts:  Federal, State and Local (Federation Press, 6th ed, 2018) Bradley Selway, ‘All at Sea—Constitutional Assumptions and “The Executive Power of the Commonwealth”’ (2003) 31 Federal Law Review 495 Anne Twomey, ‘Pushing the Boundaries of Executive Power—Pape, the Prerogative and Nationhood Powers’ (2010) 34 Melbourne University Law Review 313 George Winterton, ‘The Limits and Use of Executive Power by Government’ (2003) 31 Federal Law Review 421 George Winterton, Parliament, the Executive and the Governor-General:  A Constitutional Analysis (Melbourne University Press, 1983) James Stellios, Zines’ The High Court and the Constitution (Federation Press, 6th ed, 2015)

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Leslie Zines, ‘The Inherent Executive Power of the Commonwealth’ (2005) 16 Public Law Review 279

287

288

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EXECUTIVE ACCOUNTABILITY

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CHAPTER OVERVIEW Introduction

289

Parliamentary accountability

295

Responsible government

295

Judicial accountability

300

Executive accountability

307

Internal review

308

Administrative tribunals

308

Ombudsman schemes

312

Public Service Commissioner

316

Specialist government inquiries, including royal commissions

317

Independent commissions

320

Public accountability

322

Transparency: facilitating accountability

322

FOI legislation

323

Right to reasons

328

Whistle-blowing

329

Conclusion

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Introduction The previous chapter explained the types of power exercised by the executive and the legal boundaries of these different types of executive power in terms of their breadth and depth. This chapter considers how the exercise of executive power is supervised and brought to account, and by whom. The accountability of executive power falls within the jurisdictional domain of ‘administrative law’. Unlike the French civil law system with its droit administratif (which roughly translates to ‘administrative law’), the UK tradition had no dedicated system of law to govern the boundaries of the relationship between the executive and the citizen. In the UK, as in Australia, executive accountability traditionally rested on political institutions and conventions of representative and responsible government, together with a very limited and technical system of legal checks, where individuals could seek judicial review of executive action. Historically, review by the courts of administrative action, including the actions of lower courts, was done by a complicated series of what are known as prerogative writs.1 These are actions that may be brought by an individual in the superior courts to supervise the conduct of lower courts and public officials where that conduct may have adversely affected that individual, to ensure that the lower courts and public officials do not overstep their authority in an individual case. One of the most important prerogative writs in English history was the writ of habeas corpus, which allowed prisoners to apply to the courts to have their detention reviewed by reference to law. In practice, prerogative writs were notoriously complex, technical and limited to jurisdictional questions. They provided little real avenue for wronged individuals seeking redress against the state. One of the earliest recognitions of this limitation was the attempt to codify the writ of habeas corpus in the 17th and 18th centuries after the courts had interpreted it increasingly narrowly.2 In classical English constitutional theory, responsible government and political accountability of the ministry to the Parliament was thought to be the most effective mode of bringing the executive and the exercise of executive power to account, particularly in relation to more systemic abuses. And perhaps it was in the 17th and 18th centuries, with a small public service and few ministers.3 However, the growth of the executive’s role—referred to in Chapter 7 as the growth of the modern administrative 1

2 3

These include the writs of habeas corpus (an order that requires a detained person to be brought before a court or judge to determine whether the detention is legal), certiorari (an order that quashes the relevant decision), mandamus (an order that commands an inferior court or public official to take some action) and prohibition (an order that commands an inferior court or public official to refrain from taking some action). Albert Venn Dicey, Introduction to the Study of the Law of the Constitution (Macmillan, 8th ed, 1915) 130–1. See David Hamer, Can Responsible Government Survive in Australia? (Department of the Senate, 2nd ed, 2004).

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state—highlighted a growing gap in the traditional mechanisms of accountability. Judicial review was complex and legally technical, and in addition the courts were restricted to reviewing the legality of decisions in individual cases. Furthermore, the political mechanisms of accountability were increasingly controlled by party politics and had proved largely ineffective both at revealing public maladministration and censuring it. In the 1970s and 1980s, a series of inquiries in Australia established that additional systems and mechanisms were required to bring transparency, openness and accountability to the modern state. Australian accountability reforms, sometimes referred to as Australia’s ‘new administrative law’, reflected a strengthening of judicial review as well as increased use of non-judicial accountability. A  Commonwealth Government report in 1971, the Kerr Report,4 recommended the introduction of a statutory basis for judicial review to streamline the procedure involved, the expansion of the system of merits review by administrative tribunals, the establishment of an ombudsman,5 and the creation of the Administrative Review Council to oversee these new mechanisms.6 In 1982, after a further series of departmental and parliamentary inquiries, the federal system of freedom of information (‘FOI’) was implemented. Many of these ‘new administrative law’ mechanisms have been operating in Australia now for more than four decades. It is appropriate that they are continuing to undergo review and reform. Some of this reform has itself been spurred by royal commissions that uncovered systemic corruption and recommended the implementation and reform of new accountability mechanisms, such as independent anti-corruption commissions. More recently, reform has been the result of political pressure arising from media publicity of particular wrongdoings and maladministration. Good government requires a variety of accountability mechanisms employed effectively to achieve the goals of openness, accountability and integrity. It is this number and variety of mechanisms that ensure that the weakness and limitations of one mechanism are countered by the jurisdiction of others, and that each mechanism is itself held accountable within the system. However, concerned by the proliferation of accountability mechanisms and systems, British philosopher Onora O’Neill has issued an important warning: Perhaps the culture of accountability that we are relentlessly building for ourselves actually damages trust rather than supporting it. Plants don’t flourish when we pull them up too often to check how their roots are growing: political institutional and 4 5

6

Administrative Review Committee, Parliament of Australia, Report (1971) (‘Kerr Report’). The initial recommendation of the Kerr Committee was for a General Counsel for Grievances; this recommendation was further considered in the interim report by the Bland Committee in 1973, which recommended an ombudsman:  Committee on Administrative Discretions, Parliament of Australia, Interim Report of the Committee on Administrative Discretions (1973) (‘Bland Report’). Established by the Administrative Appeals Tribunal Act 1975 (Cth)  pt  V The Administrative Review Council was subsequently abolished in 2015.

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professional life too may not go well if we constantly uproot them to demonstrate that everything is transparent and trustworthy.7

In Australia there is now a large number of accountability mechanisms—so many that James Spigelman, the former Chief Justice of the New South Wales Supreme Court, asserts that there exists a separate ‘integrity branch’ of government, entrusted to ensure the integrity of the mechanisms of government.8 Accountability for integrity, in Spigelman’s view, is not limited to accountability against hard legal limits but also to ensure that executive power is exercised for the public purpose for which it is conferred. He defines institutional integrity as follows:

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A short definition is that the integrity branch or function of government is concerned 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.9

Framed in this way, integrity mechanisms have the capacity to ensure not just the enforcement of legal limits, but also the achievement of more substantive public law values, including the protection of individual rights. In a foundational sense, as John McMillan has argued, integrity mechanisms provide ‘arguably the most fundamental of all human rights, namely the right to complain against and to challenge the government in an independent forum’.10 Many of them provide low-cost and time effective avenues for aggrieved individuals, thus further promoting effective rights redress. Some integrity mechanisms, such as the Australian Human Rights Commission, have explicit mandates that require them to investigate and report on government actions by reference to human rights, and to promote the future achievement of better human rights protections. Further, as Spigelman explains, part of an integrity mandate is to ensure fidelity to ‘public values’, which the institution is expected to obey.11 Lisa Burton and George Williams have argued that this concept might extend to the protection of human rights.12 Integrity mechanisms in other countries have been more explicitly connected to the protection of human rights. For instance, in South Africa, integrity institutions

7 8 9 10 11 12

BBC Radio 4, ‘A Question of Trust’, 2002 Reith Lectures, 2002 (Onora O’Neill), . J J Spigelman, ‘The Integrity Branch of Government’ (2004) 78 Australian Law Journal 724. James Spigelman, ‘The Integrity Branch of Government’ (Paper presented at the National Lecture Series for the Australian Institute of Administrative Law, Sydney, 29 April 2004). John McMillan, ‘The Ombudsman and the Rule of Law’ (Paper presented at the Public Law Weekend, Canberra, 5–6 November 2004) 8. John McMillan, ‘The New Separation of Powers’ (2010) 38 Federal Law Review 423, 439. Lisa Burton and George Williams, ‘The Integrity Function and ASIO’s Extraordinary Questioning and Detention Powers’ (2012) 28 Monash University Law Review 1, 25. See also Gabrielle Appleby, ‘Horizontal Accountability: The Rights-protective Promise and Fragility of Executive Integrity Institutions’ (2017) 23 Australian Journal of Human Rights 168.

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are constitutionally proscribed in Chapter  9 of the South African Constitution, which had its foundations in the African National Congress Legal and Constitutional Committee’s 1990 working document, ‘Bill of Rights for a New South Africa’. As Heinz Klug explains, this chapter includes an independent ombudsman (referred to as the ‘Public Protector’) ‘[w]ith a view to ensuring that all functions and duties under the Constitution are carried out in a fair way with due respect for the rights and sentiments of those affected’.13 Characterising the different types of accountability systems as forming a new branch of government can be helpful in that it emphasises the special nature of the role of such systems within government. Emphasising integrity and not just legal accountability is also important, because while some accountability mechanisms are institutionally constrained so that they can only consider the legality of executive action (for instance, as we explain below, the federal courts are constrained in this way), many go beyond this, and investigate ‘fidelity to purpose and to applicable public values’.14 However, the idea of an ‘integrity branch’ fails to explain the different types of mechanisms that ensure governmental integrity, and also confuses the division of powers between the three branches of government that is so fundamental to our constitutional system. Each traditional branch of government—the Parliament, the executive and the judiciary— contains its own integrity mechanisms. Further, how these mechanisms operate is influenced by their position in a particular branch of government, and thus situating each mechanism and system within the traditional three branches remains important. This chapter classifies the different accountability mechanisms by reference to the institutional oversight mechanism involved; that is, who is scrutinising the conduct of the executive on behalf of the people: the Parliament, the judiciary, the executive itself, or the people directly. Using these institutional categories is helpful because they recognise that common to each mechanism is the purpose of ensuring that the exercise of executive power is accountable, but this is done in different ways based on the powers and structures of the oversight mechanisms. For example, judicial mechanisms are limited to reviewing the legality of government action (at least at the federal level), while mechanisms within the executive may also consider the merits of the particular action, or in some cases its underlying policy. The nature and composition of the oversight body also determine its practical effectiveness. So, for example, mechanisms that operate within Parliament will all potentially be hampered by partisan political influences, the control of the lower House of Parliament by the executive, and the limits on the powers of Parliament to order members of the executive to come before it and give evidence or produce documents. 13 14

Heinz Klug, ‘Accountability and the Role of Independent Constitutional Institutions in South Africa’s PostApartheid Constitutions’ (2015) 60 New York Law School Law Review 153, 157. Spigelman, above n 9.

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Andreas Schedler draws a distinction between ‘answerability’ and ‘enforceability’ elements of accountability.15 Linda Reif adds to this, arguing there is also a third ‘intermediate’ form of accountability, where a body has the power to investigate, recommend, report publicly and persuade privately.16 These elements of accountability are identifiable in mechanisms across the different branches. The courts, for instance, issue decisions that are enforceable against the government. Executive mechanisms, on the other hand, will often exercise Reif ’s intermediate accountability; for instance, an ombudsman’s power is limited to investigation, conciliation and reporting with recommendations. Not all executive accountability mechanisms rely on soft power alone:  merits review tribunals, for instance, have harder edges, with the power to overturn and remake government decisions. As we will see, often mechanisms combine softer and harder forms of accountability. Parliament, for instance, has a variety of powers that facilitate its ability to hold the executive to account, but also has the power to enforce its decisions against the government, including through censure motions and ultimately a vote of no confidence. As well as accountability to the Parliament, the executive, the judiciary and the public directly, this chapter will explore those mechanisms that facilitate this accountability, including through FOI legislation. There are, of course, interrelationships and overlap between the different categories of accountability and also between the mechanisms that operate within a category. The interrelationships between accountability mechanisms were referred to by the 2005 National Integrity Systems Assessment as a ‘bird’s nest’; this assessment described the pattern of anti-corruption and accountability mechanisms as an interlocking web of agencies, laws, practices and ethical codes.17 To take an example, if an individual had been adversely affected by an executive decision, they could seek review in myriad ways. Initially, they could request access to documents under the relevant FOI legislation to inform themselves better about the decision. They could go to their local Member of Parliament (‘MP’) in the hope that Parliament may want to find out more about the issue, or maybe even go to the media. They may be able to seek internal review of the decision within the government agency, an investigation by the Ombudsman, a merits review at a specialist or generalist tribunal, or review

15

16 17

Andreas Schedler, ‘Conceptualizing Accountability’ in Andreas Schedler, Larry Diamond and Marc F Plattner (eds), The Self-Restraining State:  Power and responsibility in new democracies (Lynne Rienner Publishers, 1999) 13, 14–17. Linda C Reif, ‘Building Democratic Institutions: The Role of National Human Rights Institutions in Good Governance and Human Rights Protection’ (2000) 13 Harvard Human Rights Journal 1, 29. A J Brown, Chaos or Coherence? Strengths, Opportunities and Challenges for Australia’s Integrity Systems (Transparency International Australia, 2005).

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by an anti-corruption body if it fell within that body’s jurisdiction. This is even before they get to the courts! This multifaceted approach has some disadvantages. It may result in ‘appeal fatigue’, where an individual gives up pursuing an issue because of the number of options for review, and the length and complexity of the different types of review. This complexity may also create a large amount of confusion for an individual seeking redress or information from the government, but who does not possess the necessary expertise to know which mechanism is most appropriate for their grievance. It is important that there be adequate guidance and support in the use of the different mechanisms so that they are accessible to the non-legally trained. However, there are clear advantages in having available a diverse range of interlocking accountability mechanisms. Individuals may have different resources at their disposal, or be seeking different types of redress. Their complaints may differ in nature. By having a range of mechanisms that can cater to this diversity of needs, individual mechanisms can specialise in both subject areas and types of investigation. Most importantly, having a range of oversight mechanisms reduces the likelihood and effect of the corruption of any individual mechanism. For example, in Anti-Discrimination Commissioner v Acting Ombudsman,18 the Supreme Court of Tasmania held that the Tasmanian Ombudsman had power to investigate allegations made against the Anti-Discrimination Commissioner, a fellow accountability agency. The case provides a working example of one means by which the rule of law operates, ensuring that no part of the executive is above the law. As a branch of public law, administrative law focuses on the accountability of the exercise of power by public bodies. Whether this extends to public bodies exercising commercial functions and competing with the private sector (for example, the Commonwealth-owned private health insurer Medibank Private) or commercial bodies exercising public functions (for example, many prisons in Australia are now staffed by private contractors) has proven to be a difficult question to resolve. There exist some legitimate reasons for not applying administrative law principles to bodies operating in the private and commercial sector, for example to ensure competitiveness, and to protect trade secrets and intellectual property. However, there have been many calls for full accountability of such bodies,19 and the more contemporary administrative law mechanisms apply to them in certain instances.20 18 19

20

(2003) 11 Tas R 343. See, eg, Geoffrey Lindell, ‘Responsible Government’ in P D Finn (ed), Essays on Law and Government, Volume 1:  Principles and Values (Lawbook, 1995)  75, 106; Western Australia, Royal Commission into Commercial Activities of Government and Other Matters, Report (1992) vol 2, [3.14.6]. See, eg, Geoff Airo-Farulla, ‘Public and Private in Australian Administrative Law’ (1992) 3 Public Law Review 186; Margaret Allars, ‘Private Law but Public Power: Removing Administrative Law Review from Government Business Enterprises’ (1995) 6 Public Law Review 44.

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The rest of this chapter considers the operation and effectiveness of the different mechanisms within the general categories of accountability: parliamentary accountability, judicial accountability, executive accountability, public accountability and facilitators of accountability. Rather than provide a detailed description of how each mechanism works, the chapter provides an overview of the purpose, strengths and weaknesses, and ongoing reform of each of the mechanisms as part of attempting to strike the public law balance between empowerment and constraint.

Parliamentary accountability Accountability to Parliament rests predominantly on the responsibility of ministers to Parliament for their actions. Responsible government is facilitated by a series of parliamentary mechanisms, the most important of which are question time and the inquiries of parliamentary committees, which have already been introduced in Chapter  6. Another important parliamentary accountability mechanism is the authorising and auditing by Parliament of expenditures of public moneys made by the executive. The auditing function is performed partly through the committee system and partly through the work of the Auditor-General, an officer of Parliament.

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Responsible government Under the convention of responsible government, all government ministers must be elected to Parliament and sit in Parliament. At the Commonwealth level, this is set out in s 64 of the Constitution.21 Generally, government ministers are members of the party that holds a majority of seats in the lower house. This creates a chain of accountability: the executive is responsible to the legislature, which is duly chosen by the people. The institution of responsible government is designed so that the electorate can, through Parliament, control the executive. Thus, in theory, Parliament controls the executive. It scrutinises the actions of government ministers and departments through parliamentary committees, question time, the requirements of annual reporting, and particularly through the work of the Senate, which is not necessarily controlled by the executive. Section 64 of the Constitution makes it clear that ministers may be members of the Senate as well as the House of Representatives. Although there is no requirement that there be ministers in the Senate, all governments since

21

Similar provisions exist in South Australia, Victoria and Tasmania: Constitution Act 1934 (SA) s 66(1); Constitution Act 1934 (Tas) s 8B(1); Constitution Act 1975 (Vic) s  51. In the other states, ministers are appointed from sitting MPs, although this is allowed rather than mandated in their constitutional documents. See, eg, Constitution Act 1902 (NSW) s 13B(3)(a)(i); Constitution of Queensland 2001 (Qld) s 23.

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federation have had ministers in both houses. The location of ministers and other government members in the Senate means that the Senate can use its parliamentary procedures to inquire into the whole of the government’s agenda. The operation of collective responsibility of the ministry to Parliament for decisions made by Cabinet was introduced in Chapter  6. Responsible government also encompasses individual ministerial responsibility. Ministers are responsible for their departments and must answer questions about their administration; and, where a government department commits a misdeed or a serious blunder, or the department has misled Parliament on a serious matter, in theory the Minister in charge of the department will be asked to take responsibility for that and resign. In this sense the public service is held accountable through the relevant Minister. However, the conventions of responsible government, including individual ministerial responsibility, are not strict legal rules and, as such, are not enforceable in the courts.22 As we explained in the previous chapter, one of the objectives underpinning the convention of individual ministerial responsibility is to ensure that public servants feel comfortable providing ‘frank and fearless’ advice and service to the government, while also ensuring that there is accountability. The convention means that advice can be provided away from public and political pressures, while ensuring that an accountability vacuum is avoided because the Minister remains responsible for any final decision. As mentioned above, ‘responsibility’ has historically manifested in ministerial resignations for departmental maladministration. However, it is increasingly accepted that ministers should not or cannot take full responsibility for the actions of their departments. This is representative of the fact that departments are increasingly too large for a single Minister to have control over and therefore have responsibility for. The weakening strength of the convention, at least in relation to resignation, was reflected in a 1998 document released by the Howard Government, the Guide on Key Elements of Ministerial Responsibility: [The convention] does not mean that ministers bear individual liability for all actions of their departments. Where they neither knew, nor should have known about matters of departmental administration which come under scrutiny it is not unreasonable to expect that the secretary or some other senior officer will take responsibility.23

It is certainly the case that scandals over public service maladministration in recent times have not resulted in ministerial resignations. One such example is the failure by the Minister for Environment to resign over the administration of a government-subsidised home insulation program in 2009–10. The lack of oversight

22 23

Lindell, above n 19, 80. Department of the Prime Minister and Cabinet, Australian Government, A Guide on Key Elements of Ministerial Responsibility (1998) 13. This was re-released in 2008 by the Rudd Government, but has since been under further review.

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and enforcement of standards in the implementation of the scheme was linked to four deaths, over 100 fires, thousands of electrified roofs, and accusations of fraud and rorting of the taxpayer-funded system by providers. The government established an inquiry into the matter,24 and there were also inquiries by a Senate committee, the Commonwealth Auditor-General, and state and territory authorities. The Minister was removed by the Prime Minister from the environment portfolio, but maintained his position in the ministry. The opposition had called for the Minister’s resignation on the basis that he was aware of the risks involved but failed to act, and therefore that he should take responsibility for the failings of the scheme.25 It may be argued that the weakening of the convention of individual ministerial responsibility reflects the changing complexities within departments, and the arrangements by which junior ministers as well as parliamentary secretaries assist senior ministers in administering a government department. However, it may also be argued that the decrease in strength of the convention means that it has lost the force to bring ministers to account, either leaving an accountability vacuum or endangering the anonymity and neutrality of the public service if blame is shifted there. Ministerial responsibility has also been weakened by two other aspects of the modern government:  the crossover of responsibility between departments and also between the state and federal governments, and the heavy reliance on ministerial advisers who act as a generally unaccountable layer between the public service and the ministers. The combined efforts of many departments in ‘whole-of-government’ and intergovernmental approaches to issues is often necessary because of the increase in what are known as ‘wicked problems’.26 These are problems that do not fit neatly into the jurisdiction of one particular department, or of the Commonwealth or the state governments. The very nature of government projects means whole-of-government initiatives are often considered necessary and expedient. Such initiatives, however, make it more problematic to determine which department, and therefore which Minister, is responsible.27 This can make it difficult for Parliament and its committees to focus their

24

25

26

27

Allan Hawke, Review of the Administration of the Home Insulation Program (Australian Government, Department of Climate Change and Energy Efficiency, 6 April 2010), . See, eg, Samantha Maiden, ‘Tony Abbott calls on Peter Garrett to Quit over Roof Insulation Deaths Debacle’ , The Australian (online), 11 February 2010, . See, eg, Australian Public Service Commission, Tackling Wicked Problems:  A Public Policy Perspective (25 October 2007), . See, eg, Senate Select Committee on a Certain Maritime Incident, Parliament of Australia, Majority Report (2002) 158 [7.46]; Simon Evans, ‘Continuity and Flexibility: Executive Power in Australia’ in Paul Craig and Adam Tomkins (eds), The Executive and Public Law: Power and Accountability in Comparative Perspective (Oxford University Press, 2006) 89, 111. See also Geoffrey Lindell, Responsible Government and the Australian Constitution—Conventions Transformed into Law? (Federation Press, 2004)  18; Western Australia, above n 19, [3.1.10].

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inquiries, and allows ministers to avoid responsibility by blaming other departments or even organisations in another jurisdiction altogether (such as the states).28 Ministerial advisers are the personal staff of the Minister and are increasingly being relied upon in the upper echelons of government.29 Prior to the 1970s, ministerial advisers were almost unheard of in the Westminster system.30 Now, however, they are generally appointed to roles that were previously filled by high-level public servants. Unlike the position regarding public servants, however, governments have claimed that there is a convention preventing ministerial advisers from being called before Parliament and its committees. Ministerial advisers are also not subject to the public service codes of conduct. This lacuna of accountability for advisers has been a cause of consternation: the Senate Select Committee on a Certain Maritime Incident31 found that, in many cases, ministerial advisers are ‘wielding executive power in their own right’ ,32 mediating between the public service and ministers, and often giving directions to the public service. It further found that ministers have in the past not held advisers responsible for failing to pass on advice to departments, nor accepted responsibility for such errors themselves, thus leaving an accountability vacuum.33 Reflecting these concerns, the 1998 Guide on Key Elements of Ministerial Responsibility stated that ministers ‘cannot delegate to members of their personal staff their constitutional, legal or accountability responsibilities’ .34 In 2003, the Senate Finance and Public Administration References Committee recommended that a code of conduct for ministerial advisers be implemented, whereby  advisers may be called by parliamentary committees in circumstances where they are exercising or influencing executive action.35 The Code of Conduct for Ministerial Staff came into effect on 1 July 2008.36 It includes, among other things, that ministerial staff and consultants must ‘acknowledge that ministerial staff do not have the power to direct APS [Australian Public Service] employees in their own right and

28 29 30 31 32 33 34 35 36

Australian Public Service Commission, above n 26, [7] discusses the difficulty of ensuring accountability in the resolution of ‘wicked problems’ that require whole-of-government approaches. See further Yee-Fui Ng, Ministerial Advisers in Australia:  The Modern Legal Context (Federation Press, 2016). James Walter, ‘Ministerial Staff and the “Lattice of Leadership” ’ (Discussion Paper No 13/06, Democratic Audit of Australia, April 2006) 2. Senate Select Committee on a Certain Maritime Incident, above n 27. The events that this Committee was set up to investigate, and the findings of the Committee are discussed in Chapter 6. Ibid xxxvii. Ibid 193 [7.199]. Department of Prime Minister and Cabinet, above n 23, 14. Senate Finance and Public Administration References Committee, Parliament of Australia, Staff Employed under the Members of Parliament (Staff ) Act 1984 (2003) xix (Recommendation 2). Australian Public Service Commission, ‘Code of Conduct for Ministerial Staff ’ (Circular, 2008/7, 27 November 2008) [11]–[13].

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that APS employees are not subject to their direction’; that they must ‘recognise that executive decisions are the preserve of Ministers and public servants and not ministerial staff acting in their own right’; and finally that they must ‘facilitate direct and effective communication between their Minister’s department and their Minister’ .37 The Code has no legal status and it falls to the Prime Minister to enforce its provisions. Fundamental to facilitating ministerial responsibility are a number of parliamentary mechanisms that furnish Parliament and the public with information necessary to scrutinise government action. These include question time, the work of parliamentary committees and particularly the estimates committee, the annual reporting requirements that are placed on departments, and the use of censure motions. These mechanisms have been introduced in Chapter 6. In this chapter, we will explore the role of the Auditor-General, a parliamentary officer whose role is to scrutinise the executive’s finances on behalf of the Parliament. The Auditor-General (and the Australian National Audit Office)38 assists Parliament in holding the government to financial account.39 Coupled with the parliamentary process by which all government expenditure must be authorised in advance by Parliament,40 Parliament also scrutinises the government for expenditure of public funds after the fact.41 The objective of the Auditor-General is to provide Parliament with information on executive expenditure to assist it in this function.42 The Auditor-General’s role is dual. First, it includes financial statement audits, ensuring that government expenditure is in accordance with the appropriations approved by Parliament and the Public Governance, Performance and Accountability Act 2013 (Cth) (which contains rules as to how public money and property are to be dealt with).43 Its second role is performance audits, which consider the efficiency and effectiveness of government programs, including tendering processes and the

37 38 39

40

41

42 43

Ibid. Established under Auditor-General Act 1997 (Cth) pt 6 to assist the Auditor-General in performing the functions of the office. There is a similar office in each of the states and territories. See Auditor-General Act 1996 (ACT) pt 2; Public Finance and Audit Act 1983 (NSW) pt 3; Audit Act 1995 (NT) pt 2; Auditor General Act 2009 (Qld) pt 2; Public Finance and Audit Act 1987 (SA) pt 3; Audit Act 2008 (Tas) pt 2; Audit Act 1994 (Vic) pt 2; Auditor-General Act 2006 (WA) pt 2.  All parliamentary expenditure must be authorised by a parliamentary appropriation under s 83 of the Constitution. In addition, the High Court held in Williams v Commonwealth (2012) 248 CLR 156 (‘Williams [No  1]’) that, at least at the Commonwealth level, government expenditures outside the ordinary course of administering a department must be authorised by legislation. See further discussion of this case in Chapter 7. Express power is given to the Commonwealth Parliament in s 97 of the Constitution to make laws with respect to the receipt of revenue and the expenditure of money on account of the government, and the review and audit of such receipt and expenditure Pat Barrett, Balancing Accountability and Efficiency in a More Competitive Public Sector Environment (Australian National Audit Office, 2000). Auditor-General Act 1997 (Cth) pt 4, div 1.

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appropriate use of public moneys.44 To assist it in fulfilling these roles, the AuditorGeneral has wide information-gathering and investigatory powers.45 The Auditor-General is an ‘independent officer of the Parliament’ and possesses many characteristics of independence.46 For instance, the Auditor-General is not subject to direction in relation to the auditing functions of the office,47 and reports directly to Parliament.48 Appointment is by the Governor-General on the recommendation of the relevant Minister for a 10-year term, and the AuditorGeneral can only be removed if requested by both houses of Parliament on the basis of misbehaviour, or physical or mental incapacity, or in the event of bankruptcy.49

Judicial accountability The judiciary perceives its role in carrying out judicial review as the principal mechanism through which the courts are able to enforce and maintain the rule of law. Brennan J in Church of Scientology v Woodward explained: Judicial review is neither more nor less than the enforcement of the rule of law over executive action; it is the means by which executive action is prevented from exceeding the powers and functions assigned to the executive by law and the interests of the individual are protected accordingly.50

However, as Brennan J’s judgment in Attorney-General (NSW) v Quin cautions, the judiciary, at least at the federal level, is also subject to constitutional limits derived from the separation of powers:

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The law of judicial review cannot conflict with recognition of the legal effectiveness of the due exercise of power by the other branches of government. If judicial review were to trespass on the merits of the exercise of administrative power, it would put its own legitimacy at risk.51

This notion informs both general and particular rules about the nature and scope of judicial review at the federal level in Australia. For example, when reviewing administrative decisions a court is permitted to quash an unlawfully made decision, but must refrain from remaking the decision itself. Thus, a court cannot determine whether a ministerial discretion to grant a visa should be exercised. Issues of legality, 44 45 46 47 48 49 50 51

Ibid pt 4, div 2. Ibid pt 5. Ibid s 8(1). Ibid s 8(4). Ibid s 28. Ibid s 9, sch 1. (1982) 154 CLR 25, 70. (1990) 170 CLR 1, 37–8.

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as opposed to the substantive merits of the case, mark the bounds of judicial review of administrative action. At the state and territory level in Australia, there is no doctrine of separation of powers that prevent the courts from exercising this jurisdiction, and as such many lower and intermediate courts have historically been conferred with judicial review as well as administrative (that is, merits) review powers. The differential operation of the separation of powers at the federal and state level in Australia is further discussed in Chapters 9 and 10. The modern doctrine of judicial review has ancient common law origins. Today, judicial review is a complex amalgam of statutory and common law jurisdiction, some of which is protected by the Constitution. As part of their inherent jurisdiction as superior courts, each of the state Supreme Courts has the power to review the legality of the decisions of lower courts and other public officials. In some of the states and in the Australian Capital Territory, this has been substantially modified and supplemented by statute.52 In Kirk v Industrial Court of New South Wales, the High Court held that the state Supreme Courts’ jurisdiction to review the legality of decisions, at least for legal errors known as ‘jurisdictional errors’ , is one of the defining characteristics of a Supreme Court and is protected by Chapter III of the Constitution.53 Therefore this jurisdiction cannot be removed, or ‘ousted’, by the Parliament. At the federal level, the High Court is guaranteed jurisdiction where the writs of mandamus or prohibition or an injunction is sought against ‘an officer of the Commonwealth’ under s 75(v) of the Constitution, and in matters in which the Commonwealth (or a person suing or being sued on behalf of the Commonwealth) is a party under s 75(iii). Jurisdiction over matters in s 75(v) is also conferred on the Federal Court by the Judiciary Act 1903 (Cth).54 As Gaudron, McHugh, Gummow, Kirby and Hayne JJ stated in Plaintiff S157/2002 v Commonwealth, s 75(v) secures a basic element of the rule of law: The centrality, and protective purpose, of the jurisdiction of this Court … places significant barriers in the way of legislative attempts (by privative clauses or otherwise) to impair judicial review of administrative action. Such jurisdiction exists to maintain the federal compact by ensuring that propounded laws are constitutionally valid and ministerial or other official action lawful and within jurisdiction. In any written Constitution, where there are disputes over such matters, there must be an authoritative decision-maker. Under the Constitution of the Commonwealth the ultimate decision-maker in all matters where there is a contest, is this Court. The Court must be obedient to its constitutional function. In the end, pursuant to s 75 of

52 53 54

Administrative Decisions (Judicial Review) Act 1989 (ACT); Judicial Review Act 1991 (Qld); Judicial Review Act 2000 (Tas); Administrative Law Act 1978 (Vic). (2010) 239 CLR 531. This case is discussed in greater detail in Chapter 10. Judiciary Act 1903 (Cth) s 39B.

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the Constitution, this limits the powers of the Parliament or the Executive to avoid, or confine, judicial review.55

Additional statutory judicial review jurisdiction has been conferred on the federal courts by the Administrative Decisions (Judicial Review) Act 1977 (Cth) (‘AD(JR) Act’). The AD(JR) Act was one of the elements of a suite of administrative law reforms in the 1970s. It was intended to simplify the procedure for judicial review and to articulate clearly the different grounds of review, although it only applies to administrative decisions ‘made under an enactment’ ,56 whereas common law judicial review can extend to the exercise of non-statutory decisions. Since its implementation, the AD(JR) Act has influenced the development of the common law, which has been simplified and clarified in many respects to bring it into line with the statutory position. Judicial review is concerned only with the legality of executive actions. In assessing the legality of an executive decision, the courts have developed a series of criteria, known as ‘grounds’ of judicial review. One of the most fundamental of these grounds is a breach of the rules of natural justice, also known as procedural fairness. This criterion has two limbs: it requires that a person who may be adversely affected by a government action has the opportunity to be heard before the action is taken (the hearing rule), and that the decision maker is free from bias (the rule against bias). A sense of the remaining grounds can be gained from reviewing those listed in s 5 of the AD(JR) Act:

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(1)

55 56

A person who is aggrieved by a decision to which this Act applies that is made after the commencement of this Act may apply to the Federal Court or the Federal Circuit Court for an order of review in respect of the decision on any one or more of the following grounds: (a) that a breach of the rules of natural justice occurred in connection with the making of the decision; (b) that procedures that were required by law to be observed in connection with the making of the decision were not observed; (c) that the person who purported to make the decision did not have jurisdiction to make the decision; (d) that the decision was not authorised by the enactment in pursuance of which it was purported to be made; (e) that the making of the decision was an improper exercise of the power conferred by the enactment in pursuance of which it was purported to be made; (f ) that the decision involved an error of law, whether or not the error appears on the record of the decision;

(2003) 211 CLR 476, 514 [104]. AD(JR) Act s 3(1) (definition of ‘decision to which this Act applies’, para (a)).

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that the decision was induced or affected by fraud; that there was no evidence or other material to justify the making of the decision; that the decision was otherwise contrary to law.

The reference in paragraph (1)(e) to an improper exercise of a power shall be construed as including a reference to: (a) taking an irrelevant consideration into account in the exercise of a power; (b) failing to take a relevant consideration into account in the exercise of a power; (c) an exercise of a power for a purpose other than a purpose for which the power is conferred; (d) an exercise of a discretionary power in bad faith; (e) an exercise of a personal discretionary power at the direction or behest of another person; (f ) an exercise of a discretionary power in accordance with a rule or policy without regard to the merits of the particular case; (g) an exercise of a power that is so unreasonable that no reasonable person could have so exercised the power; (h) an exercise of a power in such a way that the result of the exercise of the power is uncertain; and (j) any other exercise of a power in a way that constitutes abuse of the power.

The availability and scope of these grounds of review can differ between the common law and statute. As Chapter 7 explained, the executive relies increasingly upon statutory powers; this has meant that in determining whether a particular ground of judicial review has been made out, the courts will often have to undertake an extensive statutory interpretation exercise. Despite the statutory reforms to judicial review, there remain a number of technical issues that can limit its availability and have led to calls for further reform of the area. One of the historical difficulties of judicial review has been its limited standing rules—limits on who can seek review because of the requirement for some connection between an applicant’s interests and the action.57 For example, under the AD(JR) Act, an action can only be brought by a person who is ‘aggrieved’ by a decision to which the Act applies; to be ‘aggrieved’ , a person must have interests adversely affected by the decision.58 The rationales for limited standing rights are to limit the interference in public administration by ‘mere busybodies’;59 to ensure that the courts are determining real controversies between parties with an interest in the matter as

57 58 59

Standing is also known as locus standi. AD(JR) Act s 3(4). R v Greater London Council; Ex parte Blackburn [1976] 3 All ER 184, 192 (Lord Denning).

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part of an adversarial proceeding; to discourage vexatious use of the courts; and to ensure that the courts are not flooded with actions. Standing requirements reinforce administrative law’s initial focus on the protection of individual rights. Historically, strict standing rules at common law made it difficult for public interest groups, such as environment groups, to seek judicial review of government decisions. While they may be interested in a government decision, they may not be—and may not be able to find someone who is—personally affected by it so as to be able to bring an action. Standing rules can be bypassed through a complex procedure involving seeking the Attorney-General’s ‘fiat’ , which invokes the traditional obligations of the Attorney-General to bring actions to defend public rights; that is, where an action may not affect individuals, but does affect the public. Since the introduction of the AD(JR) Act, two Australian Law Reform Commission (‘ALRC’) reports have addressed the question of whether to broaden the standing rules: both reports recommended the introduction of open standing while giving the courts a discretion to disallow an action.60 Both reports were rejected by the government. Further, the courts have long accepted that some cases raise questions that are ill-suited to judicial determination. Referred to as ‘non-justiciable’ matters, these cases involve policy-laden questions where there is often an absence of judicially manageable standards for the courts to apply.61 The granting of pardons, the decision to sign up to a treaty and the decision to bring a prosecution are all examples of the exercise of governmental power where the courts are reluctant to venture. The concept of non-justiciability stems from the separation of powers doctrine (explained in greater detail in Chapter 9), recognising that the courts cannot exercise legislative or executive power, or dictate the manner in which such power should be exercised. The courts have occasionally been criticised for failing to exercise jurisdiction in cases where they held a matter to be non-justiciable.62 Historically, the categories of these types of decisions were rigidly defined. However, a number of recent cases indicate that the courts are less willing to close off broad categories of decision making from judicial review, such as the conduct of foreign affairs,63 and prefer to consider the justiciability of each case individually by reference to such factors as the political nature of a decision (for example, national

60

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Australian Law Reform Commission, Standing in Public Interest Litigation, Report No 27 (1985); Australian Law Reform Commission, Beyond the Door-keeper: Standing to Sue for Public Remedies, Report No 78 (1996). Re Ditfort; Ex parte Deputy Commissioner of Taxation (1988) 19 FCR 347; Thorpe v Commonwealth [No 3] (1997) 144 CLR 677. See, eg, Chris Finn, ‘The Justiciability of Administrative Decisions:  A Redundant Concept?’ (2002) 30 Federal Law Review 239. Habib v Commonwealth (2010) 183 FCR 62; Hicks v Ruddock (2007) 156 FCR 574.

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security decisions, decisions to enter into a treaty, and judicial appointments are all non-justiciable), or if it involves interlocking and often competing policy issues that make it unsuitable for judicial review.64 Even where executive decisions are justiciable, and challenges can be brought in the court, the judiciary might be reluctant to engage in strict scrutiny of the decision. In particular, the courts are often, although not always, unwilling to act as obstacles to measures that might assist in that fundamental obligation of the state: to protect its people. In A v Hayden, Wilson and Dawson JJ said: ‘The consequence of a decision of a court on a matter of national security which is contrary to the considered view of the government could be very serious indeed.’65 For example, on 27 June 2010, after a 13-year battle with ASIO over a negative security assessment, Iranian citizen Sheikh Mansour Leghaei left Australia when his visa expired. Dr Leghaei had lived in Australia since 1994, raising four children in Sydney, three of whom are Australian citizens. On application for permanent residency in 1997, he was alleged by ASIO to have been involved in undisclosed ‘acts of foreign interference’.66 However, because of security interests, he was never given the details of the allegations against him and therefore the opportunity to respond. Dr Leghaei sought judicial review on the ground of a denial of procedural fairness of both the ASIO Director-General’s assessment and the decision of the Minister for Immigration and Citizenship to cancel his visa. The Federal Court67 and then the High Court68 rejected his argument that he must be told of the allegations and material  against him. In the interests of security, the judges were prepared to accept that Dr Leghaei’s right to a fair trial must be curtailed. Much of the written judgments of the courts was censored for public security reasons.69 Dr Leghaei’s last hope of avoiding deportation was to appeal directly to the Minister for Immigration and Citizenship, asking the Minister to intervene in his case and grant him a visa. The Minister refused to do so, not being prepared to question the assessment of a security threat by ASIO.70 The case demonstrates the enormous influence and power of ASIO, with both the judiciary and the executive showing great deference to it. 64 65 66

67 68 69 70

These are sometimes referred to as ‘polycentric’ issues. See, eg, Minister for Arts, Heritage & Environment v Peko-Wallsend Ltd (1987) 15 FCR 274. (1984) 156 CLR 532, 576. Rick Feneley, ‘Deportation of Sheikh puts Australia at Odds with the UN’, The Sydney Morning Herald (online), 18 May 2010, . Leghaei v Director General of Security [2005] FCA 1576; Leghaei v Director-General of Security [2007] FCAFC 37. Transcript of Proceedings, Leghaei v Director-General of Security [2007] HCATrans 655 (8 November 2007). Leghaei v Director-General of Security [2007] FCAFC 56. Rick Feneley, ‘Sheikh to be Deported but Wife and One Child to Stay’, The Sydney Morning Herald (online), 17 May 2010, .

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A successful applicant for judicial review may be able to seek a number of remedies. However, all remedies remain discretionary; that is, the court may choose to award them based on factors such as the availability of other remedies or the futility in granting relief. The prerogative writs are defined by reference to the nature of the relief granted under them: certiorari quashes a decision, mandamus requires a public duty to be performed or a discretion exercised, and prohibition prevents a decision or conduct. Declarations (of the law, or the rights of the parties) and injunctions (which perform roughly the same function as a writ of mandamus or prohibition) are also available. Statutory remedies roughly follow the common law ones, but have removed the need for the technical expertise that was historically required to ensure an applicant was seeking the correct order. Under s 16 of the AD(JR) Act, on an application for judicial review, a court may make one of the following orders: (a)

an order quashing or setting aside the decision, or a part of the decision, with effect from the date of the order or from such earlier or later date as the court specifies;

(b)

an order referring the matter to which the decision relates to the person who made the decision for further consideration, subject to such directions as the court thinks fit;

(c)

an order declaring the rights of the parties in respect of any matter to which the decision relates;

(d)

an order directing any of the parties to do, or to refrain from doing, any act or thing the doing, or the refraining from the doing, of which the court considers necessary to do justice between the parties.

The primary advantage of judicial review is that its exercise by the courts provides it with a minimum level of protection against encroachment by the executive. As Chapter 9 explains, the separation of powers in our system protects the independence and integrity of the courts, and the judicial process. Judicial review of decisions of executive officers is considered so important that a minimum level of review is constitutionally entrenched at both the Commonwealth and state levels. Judicial review remains a crucial protection against abuses of government power. However, other review mechanisms, particularly within the executive itself, offer more expansive and more time- and cost-effective means of challenging executive decisions. Administrative review often has wider standing rules, allowing a larger group of people to seek review, and has the potential to consider a matter afresh, reviewing the merits of the original executive decision. In comparison to judicial review, executive accountability also offers greater flexibility in the types of remedies available. Many parliamentary and executive accountability mechanisms are able to

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pursue government failures beyond an individual dispute and therefore investigate more systemic failures.

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Executive accountability Executive accountability is a self-administered form of accountability. It includes the review mechanisms that are established within the executive, either by the executive agencies themselves or by the Parliament. There are now a large number of statutory authorities established within the executive for the purpose of investigating and reviewing the actions of executive officers. One of the most important differences between judicial review by the courts and executive accountability mechanisms, such as merits review tribunals, is that executive accountability mechanisms are not limited simply to considering the legality of a decision. Executive accountability mechanisms can, within the scope of their powers, reassess the merits of a decision. The following discussion considers a wide variety of mechanisms within the executive: internal review of executive decisions, merits review by administrative tribunals, ombudsman schemes, the Public Service Commissioner, specialist government inquiries, and independent commissions (including human rights commissions and anti-corruption bodies). Although not considered in this chapter, legal advisers to the government also operate within the executive and play a pivotal role in keeping the government within legal limits, and fostering openness and accountability.71 The number of executive mechanisms has dramatically increased over the past four decades, and they are now an important part of achieving accountability and fulfilling community expectations as government and its functions have grown in complexity. Many mechanisms are targeted at particular segments of the executive (for example, laws targeting the public service or the police) or at ensuring compliance with particular standards (for example, laws that protect human rights). To achieve their mandates of accountability, these mechanisms must operate with a high level of independence from the executive. However, operating from within the executive means this independence is constitutionally constrained, and must be balanced by the fact that they must ultimately be accountable through the responsible Minister. Independence will be established through their statute. Constitutional expert Dr Gabrielle Appleby has explained that these statutes will generally contain

71

See further Gabrielle Appleby, The Role of the Solicitor-General: Negotiating Law, Politics and the Public Interest (Hart Publishing, 2016); Gabrielle Appleby, ‘Horizontal Accountability’, above n 12.

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a number of established ‘markers’ of independence, including statutory guarantees of tenure, clear and broad mandates or terms of reference set out in the statute, statutory guarantees against being subject to the direction of the government, and adequate powers given to the institution (including the power to investigate, and the ability of the institution to make public their reports and recommendations without the permission of government).72 Nonetheless, the executive retains some control over them, such as through the appointment of members, placing limitations on their functions in the statutes that establish them, or controlling their financing.73 The effectiveness of these mechanisms is thus highly dependent upon the extent to which the executive continues to support and cooperate with them.

Internal review Where a government agency has made a decision or taken an action against an individual, there are often opportunities for an internal review to be undertaken. Internal review consists of a second administrative officer in the same government agency reconsidering the matter and making a fresh decision or taking a new action that will either affirm or change the original decision or action. Sometimes, a statutory right to internal review is granted. For example, where a request to access a document under the Freedom of Information Act 1982 (Cth) is refused, an applicant has a right to seek an internal review of that refusal.74 In other cases, there may be no statutory right to seek internal review but the avenue is made available administratively.

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Administrative tribunals Administrative tribunals resolve disputes between the individual and the executive about the correctness of an executive decision or action affecting that individual. The main function of an administrative tribunal is, at the request of an affected individual, to conduct a review of a decision of an executive officer. This includes ministers, officials, government authorities and even other administrative tribunals. The establishment of the generalist Administrative Appeals Tribunal (‘AAT’) at the federal level in the 1970s was the first of its kind in the world, and its institutionalisation of merits review was widely regarded as a unique and bold innovation. Tribunals can either have a general jurisdiction or be more specialised. The AAT is referred to as a generalist tribunal, meaning it has a wide jurisdiction to hear reviews of 72 73

74

Gabrielle Appleby ‘Horizontal Accountability’, above n 12, 182. See, eg, Australian Human Rights Commission, Submission to National Human Rights Consultation Commission, National Human Rights Consultation, June 2009, 3 [18]; Natalie O’Brien, ‘Reports on AFP Sent to Watchdog’, The Australian (online), 16 October 2008, . Freedom of Information Act 1982 (Cth) pt VI.

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executive decisions in relation to a number of areas, including social security, taxation, veterans’ affairs, workers’ compensation, citizenship and immigration, corporations law, FOI, insurance and fisheries. In 2015, it took over the jurisdiction of a number of specialised tribunals, including the Migration Review Tribunal, the Refugee Review Tribunal and the Social Security Appeals Tribunal. However, the AAT does not have a plenary jurisdiction—it only has jurisdiction over matters that are specifically conferred upon it under legislation.75 The AAT is able to review the decisions of some of the remaining specialist tribunals, such as the Veterans Review Board. Tribunals also exist at state level. One of the largest is the Victorian Civil and Administrative Tribunal (‘VCAT’), which, as its title suggests, has both an administrative jurisdiction (resolving disputes between the individual and the government) and a civil jurisdiction (resolving disputes between individuals).76 Many states now have a general administrative tribunal, and some have a combined administrative and civil model.77 Because administrative tribunals are part of the executive, they can exercise the power of the original decision maker. This is called merits review:  tribunals reconsider the merits of the matter argued before the original decision maker and determine whether the correct decision—or, in the case of a discretionary decision, the preferable decision—was made,78 not just whether it was legally permissible. The tribunal therefore conducts a fresh inquiry into the facts, law and policy that went into making the original decision, but is not limited to what was before the original decision maker. This is often described as ‘standing in the shoes’ of the original decision maker. While the breadth of the powers of individual administrative tribunals differs, the powers are generally expressed broadly. For example, s 43(1) of the Administrative Appeals Tribunal Act 1975 (Cth) sets out the powers of the AAT: For the purpose of reviewing a decision, the Tribunal may exercise all the powers and  discretions that are conferred by any relevant enactment on the person who made the decision and shall make a decision in writing:

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78

(a)

affirming the decision under review;

(b)

varying the decision under review; or

(c)

setting aside the decision under review and:

Administrative Appeals Tribunal Act 1975 (Cth) s 25. Victorian Civil and Administrative Tribunal Act 1998 (Vic). ACT Civil and Administrative Tribunal Act 2008 (ACT); Civil and Administrative Tribunal Act 2013 (NSW); Northern Territory Civil and Administrative Tribunal Act 2014 (NT); Queensland Civil and Administrative Tribunal Act 2009 (Qld); South Australian Civil and Administrative Tribunal Act 2013 (SA); State Administrative Tribunal Act 2004 (WA); State Administrative Tribunal (Conferral of Jurisdiction) Amendment and Repeal Act 2004 (WA). Tasmania does not have a generalist tribunal, although an inquiry was launched by the government in 2015 into establishing one. The inquiry has not yet reported. Drake v Minister for Immigration and Ethnic Affairs (1979) 2 ALD 60.

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(i) (ii)

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making a decision in substitution for the decision so set aside; or remitting the matter for reconsideration in accordance with any directions or recommendations of the Tribunal.

To ensure public confidence in their integrity as dispute resolution mechanisms and therefore to achieve their overall purpose, administrative tribunals need to demonstrate that they are operating independently of the original decision maker and the partisan interests of government. Perceptions of independence also increase respect for tribunal decisions within the government itself. In considering independence, the regulation of the appointment and tenure of tribunal members is of fundamental importance. This is because if a tribunal member does not have job security, they may be more inclined to find in favour of a government party, particularly where the matter involves politically controversial issues. The AAT is composed of a President and other presidential members, senior members and members.79 All members are appointed by the Governor-General for a period of up to seven years (subject to reappointment),80 and different qualifications apply depending on their position. The President must be a judge of the Federal Court, and therefore has the underlying security of judicial tenure.81 All members are given some security of tenure: the Administrative Appeals Tribunal Act provides that removal or suspension can only occur on the resolution of both houses of Parliament on specific grounds, including misbehaviour, or physical or mental incapacity, or in the event of bankruptcy.82 While many of these provisions mimic the security of tenure afforded to federal judicial officers, it must be remembered that administrative tribunals are entirely creatures of statute and therefore they may be abolished by an ordinary Act of Parliament. Administrative tribunals remain part of the executive and are subject to its influence. For example, tribunals should consider the application of valid government policies as a relevant factor in coming to a decision. This promotes the consistent treatment of individuals by government. The Full Federal Court in Drake v Minister for Immigration and Ethnic Affairs considered whether the Minister’s criminal deportation policy—together with a supplementary statement to the effect that the Minister would be less likely to exercise his discretion not to deport in instances involving sex offences against young children or drug offences—should be taken into account by the AAT in reviewing deportation decisions.83 The Court held that the AAT should take into account government policy in coming to a decision, with an 79 80 81 82 83

Administrative Appeals Tribunal Act 1975 (Cth) s 5A. Ibid s 8. For further discussion about the constitutionality of a federal judicial officer holding this administrative appointment, see the discussion of the persona designata doctrine in Chapter 10. Administrative Appeals Tribunal Act 1975 (Cth) s 13. (1979) 2 ALD 60.

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important caveat. Just like the original decision maker, the AAT must bring its own mind to the correct and preferable decision, and not simply apply the policy. In the subsequent decision of the AAT in Re Drake and Minister for Immigration and Ethnic Affairs [No 2],84 the distinction between the function of a tribunal in issuing a decision and the judicial function was clarified by Brennan J:

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Counsel for the appellant submitted that it would sap the independence of the Tribunal if it were to apply Ministerial policy, and that submission no doubt grows out of the long and essential resistance of the courts to the attempts of the Executive to influence the course of judicial decisions. The Tribunal is rightly required to reach its decisions with the same robust independence as that exhibited by the courts, but there is a material difference between the nature of a decision of the Tribunal reviewing the exercise of a discretionary administrative power, and the nature of a curial decision. The judgment of a court turns upon the application of the relevant law to the facts as found; a decision of the Tribunal, reviewing a discretionary decision of an administrative character, takes into account the possible application of administrative policy.85

Brennan J went on to say that the Court ‘rightly ignores the policies of the Executive Government’ but that an administrative tribunal should not.86 However, as the Federal Court had also indicated, a tribunal must not abdicate its responsibility to come to the correct or preferable decision on the particular facts simply by applying a policy direction to the case. Brennan J said that ‘consistency is not preferable to justice’.87 Brennan J also noted that there were different kinds of policy: some, formulated at ministerial level, would be subject to parliamentary scrutiny and should only be set aside by a tribunal in extraordinary circumstances.88 However, lower-level policies— those formulated at departmental level and less likely to be subjected to parliamentary oversight—may be more readily overridden by a tribunal.89 This distinction has been used by the AAT in a number of subsequent cases. Brennan J pointed out that administrative tribunals exhibit many common characteristics to courts (tribunals are sometimes even referred to as being ‘quasijudicial’). Tribunals are called upon to decide facts, interpret and apply legal principles, and make orders in a fashion very similar to courts (and, as we shall see in the following chapter, these are some of the characteristics of ‘judicial power’). Tribunals are required to observe procedural fairness; that is, they must give parties a

84 85 86 87 88 89

(1979) 2 ALD 634. Ibid 643. Ibid. Ibid 645. Ibid 644. See further Re Becker and Minister for Immigration and Ethnic Affairs (1977) 1 ALD 158, 163 (Brennan J).

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reasonable opportunity to present their case and view all evidence put against them.90 All executive decision makers, and also the courts, are required to observe these rules. However, tribunals do not necessarily apply the strict rules and procedures of courts and are encouraged to resolve disputes expeditiously, without unnecessary formality and technicality.91 This means that tribunal procedures are less time consuming and costly for the parties than a court proceeding is likely to be. The AAT is instructed to ‘pursue the objective of providing a mechanism of review that is fair, just, economical, informal and quick’.92 In addition, tribunals do not have to conduct their proceedings in an adversarial style like a court, where judges leave it to the parties to delimit the terms of the dispute and to choose which matters to raise before the court.93 The AAT has discretion over its procedure, and may inform itself in ‘such manner as it thinks appropriate’.94 This allows for a more active, inquisitorial style, and means that tribunal members can be more proactive in seeking out issues and evidence than a judge can. Tribunals are bound by judicial determinations, just like any other executive decision maker.95 Unlike the courts, however, the tribunal system does not issue binding decisions itself and does not operate in accordance with the doctrine of stare decisis (the requirement for courts to apply the ratio decidendi of previous decisions of superior courts to new cases if the facts are the same or cannot be distinguished in any material way). This means that a tribunal does not have to arrive at the same outcome as that reached by the same tribunal in previous cases heard, even when the facts are the same or similar. However, under the tenets of the rule of law and in the interests of certainty and predictability, tribunals generally consider their previous decisions ‘highly persuasive’.96 Increasingly, tribunal decisions are being released on online databases, creating a stock of publicly accessible decisions.97 This has made it easier to predict the outcomes of tribunal decisions for both individuals and government agencies.

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Ombudsman schemes The term ‘ombudsman’ originated in a government setting in Sweden in 1809, when the Swedish Parliamentary Ombudsman was chartered to supervise the executive

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See, eg, Administrative Appeals Tribunal Act 1975 (Cth) s 39. Ibid s 33(1). Ibid s 2A(b). See, eg, Bushell v Repatriation Commission (1992) 175 CLR 408, 424 (Brennan J). Administrative Appeals Tribunal Act 1975 (Cth) s 33(1)(c). See, eg, Federal Commissioner of Taxation v Salenger (1988) 19 FCR 378, 387–8 (French J). Re Littlejohn and Secretary, Department of Social Services (1989) 10 AAR 220, 224 (Deputy President Thomson). For example, many tribunal decisions across different jurisdictions are now available on AustLII: .

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and safeguard the rights of individuals. Ombudsman schemes are now common in many countries across the world. In 1971, Western Australia became the first Australian state to legislatively establish an ombudsman, and the rest of the states and the Northern Territory have also done so.98 The Commonwealth Ombudsman was established in 1976.99 The Commonwealth Ombudsman is appointed by the Governor-General for a term of up to seven years, and is given security of tenure as the Governor-General may remove an ombudsman only on an address from both houses of Parliament praying for their removal on the grounds of misbehaviour, or physical or mental incapacity, or bankruptcy.100 This is mirrored in the states, and in South Australia the Ombudsman is also appointed by the Governor in Council on the recommendation of both houses of Parliament.101 An ombudsman has two broad roles: a reactive role, to receive and investigate complaints from individuals about government; and a proactive role, to improve the quality of public administration more generally through systemic reviews, audits and the provision of guidelines to government. In these roles the ombudsman’s overriding concern and focus are the impact of the government on the rights of the individual,102 although they will also consider issues of administration more broadly. It is perceived that it is in this proactive role that an ombudsman has the capacity to make important systemic changes that will improve government services for all individuals.103 Since its inception, the office of the Commonwealth Ombudsman has also taken on other specialist roles: for example, it is the Immigration Ombudsman (supervising and reporting on long-term immigration detention), the Defence Force Ombudsman and the Taxation Ombudsman; and it oversees the handling of complaints made against the Australian Federal Police. The Commonwealth Ombudsman has more recently been given a role in overseeing the administration of the Commonwealth’s new whistle-blower protection legislation, the Public Interest Disclosure Act 2013 (Cth), which is explained in more detail below.

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99 100 101 102 103

Ombudsman Act 1974 (NSW); Ombudsman Act 2009 (NT) (the Northern Territory Ombudsman was originally established in 1977); Ombudsman Act 2001 (Qld) (the Queensland Ombudsman was originally established in 1974) Ombudsman Act 1972 (SA); Ombudsman Act 1978 (Tas); Ombudsman Act 1973 (Vic) (and note that the Victorian Ombudsman is also mentioned in the Constitution Act 1975 (Vic) s 94E); Parliamentary Commissioner Act 1971 (WA) (the Parliamentary Commissioner for Administrative Investigations undertakes the same function as the Ombudsman in the other states). See also Ombudsman Act 1989 (ACT) (although note that the Commonwealth Ombudsman also acts as the Australian Capital Territory Ombudsman). Ombudsman Act 1976 (Cth). Ibid ss 21, 22, 28. Ombudsman Act 1972 (SA) s 6. John McMillan, ‘The Ombudsman’s Role—Looking Backwards, Looking Forwards’ (Speech delivered at the Australian Public Service Commission Leadership Lunchtime Seminar, Sydney, 25 June 2003). New South Wales Ombudsman, Annual Report 2006–07 (2007) [1]; Queensland Ombudsman, Report of the Strategic Management Review (2006) 6, 8.

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The Commonwealth Ombudsman can investigate an ‘action that relates to a matter of administration’,104 which is taken by a department or a ‘prescribed authority’.105 This includes government service providers such as Centrelink, and extends to some government business enterprises,106 and to private contractors engaging in public functions under a contract with the government.107 However, there are exclusions— for instance, ministerial actions and decisions are beyond its jurisdiction, as are public service employment disputes.108 The jurisdiction of the Commonwealth Ombudsman is limited by the words ‘matter of administration’.109 These words exclude the exercise of judicial or legislative powers. Whether they also exclude policy decisions—and, if they do, how these may be distinguished from administrative decisions—has been a question of some debate. At the state level, there are a series of cases that have held that the Ombudsman’s powers do not extend to policy decisions, although no clear definition of policy has been attempted.110 In Booth v Dillon [No  2],111 the Ombudsman was asked to investigate complaints about sexual assaults on prisoners by a senior prison officer. Dunn J of the Victorian Supreme Court concluded that questions relating to whether prisoners should sleep in dormitories or individual cells were a matter of policy and beyond the review of the Victorian Ombudsman because they involved the weighing up of competing policy issues. Dunn J also considered that the allocation of funding to different purposes by the executive was beyond the purview of the Ombudsman. In comparison, the question as to whether any action had been taken into investigating and dealing with the alleged sexual assaults was a matter of administration. In Salisbury City Council v Biganovsky,112 Mullighan J of the South Australian Supreme Court found that a local government’s policy in relation to the use of its land, buildings and property by members of the community was beyond the jurisdiction of the Ombudsman. Mullighan J considered that the formulation of such policy involved the weighing up of a number of policy considerations, including economic factors and the broader community interest. The distinction between policy and administration is difficult to apply. In practice at least, the Commonwealth Ombudsman has at times reviewed and made

104 105 106 107 108 109 110 111 112

Ombudsman Act 1976 (Cth) s 5(1)(a). See ibid ss 3(1) (definition of ‘department’), 3(1) (definition of ‘prescribed authority’). Ibid s 3A (definition of ‘Commonwealth-controlled company’). Ibid ss 3(4B), 3BA (definition of a ‘Commonwealth service provider’ to a ‘Department or prescribed authority’ under a ‘Commonwealth contract’). Ibid s 5(2). Public service disputes are overseen by the Public Service Commissioner, discussed below. Ibid s 5(1)(a). See, eg, Booth v Dillon [No 1] [1976] VR 291, 296 (Lush J); Booth v Dillon [No 2] [1976] VR 434, 435–9 (Dunn J); City of Salisbury v Biganovsky (1990) 54 SASR 117, 121–2 (Mullighan J). [1976] VR 434. (1990) 54 SASR 117.

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recommendations about the operation of what may be defined broadly as policy, and this is increasingly becoming the position in the states as well. However, in 2011 when the Commonwealth Ombudsman Allan Asher made a submission to a Senate committee criticising the government’s ‘Malaysia Solution’ immigration policy on human rights grounds, he was confronted by an ALP senator who accused him and his office of commenting on matters of policy that were beyond the Ombudsman’s jurisdiction. Mr Asher defended his position, responding that ‘the aspect of the policy that we’re addressing there is the extent to which it can be administered in a fair, open and just way’.113 The Commonwealth Ombudsman may initiate investigations after a complaint is received, but may also do so on their own motion.114 When investigating a complaint, the Ombudsman has broad powers of inquiry similar to those of a royal commission,115 and must accord procedural fairness to the authority and individuals under investigation.116 The criteria that the Ombudsman applies when assessing administrative actions are that the action or decision: •

appears to have been contrary to law;

•

was unreasonable, unjust, oppressive or improperly discriminatory;

•

was in accordance with the law but the law is or may be unreasonable, unjust, oppressive or improperly discriminatory;

•

was based either wholly or partly on a mistake of law or of fact;

•

was otherwise, in all the circumstances, wrong;

•

was done in pursuance of an improper purpose or on irrelevant grounds;

•

took into account irrelevant considerations, or failed to take into account relevant considerations; or

•

was one for which reasons should have been furnished, but were not.117

The Commonwealth Ombudsman can issue a report (including the Ombudsman’s reasons and recommendations) to the department or agency that has been investigated and to the relevant Minister, and may request (but cannot compel) the department or agency to respond to that report.118 If the response of the department or agency to the Ombudsman’s report is not adequate or appropriate, the Ombudsman may refer the matter to the Prime Minister and Parliament.119 113 Commonwealth of Australia, Parliamentary Debates, Senate (Legal and Constitutional Affairs References Committee), 23 September 2011, 9 (Allan Asher). 114 Ombudsman Act 1976 (Cth) s 5(1)(a), (b). 115 Ibid ss 8(3), 9, 13, 14, 36; and note s 11A(2). 116 Ibid s 8(5). 117 Ibid s 15(1). 118 Ibid s 15. 119 Ibid ss 16, 17.

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The office of the Commonwealth Ombudsman has great flexibility in the solutions it may recommend, including an apology, financial compensation and a reconsideration of government action or policy. It also plays an important role in facilitating the operation of the parliamentary accountability mechanisms, and may report its findings to Parliament.120 The Commonwealth Ombudsman is sometimes dismissed as an ineffective accountability mechanism—often referred to as a ‘toothless tiger’—compared to other mechanisms. Certainly, the powers of the office are limited: it cannot compel an agency to take an action, but relies on consultation, persuasion, publicity and compliance with its recommendations.121 However, there are also advantages associated with these limited powers. Because it is seen as less threatening than other review mechanisms, agencies are often more willing to comply with its requests and accommodate its investigations; it provides agencies with an opportunity to improve their own processes before sanctions are taken against them. The personal prestige, integrity and independence of an individual Commonwealth Ombudsman undoubtedly assists in fostering cooperation and compliance within the public sector. However, in 2011, after a series of confrontations between members of the government and the Commonwealth Ombudsman Allan Asher over the Ombudsman’s investigation and public statements on the government’s immigration policy, mentioned above, Mr Asher was forced to resign on the basis that his actions had compromised his independence. Mr Asher had been in contact with a Greens senator prior to his appearance before the Senate Estimates Committee and had scripted a series of questions for her to ask in order to elicit answers from him about the office’s investigations and need for additional funding. Mr Asher admitted his conduct had undermined community confidence in the integrity of his office.122

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Public Service Commissioner The Public Service Act 1999 (Cth) creates an accountability framework for members of the public service by setting a series of standards against which their conduct is to be scrutinised. Its emphasis is on good administration through enforceable standards.123

120 Ibid ss 17, 19. 121 Ibid ss 12(3), 15, 16, 17, 35A. 122 Commonwealth Ombudsman, ‘Ombudsman Resigns’ (Media Release, 20 October 2011), . 123 See also the Parliamentary Service Act 1999 (Cth) for parliamentary staff. In addition, there are examples of such schemes at the state and territory level. See Public Sector Management Act 1994 (ACT); Government Sector Employment Act 2013 (NSW); Public Sector Employment and Management Act 1993 (NT); Public Sector Ethics Act 1994 (Qld); Public Sector Management Act 1995 (SA); State Service Act 2000 (Tas); Public Administration Act 2004 (Vic); Public Sector Management Act 1994 (WA).

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The function of the Public Service Commissioner, who is appointed under the Public Service Act,124 is to promote and evaluate compliance with the Australian Public Service Values,125 and the Code of Conduct.126 Sanctions may be imposed on members who breach this Code.127 The Commissioner reports to ministers and the reports are presented to Parliament.128 The Commissioner is appointed by the Governor-General for a period up to five years;129 has wide investigatory and information-gathering powers;130 and can only be removed by the Governor-General where both houses of Parliament request the removal on the grounds of misbehaviour, or physical or mental incapacity, or where the Commissioner becomes bankrupt.131

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Specialist government inquiries, including royal commissions As we saw in the previous chapter, the government has an ancient power to establish commissions of inquiry into government actions, including royal commissions. Such inquiries are generally called for when there is a systemic failure, although this is not always a failure of government and could, for example, be related to a failure within private institutions or industries (for instance, the Royal Commission into Institutional Responses to Child Sexual Abuse (2012–17) or the Royal Commission into Misconduct in the Banking, Superannuation and Financial Services Industry (which was established in December 2017 and its investigations are ongoing at the time of writing). Generally this will mean that there is not a single dispute between ascertained parties, so that the matter is of such a nature that the courts are unable to address the issues involved. Further, specialist inquiries are usually established where there is perceived to be a need for reform in an area. Commissions of inquiry have led to some of the most sweeping accountability reforms implemented in Australia. There is now general legislation in the Commonwealth, most states and the Australian Capital Territory that governs the establishment of government inquiries and confers coercive powers on the relevant body.132 The Royal Commissions Act 124 The Public Service Commissioner is established under s 40 of the Public Service Act 1999 (Cth). The functions of the role are set out in s 41. 125 Set out in the Public Service Act 1999 (Cth) s 10. 126 The code is set out in ibid s 13. 127 Ibid s 15. 128 Ibid s 44. 129 Ibid s 45. 130 Ibid s 43. 131 Ibid s 47. 132 Royal Commissions Act 1902 (Cth); Royal Commissions Act 1991 (ACT); Royal Commissions Act 1923 (NSW); Special Commissions of Inquiry Act 1983 (NSW); Commissions of Inquiry Act 1950 (Qld); Royal Commissions Act 1917 (SA); Commissions of Inquiry Act 1995 (Tas); Royal Commissions Act 1968 (WA). Often, specific legislation will be also enacted to govern an inquiry, set its terms of references, or confer specific powers on it.

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1902 (Cth) has been in force unamended almost since federation. In 2010 the ALRC released a report into the conduct of Commonwealth royal commissions and other related inquiries. It recommended a two-tier system of inquiry—retaining royal commissions for matters of ‘substantial public importance’, but also providing for a more flexible and informal inquiry: an ‘official inquiry’. The ALRC also recommended greater obligations on the government to table reports in Parliament and publicly respond to the recommendations of an inquiry.133 As we examine below, the inherent danger that commissions of inquiry will be established for political reasons makes this recommendation particularly pertinent, as it would go some way to providing accountability for the exercise of the power to call inquiries. An inquiry is usually presided over by a person with high-level legal training and who is seen as being independent from the government, such as a judge, or a former judge. However, commissions of inquiry are established—and therefore ultimately their powers are set—by the executive. This has meant that governments are generally reluctant to establish inquiries unless they know what will (or will not) be uncovered, or unless they can control the scope of the inquiry such that very little damaging information will be revealed. It has only been in extraordinary circumstances that governments have established inquiries and given them a free rein where government and political corruption within the current administration exists. One example of this occurring was the Fitzgerald Inquiry into police corruption, established in Queensland in 1989.134 The Inquiry was established against a political environment of more than 30  years of rule in that state by the National Party of Australia, almost 20 of those under Premier Sir Joh Bjelke-Petersen. That period had been characterised by strict government control over freedom of speech and association, the use of defamation suits by government to silence the press, and rife corruption within the police and political circles in relation to illegal prostitution, gambling and illicit drugs. Despite the government’s reputation for using defamation suits, two brave reporters eventually forced the government’s hand. After a series of newspaper articles by Courier Mail reporter Phil Dickie and a seminal piece of investigative television journalism by Chris Masters (Queensland: The Moonlight State, which aired on the ABC’s Four Corners program),135 the outrage of the Queensland people forced the National Party to establish an inquiry, at least into the matters that

133 Australian Law Reform Commission, Making Inquiries:  A New Statutory Framework, Report No 111 (2010). 134 Queensland, Commission of Inquiry into Possible Illegal Activities and Associated Police Misconduct (‘Fitzgerald Inquiry’), Report of a Commission of Inquiry Pursuant to Orders in Council (1989). 135 This program screened on 11 May 1987. See Queensland: The Moonlight State (Peter Manning, ABC), .

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had been aired. Premier Bjelke-Petersen was out of the state and, in his absence, Acting Premier Bill Gunn announced an inquiry. The appointment of former Federal Court judge Tony Fitzgerald QC also proved pivotal for the success of the inquiry, as he fought the government, successfully, to have the terms of reference expanded beyond individual cases of alleged police corruption. This inquiry led to electoral reform, the establishment of Queensland’s Crime and Misconduct Commission (a standing anti-corruption commission, discussed below), and that state’s FOI legislation, as well as the individual prosecution and conviction of a number of state politicians and executive officers.136 In other cases, governments have used their powers over the terms of reference of any inquiry to control its scope. For example, the Commission into Certain Australian Companies in Relation to the UN Oil-for-Food Programme (the ‘Cole Inquiry’), which investigated the allegations of payments of kickbacks to Saddam Hussein’s Iraqi Government by the Australian Wheat Board (which was at that time a private company), was limited to the actions of the companies and people associated with the companies. Its terms of reference did not allow it to make findings of illegality against the Commonwealth or its officers.137 Another criticism made of commissions of inquiry is that they have often been established for politically motivated purposes, rather than to address systemic issues and focus on the failings of the executive. For example, the Coalition Government’s establishment of an inquiry into trade union governance and corruption in 2014 was largely seen as a politically motivated attempt by the Coalition to uncover misconduct on behalf of the Labor-aligned union movement and the many Labor politicians, including the Opposition Leader and former Labor Prime Minister, who had strong connections to it. In 1995, the South Australian Liberal Government established a royal commission to investigate whether the spiritual beliefs of a group of Ngarrindjeri women had been fabricated to advance a heritage protection application. The beliefs concerned an area where the state government had committed itself to building the Hindmarsh Island Bridge. The Ngarrindjeri women delivered a statement to the inquiry expressing anger and hurt that an inquiry funded by the State of South Australia had been established to investigate their spiritual beliefs.138 The Hindmarsh Island Bridge affair is discussed further in Chapter 3.

136 Fitzgerald Inquiry, above n 134. 137 Commonwealth of Australia, Inquiry into Certain Australian Companies in Relation to the UN Oil-forFood Programme (‘Cole Inquiry’), Report (2006) 163–6 [6.24]–[6.33]. 138 Ann Curthoys, Ann Genovese and Alexander Reilly, Rights and Redemption: History, Law and Indigenous People (University of New South Wales Press, 2008) 171–2.

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Independent commissions

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There are a number of independent commissions in Australia with standing briefs to scrutinise the conduct of the executive. As with administrative tribunals, there is some tension between the stated intention of these commissions to operate independently and their establishment within the executive, meaning that the executive can control their effectiveness through funding levels and by limiting the extent of their powers of investigation. This section briefly discusses two important types of commissions: human rights commissions and standing anti-corruption bodies. There exist specialist commissions charged with administering human rights legislation in each jurisdiction.139 These are known internationally as ‘National Human Rights Institutions’.140 At the federal level, the Australian Human Rights Commission141 (previously the Human Rights and Equal Opportunities Commission) administers a number of pieces of federal anti-discrimination legislation.142 It is a statutory body,143 and it has a wide variety of functions relating to the protection and promotion of human rights, including receiving, investigating and conciliating complaints against executive agencies for breach of the laws relating to these rights.144 To the extent that it has available funding, it can also hold public inquiries; work with the government to develop laws, policies and programs; and conduct public education about human rights in Australia.145 139 At the state and territory level there is a variety of bodies: the Human Rights Commission (ACT), which administers the Discrimination Act 1991 (ACT) and the Human Rights Act 2004 (ACT) under the Human Rights Commission Act 2005 (ACT); the Anti-Discrimination Board (NSW) under the Anti-Discrimination Act 1997 (NSW); the Anti-Discrimination Commissioner (NT) under the Anti-Discrimination Act 1996 (NT); the Anti-Discrimination Commission (Qld) under the Anti-Discrimination Act 1991 (Qld); the Commissioner for Equal Opportunity (SA) under the Equal Opportunity Act 1984 (SA); the Office of the Anti-Discrimination Commissioner (Tas) under the Anti-Discrimination Act 1998 (Tas); the Victorian Equal Opportunity and Human Rights Commission (Vic), which administers the Equal Opportunity Act 2010 (Vic), the Racial and Religious Tolerance Act 2001 (Vic) and the Charter of Human Rights and Responsibilities Act 2006 (Vic); and the Equal Opportunity Commission (WA) under the Equal Opportunity Act 1984 (WA). 140 See further Global Alliance of National Human Rights Institutions, Chart of the Status of National Institutions (2006), . 141 The Australian Human Rights Commission is composed of the President and Human Rights Commissioner, the Aboriginal and Torres Strait Islander Social Justice Commissioner, the Disability Discrimination Commissioner, the Race Discrimination Commissioner, the Sex Discrimination Commissioner, the Age Discrimination Commissioner and the National Children’s Commissioner:  Australian Human Rights Commission Act 1986 (Cth) s 8. 142 The Commission administers the Age Discrimination Act 2004 (Cth), the Disability Discrimination Act 1992 (Cth), the Race Discrimination Act 1975 (Cth) and the Sex Discrimination Act 1984 (Cth). 143 Established under the Australian Human Rights Commission Act 1986 (Cth) s 7. 144 The Commission is empowered to conciliate complaints only; no finding or binding decision is made by the Commission. If the parties are unsatisfied with the conciliation process, the matter can be taken to court: ibid pt IIB. The history of the power of the Commission in relation to disputes is discussed in more depth in Chapter 12. 145 The functions of the Commission are set out in the Australian Human Rights Commission Act 1986 (Cth) s 11.

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Often, however, these broader ranging inquiries are politically sensitive, and the Australian Human Rights Commission has at times encountered aggressive political criticism for its conduct of them. For instance, in October 2014, the Commission presented to the government a report into the abuse of children in immigration detention.146 The government’s reaction to the report was to claim that the Commission, and in particular its President, had improperly refrained from starting the investigation during Labor’s term in office, rather waiting for the Coalition Government’s term. The Prime Minister and the Attorney-General indicated they had lost confidence in the independence of the President of the commission, and cut the budget by $5  million over three years. The government then attempted to procure the President’s resignation. The episode highlighted the fragility of executive integrity institutions, which must tread the tightrope of overseeing and criticising government, while maintaining sufficiently functioning relations with government so that there might be good faith engagement with their reports and recommendations.147 The operation of these bodies within the broader framework of human rights protection in Australia is considered in Chapter 12. Standing anti-corruption bodies now exist in all of the states.148 There is an ongoing debate as to the necessity and design of such a body at the federal level.149 These bodies now operate, largely, as standing royal commissions with discrete terms of reference directed at investigating corrupt conduct. Each operates slightly differently, but their general function (or at least one of their functions) is to receive and investigate complaints of corruption within the public service and report their findings (which are not binding), or refer the matter to another investigatory or prosecutorial agency. The investigations of these bodies often attract high levels of public attention and scrutiny, particularly in those jurisdictions, such as New South Wales, in which public hearings are permitted under the statute where the public interest justifies them.150

146 Australian Human Rights Commission, Forgotten Children: National Inquiry into Children in Immigration Detention (2014). 147 See further Gabrielle Appleby, ‘Horizontal Accountability’, above n 12. 148 Independent Commission Against Corruption Act 1988 (NSW); Crime and Corruption Act 2001 (Qld); Independent Commissioner Against Corruption Act 2012 (SA); Integrity Commission Act 2009 (Tas); Independent Broad-based Anti-corruption Commission Act 2011 (Vic); Corruption and Crime Commission Act 2003 (WA). 149 See further Grant Hoole and Gabrielle Appleby, ‘Integrity of Purpose:  A Legal Process Approach to Designing a Federal Anti-Corruption Commission’ (2017) 38 Adelaide Law Review 397; Australia Institute National Integrity Committee, Blueprint of design principles (2017); Bill Shorten, ‘Address to the National Press Club’ (Speech delivered at National Press Club, Canberra, 30 January 2018). 150 See, eg, Independent Commission Against Corruption Act 1988 (NSW) s 31.

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The Commonwealth and most states also have a specialist body to deal with corruption in the police force and other law enforcement agencies, although in some states this has been merged with the general anti-corruption bodies.151

Public accountability Finally there is public accountability. The most fundamental form of public accountability is exercised through the democratic process, which we have already discussed in Chapter 5. The public is most influential when it exercises its right to vote at general elections,152 but public opinion is also very important in the period between elections. Opinion polling has become ubiquitous in Australian politics, and is often used by parties to determine the reception of particular policies (and leaders), or even to shape policies. Public accountability also occurs outside the formal arms of government to the media, interest and lobby groups and non-government organisations. In Chapter 5 we discussed in more depth the role of the media and these other groups in our democratic systems. In this chapter, we will explore those mechanisms that facilitate public accountability, and in particular FOI legislation, a statutory right to reasons, and protections for government whistle-blowers.

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Transparency: facilitating accountability A very important aspect of facilitating accountability—along with the fundamental democratic principles of freedom of thought and communication discussed in Chapter 5—is access to the details of government. Transparency is both a facilitator of accountability and also a spur towards good governance in its own right. Most accountability mechanisms will require access to information about government decisions and actions in order to operate. Sometimes an accountability mechanism will be vested with its own investigatory powers that allow it to compel the disclosure of information by government. We have already seen earlier in this chapter the important role that Parliament plays in obtaining information from the government through the mechanisms of responsible government, including question

151 The Law Enforcement Integrity Commissioner Act 2006 (Cth) establishes the Australian Commission for Law Enforcement Integrity and the Integrity Commissioner; the Law Enforcement Conduct Commission Act 2016 (NSW) establishes the Law Enforcement Conduct Commission; and the Police Complaints and Discipline Act 2016 (SA) grants powers to the Office for Public Integrity (established under the Independent Commissioner Against Corruption Act 2012 (SA)) and the Commissioner (as that term is defined in the Police Act 1998 (SA)). In Tasmania and the Northern Territory, this role is performed by the Police Commissioner: Police Administration Act 1979 (NT) pt IV; Police Service Act 2003 (Tas) pt III. 152 This is now recognised as a constitutional right, at least in the federal Constitution. See Constitution ss 7 and 24; Roach v Electoral Commissioner (2007) 233 CLR 162.

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time and committee inquiries. Other accountability mechanisms have to rely on general schemes that facilitate access to government information. In this part we consider three of the most important ways in which information about government is provided:  through FOI regimes, statutory rights to reasons, and the protection afforded to government whistle-blowers, sometimes referred to as ‘public interest disclosures’. Although not considered separately in this chapter, there are also laws that place obligations on government agencies when archiving information that facilitates accountability.153

FOI legislation The basic tenet of representative government is ‘that all powers of government ultimately belong to, and are derived from, the governed’.154 In the course of finding that freedom of communication on government and political affairs was a necessary part of the system of representative government in the Constitution, the High Court in Nationwide News Pty Ltd v Wills,155 and Australian Capital Television Pty Ltd v Commonwealth,156 commented on the importance of the citizens receiving information. In the latter case, Mason CJ said:

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Communication in the exercise of the freedom is by no means a one-way traffic, for the elected representatives have a responsibility not only to ascertain the views of the  electorate but also to explain and account for their decisions and actions in government to inform the people so that they may make informed judgments on relevant matters. Absent such a freedom of communication representative government would fail to achieve its purpose, namely, government by the people …157

While the right to access information held by the government has never gained constitutional protection, Mason CJ’s statements reinforce its importance in the proper functioning of representative democracy.158 It allows electors to make informed choices and fosters better democracy. It is supported by the idea that the government holds power on trust for the people, and that therefore the government’s information ought to be accessible by the people. Access to government information complements many other accountability mechanisms, furnishing the public, media and opposition parties with necessary information. It counterbalances the increasing

153 154 155 156 157

See, eg, Archives Act 1983 (Cth). Nationwide News Pty Ltd v Wills (1992) 177 CLR 1, 69 (Deane and Toohey JJ). Ibid 31 (Mason CJ), 72–3 (Deane and Toohey JJ). (1992) 177 CLR 106. Ibid 139. See also ibid 187 (Dawson J); Lange v Australian Broadcasting Corporation (1997) 189 CLR 520, 559. 158 See also Commonwealth v John Fairfax (1980) 147 CLR 39, 52, where Mason J reinforced the importance of the publication of information relating to the government.

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control of information in the public domain by the government, giving the public a fuller understanding of the government’s position and actions. In addition to fostering openness and transparency in government decisions through the furnishing of information, the scrutiny of decisions of itself promotes better decision making. Openness of court decisions has long been thought to be imperative in maintaining the quality of judicial decision making. British jurist Jeremy Bentham said: ‘Publicity is the very soul of justice. It is the keenest spur to exertion and the surest of all guards against improbity. It keeps the judge, while trying, under trial’.159 FOI regimes represent the application of this aphorism to the executive.160 Finally, open access to government information can foster other important aspects of the rule of law. Theoretically, transparency and openness of policies and decisions that are being made in individual cases allow the public at large to know the criteria being applied by government decision makers and to organise their lives accordingly, contributing to stability, predictability and certainty.161 However, no FOI regime provides unlimited access to government information. There are, on occasion, legitimate reasons why information cannot be released. In some cases, the broader public interest in the protection of the polity and the nation requires non-disclosure. This would include, for example, information that may release the names of undercover police operatives, or that might endanger national security. There has also traditionally been thought to be public interest in maintaining government secrecy to pursue efficient and effective government, and to foster more robust deliberation not stifled by potential public release.162 The government should be able to consider the information it gathers through its departments, or that it commissions from other public and private bodies, without having to justify the policies it generates against all this information. Within the vast pool of information that governments have at their disposal, there is likely to be material that conflicts with its policy decisions. Some commentators have argued that government would be inoperable if it had to disclose and account for all the information at its disposal, and indeed that secrecy is an important principle of effective government.163 Too much public scrutiny can lead to cramped and timid government. In Sankey v Whitlam, Gibbs ACJ held that: it is inherent in the nature of things that government at a high level cannot function without some degree of secrecy. No Minister, or senior public servant, could

159 Jeremy Bentham, quoted in Scott v Scott [1913] AC 417, 477 (Lord Shaw). 160 See, eg, Commonwealth Attorney-General, Freedom of Information Act 1982; Annual Report for the Period December 1982—June 1983 (1983) xi. 161 Ibid. 162 Solomon Encel, Cabinet Government in Australia (Melbourne University Press, 2nd ed, 1974) 124. 163 See, eg, ibid 124–5.

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effectively discharge the responsibilities of his office if every document prepared to enable policies to be formulated was liable to be made public.164

There is also a public interest in maintaining the privacy of individuals whose information may be held by the government. So exemptions have been developed—for entire agencies, or for different types of documents. The application and scope of these exemptions has been the major point of criticism of FOI regimes: is the correct balance being struck between the public interests in disclosure and the public interests in secrecy? Perceived failures in FOI regimes across the world to provide adequate transparency for government decision making have fostered a new movement that facilitates the unauthorised release of government information through the internet. An example of this extra-legal media is the website WikiLeaks, which was established in 2006. In 2010 WikiLeaks released documents relating to the wars in Afghanistan and Iraq, and started to release some of the 250,000 US diplomatic cables provided to it by an American military source, ostensibly a whistle-blower. Governments have been united in their criticism of the WikiLeaks website. Some believe its immediate effect will be tighter security in relation to government information in order to limit the number of people with access to it, rather than increasing access to government.165 There are also questions that arise about how to secure the accountability of unauthorised, self-appointed public facilitators of access to government information as they operate in a non-government, non-transparent environment.166 However, widespread community support for the WikiLeaks website, and others like it, reflects a ‘substantial generational change’ regarding attitudes to government secrecy.167 This cultural change is reflected in Australia in the 2010 amendments to the federal FOI legislation, outlined below. Each jurisdiction in Australia now has FOI legislation that gives individuals the right to access documents in the government’s possession.168 The right is a legally enforceable one unless an exemption applies to the document sought.169 There is no standing test, so an interest in the document does not have to be shown; this means access can be sought by all individuals, as well as media organisations, MPs and even

164 165 166 167 168

(1978) 142 CLR 1, 40. John McCarthy, ‘Wikileaks [SEC=UNCLASSIFIED]’ (2011) 3(1) The Asialink Essays 1, 5. David Lindsay, ‘Wikileaks and Secrecy’ (2012) 17 Media and Arts Law Review 237. McCarthy, above n 165, 7.  Freedom of Information Act 1982 (Cth); Freedom of Information Act 2016 (ACT); Government Information (Public Access) Act 2009 (NSW); Information Act 2002 (NT); Right to Information Act 2009 (Qld); Freedom of Information Act 1991 (SA); Right to Information Act 2009 (Tas); Freedom of Information Act 1982 (Vic); Freedom of Information Act 1992 (WA). 169 See, eg, Freedom of Information Act 1982 (Cth) s 11; or if responding to the request would take unreasonable time and resources: s 24.

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corporate interests. There is a right to amend or annotate personal information held by the government,170 and positive publication obligations on government agencies.171 The federal regime under the Freedom of Information Act 1982 (Cth) has been in place since 1982 and, after a series of inquiries, major reforms were implemented in 2010, altering the balance between disclosure and non-disclosure. This followed similar reforms in Queensland and New South Wales. The reforms focused on shifting away from requiring application for disclosure to occur (a reactive culture) to a propublication culture, which includes obligations on executive agencies to proactively publish certain information.172 To achieve the balance between disclosure and necessary secrecy, the Act created two general types of exemptions: exempt agencies and exempt documents. Accordingly, the Act applies to government agencies and ministers, which include departments and prescribed authorities other than exempt agencies.173 The new reforms also extend the scope of the Act to contracted service providers who are delivering services to the community for and on behalf of the Commonwealth.174 The new regime attempts to streamline and limit the previous categories of exempt documents. There are now two types of exempt documents. First are those that are unconditionally exempt, which include documents affecting national security, defence or international relations; Cabinet documents; documents affecting law enforcement and public safety; documents to which secrecy provisions apply; documents subject to legal professional privilege; and documents that would disclose trade secrets or commercially valuable information.175 Second are those that are conditionally exempt, where a public interest test will also have to be satisfied. Documents of this category include documents that could damage intergovernmental relations; reveal the deliberative processes of government; have a substantial adverse effect on the financial or property interests of the Commonwealth; prejudice various operations of Commonwealth agencies; unreasonably disclose personal information or business affairs; expose research to disadvantage; or have a substantial adverse effect on Australia’s economy.176 The new federal regime offers a change in the public interest test. Previously there were different public interest tests applying to different exemptions that changed the

170 171 172 173

Ibid pt V. Ibid pt II. See, eg, ibid. Ibid s 4(1) (definition of ‘Agency’), 4(1) (definition of ‘Document’), 4(1) (definition of ‘Document of an agency’), 4(1) (definition of ‘Official document of a Minister’). Exempt agencies include the AuditorGeneral, security agencies such as ASIO, and the Australian Government Solicitor: ibid s 7, sch 2. 174 Ibid s 6C. 175 Ibid pt IV div 2.  176 Ibid pt IV div 3.

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onus of proof. The new Commonwealth legislation creates a single public interest test: disclosure must be shown to be contrary to the public interest.177 This creates a presumption of disclosure unless the agency can show that it is contrary to the public interest. Factors that must inform a decision about the public interest are now explicitly stated,178 and guidelines issued by the Information Commissioner must also be taken into account.179 The statutory list of factors largely mirrors the position that had been developed in the courts.180 It is important to remember that although these exemptions to the regime exist, the decision maker always possesses an overarching discretion to grant access, subject to other legal constraints. However, the FOI legislation attempts to balance this discretion with other interests in information contained within documents—if a document is to be released that contains information relating to the government of a state, private information or information relating to business affairs, the agency must give those interests an opportunity to make submissions about the disclosure.181 The Commonwealth FOI regime previously included a mechanism by which the Minister could issue a ‘conclusive certificate’ that a document was an exempt document.182 This was particularly controversial,183 and the provision was repealed in 2009.184 The reforms to the Commonwealth legislation have also created a federal FOI ‘champion’: the Office of the Australian Information Commissioner (‘OAIC’), which is in charge of making sure the scheme is administered in a way that is true to its purpose as well as reviewing individual agency decisions. The OAIC consists of the Information Commissioner, the Privacy Commissioner and the FOI Commissioner. In 2013, the incoming Coalition Government attempted, unsuccessfully, to abolish the OAIC, by relocating the Privacy Commissioner into the Australian Human Rights Commission, abolishing the other two officers and moving their review functions to

177 178 179 180 181 182 183

184

Ibid s 11A(5). Ibid s 11B. Ibid s 11B(5). See, eg, McKinnon v Secretary, Department of Treasury (2006) 228 CLR 423, 428 [5] (Gleeson CJ and Kirby J), 466–7 [120]–[128] (Callinan and Heydon JJ). Freedom of Information Act 1982 (Cth) ss 27–27A. Ibid s 58(5), repealed by Freedom of Information (Removal of Conclusive Certificates and Other Measures) Act 2009 (Cth) s 13. Particularly after the decision in McKinnon v Secretary, Department of Treasury (2006) 228 CLR 423. The Treasurer issued a conclusive certificate that prevented Michael McKinnon, the FOI Editor of The Australian newspaper, from accessing a number of documents that he was seeking in relation to the extent and impact of ‘bracket creep’ on the collection of income tax and the first home owner scheme. The High Court held that the effect of a conclusive certificate was that any appeal against the issue of such a certificate to an external merits review tribunal was limited to determining whether there existed reasonable grounds for the claim that the disclosure of the document would be contrary to the public interest, and the tribunal could not delve behind the Minister’s decision, as it could in the exercise of its normal merits review jurisdiction. Freedom of Information (Removal of Conclusive Certificates and Other Measures) Act 2009 (Cth) s 13.

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the Ombudsman. However, the government was unable to pass its repeal legislation through the Senate. Nonetheless, the OAIC’s ability to fulfil its functions was severely imperilled through defunding, and the government’s refusal to fill key positions as they fell vacant. At one point, the OAIC’s Canberra’s premises were closed, leaving the information and FOI commissioners forced to work from home; eventually the OAIC’s three positions were filled by one individual. Once access is granted to a document, a copy of that document must be made publicly available in an online database.185 This removes the need for additional requests for access to documents that have already been released. The federal FOI scheme has also been made more easily accessible—a written application that identifies the documents is required, but there is no application fee and no charge for the first hour of work conducted to respond to the application (from there, hourly searching and copying fees apply).186 This reduces, but does not remove, the cost of FOI, which is often a barrier to its use. A decision to refuse access can be reviewed internally within the relevant agency.187 External review of the original decision, or of the internal review decision, can be applied for to the Information Commissioner,188 and then the AAT.189 Finally, judicial review may be available (see the discussion of the availability of judicial review, above).

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Right to reasons When an executive officer makes a decision or takes an action that affects an individual, there is no right at common law for that individual to obtain the reasons for the decision or action.190 However, reasons can be obtained under statutory regimes. An important aspect of the statutory judicial review and merits review schemes is that they create a statutory right to obtain reasons for a decision. Under the AD(JR) Act a person entitled to make an application for judicial review of an administrative decision is, generally speaking, entitled to request a statement of reasons from the decision maker. This must set out the findings on material questions of fact by reference to ‘evidence or other material on which those findings were based’ and the reasons for the decision.191 Similarly, under the Administrative Appeals

185 186 187 188 189

Freedom of Information Act 1982 (Cth) s 11C. Freedom of Information (Charges) Regulations 1982 (Cth). Freedom of Information Act 1982 (Cth) pt VI. Ibid pt VII. Ibid pt VIIA. Note that applicants can make an application to the AAT if the Information Commissioner decides not to undertake a review. 190 Public Service Board of New South Wales v Osmond (1986) 159 CLR 656. 191 AD(JR) Act s 13.

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Tribunal Act 1975 (Cth) a person who would have the right to apply for review to the AAT may request reasons for a decision from the decision maker.192 The provision of a statement of reasons can lead to better and more thoughtful decision making, facilitate the review of decisions, and generally foster open and transparent decision making.

Whistle-blowing

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Whistle-blowing is ‘the disclosure by organisation members (former or current) of illegal, immoral or illegitimate practices under the control of their employers to persons that may be able to effect action’.193 Also known as public interest disclosure, whistle-blowing can be an important check on the government. However, the benefits of public servants disclosing and speaking out against the government must be weighed against the attributes of public service neutrality and loyalty. At the Commonwealth level, the Public Interest Disclosure Act 2013 (Cth) provides relatively extensive protection for whistle-blowers.194 Previously, the lack of whistle-blower protection at the federal level had led to a number of public scandals, including the prosecution of a former customs official, Allan Kessing, for allegedly leaking government documents on airport security to two journalists from The Australian newspaper. Kessing was convicted under s 70 of the Crimes Act 1914 (Cth), which prohibits unauthorised disclosures by public servants to a third party. He was given a nine-month suspended prison sentence, despite his actions leading to a major overhaul of airport security.195 In an interview after his conviction, he warned that ‘anybody who knows of maladministration or corruption … would be well advised to say nothing, do nothing, keep their heads down and look after their career and mortgage’.196 Under the federal legislation, the Public Interest Disclosure Act 2013, protection is provided against civil, criminal or administrative liability to whistle-blowers, and it is

192 Administrative Appeals Tribunal Act 1975 (Cth) s 28. 193 Senate Select Committee on Public Interest Whistleblowing, Parliament of Australia, In the Public Interest (1994) 3. 194 It is certainly more extensive than the very limited form of whistle-blower protection previously provided at the federal level in the Public Service Act 1999 (Cth) s 16 and the Parliamentary Service Act 1999 (Cth) s 16. 195 Commonwealth, Whistleblower Protection:  A Comprehensive Scheme for the Commonwealth Public Sector, Report of the Inquiry into Whistleblowing Protection within the Australian Government Public Sector: Standing Committee on Legal and Constitutional Affairs, Parl Paper No 40 (2009) 116. 196 Ibid, referring to ABC Radio National, ‘Whistleblower Faces Prospects of Jail’, Law Report, 29 May 2007 (Allan Kessing), .

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an offence to take a reprisal against a whistle-blower (or a would-be whistle-blower).197 The Act encourages the use of internal disclosure mechanisms as the primary avenue for whistle-blowers. Disclosures to an external source (such as a journalist or the opposition) are only protected under the legislation where the whistle-blower believes on reasonable grounds that the internal investigation was not adequately dealt with and the disclosure is not, on balance, contrary to the public interest, or in exceptional cases if there is a substantial and imminent danger to health, safety or the environment.198 Disclosures relating to the conduct of intelligence agencies are excluded from the protection of the legislation.199 Each state and territory also has legislative protection for public sector whistleblowers, which offer varying degrees of protection.200

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Conclusion The executive in Australia is the largest arm of government. It is also the most influential due to its direct impact upon individuals and to the degree of control it exercises over Parliament. The previous chapter explained the sources of its power in the Constitution, statute and the common law, and discussed the breadth and flexibility of executive powers, which allow the executive to act in and protect the public interest. However, executive power is held on trust for the community. With power comes responsibility and with responsibility comes the necessary accountability, with auditing and checking to ensure the legality, quality and integrity of executive action. In Australia, many mechanisms exist to facilitate these goals. Their effectiveness can, however, be limited by the increasing complexity and size of government, by politics, and by the will of the executive itself. Developing an appropriate and effective system of accountability mechanisms is important in every society. Over the past four decades, many of the Australian mechanisms have been in a state of ongoing reform and refinement to remedy old and emerging problems, and to implement new innovations. This reform process will continue as society and its government continue to change.

197 198 199 200

Public Interest Disclosure Act 2013 (Cth) pt ii. Ibid s 26 (definition of ‘public interest disclosure’). Ibid s 33. Public Interest Disclosure Act 2012 (ACT); Public Interest Disclosures Act 1994 (NSW); Public Interest Disclosure Act 2008 (NT); Public Interest Disclosure Act 2010 (Qld); Whistleblowers Protection Act 1993 (SA); Public Interest Disclosures Act 2002 (Tas); Protected Disclosures Act 2012 (Vic); Public Interest Disclosure Act 2003 (WA).

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DISCUSSION QUESTIONS 1

Which category of institutional accountability (parliamentary, judicial, executive or public) do you think is the most important? Do you consider that each institutional form of accountability remains necessary today?

2

How important is transparency in government? Could accountability exist without transparency? Is transparency sufficient to achieve accountability?

3

Consider the possible avenues of redress that would be available to you if you had been wronged by a governmental decision or action (it might help to think of a specific government decision, such as refusal to grant a development application). For each avenue, explain the processes involved, the benefits of pursuing redress through that avenue, and its potential drawbacks.

4

Under the FOI and whistle-blower legislation, executive officers and ultimately judges are required to make determinations about when disclosure would be contrary to the public interest. What guides them in making these decisions? Should judges be asked to make this type of judgment?

5

Investigate the process for making an FOI application in your state or territory. How do you make a request for access to documents? Was the process easy to find and follow? Are fees payable for making a request and for having documents processed?

FURTHER READING Gabrielle Appleby, ‘Horizontal Accountability: The Rights-Protective Promise and Fragility of Executive Integrity Institutions’ (2017) 23 Australian Journal of Human Rights 168

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Judith Bannister, Anna Olijnyk and Stephen McDonald, Government Accountability: Australian Administrative Law (Cambridge University Press, 2nd ed, 2018) A J Brown, Chaos or Coherence? Strengths, Opportunities and Challenges for Australia’s Integrity Systems (Transparency International Australia, 2005) Robin Creyke and John McMillan, Control of Government Action: Text, Cases and Commentary (LexisNexis Butterworths, 4th ed, 2015) Simon Evans, ‘Continuity and Flexibility:  Executive Power in Australia’ in Paul Craig and Adam Tomkins (eds), The Executive and Public Law: Power and Accountability in Comparative Perspective (Oxford University Press, 2006) Grant Hoole and Gabrielle Appleby, ‘Integrity of Purpose:  A Legal Process Approach to Designing a Federal Anti-Corruption Commission’ (2017) 38 Adelaide Law Review 397 Geoffrey Lindell, ‘Responsible Government’ in P D Finn (ed), Essays on Law and Government, Volume 1: Principles and Values (Lawbook, 1995) 75

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Yee-Fui Ng, Ministerial Advisers in Australia:  The Modern Legal Context (Federation Press, 2016) Adam Tomkins (eds), The Executive and Public Law: Power and Accountability in Comparative Perspective (Oxford University Press, 2006) 89 Senate Select Committee on a Certain Maritime Incident, Parliament of Australia, Majority Report (2002) J J Spigelman, ‘The Integrity Branch of Government’ (2004) 78 Australian Law Journal 724

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Western Australia, Royal Commission into Commercial Activities of Government and Other Matters, Report, Part II (1992)

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CHAPTER 9 The Judiciary and the Separation of Judicial Power

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CHAPTER 10 The Separation of Powers Applied: Rights, Exceptions and State Courts 370

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CHAPTER 11 Public Law and Statutory Interpretation 407

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9

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CHAPTER OVERVIEW Introduction

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Chapter III: framework and history

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An integrated federal judiciary and a general court of appeal

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Federal courts: jurisdiction

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Tenure and remuneration of the federal judiciary

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State courts and federal jurisdiction

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Separation of federal judicial power

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Defining judicial power

352

The nature of the judicial function

353

Judicial discretion and legislative usurpation

361

Judicial process

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Conclusion

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Introduction English jurist William Blackstone said that the King is the ‘fountain of justice’, distributing justice on behalf of the people.1 However, consistent across the plethora of definitions of the rule of law is the role of an independent judiciary in policing the limits of the law as between the ruler and the ruled. Judicial review of both legislative and executive action is a key safeguard in the enforcement of legal and constitutional limits and the constraint of public power. In a federal system, an independent judiciary must also police the boundaries of power between the federal and state governments. Judicial power is often described in shorthand as the power ‘to interpret’ the laws. At a practical level, the judicial function involves the resolution of disputes by the ascertainment of the factual circumstances and the interpretation and application of the law, followed by the making of a binding and authoritative order. In Australia, a strict approach to the separation of judicial power from the other branches of government at the federal level under Chapter III of the Constitution has necessitated the development of a rich jurisprudence about what judicial power involves, and the process by which it must be exercised. This chapter introduces this approach and that jurisprudence. Alexander Hamilton once described the judiciary as the ‘least dangerous’ branch of government because it holds neither the sword nor the purse, and thus has ‘neither FORCE nor WILL, but merely judgment’.2 Judgment, however, has proven a powerful tool, where the judiciary’s pronouncements are obeyed and enforced by the other branches and its jurisdiction is not removed. It means that the interpretation of the laws that restrain the Parliament and the executive rests in the judges’ hands. Furthermore, unlike the other two arms of government, whose ultimate powers are determined by the High Court interpreting and applying the Constitution, the High Court is not subject to the same process of oversight or review. When it comes to the Constitution and its interpretation, the Parliament and the executive are powerless to amend or vary constitutional law as determined by the High Court without seeking formal constitutional amendment. There is no avenue for having another body review the Court’s decisions. If the High Court gets the law wrong, develops a principle that is widely rejected by the public, or hands down a decision that has major financial implications not budgeted for, no formal consequence for the Court ensues. However, 1 2

William Blackstone, Commentaries on the Laws of England (Clarendon Press, first published 1765–69, 1827 ed) vol 1, ch 7. Alexander Hamilton, ‘Federalist No 78’ in Clinton Rossiter (ed), The Federalist Papers (New American Library, first published 1788, 1961 ed) 464, 465.

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if the judiciary ventures beyond its constitutional role, its legitimacy in the eyes of the other arms of government and the public will be diminished. In the 17th century, Sir Edward Coke, Lord Chief Justice of England, fought hard to establish the supremacy of the common law and the privileged role of the judiciary. Guarantees of judicial independence through tenure were enshrined in the Act of Settlement 1701 (UK). However, as we saw in Chapter  2, Australia’s first judiciary, established in 1787, was the equivalent of a military court martial. The Judge Advocate was prosecutor, committing magistrate and judge, as well as sometime adviser to the Governor. The Australian colonists spent decades advocating for the independence of their courts and for the fundamentals of judicial process, such as the right to trial by jury. Today, the Australian Constitution, specifically Chapter III, provides a number of safeguards that separate and protect the judiciary and the exercise of judicial power from the influence and corruption of the other branches of government. State constitutions also provide some guarantees of judicial independence. This chapter first sketches the basic framework of Chapter III and explains its drafting history. Second, it explains how the High Court has drawn implications from Chapter III about the separation of federal judicial power. These implications limit the Commonwealth’s legislative power in relation to the judiciary and judicial power. The remainder of the chapter will explore the subsequent jurisprudence on what constitutes ‘judicial power’. Chapter 10 then turns to two examples of how the High Court has applied the implied limits separating federal judicial power to protect a number of fundamental liberties in a framework lacking a formal rights instrument. Following this, the chapter explains the High Court’s development of the persona designata exception to the separation of judicial power, allowing for the conferral of some non-judicial functions on individual members of the judiciary. Finally, it explores the effect of the separation of federal judicial power on state judiciaries through the Kable doctrine, which protects the institutional integrity of state courts.3 Finally, Chapter 11 explores the Court’s approach to statutory and constitutional interpretation. The Court’s role as interpreter of legislation has been affected by its conception of the judicial role, and the respect and deference it pays to the legislature’s role as the maker of laws. This, we will see, has manifested in the courts ensuring statutory language is interpreted consistently with parliamentary intent. Chapter 11 will also explore how the Court approaches its task of final interpreter of the Constitution.

3

Kable v Director of Public Prosecutions (NSW) (1996) 189 CLR 51.

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Chapter III: framework and history The final version of the Australian Constitution is based largely upon the draft initially penned by Tasmanian lawyer, politician and later Supreme Court judge Andrew Inglis Clark. Inglis Clark was much taken with the US system of government and its Constitution. The American founding fathers lacked confidence in the English reliance on ‘parliamentary supremacy, unrestrained by legally entrenched limitations’ and were committed to the establishment of an independent judicial body.4 The US constitutional framework was heavily influenced5 by the theories of Charles-Louis de Secondat, Baron de Montesquieu, as set out in his 1748 work, The Spirit of the Laws. He expounded a theory of separation of powers, and particularly the separation of judicial power:

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When the legislative and executive powers are united in the same person, or in the same body of magistrates, there can be no liberty; because apprehensions may arise, lest the same monarch or senate should enact tyrannical laws, to execute them in a tyrannical manner. Again, there is no liberty, if the judiciary power be not separated from the legislative and executive. Were it joined with the legislative, the life and liberty of the subject would be exposed to arbitrary control; for the judge would be then the legislator. Were it joined to the executive power, the judge might behave with violence and oppression.6

The first three chapters of Inglis Clark’s draft, and the final Constitution, mirror the first three chapters of the US Constitution. These are headed ‘The Parliament’, ‘The Executive Government’ and ‘The Judicature’. Section 1 vests the legislative power of the Commonwealth in a Federal Parliament; s 61 vests the executive power of the Commonwealth in the Queen, exercisable by the Governor-General; and s 71 vests the federal judicial power in the High Court of Australia, other courts created by the Federal Parliament and state courts that are vested with federal jurisdiction by the Federal Parliament. This structure has had important ramifications for the separation and protection of judicial power, and the limitations of the legislature’s power to interfere with it at both the federal and state levels.

4 5 6

Peter Gerangelos, The Separation of Powers and Legislative Interference in Judicial Process: Constitutional Principles and Limitations (Hart Publishing, 2009) 13. See especially James Madison, ‘Federalist No. 47’ in Rossiter, above n 2, 297; James Madison, ‘Federalist No. 51’ in Rossiter, above n 2, 317. Charles-Louis de Secondat, Baron de Montesquieu, The Spirit of the Laws (Thomas Nugent trans, J V Prichard, revised ed, 1914 ed) book 11, 6 [trans of: De L’esprit des Lois (first published 1748)].

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An integrated federal judiciary and a general court of appeal Chapter III creates what has been described by the High Court as an ‘integrated federal judicial system’ of both federal and state courts.7 Since the abolition of all remaining appeals to the Privy Council in 1986,8 at the apex of the Australian court hierarchy is the High Court.9 The High Court therefore acts as a general court of appeal across the entire judiciary—state and federal—and is able to finally resolve all issues of law—including in the areas of constitutional, administrative, criminal and private law. Underneath the High Court, the federal and state judiciaries run largely in parallel. In contrast with many judicial systems established under more modern constitutions, the Australian High Court does not operate as a purely constitutional court, but must grapple with questions of the common law and statutory interpretation. This has, no doubt, affected its approach to constitutional questions, which, as we will explain further in Chapter 11, have been dominated by the common law method and traditional approaches to statutory interpretation since the landmark ruling in the Amalgamated Society of Engineers v Adelaide Steamship Co Ltd (‘Engineers’ Case’).10 Further, it means that judges appointed to the High Court are not necessarily constitutional experts. Rather, they may be highly regarded judges in the states or other federal courts and, before this, have experience in specialised areas of legal practice. High Court justices have also been appointed directly from the Bar.

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Federal courts: jurisdiction Chapter III empowers the federal legislature to create new federal courts, regulate and prescribe their jurisdiction and procedures, and add to the jurisdiction of the High Court. In this respect, only the High Court’s jurisdiction is guaranteed to any degree. The High Court’s original jurisdiction over the matters listed in s 75 of the Constitution is constitutionally entrenched. The Federal Parliament may vest

7 8

9 10

Kable v Director of Public Prosecutions (NSW) (1996) 189 CLR 51. As explained in Chapter 2, appeals to the Privy Council had been a vexed issue in the lead-up to federation, and ss 73 and 74 of the Constitution represented a compromise between those who wished to see the Australian Constitution interpreted by an Australian court and those who wished to retain the links with the Privy Council and UK law, and protect UK interests in Australia. Appeals from Commonwealth matters and the High Court were limited in 1968 and then 1975: Privy Council (Limitation of Appeals) Act 1968 (Cth); Privy Council (Appeals from the High Court) Act 1975 (Cth). In 1986 all remaining avenues for appeal to the Privy Council were abolished with the passage of the Australia Act 1986 (Cth) and Australia Act 1986 (UK) s 11. See Constitution s 73. (1920) 28 CLR 129.

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jurisdiction in the High Court over those matters listed in s 76. The High Court’s appellate jurisdiction is entrenched in s 73 of the Constitution. Parliament can, to an extent, still limit and prescribe the rules of procedure and evidence that apply in High Court matters. For example, Parliament has validly imposed the procedural hurdle upon parties to first seek special leave to appeal in all appellate High Court matters.11 The Commonwealth Parliament has created a range of courts under s 71 of the Constitution with both general and specialised jurisdiction: the Federal Court, the Family Court, the Industrial Relations Court of Australia and the Federal Circuit Court (previously called the Federal Magistrates Court). The High Court’s jurisdiction over matters ‘arising under this Constitution or involving its interpretation’ is not guaranteed by the Constitution itself; rather, s 76(i) empowers the Parliament to make laws conferring this jurisdiction. Since 1903, Parliament has conferred this jurisdiction pursuant to s 30 of the Judiciary Act 1903 (Cth). Some of the High Court’s constitutional jurisdiction is entrenched. Section 75(iii) guarantees its jurisdiction in all matters ‘in which the Commonwealth, or a person suing or being sued on behalf the Commonwealth, is a party’, and s 75(v) guarantees its jurisdiction in matters ‘in which a writ of Mandamus or prohibition or an injunction is sought against an officer of the Commonwealth’. Outside the constitutional text, there is evidence that the framers accepted the principle established in the decision of Marshall CJ in the US case of Marbury v Madison: Certainly all those who have framed written Constitutions contemplate them as forming the fundamental and paramount law of the nation, and consequently the theory of every such government must be that an act of the Legislature repugnant to the Constitution is void. The theory is essentially attached to a written Constitution, and is consequently to be considered by this Court as one of the fundamental principles of our society … It is emphatically the province and duty of the Judicial Department to say what the law is. Those who apply the rule to particular cases must, of necessity, expound and interpret that rule. If two laws conflict with each other, the Courts must decide on the operation of each … If, then, the Courts are to regard the Constitution, and the Constitution is superior to any ordinary act of the legislature, the Constitution, and not such ordinary act, must govern the case to which they both apply.12

The High Court has found that the Australian framers treated as axiomatic the notion that the High Court would exercise judicial review for constitutionality.13 11 12 13

Judiciary Act 1903 (Cth) s 35 (effective since 1984). This section’s validity was confirmed in Smith Kline & French Laboratories (Aust) Ltd v Commonwealth (1991) 173 CLR 194. 5 US (1 Cranch) 137, 177 (1803). See, eg, Australian Communist Party v Commonwealth (1951) 83 CLR 1, 262 (‘Communist Party Case’) (Fullagar J).

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This view is supported by history. When the federal Attorney-General, Alfred Deakin, introduced the Judiciary Bill 1901 (Cth) into Parliament, he made it clear that it would be the High Court that would determine ‘the orbit and boundary of every power’.14 The High Court has readily assumed the constitutional role that the founding fathers had presumed it would occupy. In the Communist Party Case,15 the High Court asserted its role in determining the constitutional limits of the powers of both the Parliament and the executive. After the Second World War, in response to the spread of communist ideology abroad and at home, the Menzies Liberal Government had enacted the Communist Party Dissolution Act 1950 (Cth). The Communist Party Dissolution Act 1950 (Cth) was an extraordinary attempt during peacetime to invoke the Commonwealth’s defence power to dissolve the party, control its property, and prohibit association with and membership of the party. In the preamble to the Act, it was alleged that the Australian Communist Party ‘engages in activities or operations designed to bring about the overthrow or dislocation of the established system of government of Australia and the attainment of economic industrial or political ends by force, violence, intimidation or fraudulent practices’.16 Section 4 of the Act declared the Communist Party an unlawful association. The Governor-General was empowered to make additional declarations as to what constituted an unlawful association under the Act upon being satisfied ‘that the continued existence of [a] body of persons [to which the section applies] would be prejudicial to the security and defence of the Commonwealth or to the execution or maintenance of the Constitution or of the laws of the Commonwealth’,17 and to declare a person a communist.18 Once a person was declared a communist, they were prohibited from holding public office or engaging in other vital industries.19 By a 6:1 majority (Latham CJ dissenting), the Act was held invalid on the basis it was not supported by the Commonwealth’s legislative power over the defence of the Commonwealth. Nine recitals (explanatory statements preceding the operative provisions) had prefaced the legislation in an effort to bring it within the defence and executive powers. These included: ‘it is necessary for the security and defence of Australia and for the execution and maintenance of the Constitution and of the laws of the Commonwealth, that the Australian Communist party, and bodies of persons affiliated with that Party, should be dissolved and their property forfeited to the Commonwealth’. However, the High Court accepted only a very limited use 14 15 16 17 18 19

Commonwealth of Australia, Parliamentary Debates, House of Representatives, 18 March 1902, 10967 (Alfred Deakin, Attorney-General). (1951) 83 CLR 1. Communist Party Dissolution Act 1950 (Cth) Recital 5. Ibid s 5(2). Ibid s 9(2). Ibid s 10.

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for the recitals on the basis that the Constitution ‘does not allow the judicature to concede the principle that the parliament can conclusively “recite itself ” into power’.20 Arguments that the law was valid under the defence and executive powers also failed on the basis that the discretionary powers conferred upon the Governor-General were unreviewable. This notion—that no law can confer power upon a person to conclusively determine an issue upon which the constitutional validity of the law depends—is captured by the maxim deployed by Fullagar J in the case, that ‘the stream cannot rise above its source’.21 In response to the invalidity of the Communist Party Dissolution Act, Menzies proposed to amend the Constitution, adding a Commonwealth legislative power over communism so that Parliament could again enact legislation to ban the Communist Party. This proposal was put to the people at a referendum in 1951. The ALP opposed the proposed constitutional amendment on the basis of its incursion into fundamental individual freedoms. The proposal was rejected by the voters, albeit narrowly.22 As we will explore further in Chapter  11, while placing itself at the centre of constitutional interpretation, the High Court has not expounded a singular exhaustive methodology—whether by reference to the original meaning of the words, the intentions of the framers, or evolving social and economic expectations and standards—by which to go about this task. The Constitution itself provides no guidance. While some members of the High Court have applied a relatively consistent approach to constitutional interpretation, others have shied away from the idea that there may be a singular approach to resolve the different questions thrown up across the constitutional provisions. High Court justices cannot have their commission revoked simply because their decisions are unpopular, nor can they be forced to justify publicly their decisions in the manner that we expect of ministers and other elected representatives. We are forced to trust that justices will remain faithful to their constitutional task, apply the law fairly and act in accordance with accepted judicial standards. The potential for the courts to exceed the limits of their constitutional role is (theoretically at least) always present, but justices are generally mindful of the need to preserve both the role and the legitimacy of the High Court among the government and the people.23

20 21

22 23

Communist Party Case (1951) 83 CLR 1, 205–6 (McTiernan J). Ibid 258 (Fullagar J): ‘[The notion is] an elementary rule of constitutional law which has been expressed metaphorically by saying that a stream cannot rise higher than its source’. See also Heiner v Scott (1914) 19 CLR 381, 393 (Griffith CJ). The ‘yes’ vote was 48.75 per cent, the ‘no’ vote 49.85 per cent and there was an informal (invalid) vote of 1.40 per cent. The proposal received a majority in three of the six states. See further discussion of the impact of such concerns on the conduct of the High Court in Rosalind Dixon and George Williams, The High Court, the Constitution and Australian Politics (Cambridge University Press, 2015).

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The High Court has held that it has the ultimate power to review exercises of power not only by the legislative arm of government, but also by the executive arm. Judicial review of administrative action has already been introduced in Chapter 8. In that chapter, we explained that courts must not review the merits of an administrative decision, but consider only its legality. Review of the merits is an exercise of a nonjudicial function, and thus breaches the requirement, which we explain in greater detail below, that federal Chapter III courts only exercise judicial power. The High Court’s jurisdiction to oversee the exercise of federal executive power is expressly conferred by s 75(v) of the Constitution, which guarantees jurisdiction in matters ‘in which a writ of mandamus or prohibition or an injunction is sought against an officer of the Commonwealth’.24 The High Court has found that because s 75(v) is entrenched (in comparison to jurisdiction conferred by the legislature under s 76), no Act of Parliament can remove the jurisdiction of the High Court conferred under that section in respect of federal decisions.25 There is no express guarantee of the High Court’s power to oversee the exercise of state executive power. However, as will be discussed in Chapter 10, the High Court has held that a defining characteristic of state Supreme Courts guaranteed under the Constitution is their ability to review the exercise of state executive power, at least for jurisdictional error.26 While the High Court has asserted a constitutionally entrenched jurisdiction for the Australian courts over judicial review, these cases may be followed by legislative responses and further decisions that challenge the scope of this jurisdiction. While the High Court has interpreted the Constitution as entrenching a minimum requirement of judicial review at both state and federal level, it has not detailed a list of errors that will always be treated as ‘jurisdictional’ and thus within the judiciary’s power to correct. On the contrary, the High Court has accepted that parliaments retain the power to determine what duties will be ‘imperative’ and what limits will be ‘inviolable’ under any Act, and thus what will likely amount to ‘jurisdictional error’. Whether parliaments will abuse this power to a point at which the High Court will deem Chapter III to have been breached remains to be seen. What approach the courts will take in interpreting legislation and identifying jurisdictional errors is also still to be fully worked out. In this context, the effects of Chapter III upon judicial review will continue to evolve.

Tenure and remuneration of the federal judiciary Federal courts receive guarantees of judicial tenure and remuneration that closely mirror those granted at the turn of the 18th century in the Act of Settlement 1701 (UK). Section 72 of the Constitution guarantees that justices of the High Court and 24 25 26

These writs are further explained in Chapter 8. Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476. Kirk v Industrial Court of New South Wales (2010) 239 CLR 531.

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other federal courts shall not be removed before the mandatory retirement age of 70 years, except by the Governor-General in Council on an address from both Houses of the Parliament in the same session, praying for such removal on the ground of proved misbehaviour or incapacity. Legislation has been introduced that allows for a House of Representatives committee to be established to investigate and report on alleged misbehaviour or incapacity of a federal judge. The investigations and recommendations of such a committee assist the Parliament in deciding whether to exercise its powers of removal under s 72.27 The legislation addresses many criticisms that were made about the politicking and mishandling of Parliament’s investigation of the alleged misconduct of Justice Lionel Murphy during the 1980s, the only time the removal of a federal judge has been attempted.28 The removal mechanism is a blunt tool. That is to say, it allows for judges to be brought to account only for grave breaches of law and illness, but there is no constitutional mechanism available to deal with more minor (and more common) transgressions. In 2012, the Commonwealth introduced legislation to underpin the largely informal processes that operated for many years in federal courts whereby the head of jurisdiction (such as the Chief Justice of the Federal Court) is responsible for receiving, investigating and dealing with complaints made against judges.29 Heads of jurisdiction and the High Court are excluded from the scheme. Agitation for greater accountability through an independent judicial commission, empowered to receive, investigate and discipline judges, has so far been successfully countered at the federal level on the basis that third-party oversight of the judicial function has the potential to undermine the independence of the courts.30 Under s 72, federal judges are appointed by the Governor-General on the advice of the federal executive. In practical terms, however, it is the federal executive that appoints federal judges. Section 6 of the High Court of Australia Act requires the federal Attorney-General to consult with their state counterparts in respect of appointments to the High Court. The only qualifications for appointment to the High Court are set out in s 7 of the High Court of Australia Act: A person shall not be appointed as a Justice unless: (a)

27 28 29 30

he or she is or has been a Judge of a court created by the Parliament or of a court of a State or Territory; or

Judicial Misbehaviour and Incapacity (Parliamentary Commissions) Act 2012 (Cth). Geoffrey Lindell, ‘The Murphy Affair in Retrospect’ in H P Lee and George Winterton (eds), Australian Constitutional Landmarks (Cambridge University Press, 2003) 280. Courts Legislation Amendment (Judicial Complaints) Act 2012 (Cth). In contrast, a judicial commission has been established in New South Wales (the Judicial Commission of New South Wales, established in 1986), South Australia (the Judicial Conduct Commissioner of South Australia, established in 2015), and Victoria (the Judicial Commission of Victoria, established in 2016), and the ACT (ACT Judicial Council, established in 2017).

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he or she has been enrolled as a barrister or solicitor, as a barrister and solicitor, or as a legal practitioner, of the High Court or of the Supreme Court of a State or Territory for not less than 5 years.

With little constitutional and legislative guidance or constraint around federal judicial appointments, it has been common throughout history, although increasingly less so, for appointments to be made that are clearly driven by politics.31 Indeed, a number of former politicians have been appointed to the bench, although at the High Court level this has not occurred since 1975.32 On one view, the appointment of judges by the executive adds a democratic element to the process, and in that way acts as a democratic check on the judiciary. On another view, it raises the possibility of judges favouring the government that appointed them in matters coming before the Court, thus introducing political bias into the judiciary. Indeed, in the absence of a transparent and regulated appointments process, federal Cabinet has the capacity to veto High Court appointments for reasons other than merit.33 There has been a significant agitation for legal reform of the judicial appointments system across Australia to establish a robust system of non-political appointments through a judicial appointments commission.34 It is argued that a more robust, transparent and politically independent system that established clear criteria for appointment would decrease the political influence over judicial appointments and possibly increase the merit of appointees. Further, it could also be given a mandate to increase the diversity of judicial appointments,35 thus increasing the representativeness of the Australian judiciary. Section 5 of the High Court of Australia Act 1979 (Cth) describes the High Court as comprising the Chief Justice and six other justices who are appointed by the Governor-General by commission. Apart from the requirement under s 71 that there be no fewer than two justices of the High Court, there is no constitutional impediment to Parliament increasing the number of justices beyond the current number of seven.36 Section 72(iii) also guarantees that remuneration of federal judges

31 32 33 34

35 36

See s 79 of the Constitution. Douglas McDonald-Norman, Politicians as Judges (Australian Public Law, 13 August 2015), . George Williams, ‘High Court Appointments:  The Need for Reform’ (2008) 30 Sydney Law Review 163, 165. See, for instance, George Williams, ‘High Court Appointments: The Need for Reform’ (2008) 30 Sydney Law Review 163; Simon Evans and John Williams, ‘Appointing Australian Judges: A New Model’ (2008) 30 Sydney Law Review 295; Rebecca Ananian Welsh, Gabrielle Appleby and Andrew Lynch, The Tim Carmody Affair: Australia’s Greatest Judicial Crisis (NewSouth Books, 2016) ch 7. Andrew Lynch and Elizabeth Handsley ‘Facing up to Diversity? Transparency and the Reform of Commonwealth Judicial Appointments 2008—13’ (2015) 37 Sydney Law Review 187. Section 79 provides as follows: ‘The federal jurisdiction of any court may be exercised by such number of judges as the Parliament prescribes’.

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is fixed by Parliament and cannot be diminished during their term of office, providing a further independence guarantee in addition to tenure.

State courts and federal jurisdiction In what has become known as the ‘autochthonous expedient’,37 when the Australian judicial system was established, the state courts were kept not only to exercise state jurisdiction, but also as possible receptacles of federal jurisdiction. Section 77(iii) of the Australian Constitution empowers the Federal Parliament to invest state courts with federal jurisdiction. The provision was included late in the drafting process to overcome the practical difficulties foreseen by the framers. It was unlikely that there would be enough time to establish a functioning federal court system prior to federation, and there were also concerns about its potential costs. By vesting federal judicial power in state courts, the new Commonwealth was able to deal with judicial business in its early years until a federal system could be set up. Framers and constitutional scholars John Quick and Robert Garran explained:

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In this way it will be possible to dispense with unduly cumbersome judicial machinery in the early years of the Commonwealth, and only develop and extend the national judicial system to meet the gradually increasing requirements of the people.38

This quick fix to the problem of a federal judiciary in the early years of federation would  have a lasting impact on the operation of our judicial system. A  doctrine which held that the Federal Parliament must take state courts as it finds them, given that those  courts had already been established under colonial and then state law, developed.39 However, in 1996 the High Court’s decision in Kable v Director of Public Prosecutions (NSW) revealed that the investment of state judiciaries with federal judicial power did have an impact on the powers of state Parliaments over their courts.40 While the separation of judicial power that was found to exist at the federal level (see below) has not been brought across to the states,41 minimum requirements of independence and impartiality must continue to be met. The Kable principle is further explained in Chapter 10. 37 38 39

40 41

R v Kirby; Ex parte Boilermakers’ Society of Australia (1956) 94 CLR 254, 268 (‘Boilermakers’ Case’) (Dixon CJ, McTiernan, Fullagar and Kitto JJ). John Quick and Robert Garran, The Annotated Constitution of the Australian Commonwealth (Legal Books, first published 1901, 1976 reprint) 803–4. Leeth v Commonwealth (1992) 174 CLR 455, 469 (Mason CJ, Dawson and McHugh JJ); Le Mesurier v Connor (1929) 42 CLR 481, 496 (Knox CJ, Rich and Dixon JJ); Federated Sawmill, Timberyard and General Woodworkers’ Employees’ Association (Adelaide Branch) v Alexander (1912) 15 CLR 308, 313 (Griffith CJ). (1996) 189 CLR 51. Clyne v East [No 1] [1967] 68 SR(NSW) 385; Gilbertson v South Australia (1976) 15 SASR 66; Gilbertson v South Australia [1978] AC 772; Building Construction Employees and Builders’ Labourers Federation of NSW v Minister for Industrial Relations (1986) 7 NSWLR 372; City of Collingwood v Victoria [No 2] [1994] 1 VR 652; Kable v Director of Public Prosecutions (NSW) (1996) 189 CLR 51.

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The vesting of federal jurisdiction in state courts also created a difficult question about overlapping jurisdictions once federal courts were created. This did not really become an issue in Australia until the 1970s when the first federal courts of general jurisdiction were introduced. At this point, the possibility arose that a single matter may raise state and federal issues and therefore could be suitably resolved in either jurisdiction. Federal courts accepted that they could exercise state jurisdiction if it was ‘accrued jurisdiction’; that is, if the claims under state law arose in a matter that also raised federal issues. In 1988, a new law established a system that vested federal jurisdiction in state courts and state jurisdiction in federal courts (crossvesting legislation), thus allowing for either system to deal with all issues that arose in the course of proceedings. However, in Re Wakim; Ex parte McNally the High Court rejected the cross-vesting of state jurisdiction in federal courts on the basis that it breached the separation of federal judicial power by requiring federal courts to exercise state judicial power.42 According to the Boilermakers’ principle, which we introduce below, federal courts, the High Court held, must only exercise federal judicial power. The part of the scheme that vested federal jurisdiction in state courts remained valid, and the federal courts have still been able to exercise some accrued state jurisdiction.

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Separation of federal judicial power Chapter III of the Australian Constitution was a fusion of the US separation of powers theory and pragmatic concerns of the Australian framers. It creates a unique combination of principles:  the separation of judicial power juxtaposed with the retention of responsible government; the creation of a High Court as a general court of appeal; and the conferral of federal judicial power on the state courts. How these key features would interact would be left to the High Court to determine. Chapter III jurisprudence is unique in constitutional law—it involves the final determination by judges of the scope of their own judicial power vis-à-vis the other arms of government. It thus involves judging by judges about the nature and scope of their own power. In this sense, it has an inherently reflective and subjective element. While the opportunity to challenge the law as set down by the High Court might arise in a future case, and the potential exists for holding a referendum on the issue, there is no separate body that exercises legal oversight of the High Court and its decision making. The final part of this chapter will introduce the High Court’s Chapter III jurisprudence that establishes the separation of federal judicial power from the other

42

(1999) 198 CLR 511 (‘Cross-vesting Case’).

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branches of government. The seminal case in this area is the Boilermakers’ Case,43 which established a two-limbed test for determining when the separation of powers implied from the Australian Constitution will be breached. As we have already discussed, the Australian framers borrowed heavily from the US Constitution in drafting the Australian document, and particularly the arrangement of Chapters I, II and III. Inglis Clark explained what he believed to be the effect of the drafting arrangements and structure of Chapter III in his 1901 treatise on the Constitution, Studies in Australian Constitutional Law:

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the Constitution does not provide for any consultation or co-operation between the Crown and the Judiciary, or between the Parliament and the Judiciary, in the exercise of the judicial power of the Commonwealth, and therefore any attempt on the part of the Parliament or the Crown to exercise functions which are essentially and distinctly judicial must be … invalid.44

In accordance with Inglis Clark’s predictions, early cases on the judicial power accepted that judicial functions should be strictly separated from legislative and executive functions. Thus, in New South Wales v Commonwealth (‘Wheat Case’),45 decided in 1915, the High Court held invalid a law that conferred judicial power on the Inter-State Commission (a body referred to in s 101 of the Constitution to be entrusted with the execution and maintenance of constitutional provisions, and laws made thereunder, relating to trade and commerce). The law was said to infringe Chapter III by conferring judicial power upon an executive body. Griffith CJ explained that: ‘the provisions of sec. 71 are complete and exclusive, and there cannot be a third class of Courts which are neither federal Courts nor State Courts invested with federal jurisdiction’.46 Despite several attempts to revive the Commission, it was eventually abolished in 1989 and never fulfilled its intended function within the federation.47 In Waterside Workers’ Federation of Australia v JW Alexander Ltd (‘Alexander’s Case’),48 decided only three years after the Wheat Case, the High Court also found invalid the Commonwealth’s attempt to establish a Court of Conciliation and Arbitration, of which the President would be a High Court justice entitled to hold office for seven years. The High Court held that the limited tenure was consistent with the exercise of arbitral (executive) powers, but not with the exercise of judicial powers (which would require that the justice hold life tenure in accordance with s 72, as it then provided). Rich and Isaacs JJ explained that ‘the Federal Constitution is specific 43 44 45 46 47 48

(1956) 94 CLR 254, affd Attorney-General (Cth) v The Queen (1957) 95 CLR 529. Andrew Inglis Clark, Studies in Australian Constitutional Law (Charles F Maxwell, 1901) 36–7. See also Quick and Garran, above n 39, 720. (1915) 20 CLR 54. Ibid 62. See Michael Coper, ‘The Second Coming of the Fourth Arm: The Role and Functions of the Inter-State Commission’ (1989) 63 Australian Law Journal 731. (1918) 25 CLR 434.

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that judicial power shall be vested in Courts … And it also requires those Courts to be constituted by “Justices” … whose tenure and salary rights are governed by the provisions of sec. 72’.49 Thus, the mixing of powers involved a breach of Chapter III. Initially, Parliament responded by transferring the (judicial) power to enforce awards (determined by the Court of Conciliation and Arbitration) to a Court of Petty Sessions. However, in 1926 the Court of Conciliation and Arbitration’s enforcement powers were reintroduced, with the seven-year terms of the justices replaced with life tenure. The Boilermakers’ Case offered the first opportunity to challenge these laws, and the High Court declared invalid the legislative arrangement that had by that time been in place for 30 years. The Metal Trades Employers’ Association had sought to enforce a no-strike clause in an award and obtained orders from the Court of Conciliation and Arbitration: first, requiring the Boilermakers’ Society of Australia to comply; and, second, imposing a fine for contempt of court when it failed to comply. The Boilermakers’ Society then sought and obtained an order from McTiernan J in the High Court calling upon the Employers’ Association to show cause why a remedy should not issue—on the basis that the award was unconstitutional because judicial power had been vested in the Court of Conciliation and Arbitration, which was not a judicial body referred to under s 71. The High Court decided, with a 4:3 majority (Dixon CJ, McTiernan, Fullagar and Kitto JJ in the majority, and Williams, Webb and Taylor JJ dissenting), in favour of the Boilermakers’ Society. They accepted that the conferral of judicial power on a body also exercising non-judicial power was invalid. The Court established a two-limbed limitation for determining whether the federal separation of judicial power was breached. The first limb affirmed the earlier decisions in the Wheat Case and Alexander’s Case: it is beyond the competence of the parliament to invest with any part of the judicial power any body or person except a court created pursuant to s 71 and constituted in accordance with s 72 or a court brought into existence by a State.50

The second limb was not necessary for the determination of the dispute in the case itself, but has nonetheless become an enduring constitutional principle: the Constitution does not allow the use of courts established by or under Chap III for the discharge of functions which are not in themselves part of the judicial power and are not auxiliary or incidental thereto.51

49 50 51

Ibid 467–8. Boilermakers’ Case (1956) 94 CLR 254, 270 (Dixon CJ, McTiernan, Fullager and Kitto JJ). Ibid 271–2 (Dixon CJ, McTiernan, Fullager and Kitto JJ). See earlier comments that supported this principle in Victorian Stevedoring & General Contracting Co Pty Ltd and Meakes v Dignan (1931) 46 CLR 73, 97–8 (Dixon J), but contrast this to the reasoning of the majority in R v Federal Court of Bankruptcy; Ex parte Lowenstein (1938) 59 CLR 556.

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Behind these twin principles lay two strands of reasoning. First, the High Court relied upon the text and structure of the Constitution. The majority explained that the existence and detail of Chapter III implied that judicial power must vest only in accordance with its provisions: the existence in the Constitution of Chap. III and the nature of the provisions it contains make it clear that no resort can be made to judicial power except under or in conformity with ss. 71–80 … to study Chap. III is to see at once that it is an exhaustive statement of the manner in which the judicial power of the Commonwealth is or may be vested.52

The detail of these provisions also gave rise to the implication captured by the second limb: If attention is confined to Chap. III it would be difficult to believe that the careful provisions for the creation of a federal judicature as the institution of government to exercise judicial power and the precise specification of the content or subject matter of that power were compatible with the exercise by that institution of other powers … To one instructed only by a reading of Chap. III and an understanding of the reasons inspiring the careful limitations which exist upon the judicial authority exercisable in the Federal Commonwealth of Australia by the federal judicature brought into existence for the purpose, it must seem entirely incongruous if nevertheless there may be conferred or imposed upon the same judicature authorities or responsibilities of a description wholly unconnected with judicial power. It would seem a matter of course to treat the affirmative provisions stating the character and judicial powers of the federal judicature as exhaustive.53

Further, the judiciary established by Chapter III was separated from the other arms of government by the structure of the first three chapters of the Constitution:

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no functions but judicial may be reposed in the judicature. If you knew nothing of the history of the separation of powers, if you made no comparison of the American instrument of government with ours, if you were unaware of the interpretation it had received before our Constitution was framed according to the same plan, you would still feel the strength of the logical inferences from Chaps. I, II and III and the form and contents of ss. 1, 61 and 71. It would be difficult to treat it as a mere draftsman’s arrangement. Section 1 positively vests the legislative power of the Commonwealth in the Parliament of the Commonwealth. Then s. 61, in exactly the same form, vests the executive power of the Commonwealth in the Crown. They are the counterparts of s. 71 which in the same way vests the judicial power of the Commonwealth in this Court, the federal courts the Parliament may create and the State courts it may invest

52 53

Boilermakers’ Case (1956) 94 CLR 254, 269–70 (Dixon CJ, McTiernan, Fullagar and Kitto JJ). Ibid 272 (Dixon CJ, McTiernan, Fullagar and Kitto JJ).

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with federal jurisdiction. This cannot all be treated as meaningless and of no legal consequence.54

Text and structure were only part of the explanation of the High Court’s drawing the two-limbed test. The second was the role the judiciary plays in a federal system of government. In Chapter 4 of this book we explained the fundamental role of the courts in policing the division of powers in federal constitutions. In the Boilermakers’ Case, the Court drew upon this very principle: The position and constitution of the judicature could not be considered accidental to the institution of federalism: for upon the judicature rested the ultimate responsibility for the maintenance and enforcement of the boundaries within which governmental power might be exercised and upon that the whole system was constructed.55

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On appeal, the Privy Council upheld the High Court’s decision,56 and the power to deal with industrial matters federally within Australia has since been divided between a commission (exercising non-judicial functions) and a court (exercising judicial functions). Parliament did pass legislation retrospectively preserving the validity of awards and orders made between 1926 and 1956, but the validity of those provisions was never tested in the High Court. The Boilermakers’ Case gave us the now classic two-limbed test for determining whether the federal separation of powers is breached: 1

The judicial power of the Commonwealth can only be vested in a Chapter III court (including a state court vested with federal judicial power under s 77(iii)).

2

A federal Chapter III court cannot be invested with anything other than federal judicial power, or powers auxiliary or incidental to the exercise of federal judicial power (state courts are subjected to a different limit, which is discussed in Chapter 10).

The test is clearly designed to preserve the independence and impartiality of Chapter III courts, beyond the formal provisions of ss 71 and 72. Its two limbs have had an enormous effect on Australian federal laws, affecting Parliament’s capacity to develop tribunals with enforcement powers,57 and preventing judges from exercising executive roles that are incompatible with their judicial functions.58 However, certain exceptions have been identified by the High Court. Courts can delegate judicial power to nonChapter III bodies provided these are discrete functions and judicial oversight remains.59 54 55 56 57 58 59

Ibid 275 (Dixon CJ, McTiernan, Fullagar and Kitto JJ). Ibid 276 (Dixon CJ, McTiernan, Fullagar and Kitto JJ). Attorney-General (Cth) v The Queen (1957) 95 CLR 529. Brandy v Human Rights and Equal Opportunity Commission (1995) 183 CLR 245. Grollo v Palmer (1995) 184 CLR 348. Harris v Caladine (1991) 172 CLR 84.

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Parliament can also exercise a form of judicial power outside of the strictures of the Boilermakers’ doctrine when determining contempt of Parliament.60 Military tribunals are capable of exercising judicial power provided that such power is validly conferred under the defence power (s 51(vi)).61 The exercise of accrued state jurisdiction by federal courts, explained above, has been accepted as being a power incidental to the exercise of federal judicial power.62 Individual judges may even act in executive roles in their personal capacity provided that the role is compatible with the exercise of their judicial functions (this persona designata doctrine is discussed in more detail in Chapter 10).63 Key to the application of the Boilermakers’ doctrine is the determination of ‘federal judicial power’. The High Court has struggled with developing a universal definition of the term. The final part of this chapter will introduce the ‘indicia’ that the Court uses in characterising power as judicial, and explore some of the subtleties of determining this question.

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Defining judicial power Chapter III principles often suffer from a lack of clarity in both scope and operation. Dixon CJ, the architect of the Boilermakers’ doctrine, was succeeded by Barwick CJ who commented in R v Joske; Ex parte Australian Building Construction Employees and Builders’ Labourers’ Federation that the Boilermakers’ doctrine ‘leads to excessive subtlety and technicality’.64 He was likely referring to the need to characterise government power neatly into judicial, legislative and executive. This has required the Court to develop an extensive jurisprudence on the issue. The High Court’s approach to defining judicial power is elusive and seemingly fluid. As Australian constitutional scholar Peter Gerangelos has noted, ‘the process of defining precisely the constitutional limitations on branch power derived from the separation of powers is vexed, multifaceted and intricate, even where “fundamental” or “core” branch powers and functions are involved’.65 In fact, in more than a century of jurisprudence, while establishing a number of ‘indicia’ of judicial power, the High Court has been unable to provide a definitive statement of the nature and content of judicial power. Deane, Dawson, Gaudron and McHugh JJ explained in 60 61

62 63 64 65

Section 49 of the Constitution provides for this. White v Director of Military Prosecutions (2007) 231 CLR 570; R v Cox; Ex parte Smith (1945) 71 CLR 1; R v Bevan; Ex parte Elias and Gordon (1942) 66 CLR 453. See, however, the limits to this exception identified in Lane v Morrison (2009) 239 CLR 230, explained in more detail below. Cross-vesting Case (1999) 198 CLR 511, 562–3 (McHugh J). Hilton v Wells (1985) 157 CLR 57; Grollo v Palmer (1995) 184 CLR 348. (1974) 130 CLR 87, 90. See also ibid 102 (Mason J); Boilermakers’ Case (1956) 94 CLR 254, 333 (Taylor J). Gerangelos, above n 4, 14.

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Brandy v Human Rights and Equal Opportunity Commission that ‘difficulty arises in attempting to formulate a comprehensive definition of judicial power … it is hard to point to any essential or constant characteristic’.66 Further, historic functions that are exercised by the courts will often contradict any attempt at an abstract definition. French CJ and Gageler J explained in TCL Air Conditioner (ZhongShan) Co Ltd v Judges of the Federal Court of Australia that the judicial power of the Commonwealth has three dimensions: the nature of the function conferred; the process by which the function is exercised; and the necessity for the function to be compatible with the essential characteristics of the court as an impartial and independent institution.67 This chapter will now consider the nature of the judicial function and the judicial process. The following chapter will discuss the essential characteristics of a court in the context of the Kable limitation that has been developed around the state judicial system,68 as it is in this context that it is most often employed by the High Court.

The nature of the judicial function The most frequently cited definition of judicial power is taken from the opinion of Griffith CJ in Huddart Parker & Co Pty Ltd v Moorehead:

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I am of the opinion that the words ‘judicial power’ as used in sec 71 of the Constitution mean the power which every sovereign authority must of necessity have to decide controversies between its subjects, or between itself and its subjects, whether the rights relate to life, liberty or property. The exercise of this power does not begin until some tribunal which has power to give a binding and authoritative decision (whether subject to appeal or not) is called upon to take action.69

The ‘quelling of justiciable controversies … by ascertainment of facts, application of legal criteria and the exercise, where appropriate, of judicial discretion’ is another common formulation of judicial power.70 The simplicity of these propositions, however, belies the complexities that have surrounded their application, and many cases have turned upon fine technicalities rather than a ‘bright line’ differentiating ‘judicial’ from ‘non-judicial’ power.71

66 67 68 69 70

71

(1995) 183 CLR 245, 267. See also R v Trade Practices Tribunal; Ex parte Tasmanian Breweries Pty Ltd (1970) 123 CLR 361, 373 (Kitto J); Attorney-General (Cth) v Alinta Ltd (2008) 233 CLR 542, 577 (Hayne J). (2013) 251 CLR 533, 553 [27]. Kable v Director of Public Prosecution (NSW) (1996) 189 CLR 51. (1909) 8 CLR 330, 357. Wilson v Minister for Aboriginal and Torres Strait Islander Affairs (1996) 189 CLR 1, 11 (Brennan CJ, Dawson, Toohey, McHugh and Gummow JJ). See also R v Trade Practices Tribunal; Ex Parte Tasmanian Breweries Pty Ltd (1970) 123 CLR 361, 374 (Kitto J). Melissa A Perry, ‘Chapter III and the Powers of Non-judicial Tribunals: Breckler and Beyond’ in Adrienne Stone and George Williams (eds), The High Court at the Crossroads:  Essays in Constitutional Law (Federation Press, 2000) 148, 149.

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Based on these formulations, the exercise of judicial power requires that a controversy exist between parties over pre-existing legal rights where a tribunal is called upon to make a legally binding determination. In Re Judiciary and Navigation Acts, a 1921 decision that pre-dated the Boilermakers’ Case, the High Court confirmed that one of the essential characteristics of the judicial power of the Commonwealth conferred by ss 75 and 76 of the Constitution was the issue of legally binding determination.72 In that case, the Court had to consider whether s 88 of the Judiciary Act 1903 (Cth) was invalid on the basis that it breached Chapter III. Section 88 conferred on the Governor-General power to refer legislative provisions to the High Court for an advisory opinion about their validity. Knox CJ, Gavan Duffy, Powers, Rich and Starke JJ held that an authoritative declaration of law that did not conclusively determine a legal controversy could not be conferred on the High Court. Under ss 75 and 76 of the Constitution, the High Court’s jurisdiction (and the jurisdiction of other federal courts: s 77) can only be conferred over a ‘matter’. The majority of the High Court In Re Judiciary and Navigation Acts said that:

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there can be no matter … unless there is some immediate right, duty or liability to be established by the determination of the Court … [the Legislature] cannot authorise this Court to make a declaration of the law divorced from any attempt to administer that law.73

While in In Re Judiciary and Navigation Acts the Court used the requirement for a ‘matter’ in ss 75 and 76 to find the conferral of advisory jurisdiction invalid, in Boilermakers’ the majority indicated that it was unlikely to have been judicial power at all.74 The requirement of a dispute to engage the exercise of judicial power has limited the ability of individuals to access the courts. For a party to bring an action they must have legal standing to do so, which requires a real connection and interest in the matter in dispute. In Re McBain; Ex parte Catholic Bishops Conference,75 for example, the High Court denied the ability of the Attorney-General of the Commonwealth or the Australian Catholic Bishops Conference and the Australian Episcopal Conference of the Roman Catholic Church to bring an action in the original jurisdiction of the High Court. The Attorney-General and the Church sought to review a declaration made by the Federal Court that the Infertility Treatment Act 1995 (Vic), which prohibited the provision of IVF treatment to women who were not married or living with a man in a de facto relationship, was inconsistent with the Sex Discrimination Act 1984 (Cth). 72 73 74 75

In re Judiciary and Navigation Acts (1921) 29 CLR 257, 267 (Knox CJ, Gavan Duffy, Powers, Rich and Starke JJ). Ibid 265–6 (Knox CJ, Gavan Duffy, Powers, Rich and Starke JJ). Boilermakers’ Case (1956) 94 CLR 254, 274. (2002) 209 CLR 372.

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The Federal Court had acted on the motion of Dr McBain, a gynaecologist who had been approached for IVF treatment by a woman who was not married or in a de facto relationship with a man. Neither Dr Bain, the woman seeking IVF treatment, nor the Victorian state government whose infertility law was being challenged wished to appeal from the decision of the Federal Court. The Church appeared as amicus curiae in the Federal Court; that is, as a ‘friend of the court’. As amicus, the Church was able to present submissions in the case but was not a party to it. The Commonwealth Attorney-General was not involved in the litigation at all. When the Attorney-General and the Church attempted to appeal the matter to the High Court, the Court held that neither party was bringing a ‘dispute’ to the Court. The dispute had been finally determined by the decision of the Federal Court. However, the High Court has sometimes applied the standing requirement with greater flexibility. In Croome v Tasmania,76 the Court heard an application by Mr Croome and Mr Toonen for a declaration that provisions of the Tasmanian Criminal Code 1924, which made engaging in sexual acts in private by members of the same sex an offence, were inconsistent with the Human Rights (Sexual Conduct) Act 1994 (Cth). Mr Croome and Mr Toonen claimed that while they had not been prosecuted under the Tasmanian law, they were engaging in acts that gave rise to potential liability under it. The Court was willing to accept that the ‘risk of prosecution and punishment’,77 and the need to determine whether individuals must comply with state legislation, were sufficient to give rise to a controversy for the Court to determine. In other cases, however, the High Court has been stricter in requiring standing to be established. In Kuczborksi v Queensland,78 for instance, the Court refused to hear a number of challenges to Queensland’s Vicious Lawless Association Disestablishment Act 2013 and related provisions. The plaintiff, who was a member of the Brisbane Chapter of the Hells Angels Motorcycle Club, but who had not been charged with offences under the legislation, was seeking clarification of his legal rights by a declaration. He did not claim that he wished to contravene the laws, and all of the judges found he had no standing in such a hypothetical matter. Crennan, Kiefel, Gageler and Keane JJ explained: His liberty and other rights, duties, liabilities and obligations remain unaffected by the enactment of these provisions; and his legal position would not be materially advantaged if his challenge were to succeed.79

76 77 78 79

(1997) 191 CLR 119. Ibid 138 (Gaudron, McHugh and Gummow JJ). (2014) 254 CLR 51. Ibid 107–8 [181]. See also ibid 65–6 [19], 69–70 [28]–[30] (French CJ), 130–4 [277]–[285] (Bell J), 88 [100] (Hayne J).

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Griffith CJ’s definition of judicial power requires that it emanate from a sovereign authority. This is a point of distinction from the exercise of an arbitral function, which in many other characteristics mirrors judicial power.80 The binding nature of an arbitrator’s decision rests on the agreement of the parties involved prior to the decision. In contrast, the authority of a court’s decision does not rest on the consent of the parties. It is binding by force of law irrespective of the parties’ agreement.81 One of the traditional characteristics of judicial power has been that its exercise resolves controversies about pre-existing legal rights; that is, it determines rights as opposed to creating them (which is traditionally a legislative function). However, the High Court has had to reconcile this characteristic with historical examples of where the judiciary is involved in processes that create rights for the future, such as bail orders and restraining orders. In Thomas v Mowbray,82 the High Court considered whether the conferral of a power on the Federal Magistrates Court to issue an interim control order under s 104.4 of the Commonwealth Criminal Code 1995 was constitutional. Division 104 was added to the Criminal Code in 2005 in response to a series of international terrorist attacks. It created a regime of control orders that could be issued to protect the public from a future terrorist attack. The Australian Federal Police sought an interim control order under s 104.4 against Jack Thomas, who had admitted to training with Al Qa’ida while in Pakistan in 2001. Section 104.4 provides that the Federal Magistrates Court may make an interim control order if, inter alia: (c)

the court is satisfied on the balance of probabilities: (i) that making the order would substantially assist in preventing a terrorist act; or (ii) that the person has provided training to, or received training from, a listed terrorist organisation; and

(d)

the court is satisfied on the balance of probabilities that each of the obligations, prohibitions and restrictions to be imposed on the person by the order is reasonably necessary, and reasonably appropriate and adapted, for the purpose of protecting the public from a terrorist act.

Federal Magistrate Mowbray issued an interim order against Mr Thomas in an ex parte hearing; that is, a hearing where Mr Thomas was not present. This order placed a curfew on Mr Thomas between midnight and 5 am, as well as reporting requirements, and travel and communication restrictions. It required Mr Thomas

80 81 82

TCL Air Conditioner (ZhongShan) Co Ltd v Judges of the Federal Court of Australia (2013) 251 CLR 533, 553–4 [28]–[29] (French CJ and Gageler J). Construction, Forestry, Mining and Energy Union v Australian Industrial Relations Commission (2001) 203 CLR 645, 658 (The Court). (2007) 233 CLR 307.

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to have his fingerprints taken and prohibited him from acquiring or manufacturing explosives. Mr Thomas sought to have the order quashed in the High Court on the basis that it was unconstitutional. Among other constitutional arguments, the case required the Court to consider whether the power was conferred consistently with Chapter III of the Constitution. One of the grounds on which the power was challenged was that its exercise resulted in the creation of new rights, as against the determination of existing rights. Gleeson CJ drew upon the courts’ traditional role in the issue of bail orders that created similar restrictions to those in the interim control order. He also drew upon apprehended violence orders as a historical analogy demonstrating that judicial power extended to the creation of new restraints on liberty.83 Gummow and Crennan JJ also accepted that it was within judicial power to make assessments about future risk, using binding-over orders to avoid breaches of the peace and apprehended violence orders as historical analogies to support their conclusion.84 The nature of the judicial function is very similar to that of executive tribunals, introduced in Chapter 8. Tribunals decide controversies according to considerations of law and fact. However, the High Court has indicated that at least in one significant respect (the ability to issue binding and enforceable orders), they are different. This has meant the Boilermakers’ doctrine has created some inconvenience and inefficiencies for government.85 Today’s modern regulatory state requires flexibility to deal with a plethora of social, political and legal questions, many of which were unforeseen at the time of framing the Constitution. The state must deal quickly and efficiently with a vast number of disputes that may arise in specific areas, including trade practices, copyright infringement and human rights breaches. Specialist tribunals are often the most effective way of dealing with these disputes. Referring to such bodies as early as 1926, Isaacs J in Federal Commissioner of Taxation v Munro said: if a legislative provision of the present nature be forbidden, then a very vast and at present growing page of necessary constitutional means by which Parliament may in its discretion meet, and is at present accustomed to meet, the requirements of a progressive people, must, in my opinion, be considered as substantially obliterated.86

Despite Isaacs J’s warnings, the Boilermakers’ doctrine has placed major limits on the powers of administrative tribunals at the federal level. This became apparent in the case of Brandy v Human Rights and Equal Opportunity Commission.87 Before

83 84 85 86 87

Ibid 328–9. Ibid 347–8, 356–7. See, eg, Gabrielle Appleby, ‘Imperfection and Inconvenience: Boilermakers’ and the Separation of Judicial Power in Australia’ (2012) 30(2) University of Queensland Law Journal 265. (1926) 38 CLR 153, 178. (1995) 183 CLR 245.

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Brandy, the High Court had confirmed that the Commonwealth could create nonjudicial tribunals to hear disputes and make determinations (in a manner akin to a judicial proceeding) that directly affected existing rights and duties, provided that the determinations were separately reviewable or enforceable by the courts and were, in effect, no more than administrative orders and therefore not determinative of rights.88 Brandy concerned a challenge to the powers of the Human Rights and Equal Opportunity Commission (‘HREOC’) (which is now known as the Australian Human Rights Commission, the purpose and functions of which are described in Chapters 8 and 12). Before 1992, s 25Z(2) of the Racial Discrimination Act 1975 (Cth) provided that any determination of HREOC about a complaint under the Act ‘is not binding or conclusive between any of the parties to the determination’. If a complainant wanted to obtain a binding and conclusive decision, they could institute separate proceedings in the Federal Court, where the Court had to be separately satisfied that the respondent engaged in conduct or committed an act that is unlawful under the Act.89 The arrangements were considered cumbersome. Wilcox J in Maynard v Neilson wrote that the dual systems created considerable costs for a complainant, and undermined the integrity, status and influence of HREOC.90 The government responded to these comments and amended the Racial Discrimination Act in 1992. A new provision, s 25ZAA(2), provided that once HREOC made a determination, it must lodge it with a Federal Court Registry. Upon registration, s 25ZAB provided that ‘the determination has effect as if it were an order made by the Federal Court’, subject to the respondent applying for review of the determination. A Federal Court undertaking a review could review all issues of fact and law, but a party could not adduce new evidence without the leave of the Court.91 The High Court applied the first limb of the Boilermakers’ doctrine to invalidate the scheme. Because of the enforcement of HREOC’s determination with the Federal Court, the High Court accepted that the Commission was exercising judicial power. The Court accepted that HREOC’s functions exhibited many of the indicia of judicial power: it decided controversies between parties by the determination of rights and duties based on existing facts and law, and it issued remedies that mimicked judicial remedies. However, Deane, Dawson, Gaudron and McHugh JJ commented that even with these indicia present, the power would not be judicial ‘if it were not for the provisions providing for the registration and enforcement of the Commission’s determinations’.92 The enforceability of HREOC’s decisions gave the power an element 88 89 90 91 92

See, eg, Federal Commissioner of Taxation v Munro (1926) 38 CLR 153; R v Trade Practices Tribunal; Ex parte Tasmanian Breweries Pty Ltd (1970) 123 CLR 361. Racial Discrimination Act 1975 (Cth) s 25ZA. [1988] EOC 77. Racial Discrimination Act 1975 (Cth) s 25ZAC. Brandy v Human Rights and Equal Opportunities Commission (1995) 183 CLR 245, 269.

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of conclusiveness that made a previously non-judicial power an exercise of judicial power.93 It was argued that because the Federal Court could conduct limited review of the determination (on the respondent’s application), the determination was not conclusive and therefore not made in an exercise of judicial power. This argument was rejected. The review was not a full hearing de novo because of the restriction on the evidence that could be led without leave of the court; therefore the availability of review did not undermine the conclusion that the Commission’s determination was conclusive. The decision undermined the purpose of the 1992 amendments, and had repercussions for a number of other specialist tribunals established by the Commonwealth (although a number of subsequent decisions have upheld the jurisdiction of specialist tribunals on the basis of earlier decisions).94 The Federal Government responded to Brandy by introducing the Federal Magistrates Courts (now known as the Federal Circuit Court) in 2000 to create a system of low-cost, timely and effective dispute resolution for federal issues. The importance of the binding and conclusive nature of a decision to its characterisation as judicial was also evident in the High Court’s striking down of the Australian Military Court (AMC) in 2009. As indicated above, courts established to dispense military justice and discipline (courts martial) are generally considered to be exempt from the Boilermakers’ requirements because they are exercising judicial power conferred under the defence power (s 51(vi)) rather than under Chapter III. In 2007 the Commonwealth tried to reform the old system of military courts martial, which had been subjected to criticism on the basis that they lacked sufficient safeguards for judicial independence and the ordinary judicial process, undermining the rights of military personnel to receive a fair trial. The Commonwealth created the AMC, a specialist military body that contained many of the safeguards associated with Chapter III courts. In 2009, however, in Lane v Morrison,95 the High Court unanimously struck down the legislation establishing the AMC on the basis that it breached the first limb of the Boilermakers’ doctrine. Because of the changes made to the traditional courts martial, the AMC no longer conformed to the historical model. The Court found that, historically, courts martial had not exercised judicial power at all, because their decisions were not definitive of guilt, and their punishments not final. They were always subject to the military chain of command. In contrast, the power exercised by the AMC, now independent from that chain of command, was

93 94

95

Ibid 268. See, eg, Precision Data Holdings Ltd v Wills (1991) 173 CLR 167; Attorney-General (Cth)  v Breckler (1999) 197 CLR 83; Luton v Lesssels (2002) 210 CLR 333; Visnic v ASIC (2007) 231 CLR 381; AttorneyGeneral (Cth) v Alinta Ltd (2008) 233 CLR 542. (2009) 239 CLR 230.

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a final determination of the claim and therefore was exercising of the judicial power of the Commonwealth, which could only be vested in a Chapter III court. After the decision, the Commonwealth reverted to the old courts martial. The similarities in the functions performed by tribunals and courts tend to refute the notion that all powers can be classified as either judicial or non-judicial, and the High Court has adopted an approach that accepts the ‘chameleon-like’ nature of certain powers.96 These powers will vary in character depending on the nature of the body exercising them. In R v Trade Practices Tribunal; Ex parte Tasmanian Breweries Pty Ltd, Kitto J explained that: for reasons depending on general reasoning, analogy or history, some powers that may appropriately be treated as administrative when conferred on an administrative functionary may just as appropriately be seen in a judicial aspect and be validly conferred on a federal court.97

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Thus, a power to determine disputes about the breach of provisions of the Racial Discrimination Act 1975 (Cth) by a tribunal that issues non-binding decisions and does not necessarily operate in accordance with judicial process will be non-judicial. This is despite it involving the finding of facts and the application of law to those facts to determine the legal rights and obligations of the parties.98 However, the same power over disputes concerning the breach of provisions of the Racial Discrimination Act conferred on a court will be judicial power. In Thomas v Mowbray99 Kirby J sounded a warning about the overuse of the chameleon doctrine as a substitute for careful consideration of the nature of the power involved. He was reacting to a submission made by the Commonwealth Solicitor-General in that case that the concept of chameleon powers had so reduced the rigidity of the Boilermakers’ doctrine that ‘it does not matter much anymore’.100 Kirby J responded that if this were correct, the separation of judicial power would be a ‘chimera’. He explained: I accept that some functions are neither exclusively judicial nor exclusively non-judicial. I accept that the performance of some functions may be consistent with the exercise of judicial power as well as the exercise of executive or legislative power. However, simply because a function is reposed in Ch III courts does not mean it becomes automatically cloaked with the attributes of the judicial power of the Commonwealth.101 96

K-Generation Pty Ltd v Liquor Licensing Court (2009) 237 CLR 501, 566 [230] (Kirby J):  ‘To some extent, the character of the functions performed by a decision-making body may take their colour and their constitutional identity from the body to which those functions are assigned—whether a court or administrative tribunal.’ 97 (1970) 123 CLR 361, 373. 98 See Precision Data Holdings Ltd v Wills (1991) 173 CLR 167, 189 (Mason CJ, Brennan, Deane, Dawson, Toohey, Gaudron and McHugh JJ). 99 (2007) 233 CLR 307. 100 Ibid 316 (David Bennett QC) (during argument). 101 Ibid 426.

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In the 2015 decision Australian Communications and Media Authority v Today FM  (Sydney) Pty Ltd,102 the High Court further clarified the type of decisions that could be given to non-judicial bodies under the Constitution. Under the Broadcasting Services Act 1992 (Cth), licences were issued to run commercial broadcasting services subject to certain conditions, including:  ‘the licensee will not use the broadcasting service or services in the commission of an offence against another Act or a law of a State or Territory’.103 If a breach of the conditions occurred, the Australian Communications and Media Authority (‘ACMA’), a statutory executive agency, could seek a range of penalties including suspending or cancelling the licence. In 2012, a prank call was made by two radio hosts of Today FM to a London hospital, where they impersonated the Queen and the Prince of Wales wishing to speak to the Duchess of Cambridge, who was being treated for morning sickness. ACMA found that the station had breached its licence conditions because it had committed an offence under the Surveillance Devices Act 2007 (NSW). This raised a constitutional question under Chapter III as to whether it amounted to the conferral of judicial power on a non-judicial body. The Court dismissed the constitutional challenge on the basis that ACMA had not finally decided any dispute. French CJ, Hayne, Kiefel, Bell and Keane JJ explained that ‘it is open to an administrative body to form an opinion as to the legal rights of an individual as a step in that body’s ultimate determination’.104

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Judicial discretion and legislative usurpation Part of the nature of judicial power is that courts must be asked to exercise a judicial discretion; that is, one bounded by legal criteria and not one that turns on determinations of policy that will vary between judges depending on their own values and politics.105 Dixon CJ, Williams, Kitto and Taylor JJ explained in R v Spicer; Ex parte Waterside Workers’ Federation of Australia that ‘the discretion must not be of an arbitrary kind and must be governed or bounded by some ascertainable tests or standards’.106 At the same time, the court must exercise some discretion, and not have the outcome dictated by the legislature or the executive. In the 14th to the 18th centuries

102 (2015) 255 CLR 352. 103 Broadcasting Services Act 1992 (Cth) sch 2 cl 8(1)(g). 104 Australian Communications and Media Authority v Today FM (Sydney) Pty Ltd (2015) 255 CLR 352, 377–8 [55]. 105 R v Commonwealth Court of Conciliation and Arbitration; Ex parte Barrett (1945) 70 CLR 141, 165 (Dixon J); Australian Broadcasting Corporation v Lenah Game Meats Pty Ltd (2001) 208 CLR 199, 231 (Gaudron J); R v Commonwealth Industrial Court; Ex parte Amalgamated Engineering Union, Australian Section (1960) 103 CLR 368, 383 (Kitto J). 106 (1957) 100 CLR 312, 317.

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in England, Bills of Attainder were often used by the monarch to secure the conviction and death of individuals who posed a political threat to the monarch, without the benefits of the judicial process. Where less serious offences were involved, the instrument was known as a ‘Bill of Pains and Penalties’. In Chu Kheng Lim v Minister for Immigration, Local Government and Ethnic Affairs, McHugh J explained that:

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it is a necessary implication of the adoption of the doctrine of the separation of powers in the Constitution that the Parliament of the Commonwealth cannot enact such Bills … Such an Act would infringe the separation of judicial and legislative power by substituting a legislative judgment of guilt for the judgment of the courts exercising federal judicial power.107

While such Bills are no longer used, the legislature can attempt to secure convictions in the courts by tampering with the judicial process and judicial discretion. For example, the 1967 Privy Council decision of Liyanage v The Queen considered a statute passed by the Ceylon legislature after the arrest of a number of individuals involved in an attempted coup against the government.108 The legislation attempted to secure the convictions of these individuals and to increase the penalty imposed: it was retrospective, singled out those individuals involved in the coup, and applied only during the period of the coup. It amended the relevant offence provisions, retrospectively validated the illegal arrests and detention, removed the right to trial by jury, and altered the rule of evidence to admit inadmissible statements. The Privy Council found the legislation invalid on the basis that it removed the judicial function from the courts, and ‘constituted a grave and deliberate incursion into the judicial sphere’.109 However, the Australian High Court has been less likely to apply the doctrine in such a strict way. In Australian Building Construction Employees and Builders Labourers Federation v Commonwealth,110 the High Court held valid a piece of Commonwealth legislation that was passed to deregister the Builders Labourers Federation while proceedings were on foot to challenge the deregistration. The High Court held that the legislation was valid on the basis it did not directly intervene in the judicial proceedings, but separately altered the rights of the Builders Labourers Federation. This was permitted despite the very real practical connection between the two events. In the same year in Building Construction Employees and Builders Labourers Federation (NSW) v Minister for Industrial Relations, the New South Wales Court of Appeal considered an even more direct intervention by the New South Wales Parliament to usurp the judicial power from the courts, but found no

107 108 109 110

(1992) 176 CLR 1, 70. [1967] 1 AC 259. Ibid 290 (Lord Pearce). (1986) 161 CLR 88.

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constitutional impediment to this occurring in the states (as distinct from the federal level, where there is a strict separation of judicial power).111 In 2015, the High Court returned to this issue and clarified the principle in the Builders Labourers Federation cases in two cases, both involving a New South Wales mining entity, Mr Travers Duncan:  Duncan v New South Wales,112 and Duncan v Independent Commission Against Corruption.113 In Duncan v New South Wales, Mr Duncan challenged the validity of legislative amendments to the Mining Act 1992 (NSW) that cancelled three exploration licences, which had been the subject of negative findings in an Independent Commission Against Corruption report. The intent of the amending Act was to put the state in the position as if the tainted licences had never been granted. One of the arguments made against the Act was that it was an impermissible exercise of judicial power by the state Parliament. The Court found that the amending legislation displayed none of the features of judicial power; in particular, the legislation did not quell a controversy between parties, it did not preclude future determination by a court of past criminal or civil liability, and it did not determine the existence of an accrued right or incurred liability.114 Further, it did not amount to a Bill of Pains or Penalties because it lacked the two key characteristics of such a Bill: it did not purport to determine guilt or to impose a consequent punishment for it.115 In Duncan v ICAC, the High Court was asked to consider a different law, an amendment to the Independent Commission Against Corruption Act 1988 (NSW) that purported to reverse the consequences of the High Court’s findings in an earlier case of ICAC v Cunneen (decided on 15 April 2015) about the scope of ‘corrupt conduct’ in the Act.116 Schedule 4, Part 13, clause 35(1) read, as amended: (1) Anything done or purporting to have been done by the Commission before 15 April 2015 that would have been validly done if corrupt conduct for the purposes of this Act included relevant conduct is taken to have been, and always to have been, validly done.

The challenge was brought on the basis that the Parliament was interfering with proceedings already before the New South Wales Court of Appeal, in which Mr Duncan was challenging the jurisdiction of the ICAC to investigate his conduct following the Court’s decision in Cunneen. Mr Duncan argued that the legislation was therefore retrospectively targeting pending proceedings in breach of Chapter

111 112 113 114 115 116

(1986) 7 NSWLR 372. (2015) 255 CLR 388. (2015) 256 CLR 83. (2015) 255 CLR 388, 408 [42]. Ibid 408 [43]. Independent Commission Against Corruption v Cunneen (2015) 256 CLR 1.

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III. The Court rejected this argument, affirming its earlier decision in relation to the Builders and Labourers Federation that the legislation did not direct the Court, but merely changed the law that the Court was obliged to apply. French CJ, Kiefel, Bell and Keane JJ, with whom Gageler, Nettle and Gordon JJ agreed, found the legislation was ‘a retrospective alteration of the substantive law which is to be applied by the courts in accordance with their ordinary processes’.117 They confirmed the following principle:

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It is now well settled that a statute which alters substantive rights does not involve an interference with judicial power contrary to Ch III of the Constitution even if those rights are in issue in pending litigation.118

The point at which a federal law will require a court to exercise non-judicial powers, exercise non-judicial discretion or act non-judicially is exceedingly difficult to pinpoint—including for judges. The High Court has in recent times adopted a less strict approach to legislative incursions into judicial process and the conferral of broad, policy-driven discretions on the courts. Thomas v Mowbray,119 which has already been discussed above, illustrates this general trend. In addition to the argument that the power to issue an interim control order under s 104.4 of the Criminal Code 1995 was creating rights rather than determining them, it was argued that the provision conferred a non-judicial discretion on the Federal Magistrates Court. The particular problem identified was the requirement that the Court be satisfied on the balance of probabilities that each of the obligations, prohibitions and restrictions to be imposed on the person by the order was reasonably necessary, and reasonably appropriate and adapted, for the purpose of protecting the public from a terrorist act. (The legislation was also challenged on the basis that it required the Court to exercise a power not in accordance with judicial process; this aspect of the decision is returned to below.) Thomas challenged the discretion conferred on the Court under s 104.4 on the basis that the criteria that the Court must apply failed to contain objective legal standards, and further that the criteria turned on policy considerations about risk to the public that ought to be determined by the executive. Hayne J, in dissent, accepted the argument. He said the discretion conferred on the Federal Magistrates Court required the Court to: decide whether and how a particular order against a named person will achieve or tend to achieve a future consequence: by contributing to whatever may be the steps taken by the Executive, through police, security, and other agencies, to protect the public from a terrorist act. It is a criterion that would require a federal court to

117 Duncan v Independent Commission Against Corruption (2015) 256 CLR 83, 98 [28]. 118 Ibid 98 [26]. 119 (2007) 233 CLR 307.

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consider future consequences the occurrence of which depends upon work done by police and intelligence services that is not known and cannot be known or predicted by the court.120

The majority, however, rejected that s 104.4 conferred a non-judicial discretion on the Federal Magistrates Court. Gummow and Crennan JJ explained that the case law demonstrated ‘acceptance of broadly expressed standards’ as falling within judicial power.121 They also noted that judicial determinations of ‘reasonableness’ were so commonplace that ‘reasonable’ had become ‘the great workhorse of the common law’.122 In addressing the argument that the criteria required the Court to make determinations about policy, Gummow and Crennan JJ explained that courts were often required to draw upon policy in the application of law.123 Section 104.4 required the Court to apply the legal test by reference to ‘general public knowledge’ about the policy behind it (that is, its enactment as a response to a series of terrorist attacks overseas). To the extent that the criterion was broad, Gummow and Crennan JJ drew on the work of the common law method to bring certainty to vague principles over time.124 As constitutional law expert Professor Leslie Zines explained, ‘the technique of judicial interpretation is to give it content and more detailed meaning on a caseby-case basis’.125 Questions have arisen from time to time as to whether legislation that mandates a minimum or set penalty (including a sentence of imprisonment) for a particular offence transgresses the Boilermakers’ principle because it reduces the exercise of judicial discretion in determining the appropriate penalty, in the particular circumstances, for an offender. The High Court has found that parliamentary determination of ‘sentencing yardsticks’ is both appropriate and necessary,126 and does not transgress Chapter III of the Constitution. In Magaming v The Queen,127 Keane J explained that the determination of sentences turns on questions of policy about the seriousness of the offence and what level of punishment, in terms of a ceiling or a floor, is appropriate to punish and suppress that activity.128 This constraint of judicial discretion is therefore legitimately within the province of the legislature.

120 Ibid 469. See also Kirby J on this point at 417 and earlier discussion by Kitto J in the Communist Party Case (1951) 83 CLR 1, 272. See also criticism in Denise Meyerson, ‘Using Judges to Manage Risk: The Case of Thomas v Mowbray’ (2008) 36 Federal Law Review 209. 121 Thomas v Mowbray (2007) 233 CLR 307, 345. 122 Ibid 352. 123 Ibid 348. 124 Ibid 351. 125 Leslie Zines, The High Court and the Constitution (5th ed, Federation Press, 2008) 253. 126 Markarian v The Queen (2005) 228 CLR 357, 372 (Gleeson CJ, Gummow, Hayne and Callinan JJ). 127 (2013) 252 CLR 381. 128 Ibid 414 [105]–[108]. See also ibid 396 [48] (French CJ, Hayne, Crennan, Kiefel and Bell JJ).

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Judicial process The concept of judicial power is further clouded by the fact that the manner in which courts quell controversies is also captured within its scope. Brennan, Deane and Dawson JJ explained in Chu Kheng Lim v Minister for Immigration, Local Government and Ethnic Affairs that judicial power must be exercised in a manner consistent ‘with the essential character of a court [and] with the nature of judicial power’.129 In Nicholas v The Queen, Gaudron J explained that: Judicial power is not adequately defined solely in terms of the nature and subject matter of determinations made in exercise of that power … it is a power exercised by courts … in accordance with the judicial process.130

Her Honour went on to explain that to be consistent with the essential character of a court and with the nature of judicial power:

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a court not be required or authorised to proceed in a manner that does not ensure equality before the law, impartiality and the appearance of impartiality, the right of a party to meet the case made against him or her, the independent determination of the matter in controversy by application of the law to facts determined in accordance with rules and procedures which truly permit the facts to be ascertained and, in the case of criminal proceedings, the determination of guilt or innocence by means of a fair trial according to law. It means, moreover, that a court cannot be required or authorised to proceed in any manner which involves an abuse of process, which would render its proceedings inefficacious, or which brings or tends to bring the administration of justice into disrepute.131

In the 2013 case of State of New South Wales v Kable,132 the High Court, however, stated that a power may still be judicial even if it is required to be exercised otherwise than in accordance with ordinary judicial process so as to be inconsistent with the institutional integrity of a court, thus disaggregating the requirement for a power to be exercised in accordance with the judicial process from the concept of judicial power.133 Even if this position is accepted, the maintenance of the judicial process still forms part of the constitutional requirements of Chapter III.

129 (1992) 176 CLR 1, 27. 130 (1998) 193 CLR 173, 208–9. See also ibid 207; International Finance Trust Company v New South Wales Crime Commission (2009) 240 CLR 319, 354 [53], where French CJ stated that procedural fairness in the federal constitutional context ‘is an incident of the judicial power exercised pursuant to Ch III of the Constitution’. 131 Nicholas v The Queen (1998) 193 CLR 173, 208–9 (Gaudron J). 132 (2013) 252 CLR 118. 133 Ibid 127–8 [16]–[17] (French CJ, Hayne, Crennan, Kiefel, Bell and Keane JJ).

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In Thomas v Mowbray, Gummow and Crennan JJ accepted the proposition that ‘legislation which requires a court exercising federal jurisdiction to depart to a significant degree from the methods and standards which have characterised judicial activities in the past may be repugnant to Ch III’.134 Nonetheless, despite the hearing of the application against Mr Thomas for an interim control order ex parte, Gleeson CJ, Gummow, Crennan and Callinan JJ all noted that the provision implied that the power would be exercised judicially.135 They refused to find that the ex parte nature of the application for an interim control order, or the fact that the standard of proof was set at the balance of probabilities, were sufficient to be repugnant to Chapter III. Ex parte proceedings for the determination of an interim control order, which would be subject to a contested confirmation hearing, were not considered novel. They also accepted that the determination of the standard of proof is a matter to be fixed by the Parliament. A challenge was also mounted to s 104.12A(3) of the Commonwealth Criminal Code 1995, which excluded from the Australian Federal Police’s disclosure obligations any information the disclosure of which ‘is likely … to prejudice national security’. It was argued that this amounted to a significant enough incursion into procedural fairness to breach Chapter III. The majority of the High Court found that they did not have to consider this provision, however, as it was not applied to Mr Thomas’ hearing. In his dissent, Kirby J did consider the issue, finding that it was one of many features of the control order regime that offended Chapter III of the Constitution.136 In the 2017 decision of Graham v Minister for Immigration, the High Court struck down legislation that would have required the Court to review a decision of the Minister to cancel a visa in the absence of information that was before the Minister.137 Section 503A of the Migration Act 1958 (Cth) prevented the Minister from having to divulge protected information to the Court. A majority of the Court (Kiefel CJ, Bell, Gageler, Keane, Nettle and Gordon JJ) agreed that s 503A was invalid to the extent it prevented the Minister from divulging information to the High Court in its judicial review jurisdiction under s 75(v) of the Constitution. However, rather than framing their decision by reference to the incursions of the provision into the judicial process, the majority considered the practical impact of the legislation on the Court’s function of determining the legality of the Minister’s decision, a function that would be undermined unless the Court had access to the relevant material that informed that decision.

134 135 136 137

(2007) 233 CLR 307, 355 [111] (Gummow and Crennan JJ). Ibid 335 (Gleeson CJ), 352 (Gummow and Crennan JJ), 508 (Callinan J). Ibid 434–5 (Kirby J). Migration Act 1958 (Cth) s 501(3).

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Conclusion The separation of judicial power effected through Chapter III of the Constitution is now firmly established as one of the cornerstones of the Australian constitutional system, maintaining the rule of law through an independent judiciary. It ensures that the High Court of Australia sits at the apex of an integrated court system, is independent from government, and is responsible for the maintenance of the Constitution, both in terms of policing the boundaries of the federal division of power and ensuring there is no inappropriate incursion into the judicial sphere. While the Boilermakers’ principles are today considered a fundamental dimension of the Australian constitutional system, this has not meant that their application has been without considerable ambiguity, particularly, as we have seen, around the definition of ‘judicial power’. Often, the Court’s approach to this question has narrowed the scope of protections provided to individuals, particularly in relation to legislative intervention into judicial process. In the next chapter, we consider further dimensions of the application and evolution of the High Court’s Chapter III jurisprudence, particularly as it has been applied to protecting rights and liberties, the creation of a broad exception to the Boilermakers’ principles through the persona designata doctrine, and its extended application to the state courts in the Kable principle.

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DISCUSSION QUESTIONS 1

How important is the separation of judicial power from the other powers of government and the independence of the judiciary? What objectives do these principles achieve?

2

What is the role of the High Court and what protects its independence in performing this role?

3

Consider to what extent the separation of federal judicial power promotes judicial independence at the cost of government efficiency and convenience.

4

Explain what indicia the High Court has used to determine whether a function is performed in the exercise of federal judicial power. Is the use of indicia a satisfactory way of resolving the question of what is judicial power?

5

Do you think the level of protection for judicial process that Chapter III provides is sufficient to protect the right of individuals to a fair trial?

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FURTHER READING Gabrielle Appleby, ‘Imperfection and Inconvenience:  Boilermakers’ and the Separation of Judicial Power in Australia’ (2012) 30 University of Queensland Law Journal 265 Peter Gerangelos, The Separation of Powers and Legislative Interference in Judicial Process: Constitutional Principles and Limitations (Hart Publishing, 2009) James Stellios, The Federal Judicature: Chapter III of the Constitution, Commentary and Cases (LexisNexis Butterworths, 2010)

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James Stellios, Zines’ The High Court and the Constitution (Federation Press, 6th edition, 2015)

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CHAPTER OVERVIEW Introduction

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Rights, freedoms and implied guarantees

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Federal judicial power and detention

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Judges engaging in non-judicial functions

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Chapter III and state courts

388

Kable

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Post-Kable jurisprudence

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Reinvigoration of Kable

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Conclusion

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Introduction This chapter explores limitations implied from Chapter III as they have been applied across three different contexts. First, we explore the role of Chapter III in the protection of individual rights and liberties, and find that while it has little express effect, it has had a greater incidental effect in protecting these freedoms particularly in relation to the right to fair and independent judicial processes and protections against arbitrary detention. Second, we consider one of exceptions to the Boilermakers’ principles: the extent to which judges can be engaged to conduct non-judicial functions in a personal capacity; that is, while not sitting as a member of a court. We consider how the High Court has created limitations on such functions to ensure that they do not impermissibly encroach on judicial independence and thus undermine the protections afforded by Chapter III. The chapter concludes with an explanation of the extension of the federal Chapter III limitations to state courts through the Kable doctrine, which, as Chapter 9 explained, form part of the integrated federal judicial hierarchy.

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Rights, freedoms and implied guarantees The state has obligations to the community to protect and serve its interests. At the same time, the state has obligations to each individual in that community to protect their fundamental rights and liberties from arbitrary incursions. In Australia, the state’s attempts to combat illegal immigration, terrorism, organised crime, dangerous sexual predators and other threats to national security and public safety have often resulted in legislation that strikes at fundamental individual freedoms, including the right to a fair trial, liberty, and freedom of communication and association. Often this legislation has required the judiciary to perform an integral role in its scheme, bringing to the fore questions about the proper role of the judiciary and the degree to which the courts can, or should, participate in the implementation of some executive policies. In addressing these questions, the judges have needed to reconcile the fact that an independent judiciary may often be better placed than the political branches (the executive and the Parliament) to oversee legislation that interferes with basic liberty, with the risk that performing such oversight roles may compromise the independence and impartiality of the courts. In resolving this tension, the High Court has been influenced by the absence of broad human rights guarantees under Chapter III of the Constitution, and the Constitution more generally. Despite the absence of express guarantees, Chapter III and the separation of powers are important safeguards of personal liberty and of certain procedural guarantees

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attached to the exercise of judicial power. Indeed, these safeguards form part of the underlying rationale for the adoption of the separation of powers by the American founding fathers and Australia’s own framers. Deane J commented in Street v Queensland Bar Association that the separation of powers ‘is the most important of the guarantees of rights and immunities, express or implied, under the Australian Constitution’,1 while in Wilson v Minister for Aboriginal and Torres Strait Islander Affairs, a majority of the Court held that:  ‘The separation of the judicial function from the other functions of government advances two constitutional objectives: the guarantee of liberty and, to that end, the independence of Ch III judges’.2 However, beyond the limited protection of trial by jury under s 80 of the Constitution, the manner by which Chapter III protects individual rights is not by way of the direct, positive protection of specific rights. Dissenting, separate and minority opinions have supported various rights associated with a fair trial,3 due process,4 equality before the law,5 and the prohibition against retrospective criminal laws;6 and much has been written on the potential for implied guarantees to be protected through Chapter III of the Constitution.7 Nevertheless, such arguments have not, to date, obtained the support of a High Court majority. Following the settling of jurisprudence on the implied freedom of political communication,8 Chapter III did become a focal point for implied constitutional rights arguments. However, reflecting the constant need to balance the Court’s guardianship role with its limited institutional capacity in a federal democratic constitution, the Court has not yet derived an implied right or guarantee from Chapter III. Whereas individual rights and liberties are accepted as assumptions upon which Chapter III operates, the focus for the High Court in determining the operation and effect of the separation of judicial power has been primarily on the preservation of 1 2 3 4

5

6 7

8

(1989) 168 CLR 461, 521. (1996) 189 CLR 1, 11 (Brennan CJ, Dawson, Toohey, Gummow and McHugh JJ). Dietrich v The Queen (1992) 177 CLR 292 (Gaudron J, Deane J); Re Tracey; Ex parte Ryan (1989) 166 CLR 518 (Deane J); Re Nolan; Ex parte Young (1991) 172 CLR 460 (Gaudron J). Chu Kheng Lim v Minister for Immigration, Local Government and Ethnic Affairs (1992) 176 CLR 1 (Brennan, Deane and Dawson JJ); Re Tracey; Ex parte Ryan (1989) 166 CLR 518 (Deane J); Re Tyler; Ex parte Foley (1993) 181 CLR 18 (Deane J); Polyukhovich v Commonwealth (1991) 172 CLR 501 (Deane and Toohey JJ, Gaudron J); Leeth v Commonwealth (1992) 174 CLR 455 (Gaudron J). Leeth v Commonwealth (1992) 174 CLR 455 (Deane and Toohey JJ, Gaudron J); Queensland Electricity Commission v Commonwealth (1985) 159 CLR 192 (Deane J); Kruger v Commonwealth (1997) 190 CLR 1 (Toohey J). Polyukhovich v Commonwealth (1991) 172 CLR 501 (Brennan J, Deane J). See, eg, Fiona Wheeler, ‘The Doctrine of Separation of Powers and Constitutionally Entrenched Due Process in Australia’ (1997) 23 Monash University Law Review 248; George Winterton, ‘The Separation of Judicial Power as an Implied Bill of Rights’ in Geoffrey Lindell (ed), Future Directions in Australian Constitutional Law: Essays in Honour of Professor Leslie Zines (Federation Press, 1994) 185; Fiona Wheeler, ‘The Rise and Rise of Judicial Power under Chapter III of the Constitution: A Decade in Overview’ (2001) 20 Australian Bar Review 283, 283. Discussed in Chapter 5.

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the institutional integrity and impartiality of courts exercising federal judicial power. Such requirements tend to focus on the functions, powers and processes of courts, as opposed to the rights and freedoms of individuals. Nonetheless, as we have already seen in Chapter 9 in discussing the importance of judicial process to the definition of judicial power, there is undoubtedly a large degree of overlap between these two spheres. Article 14 of the International Covenant on Civil and Political Rights (‘ICCPR’), for example, requires persons charged with criminal offences to be entitled to a ‘fair and public hearing by a competent, independent and impartial tribunal established by law’. But the Chapter III guarantees do not go as far as rights instruments. For instance, art 15 of the ICCPR provides a guarantee against the operation of retrospective criminal laws. In Polyukhovich v Commonwealth,9 a majority of the High Court held that Commonwealth legislation retrospectively criminalising actions taken in Europe during the Second World War did not extend beyond the realm of judicial power and therefore breach the guarantees provided in Chapter III, provided the legislation ‘leaves it to the courts to determine whether the person charged has engaged in the conduct complained of and whether that conduct is an infringement of the rule prescribed’.10 In Australia, the more favourable path for invoking the individual safeguards that underpin the separation of judicial power appears to be to focus on the essential characteristics of Chapter III courts, and the procedural safeguards that enable them to protect the integrity of the judicial process. Individual guarantees have been most successfully protected in Chapter III case law where legislatures have encroached upon those guarantees by preventing courts from acting in a judicial manner.11 Thus,  success has been contingent upon the invocation of one of the foundational principles, rather than the language of rights. As we explore further in Chapter 12, this often means that those decisions that have upheld basic guarantees of liberty are impenetrable by those not trained in the law. Nuanced judicial discussions about whether legislation confers a judicial or policy discretion, or the extent to which the institutional integrity of the courts have been impaired, are far less accessible to the community than judicial decisions that involve explanations of whether legislation has made impermissible incursions on the right to a fair trial. It also means that Australia’s judges are increasingly isolated from judges in other countries, whose jurisprudence is developed around legislative and constitutional rights instruments. While Australian judges do on occasion use

9 10 11

(1991) 172 CLR 501. Ibid 536 (Mason CJ). See, eg, Kable v Director of Public Prosecutions (NSW) (1996) 189 CLR 51; International Finance Trust Company v New South Wales Crime Commission (2009) 240 CLR 319; Wainohu v New South Wales (2011) 243 CLR 181.

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comparative material in their judgments, it is of limited relevance because of the fundamentally different questions the judges have been asked to address. The next part of this chapter considers the extent to which the basic individual right to liberty has been preserved by reference to Chapter III foundational principles. While some protections are afforded by the separation of judicial power, there are strong arguments that the High Court has been ill-equipped to deal with serious and arbitrary incursions on the liberty of individuals because of the lack of a human rights instrument in Australia.

Federal judicial power and detention The power to detain individuals is one of the most extensive powers the state possesses. While it is a necessary part of the state’s armoury of powers, the judiciary has always reviewed its exercise with additional rigour. Only in exceptional circumstances has the judiciary allowed the state to order detention without the involvement of the judicial arm.12 The ancient writ of habeas corpus, which is Latin for ‘have the body’, gave prisoners a right to be heard before a superior court to review the basis for the prisoner’s detention. It was under a writ for habeas corpus, for example, that lawyers brought an action in the Federal Court in 2001 to release the 433 asylum seekers being detained by SAS troops aboard the MV Tampa.13 In the 19th century, celebrated English jurist William Blackstone explained the importance of judicial oversight of detention:

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The confinement of the person, in any wise, is an imprisonment. So that the keeping [of ] a man against his will … is an imprisonment … To make imprisonment lawful, it must either be, by process from the courts of judicature, or by warrant from some legal officer, having authority to commit to prison; which warrant must be in writing, under the hand and seal of the magistrate, and express the causes of the commitment, in order to be examined into (if necessary) upon a habeas corpus.14

The High Court has explained that ‘the adjudgment and punishment of criminal guilt under a law of the Commonwealth’ is exclusive to the judicial power of the Commonwealth.15 In Chu Kheng Lim v Minister for Immigration, Local Government and Ethnic Affairs, a number of justices also accepted that, putting to one side exceptional cases, ‘the involuntary detention of a citizen in custody by the state is

12 13 14 15

Chu Kheng Lim v Minster for Immigration, Local Government and Ethnic Affairs (1992) 176 CLR 1, 27–8 (Brennan, Deane and Dawson JJ); Fardon v Attorney-General (Qld) (2004) 223 CLR 575, 612 (Gummow J). See further discussion of this incident in Chapter 7. Extracted in Chu Kheng Lim v Minster for Immigration, Local Government and Ethnic Affairs (1992) 176 CLR 1, 28 (Brennan, Deane and Dawson JJ). Ibid 27 (Brennan, Deane and Dawson JJ). See also Polyukhovich v Commonwealth (1991) 172 CLR 501, 608 (Deane J).

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penal or punitive in character and, under our system of government, exists only as an incident of the exclusively judicial function of adjudging and punishing criminal guilt’.16 The exceptions were explained by Brennan, Deane and Dawson JJ in Lim by reference to a number of categories, including: •

the arrest and detention in custody, pursuant to an executive warrant, of a person accused of a crime, even though this detention is subject to judicial oversight;

•

the involuntary detention of persons suffering from mental illness or infectious diseases; and

•

the detention of persons ordered by Parliament in its jurisdiction to punish for contempt or by military tribunals to punish breaches of military justice.17

In Lim, the High Court had to consider whether detention ordered pursuant to s 54L of the Migration Act 1958 (Cth) was incompatible with Chapter III of the Constitution. The provision required the executive detention of a ‘designated person’ until the person was either released from custody or given an entry permit, although detention was limited to a maximum of 273  days after the commencement of the provisions. ‘Designated person’ was defined to mean a person who had arrived in the territorial sea of Australia by boat between 19 November 1989 and 1 December 1992 without a visa. The legislation was targeted at two groups of asylum seekers who had entered Australia from Cambodia during these dates. Chu Kheng Lim and 35 other Cambodian nationals caught by the legislation brought a constitutional challenge to the provisions in the High Court. The majority of the High Court held that this form of executive detention was not repugnant to Chapter III. The power to make laws with respect to ‘aliens’ in s  51(xix) of the Constitution extended, in their Honours’ opinion, to a power to receive, investigate and determine an application by aliens for entry into Australia. Their Honours’ accepted that if the legislation had been directed at citizens, rather than non-citizens, it would have infringed the safeguards in Chapter III. But these safeguards did not extend in their entirety to non-citizens. An alien’s ‘status, rights and immunities’ differ from those of Australian citizens; therefore, provided that the detention authorised by the legislation was ‘reasonably capable of being seen as necessary for the purposes of deportation or necessary to enable an application for an entry permit to be made and considered’, it would be valid under an exercise of the aliens power. If it went beyond that, it would be outside the aliens power, punitive in nature, and therefore repugnant to Chapter III.18

16 17 18

(1992) 176 CLR 1, 27 (Brennan, Deane and Dawson JJ). Ibid 28. Ibid 33 (Brennan, Deane and Dawson JJ). See also ibid 71 (McHugh J).

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In the later case of Kruger v Commonwealth,19 Gummow J further explained the test developed in Lim for when non-judicial detention would infringe the principles in Chapter III. His Honour explained that in every case the crux of the question must be whether the detention is in substance punitive, or whether it serves another purpose. Gummow J said: whether a power to detain persons … is to be characterised as punitive in nature … depends upon whether those activities are reasonably capable of being seen as necessary for a legitimate non-punitive purpose. The categories of non-punitive, involuntary detention are not closed.20

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In Kruger, the High Court rejected a challenge to the Aboriginals Ordinance 1918 (NT), which had authorised the Chief Protector of Aborigines to remove and institutionalise Aboriginal children by force. The Protector was authorised to place in his control any Aboriginal person ‘if, in his opinion, it is necessary or desirable’ in that person’s interests. Only Toohey, Gaudron and Gummow JJ considered whether the provision breached the guarantees of Chapter III. Toohey and Gummow JJ applied the test from Lim and accepted that the detention was done for a non-punitive purpose, namely for the welfare and protection of Aboriginal people. The analysis of that purpose was done by reference to the era in which the legislation was drafted, rather than by reference to today’s standards. In contrast to the position of Toohey and Gummow JJ, Gaudron J expressed doubts about the value of the general presumption expounded by Brennan, Deane and Dawson JJ in Lim that involuntary detention is penal or punitive in character and must be the result of an exercise of judicial power.21 Her Honour explained her concerns: At one level, the existence of so many acknowledged exceptions to the immunity for which the plaintiffs contend and the fact that those exceptions serve so many different purposes tell against the implication of a constitutional rule that involuntary detention can only result from a court order. And that is so even if the supposed rule is one that is subject to exceptions … The exceptions recognised in Lim are neither clear nor within precise and confined categories.22

Gaudron J preferred to frame the limits on non-judicial detention as a limit on the Commonwealth’s heads of legislative power in s 51 of the Constitution. Her Honour explained that: subject to certain exceptions, a law authorising detention in custody, divorced from any breach of the law, is not a law on a topic with respect to which s 51 confers 19 20 21 22

(1997) 190 CLR 1. Ibid 161. Gaudron J had also expressed these doubts in Lim:  Chu Kheng Lim v Minster for Immigration, Local Government and Ethnic Affairs (1992) 176 CLR 1, 55. Kruger v Commonwealth (1997) 190 CLR 1, 110.

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legislative power. The defence power may be an exception to that proposition … And the proposition does not extend to laws with respect to quarantine … and the influx of criminals. … It may be that an exception should also be acknowledged with respect to the race power.23

However, Gaudron J held that, unlike the powers in s 51 of the Constitution, the Commonwealth’s power over territories conferred by s 122 of the Constitution contained no such limitation and upheld the Northern Territory Ordinance. Gaudron J’s concerns with the Brennan, Deane and Dawson JJ approach and her Honour’s alternative view have been adopted by a number of other justices, but never a majority.24 In Re Woolley; Ex parte Applicants M276/2000,25 McHugh J indicated that his Honour’s preferred approach was to consider whether the purpose of the detention was punitive or was for some other legitimate non-punitive purpose. McHugh J eschewed the Brennan, Deane and Dawson JJ formulation that required the Court to consider whether detention was ‘reasonably capable of being seen as necessary’ or ‘reasonably necessary’ to a legitimate non-punitive purpose. McHugh J argued that this formulation impermissibly requires the Court to consider questions of proportionality, which he believed could not be relevant in an inquiry about Chapter III. His Honour explained: ‘A law that confers judicial power on a person or body that is not authorised by or otherwise infringes Ch III cannot be saved by asserting that its operation is proportionate to an object that is compatible with Ch III.’26 The High Court has continued to struggle to articulate with clarity the extent to which proportionality is relevant to determining the outer limits of the executive’s power to detain non-citizens. One of the most important post-Lim cases is Al-Kateb v Godwin, a case which we return to in our chapter looking at statutory interpretation (Chapter  11).27 In that case, Mr Al-Kateb was detained under the Migration Act. While it had been renumbered, the legislative scheme closely followed the scheme challenged in Lim with the exception that the maximum time limit on detention had been repealed. Section 189 requires the detention in custody of an unlawful non-citizen (defined as an alien who has entered Australia without permission, or whose permission has expired or been revoked). Section 196 requires an unlawful non-citizen detained under s 189 to be kept in detention until removed, deported or granted a visa. Section 198 requires that an unlawful non-citizen who requests to be removed from Australia should be removed as soon as reasonably practicable.

23 24 25 26 27

Ibid 111. See particularly Al-Kateb v Godwin (2004) 219 CLR 562, 647 (Hayne J); Re Woolley; Ex parte Applicants M276/2000 (2004) 225 CLR 1, 24–25 (McHugh J). (2004) 225 CLR 1. Ibid 34. (2004) 219 CLR 562.

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Mr Al-Kateb was a stateless Palestinian who had arrived in Australia without a visa. His application for a protection visa was refused. He then wrote to the Minister requesting to be removed. However, his stateless status made it difficult for the Australian authorities to find a country that would be willing to take him. The Court accepted that, given his circumstances, there was no real likelihood or prospect of his removal from Australia in the reasonably foreseeable future. Mr Al-Kateb challenged his ongoing, and potentially indefinite, detention under the Act. By a four-justice majority (McHugh, Hayne, Callinan and Heydon JJ) the High Court found that the legislation did authorise the indefinite detention of a person in Mr Al-Kateb’s position, and that in doing so it did not breach the guarantees of Chapter III because its purpose was non-punitive. Hayne J, with whom Heydon J agreed, described the purpose of the detention under the Migration Act as ‘exclusion from the Australian community … by segregation from the community by detention’;28 while McHugh J described it as being ‘to make the alien available for deportation or to prevent the alien from entering Australia or the Australian community’.29 In dissent, Gleeson CJ, Gummow J and Kirby J considered that the legislation did not, properly constructed, authorise indefinite detention.30 Therefore the continuing detention of Mr Al-Kateb was not authorised by the legislation.31 While they did not have to address the issue of whether such detention would be in breach of Chapter III, Gummow J did make the following observation:

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The continued viability of the purpose of deportation or expulsion cannot be treated by the legislature as a matter purely for the opinion of the executive government. The reason is that it cannot be for the executive government to determine the placing from time to time of that boundary line which marks off a category of deprivation of liberty from the reach of Ch III.32

The High Court has been asked to reconsider the decision in Al-Kateb;33 to date, the decision remains good law, although its precedential value has been substantially undermined in more recent cases.34 28 29 30

31 32 33 34

Ibid 648. Ibid 584. Through an application of the principle of legality. The principle of legality is a common law statutory presumption that requires any legislative incursions into fundamental common law liberties to be authorised by express words or necessary implication. We explore this principle in more detail in Chapter 11. Following an earlier Federal Court decision in Minister for Immigration and Multicultural and Indigenous Affairs v Al Masri (2003) 126 FCR 54. Al-Kateb v Godwin (2004) 219 CLR 562, 613. Plaintiff M47/2012 v Director General of Security (2012) 251 CLR 1; Plaintiff M 76/2013 v Minister for Immigration, Multicultural Affairs and Citizenship (2012) 251 CLR 1. See further discussion in Sangeetha Pillai, Plaintiff M96A and the Elusive Limits of Immigration Detention (AUSPUBLAW, 29 May 2017), .

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In Behrooz v Secretary of the Department of Immigration and Multicultural and Indigenous Affairs,35 an argument that the harsh conditions in which aliens were detained amounted to punitive measures was rejected by the High Court. The Court disassociated the conditions of detention from the purpose of that detention, which was used as the determinative factor for its constitutionality. In Re Woolley,36 the same detention regime in the Migration Act was upheld in its application to children, notwithstanding this breached Australia’s obligations under the Convention on the Rights of the Child. In Plaintiff S4/2014 v Minister for Immigration and Border Protection, the Court clarified that immigration detention would be valid where it was pursued for one of three purposes: • the purpose of removal from Australia; • the purpose of receiving, investigating and determining an application for a visa permitting the alien to enter and remain in Australia; or,

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• the purpose of determining whether to permit a valid application for a visa.37 The Court explained that detention was an incident of executive power to pursue these purposes, and as such ‘it must serve the purposes of the Act and its duration must be fixed by reference to what is both necessary and incidental to the execution of those powers and the fulfilment of those purposes’.38 Specifically in relation to the duration of the detention the Court held that it ‘must be capable of being determined at any time and from time to time’.39 This case, while not specifically overruling AlKateb, set down more clearly articulated principles by which to test the constitutional validity of immigration detention. Since that date, in the 2016 decision of Plaintiff M68/2015 v Minister for Immigration and Border Protection,40 the High Court dismissed a challenge to the detention of asylum seekers on Nauru. For French CJ, Kiefel, Keane and Nettle JJ, this was on the basis that the Australian Government was not responsible for the detention on Nauru, which was, rather, undertaken by the Nauruan Government. The majority of the Court was thus able to avoid having to apply the Lim principle to this offshore detention regime.41

35 36 37 38 39 40 41

(2004) 219 CLR 486. Re Woolley; Ex parte Applicants M276/2000 (2004) 225 CLR 1. (2014) 253 CLR 219, 231 [26]. Ibid 232 [29]. Ibid. Plaintiff M68/2015 v Minister for Immigration and Border Protection (2016) 257 CLR 42. For Gageler and Bell JJ, the Lim principle did apply because the Commonwealth was exercising de facto control over the detention, but they held the detention to be valid; for Gordon J, in dissent, the Lim principle applied to the detention, and was breached.

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In Plaintiff M96A/2016 v Commonwealth,42 the High Court has also dismissed a challenge under the Lim principle to the detention of asylum seekers who were being detained in Nauru, but brought to Australia for a short period for medical treatment. Their detention while in Australia for a temporary period as ‘transitory persons’ (as defined in the Migration Act 1958) was challenged. The Court reaffirmed the Lim principle and its reformulation in Plaintiff S4/2014. However, it clarified two important aspects of the test:  it did not conclusively endorse the proposition that there were only three permissible purposes, as articulated in Plaintiff S4/2014 for executive immigration detention; and it explained that rather than requiring a defined, predictable and objectively determined duration of detention, what is required is that the duration of detention must be ascertainable by reference to objective criteria rather than a broad discretion. In the particular case, the Court accepted that the detention of transitory persons was not for the purpose of providing them with medical treatment, but the continued purpose of removal from Australia. The Court also accepted that the duration of the detention was set by objectively defined criteria in the Act even though it might not be capable of being objectively determined at the start of the detention, namely that the detention would come to an end when either the person wrote to the Minister requesting removal from Australia or the person no longer needed to be in Australia for the temporary purpose (of medical treatment). By drawing a distinction between what is acceptable in terms of the treatment of aliens and what is acceptable in terms of the treatment of citizens, the High Court has given the executive permission to pursue arbitrary policies that target vulnerable individuals and groups within our community, or those seeking to be part of our community.43 In 2010, the then Chief Justice of the Federal Court,44 Patrick Keane, gave a speech in which he explained why the distinction drawn between aliens and citizens is incapable of moral justification: we should treat everyone who comes within our borders, including complete strangers afflicted by misfortune, not just with respect and dignity, but with generosity, because we too have—at some time—been ourselves saved, without any particular merit on our part, from the misfortunes which are part of the human condition.45

In contrast to immigration detention carried out by the executive, often the legislature involves the courts in non-punitive detention schemes. Involving the courts in authorising serious or uncommon deprivations of liberty brings to the fore a 42 43 44 45

(2017) 343 ALR 362. Matthew Zagor, ‘Uncertainty and Exclusion: Detention of Aliens and the High Court’ (2006) 34 Federal Law Review 127. Now a justice of the High Court. Extracted in Lucy Battersby, ‘A Fountain Pen Mightier than the Sword’, The Sydney Morning Herald (online), 16 February 2013, .

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tension that confronts legislators and policy makers in drafting these schemes. On the one hand, in contrast to the immigration detention regime, discussed above, involving the judiciary in detention schemes brings greater transparency, independence and oversight to the incursions on individual liberty. Callinan J explained in Thomas v Mowbray that ‘[r]isks to democracy and to the freedoms of citizens are matters of which courts are likely to have a higher consciousness’.46 On the other hand, involving the courts in these schemes risks sullying their reputation for independence and impartiality. Further, it gives a detention order a veil of legitimacy that it might not otherwise enjoy. In Thomas v Mowbray, Gleeson CJ and Kirby J engaged in a conversation across their judgments demonstrating the extent to which disagreement can occur on this point. This case concerned the validity of powers conferred upon Federal Court judges to issue control orders in respect of suspected terrorists. Consistently with the approach that he adopted in the earlier decision of Fardon v Attorney-General (Qld),47 Gleeson CJ espoused the following view: the exercise of powers, independently, impartially and judicially, especially when such powers affect the liberty of the individual, would ordinarily be regarded as a good thing, not something to be avoided. An argument, as a matter of policy, that legislation for anti-terrorist control orders ought to be subject to some qualification in aid of the human rights of people potentially subject to such orders is one thing. An argument that the making of such orders should be regarded as totally excluded from the judicial function is another.48

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Kirby J, on the other hand, adopted a narrower view of what could be asked of courts: The exercise of serious powers affecting individual liberty by judges is indeed ordinarily a good thing and sometimes it is constitutionally obligatory. But it becomes a bad thing if the powers are granted in vague and inappropriate terms, for that engages judges in the exercise of powers that are in truth unbridled discretions, governed by the most nebulous of criteria. And it is a very bad thing if the judge concerned is required to act in exceptional ways in private and subject to constraints not normal or proper to the judicial office. These are consequences against which the federal separation of powers doctrine stands guard in Australia.49

At the state level, there have been a series of challenges to non-punitive detention schemes and control order regimes on the basis that they infringe the implied limitations of Chapter III. As the limitations that apply to the states under Chapter III differ from those at the federal level, these will be discussed later in this chapter, when those limitations are introduced. 46 47 48 49

(2007) 233 CLR 307, 508. (2004) 223 CLR 575, 586 [2]. Thomas v Mowbray (2007) 233 CLR 307, 324–5 [17]. Ibid 436–7 [370].

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Judges engaging in non-judicial functions Judges have historically been empowered to assume roles that involve functions or powers that are not within the judge’s judicial function; for example, acting as ambassadors, royal commissioners and tribunal members.50 The High Court has held that, despite the Boilermakers’ principle preventing federal Chapter III courts from exercising non-judicial powers,51 in certain circumstances federal judges are entitled to perform roles outside their judicial functions. This is provided that the judge acts in their personal capacity (that is, persona designata, not as a ‘judge’ of a court) and that the other role is not ‘incompatible’ with their judicial tasks.52 The persona designata doctrine has allowed federal judges to continue to perform roles such as sitting as tribunal members, although it may not allow them to continue to take on ambassadorial roles, as occurred with Chief Justice Dixon who served as Australian Ambassador to the US during the Second World War.53 Drake v Minister for Immigration and Ethnic Affairs was the first case to accept the constitutionality of the conferral of non-judicial powers on individual federal judicial officers.54 The case arose after the creation of the Administrative Appeals Tribunal in 1976. The Administrative Appeals Tribunal Act 1975 (Cth) requires the Tribunal to consist of a President, and a number of deputy presidents, and other members. A person is eligible to be appointed as a member only if they are or have been a judge of a Federal Court or have other specified legal qualifications. Davies J, a Federal Court judge, was appointed Deputy President, and his appointment was challenged on the basis that it was in breach of the requirements of Chapter III. The Full Federal Court rejected the challenge. Bowen CJ and Deane J accepted that Davies J’s appointment was a personal appointment, notwithstanding the fact that one of the qualifications for his appointment was that he was a judge of the Federal Court. Their Honours contrasted the provision— which specifically conferred the powers on Davies J as a judge of the Federal Court—with the conferral of powers on the Federal Court as a judicial institution. Once this matter of statutory construction was resolved, Bowen CJ and Deane J explained: There is nothing in the Constitution which precludes a justice of the High Court or a judge of this or any other court created by the Parliament under Ch III of the

50 51 52 53

54

See, eg, Fiona Wheeler, ‘“Anomalous Occurrences in Unusual Circumstances”? Extra-Judicial Activity by High Court Justices: 1903 to 1945’ (2013) 24 Public Law Review 125. See R v Kirby; Ex parte Boilermakers’ Society of Australia (1956) 94 CLR 254 (‘Boilermakers’ Case’), discussed in Chapter 9. Grollo v Palmer (1995) 184 CLR 348. For an explanation of some of the non-judicial roles performed by judges both today and historically, see A J Brown, ‘The Wig or the Sword? Separation of Powers and the Plight of the Australian Judge’ (1992) 21 Federal Law Review 48, 50–68. (1979) 2 ALD 60.

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Constitution from, in his personal capacity, being appointed to an office involving the performance of administrative or executive functions including functions which are quasi-judicial in their nature. Such an appointment does not involve any impermissible attempt to confer upon a Ch III court functions which are antithetical to the exercise of judicial power.55

The question of what would amount to an impermissible conferral of power arose in the High Court in two cases involving the same legislation. In Hilton v Wells,56 the Court considered the empowerment of a judge under s 20 of the Telecommunications (Interception) Act 1979 (Cth) to issue warrants to the Australian Federal Police to intercept telecommunications (that is, tap phones), which would otherwise be an offence under the Act. ‘Judge’ was defined to mean, inter alia, a ‘judge of the Federal Court’. The Court was satisfied that the power exercised by a judge was non-judicial. The Act required warrants to be issued in an ex parte hearing on the application of an Australian Federal Police officer. The results of the hearing could not be disclosed by the judge, even at a subsequent trial. In Hilton, a narrow majority of 3:2 held the legislation did not breach Chapter III. As in Drake, the High Court noted the importance of the statutory construction exercise in determining whether the legislation intended a conferral of functions personally on a judge, as opposed to the conferral of functions on the court. Gibbs CJ, Wilson and Dawson JJ indicated that where powers are expressed to be conferred on a ‘court’, it will be presumed that was the intention; where the reference is to a ‘judge’ rather than to a ‘court’, it will be presumed that the power was intended to be personally vested in the judge, who has been selected because of their judicial qualifications.57 The majority also considered a number of other factors in this construction exercise. They explained that the nature of the power would be relevant as non-judicial powers were more likely to be conferred personally on judges. Further, where the provisions of the Federal Court of Australia Act 1976 (Cth) and its rules applied to exercises of power this indicated the conferral of powers on the Federal Court itself and not the judges.58 The majority accepted that s 20 of the Telecommunications (Interception) Act was intended to confer functions upon judges in their personal capacities. Having undertaken the exercise of statutory construction, the majority also asked whether ‘the nature or extent of the functions cast upon [the] judges were such as to prejudice their independence or to conflict with the proper performance of their judicial functions’, before accepting that s 20 did not infringe the Boilermakers’ doctrine.59

55 56 57 58 59

Ibid 64. (1985) 157 CLR 57. Although the presumption, like all statutory presumptions, may be rebutted. Hilton v Wells (1985) 157 CLR 57, 72–3 (Gibbs CJ, Wilson and Dawson JJ). Ibid 73–4 (Gibbs CJ, Wilson and Dawson JJ).

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Mason and Deane JJ, in dissent, were far more wary of accepting that Chapter III of the Constitution would allow for wide conferrals of power on individual judges that would not be permitted to be conferred on the courts as institutions. They explained that:

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The ability of Parliament to confer non-judicial power on a judge of a Ch III court, as distinct from the court to which he belongs, has the potential, if it is not kept within precise limits, to undermine the doctrine in the Boilermakers’ Case.60

The comments of Mason CJ and Deane J go some way to recognise the intellectual fallacy of drawing any real distinction between the judge acting in a personal capacity and the judge acting as a member of the court. However, their Honours still accepted it could be done (although after his retirement, Sir Anthony Mason expressed regret at his acceptance of the doctrine, describing it as ‘less than inspiring jurisprudence’).61 Mason CJ and Deane J did insist, however, that there be ‘a clear expression of legislative intention that the functions are to be exercised by [the judge] in his personal capacity, detached from the court of which he is a member’.62 Their Honours were concerned that without a clear delineation between the functions exercised by the judge as a member of the court and the judge in their personal capacity, the public would, understandably, believe that the use of persona designata to justify the conferral was ‘all an elaborate charade’.63 By reference to what had been permitted in the US, Mason CJ and Deane  J suggested two conditions that ought to attach to any personal conferral of nonjudicial power on a judge to ensure that it did not undermine the intention of the Boilermakers’ doctrine. These were, first, that the conferral of powers must not be ‘an unavoidable obligation to perform as a designated person, detached from the relevant court, administrative functions which are unrelated to the exercise of the jurisdiction of that court’.64 Second, they suggested that the functions must not be ‘inconsistent with the essence of the judicial function and the proper performance by the judiciary of its responsibilities for the exercise of judicial power’.65 While in dissent, Mason CJ and Deane J’s suggestions had a substantial impact. The Commonwealth amended the Telecommunications (Interception) Act to confer powers only on ‘eligible judges’, defined to mean a judge who had consented under the legislation. After these changes, another challenge was brought to the legislation. In Grollo v Palmer, Mason CJ and Deane J’s more cautious approach to persona 60 61 62 63 64 65

Ibid 81. Anthony Mason, ‘A New Perspective on the Separation of Powers’ (1996) 82 Canberra Bulletin of Public Administration 1, 1. Hilton v Wells (1985) 157 CLR 57, 82. Ibid 84. Ibid 82. Ibid 83.

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designata appointments was adopted by a majority. Brennan CJ, Deane, Dawson and Toohey JJ explained:

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The conditions thus expressed on the power to confer non-judicial functions on Judges as designated persons are twofold: first, no non-judicial function that is not incidental to a judicial function can be conferred without the Judge’s consent; and, second, no function can be conferred that is incompatible either with the Judge’s performance of his or her judicial functions or with the proper discharge by the judiciary of its responsibilities as an institution exercising judicial power (‘the incompatibility condition’).66

They then went on to explain that incompatibility may arise in a number of ways. It may be that the breadth of commitment a persona designata appointment requires is ‘so permanent and complete … that the further performance of substantial judicial functions by that Judge is not practicable’. Or, it could be that the functions are of such a nature that ‘the capacity of the Judge to perform his or her judicial functions with integrity is compromised or impaired’. Finally, it could be that the functions are of such a nature as to diminish ‘public confidence in the integrity of the judiciary as an institution or in the capacity of the individual Judge to perform his or her judicial functions with integrity’.67 The majority accepted that the functions conferred under the Telecommunications (Interception) Act nonetheless continued to meet these more stringent criteria. They considered that the judge’s independence in determining the warrant application preserved public confidence in the judiciary.68 McHugh J issued a powerful dissent. His Honour disagreed that public confidence could be maintained in the judiciary when judges were involved in ‘secret, ex parte administrative procedures that approve the acts of federal law enforcement officers by those who hold federal judicial office’.69 In addition to these problems of perception, McHugh J also believed that the involvement of judges in these procedures raised practical problems that would undermine the integrity of individual judges—judges may sit in cases in which they have previously been involved through the issue of a telecommunications interception warrant.70 The majority was content to reject this concern on the basis that ‘the adoption of an appropriate practice’ would avoid the judicial conflict of interest raised by McHugh J.71 The introduction of ‘public confidence’ as a criterion of validity through the persona designata doctrine proved to be a dangerous precedent for the High

66 67 68 69 70 71

(1995) 184 CLR 348, 364–5 (emphasis added). Ibid 364. Ibid 367. Ibid 379–80. Ibid 381. Ibid 366.

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Court. Its lack of definition has made it vulnerable to criticism that it is employed to promote a judge’s personal opinion in the guise of objectively framed tests for validity. Constitutional law and jurisprudence expert Professor Denise Meyerson has also argued that the impact any individual measure may have on the independence of the judiciary and public confidence in the institution ‘will necessarily be remote and difficult to calculate’.72 In Wilson v Minister for Aboriginal and Torres Strait Islander Affairs,73 the High Court provided greater guidance as to what factors the Court may consider in determining whether the engagement of a judge in a non-judicial function might diminish public confidence in the judiciary. Wilson was one of the many pieces of litigation that arose out of an attempt to build a bridge from Goolwa to Hindmarsh Island in South Australia to provide access to a proposed tourist development on the island, discussed in Chapter 3. After the bridge was proposed, a number of applications were made on behalf of the local Aboriginal community, the Ngarrindjeri people, to the federal Minister for Aboriginal Affairs seeking protection of the area under the Aboriginal and Torres Strait Islander Heritage Protection Act 1984 (Cth). This protection would prevent the construction of the bridge for the purpose of preserving an area that was culturally significant to the local Aboriginal people. Under the legislation, before making a declaration the Minister had to receive and consider a report from an investigator nominated under the Act. Section 10(4) of the Aboriginal and Torres Strait Islander Heritage Protection Act 1984 (Cth) required that the report deal with a number of matters, including the particular significance of the area to Aboriginal and Torres Islander peoples; the nature and extent of the threat of injury to, or desecration of, the area; the extent of the area that should be protected; the prohibitions and restrictions to be made with respect to the area, and the effects the making of a declaration may have on the proprietary or pecuniary interests of people other than the Aboriginal and Torres Strait Islander people concerned. The Minister appointed Justice Jane Mathews of the Federal Court of Australia as the investigator to report under the Act. Before her report was released, her appointment was challenged in the High Court on the basis that her appointment did not satisfy the persona designata requirements and was therefore in breach of Chapter III. Brennan CJ, Dawson, Toohey, McHugh and Gummow JJ accepted that the conferral of the function was not incompatible with the judicial function on the basis that it required too broad a commitment to the non-judicial functions or that it would undermine Justice Mathews’ capacity to perform her judicial functions with integrity. The case therefore turned on whether the conferral of the functions was such as

72 73

Denise Meyerson, ‘Extra-judicial Service on the Part of Judges: Constitutional Impediments in Australia and South Africa’ (2003) 3 Oxford University Commonwealth Law Journal 181, 197. (1996) 189 CLR 1.

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to diminish public confidence in the integrity of the judiciary as an institution or in the capacity of Justice Mathews to perform her judicial functions with integrity. The majority then set out a prescriptive test to examine the legislation to determine whether this type of incompatibility existed:

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The statute or the measures taken pursuant to the statute must be examined in order to determine, first, whether the function is an integral part of, or is closely connected with, the functions of the Legislature or the Executive Government. If the function is not closely connected with the Legislature or the Executive Government, no constitutional incompatibility appears. Next, an answer must be given to the question whether the function is required to be performed independently of any instruction, advice or wish of the Legislature or the Executive Government, other than a law or an instrument made under a law (hereafter ‘any non-judicial instruction, advice or wish’). If an affirmative answer does not appear, it is clear that the separation has been breached. … If the function is one which must be performed independently of any non-judicial instruction, advice or wish, a further question arises: Is any discretion purportedly possessed by the Ch III judge to be exercised on political grounds—that is, on grounds that are not confined by factors expressly or impliedly prescribed by law? In considering these questions, it will often be relevant to note whether the function to be performed must be performed judicially, that is, without bias and by a procedure that gives each interested person an opportunity to be heard and to deal with any case presented by those with opposing interests.74

In applying this test to the appointment of Justice Mathews under the Aboriginal and Torres Strait Islander Heritage Protection Act, Brennan CJ, Dawson, Toohey, McHugh and Gummow JJ accepted that her role was an integral part of the executive process dictated by the Act. While the Minister was not bound by the report, it was a mandatory precursor to her making a declaration. Their Honours also found that she was not acting independently (as, say, a Royal Commissioner would be). She was liable to removal, could be required to apply ministerial policy and, in effect, was operating in a position equivalent to that of a ministerial adviser. Finally, the majority found that the factors she was required to consider under s 10(4) of the Act were an exercise of political discretion, which required a delicate balancing of the interests of the Aboriginal applicants against other interests that may be affected by the community. Therefore, Justice Mathews’ appointment under the legislation was found invalid. However, rather than strike down the provision, the Court read it down so as not to apply to a judicial officer of a Federal Court. Despite ‘public confidence’ being the determinative test applied in Wilson, the High Court has more recently rejected this factor as being relevant, or at least determinative, to the question of validity in the context of legislation interfering 74

Ibid 17.

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with state courts (discussed below). The Court appears, at least, to have done so in reaction to the criticism of the lack of definition and therefore subjectivity that the test introduces into the judicial reasoning process.75 As Gleeson CJ pointed out in Fardon v Attorney-General (Qld), a court’s opinion of its own standing is not a criterion of a law’s validity.76

Chapter III and state courts State constitutions do not entrench the separation of powers as the federal Constitution does,77 and state courts are not creatures of legislation authorised under the federal Constitution. Thus, when the Federal Parliament invests a state court with the power to exercise federal jurisdiction, it is said that the Parliament must take the court as it finds it.78 One consequence of these differences is that the Boilermakers’ principle does not extend to state courts invested with federal jurisdiction.79 However, at about the same time as the High Court developed the test of incompatibility as part of a valid persona designata conferral, in the 1996 case of Kable v Director of Public Prosecutions (NSW)80 the Court also accepted the existence of certain limits upon state legislative power as a consequence of the separation of federal judicial power under Chapter III. Like persona designata, these limits also turned on a question of incompatibility with the exercise of federal judicial power, although the two doctrines have subsequently developed independently.

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Kable Kable concerned the Community Protection Act 1994 (NSW), which was designed to enable the New South Wales Supreme Court to issue a preventative detention order against Gregory Wayne Kable. Mr Kable had been convicted in 1990 of the manslaughter of his wife, Hilary Kable. During his imprisonment, he had written threatening letters to his children and their guardian, the deceased’s sister, with whom

75 76

77

78 79 80

See, eg, Elizabeth Handsley, ‘Public Confidence in the Judiciary:  A Red Herring for the Separation of Judicial Power’ (1998) 20 Sydney Law Review 183. (2004) 223 CLR 575, 593: ‘nothing would be more likely to damage public confidence in the integrity and impartiality of courts than judicial refusal to implement the provisions of a statute upon the ground of an objection to legislative policy.’ See also ibid 618 (Gummow J). Clyne v East [No 1] [1967] 68 SR (NSW) 385; Gilbertson v South Australia (1976) 15 SASR 66; [1978] AC 772; Building Construction Employees and Builders’ Labourers Federation of NSW v Minister for Industrial Relations (1986) 7 NSWLR 372; City of Collingwood v Victoria [No 2] [1994] 1 VR 652; Kable v Director of Public Prosecutions (NSW) (1996) 189 CLR 51. Le Mesurier v Connor (1929) 42 CLR 481. See R v Kirby; Ex parte Boilermakers’ Society of Australia (1956) 94 CLR 254 (‘Boilermakers’ Case’), discussed in Chapter 9. (1996) 189 CLR 51.

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the children then lived. The Act was largely framed in general terms, but s 3 made it clear that it was limited in application to Kable himself; that is, it was ad hominem legislation. For this reason, it was argued that the Act involved a legislative judgment or usurpation of judicial power in breach of the separation of powers.81 However, the problem for Mr Kable’s counsel lay in presenting an argument that rested on the strict separation of judicial power; while state courts conferred with federal judicial power are mentioned in s 71 of the Constitution, such courts are creatures of state law, and the Constitution Act 1902 (NSW) had already been held not to include a strict separation of judicial power.82 The alternative argument, accepted by the High Court, rested on the incompatibility doctrine previously developed in the persona designata cases. Applying the concept of incompatibility to the Community Protection Act, the High Court in Kable was able to fashion a requirement of institutional integrity and independence for state courts mentioned in s 71, but without applying the strict requirements of the Boilermakers’ principle. The reasoning of the Court was based on two factors: the integrated judicial system created under Chapter III with the High Court at its apex; and the notion that state courts invested with federal jurisdiction must remain suitable repositories of that jurisdiction. The decision therefore identified requirements associated with the federal judicial structure that was created under Chapter III, while acknowledging that state Supreme Courts pre-dated that structure. The High Court ultimately held the New South Wales Act to be incompatible with the exercise of federal judicial power by the Supreme Court.83 The incompatibility principle developed in Kable has been refined in subsequent cases. The principle now tends to be framed in terms of what are the essential characteristics of a ‘court’ for the purposes of s 71. In this sense, judicial attention has frequently been focused on the preservation of institutional independence and impartiality,84 but has also extended to the power of state Supreme Courts to conduct supervisory review of inferior courts.85 The following statement of Gummow, Hayne

81 82 83

84

85

Following the principle adopted in Liyanage v The Queen [1967] 1 AC 259. See discussion of this case in Chapter 9. Clyne v East (1967) 68 SR(NSW) 385. In rejecting a recent claim by Mr Kable for damages for false imprisonment under the invalid Act, the High Court rejected an argument that the initial Kable decision had rested on a finding that the power was a non-judicial one. Rather, they found that its incursions into the judicial process and ordinary judicial function were what resulted in its incompatibility: Kable v New South Wales (2013) 252 CLR 118, 127–8 [16] (French CJ, Hayne, Crennan, Kiefel, Bell and Keane JJ). Fardon v Attorney-General (Qld) (2004) 223 CLR 575; North Australian Aboriginal Legal Aid Service Inc v Bradley (2004) 218 CLR 146, 163 (McHugh, Gummow, Kirby, Hayne, Callinan and Heydon JJ); Forge v Australian Securities and Investments Commission (2006) 228 CLR 45; K-Generation Pty Ltd v Liquor Licensing Court (2009) 237 CLR 501; South Australia v Totani (2010) 242 CLR 1. Kirk v Industrial Court of New South Wales (2010) 239 CLR 531.

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and Crennan JJ from Forge v Australian Securities and Investments Commission reflects the modern approach to Kable: Because Ch III requires that there be a body fitting the description ‘the Supreme Court of a State’, it is beyond the legislative power of a State so to alter the constitution or character of its Supreme Court that it ceases to meet the constitutional description. One operation of that limitation on State legislative power was identified in Kable … The legislation in Kable was held to be repugnant to, or incompatible with, the institutional integrity of the Supreme Court of New South Wales because of the nature of the task the relevant legislation required the Court to perform … [The] relevant principle is one which hinges upon maintenance of the defining characteristics of a ‘court’, or in cases concerning a Supreme Court, the defining characteristics of a State Supreme Court. It is to those characteristics that the reference to ‘institutional integrity’ alludes. That is, if the institutional integrity of a court is distorted, it is because the body no longer exhibits in some relevant respect those defining characteristics which mark a court apart from other decision-making bodies.86

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Post-Kable jurisprudence When Kable was initially handed down, it was a surprising decision for state governments, revealing a previously unknown limitation on state legislative power. In the wake of the decision, many attempts were made to use the Kable principle to challenge state legislation, but these were never successful in the High Court until 2009.87 During this intervening period, no High Court justice was ever prepared to overturn the Kable principle. Nonetheless, its application was significantly narrowed. The Court has accepted as valid legislative provisions that involve state Supreme Courts exercising powers that could arguably be viewed as non-judicial or as inconsistent with the traditional judicial process (such as orders for the continuing detention of prisoners who have served their term of imprisonment but have committed no further crime). The High Court largely confined Kable to its facts and, provided the legislation in question contained sufficient procedural safeguards and discretion for the Court to be able to protect the integrity of the judicial process, the Court has been satisfied with the validity of the schemes. It also removed the emphasis on ‘public confidence’ as a guiding criterion for incompatibility, which also contributed to its narrowing formulation. This can be seen in the High Court’s reasoning in Fardon v Attorney-General (Qld).88 Fardon involved the Dangerous Prisoners (Sexual Offenders) Act 2003 (Qld), 86 87

88

(2006) 228 CLR 45, 76. International Finance Trust Company v New South Wales Crime Commission (2009) 240 CLR 319. Although the principle had been applied by the Queensland Court of Appeal to strike down legislation before then in Re Criminal Proceeds Confiscation Act 2002 [2004] 1 Qd R 40. (2004) 223 CLR 575.

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an Act that authorised the making of different court orders in relation to a ‘prisoner’, including ‘continuing detention orders’. For the purposes of the Act, ‘prisoner’ was defined in s 5(6) as ‘a prisoner detained in custody who is serving a period of imprisonment for a serious sexual offence, or serving a period of imprisonment that includes a term of imprisonment for a serious sexual offence, whether the person was sentenced to the term or period of imprisonment before or after the commencement of this section’. Mr Fardon had been sentenced to a term of 14 years’ imprisonment in 1989 for rape, sodomy and assault. His sentence was set to expire on 30 June 2003; however, the Act came into force on 6 June 2003 and an interim detention order in respect of him was made on 27 June 2003. Further orders were made later that year, culminating in a ‘continuing detention order’ on 6 November 2003 that ensured Mr Fardon’s detention in prison ‘for an indefinite term for control, care and treatment’. Mr Fardon appealed to the Queensland Court of Appeal and ultimately to the High Court, where the validity of the interim detention order and the continuing detention order was challenged. By a 6:1 majority (Kirby J dissenting) the High Court upheld the validity of the legislation. Fardon involved state legislation conferring powers on the Queensland Supreme Court. Thus, it involved the less stringent incompatibility test from Kable rather than the higher threshold required of federal courts under the Boilermakers’ principle. In Fardon both Gummow and Kirby JJ held that the legislation would have been invalid had it been adopted as federal legislation.89 The remaining justices were either silent on this issue or reserved their opinions. At the heart of the challenge to the Queensland law was the involvement of the Supreme Court in a detention order based not on a determination that a person had engaged in past unlawful behaviour, but on the likelihood that the person’s release posed an unacceptable risk to the community given the probability of reoffending. Whereas the majority considered the law to contain sufficient procedural safeguards, Kirby J in dissent held that it involved a blatant disregard for the principles in both Kable and the Communist Party Case.90 In reference to the tendency for even civilised governments to make unacceptable intrusions into the independence of the judiciary (having cited the practices in Germany in the 1930s), his Honour offered the following cautionary words: In the Communist Party Case, Dixon J taught the need for this Court to keep its eye on history, including recent history, so far as it illustrated the over-reach of governmental power. …. The principle in Kable was a wise and prudent one, defensive of judicial independence in Australia … I  dissent from the willingness of this Court, having

89 90

Ibid 611–13 (Gummow J), 632–6 (Kirby J). Australian Communist Party v Commonwealth (1951) 83 CLR 1 (‘Communist Party Case’), discussed in Chapter 9.

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stated the principle, now repeatedly to lend its authority to [its] refinement … This has been done virtually to the point where the principle itself has disappeared at the very time when the need for it has greatly increased, as this case shows.91

In direct contrast, Gleeson CJ’s opinion emphasised the many benefits of having an independent court rather than the executive make continuing detention orders.92 Court decisions are both public and subject to review in a way that executive decisions are not. Gleeson CJ thought it curious that one would question the appropriateness of a court making an assessment of the danger posed by the release of a prisoner near the completion of their term of imprisonment. In his Honour’s view this was akin to the assessment made by a judge at the point of sentencing, but was made at a time when the assessment was more likely to be accurate. While his Honour was willing to consider the relevance of broader policy issues in this context, Gleeson CJ expressly rejected the relevance of civil liberty to the question of constitutional validity.93 On that question, Gleeson CJ highlighted the distinctive features of the Queensland Act that distinguished it from the Community Protection Act 1994 (NSW) held invalid in Kable:

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The Act is a general law … It authorises and empowers the Supreme Court to act in a manner which is consistent with its judicial character. It does not confer functions which are incompatible with the proper discharge of judicial responsibilities or with the exercise of judicial power. It confers a substantial discretion as to whether an order should be made, and if so, the type of order … The onus of proof is on the Attorney-General. The rules of evidence apply … There is a right of appeal. Hearings are conducted in public, and in accordance with the ordinary judicial process. There is nothing to suggest that the Supreme Court is to act as a mere instrument of government policy.94

For the majority, these procedural safeguards were sufficient to maintain the independence and impartiality of the Supreme Court. This concern with such safeguards (and maintaining the discretion of the Court to act independently and preserve the integrity of the judicial process) has been significant in subsequent cases where the Kable principle has been invoked to challenge state laws.95 Another way in which the High Court avoided the application of the Kable doctrine in the period up until 2009 was by construction of the relevant statute in such a way as to avoid inconsistency with the constitutional principle. That is, where legislation, on its face, did not include sufficient judicial discretion or 91 92 93 94 95

Ibid 646. Ibid 586. Ibid 586–7. Ibid 592. See, eg, International Finance Trust Company v New South Wales Crime Commission (2009) 240 CLR 319; South Australia v Totani (2010) 242 CLR 1.

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procedural safeguards, the Court has applied interpretive techniques to achieve that outcome.96 In these cases, principles of interpretation have been applied to effect outcomes that seem remote or even implausible when considered alongside the express terms of the Act in question. As we explain further in Chapter 11 when we look at the principles of statutory interpretation, the courts have an obligation to give a law a beneficial construction, where possible, to preserve its constitutional validity.97 However, the Court’s interpretation of draconian Acts by reference to this principle eventually brings another question to the fore: at what point does the process of judicial review shift from being concerned with the rule of law and the enforcement of constitutional limits, to being concerned more with the capacity of High Court justices to use judicial techniques in deferring to (or occasionally overriding) the political arms of government on contentious policy issues? In other words, at what point does judicial review involve the rule of men and women of the High Court rather than the rule of law? K-Generation Pty Ltd v Liquor Licensing Court provides a good example through which to consider this question.98 K-Generation followed the approach taken in the earlier case of Gypsy Jokers Motorcycle Club Incorporated Inc v Commissioner of Police (WA).99 In K-Generation, the appellants had applied for a licence to operate a karaoke club in Adelaide under the Liquor Licensing Act 1997 (SA). Following an application to the Liquor and Gambling Commissioner, the South Australian Police Commissioner intervened, asserting that the applicant and his partner were not fit and proper persons to hold the licence. The Police Commissioner had included certain ‘criminal intelligence’ in his submission, none of which could be disclosed to the applicant, with the Court under an obligation to ‘take steps to maintain the confidentiality of information classified by the Commissioner of Police as criminal intelligence, including steps to receive evidence and hear argument about the information in private in the absence of the parties to the proceedings and their representatives’.100

See, eg, K-Generation Pty Ltd v Liquor Licensing Court (2009) 237 CLR 501; Gypsy Jokers Motorcycle Club Incorporated Inc v Commissioner of Police (WA) (2008) 234 CLR 532. 97 Gypsy Jokers Motorcycle Club Inc v Commissioner of Police (2008) 234 CLR 532, 553 (Gummow, Hayne, Heydon and Kiefel JJ); New South Wales v Commonwealth (2006) 229 CLR 1, 161–2 (‘Work Choices Case’) (Gleeson CJ, Gummow, Hayne, Heydon and Crennan JJ); Acts Interpretation Act 1901 (Cth) s 15A: ‘Every Act shall be read and construed subject to the Constitution, and so as not to exceed the legislative power of the Commonwealth, to the intent that where any enactment thereof would, but for this section, have been construed as being in excess of that power, it shall nevertheless be a valid enactment to the extent to which it is not in excess of that power.’ A similar provision can be found in state legislation, eg the Acts Interpretation Act 1915 (SA) s 22A. 98 (2009) 237 CLR 501. 99 (2008) 234 CLR 532. 100 Liquor Licensing Act 1997 (SA) s 28A. 96

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Use of criminal intelligence in the place of evidence is a relatively recent development in Australian criminal law. Traditionally, evidence is led in open court and the opposing party is able to test the relevance and veracity of it through crossexamination. With a change in emphasis from the prosecution of crimes previously committed, to the prevention of future crimes, different information must be relied upon. This information is often of a highly sensitive nature. The Liquor Licensing Act 1997 (SA) defined criminal intelligence in s 4 to mean ‘information relating to actual or suspected criminal activity (whether in this state or elsewhere) the disclosure of which could reasonably be expected to prejudice criminal investigations, enable the discovery of the existence or identity of a confidential source of information relevant to law enforcement or endanger a person’s life or physical safety’. The High Court unanimously held that s 28A was valid, on the basis that it reserved sufficient discretion for the Court to determine whether information was ‘criminal intelligence’ for the purposes of the Act, as well as the steps to be taken under s 28A(5). In French CJ’s view, the appellants had adopted the most draconian interpretation of the Act,101 whereas the Court was inclined to adopt the most beneficial construction available:

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The terms of s 28A(5) do not subject the Licensing Court or the Supreme Court to the direction of the executive or an administrative authority. The sub-section does not require them to receive or act upon criminal intelligence classified as such by the Commissioner of Police. It does not deprive the Court of discretion as to how confidentiality is to be maintained. Nor does it mandate a general exclusion in all circumstances of legal representatives from access to the information. Section 28A(5) does not undermine the institutional integrity of either court. It does not render them unfit repositories for the exercise of federal jurisdiction.102

The High Court was thus able to hold that both the South Australian Liquor Licensing Court and the Supreme Court (conducting judicial review of the former Court’s decisions) could disclose the material forming the ‘criminal intelligence’ to the legal representatives of an applicant in certain circumstances. Any disclosure would usually be made subject to the condition that it not be disclosed to the applicant, but s 28A(5) left it in the discretion of the Court to determine when such disclosure would be justified.103 The concern with the High Court’s approach in K-Generation stems from the reliance upon a beneficial construction of the Act that seems to strain the literal meaning of the provisions. Whereas the High Court is required to approach an Act’s construction with constitutional principles in mind, lower courts (including, 101 (2009) 237 CLR 501, 526 [71], 527 [77]. 102 Ibid 532 [98]–[99]. 103 Ibid 532 [98].

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for example, the Licensing Court) are not always conditioned to think in terms of the broader constitutional implications of one construction over another. Indeed, dominant interpretive approaches in Australian law (including literalism and the purposive approach) may well work against the application of constitutional considerations in courts other than the High Court. In K-Generation, the applicant, the applicant’s lawyers, the Licensing Court and the Supreme Court were not even aware of the potential for limited disclosure under s 28A(5) of the Act until the High Court had handed down its judgment in the case. The consequential uncertainty about not only the validity of laws, but also their practical operation and effect, has obvious effects for the rule of law. Statutes will ultimately become less certain in their terms because an Act’s meaning will not come from its interpretation in a literal sense, but from interpretations applied to it by superior courts on appeal. An important question arises: should the duty of courts to interpret legislation in a beneficial manner in order to preserve a law’s constitutional validity be a duty of last resort rather than the point of departure in constitutional matters? It would appear from cases such as K-Generation that the High Court is perhaps conflating constitutional principle with the process of statutory construction, when statutory interpretation is itself an imprecise task where judges exercise considerable discretion in terms of determining relevant principles and their effect. Despite the narrowing of the Kable doctrine in this period, as Heydon J pointed out in International Finance Trust Company v New South Wales Crime Commission, the Kable decision did have many beneficial impacts, particularly its effect on governments and the willingness ‘to ensure the inclusion within otherwise draconian legislation of certain objective and reasonable safeguards for the liberty and the property of persons affected’.104 Those safeguards proved to be instrumental in a number of other cases where state legislation has been challenged on Kable-type arguments.105

Reinvigoration of Kable In the 2004 decision of Baker v The Queen, Kirby J famously said that the High Court had been unduly narrow in its application of the Kable doctrine and that it was being treated as a ‘constitutional guard-dog that would bark but once’.106 In 2009, the High Court took off the muzzle on the Kable principle. In International Finance Trust Company v New South Wales Crime Commission,107 It was used to strike down the

104 105 106 107

(2009) 240 CLR 319, 379 [140]. See, eg, Baker v The Queen (2004) 223 CLR 513; Fardon v Attorney-General (Qld) (2004) 223 CLR 575. (2004) 223 CLR 513, 535. (2009) 240 CLR 319.

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provisions for making a restraining order against the property of people suspected of engaging in serious crime under the Criminal Assets Recovery Act 1990 (NSW). The Court had to be satisfied that the person had engaged in serious crime before making an order. Once an order was made, an application could be made by the New South Wales Crime Commission for an assets forfeiture order. If the Crime Commission so requested, the restraining order hearing was required to be ex parte, although the subsequent application for an assets forfeiture order had to be with notice to affected people. The majority—French CJ, Gummow, Bell and Heydon JJ—all noted the serious incursions into judicial process made by the ex parte requirement. French CJ explained that the impact the requirement had on notions of natural justice and the judicial function undermined the ‘institutional integrity’ of the court. In contrast, Hayne, Crennan and Kiefel JJ, in dissent, construed the legislation so that it did not modify the ordinary rules that apply to ex parte orders, allowing a party affected by the order to apply for its discharge. The approach is consistent with that taken in cases such as K-Generation, during the period before 2009. The High Court’s new resolve in its application of the Kable principle was tested in a series of cases involving constitutional challenges to a control order regime targeting organised crime and, specifically, outlaw motorcycle gangs. The legislation, known colloquially as the ‘Bikie Bills’, established a regime whereby organisations could be ‘declared’ on the basis that their members associated for criminal purposes. Such declarations had no effect in themselves; however, once an organisation had been declared, applications could be made for control orders against its members. Control orders prohibited members from associating with others, among other restrictions on liberties. South Australia v Totani involved a challenge to the Serious and Organised Crime (Control) Act 2008 (SA) by two members of the Finks Motorcycle Club.108 Under s 10(1) of the Act, the Attorney-General had exercised his power to make a declaration in relation to the Club, on the basis that he was satisfied that members associated for the purpose of ‘organising, planning, facilitating, supporting, or engaging in serious criminal activity’ and that the club represented ‘a risk to public safety and order’. The declaration triggered a number of provisions including s 14, which empowered the Magistrates Court to make control orders against the Club’s members. Subsequent to the making of the declaration, a control order was made by a magistrate in respect of the Club’s sergeant-at-arms, Donald Hudson, which prohibited him from associating with other members of the Club except under certain strict conditions. Under s 14(1), a Magistrates Court ‘must’ make such an order ‘if the court is satisfied that the defendant is a member of a declared organisation’. A second application in respect of 108 (2010) 242 CLR 1.

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Club member Sandro Totani was adjourned. Both men were accepted by all parties as being members of the Club. Totani and Hudson commenced a constitutional challenge to the legislation in the South Australian Supreme Court. The Full Court of South Australia, in a 2:1 decision, accepted that the legislation was unconstitutional on the basis that it breached the Kable doctrine. The High Court confirmed the decision in a 6:1 judgment (Heydon J dissenting). French CJ, Gummow, Crennan, Kiefel and Bell JJ found that the scheme used the courts in a way that was inconsistent with the ordinary judicial process, demonstrating that the courts were acting under the direction of the executive. Key to this finding was that under the scheme, determinations about threats to public safety and order, and engagement in criminal conduct were made by the Attorney-General. The Court was then left only to determine whether the individual was a ‘member’ of a declared organisation. Hayne J’s judgment was slightly different in its focus. His Honour was concerned with the requirement of the court to order several incursions in freedom of association without determining any rights or liabilities at the time the control order was made. Rather, the court was involved in creating ‘new obligations’.109 Heydon J, in dissent, explained the dangers of a broader reading and application of the Kable principle on the democratic policies of state governments. His Honour said:

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South Australia aspires to government by the rule of law. A government seeking to foster the rule of law has a primary duty to preserve the safety of persons within the Queen’s peace, and to preserve the government itself, from criminal violence and other criminal activities. It is a legitimate expectation of the governed that their government will fulfil that duty.110

Heydon J managed to construe the Serious Organised Crime (Control) Act in such a way that it avoided any of the serious incursions into judicial process that were of such concern to the majority (thus adopting an approach seen earlier in K-Generation). International Finance Trust and Totani are significant in that they represent a resurgence in the Kable principle.111 In Wainohu v New South Wales,112 the majority of the High Court held the entire Crimes (Criminal Organisations Control) Act 2009 (NSW) invalid for breach of the Kable principle (Heydon J again dissenting). The New South Wales legislation differed in two main respects from the South Australian regime. First, instead of the Attorney-General making the declaration of an organisation, this function was conferred on a Supreme Court judge persona designata. Second, control orders were made by the Supreme Court, which was given far greater discretion in 109 Ibid 85. 110 Ibid 93–4. 111 See also Kirk v Industrial Court of New South Wales (2010) 239 CLR 531; International Finance Trust Company v New South Wales Crime Commission (2009) 240 CLR 319. 112 (2011) 243 CLR 181.

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determining whether to make a control order. Not only did the Supreme Court have to be satisfied that the person was a member of a declared organisation, there must also be sufficient grounds for making the control order. Nonetheless, when the New South Wales legislation was challenged after the Acting Police Commissioner applied for a declaration against the Hells Angel Motorcycle Club of New South Wales, the High Court found the entire legislation invalid. However, this was on very narrow grounds. The Court held that s 13(2) of the Act—which stated that an eligible judge making a declaration did not have to give reasons—was a significant incursion into the judicial process. While the provision applied to the judge persona designata and not the court, the High Court found that the judge’s function was so closely connected with the court, this would still undermine the court’s institutional integrity. Two aspects of the decision were unexpected. First, there had previously been comments that the conferral of non-judicial functions on judges persona designata at the state level was not subject to limitations as it was at the federal level,113 or, if it was, the limitations were significantly less restrictive.114 The Court in Wainohu, however, accepted that persona designata appointments of state judges could, in some cases, affect the institutional integrity of the courts and therefore fall foul of the Kable principle. Second, in previous persona designata cases at the federal level, the High Court had not held invalid the conferral of functions that did not require judges to give reasons for their decisions. For example, the High Court held that the issue of a telecommunications interception warrant by judges without requiring them to give reasons was valid in both Hilton v Wells,115 and Grollo v Palmer.116 But in Wainohu the provision dispensing with the requirement for judges to give reasons was used to strike down the entire scheme. While finding the entire scheme invalid on the basis of the s 13(2) removal of the ordinary requirement to provide reasons, the High Court dismissed a second basis on which the legislation was challenged. This was that the provisions empowering the court to make control orders were contrary to Chapter III. The High Court accepted that, unlike the South Australian legislation, the New South Wales provisions contained sufficient discretion so that the court was not in danger of acting at the dictation of the executive. In response to the decision, the New South Wales Parliament re-enacted the Crimes (Criminal Organisations Control) Act (NSW) in 2012, without the offending s 13(2). South Australia has also made amendments to the Serious Organised Crime (Control) Act that bring its provisions closer to those that withstood challenge in Wainohu. 113 114 115 116

Kable v Director of Public Prosecutions (NSW) (1996) 189 CLR 51, 103–4 (Gaudron J). Ibid 117–18 (McHugh J). (1985) 157 CLR 57. (1995) 184 CLR 348, discussed above. See also Hogan v Hinch (2011) 243 CLR 506.

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In the 2013 decision of Condon v Pompano, the High Court held that a similar scheme operating in Queensland under the Criminal Organisation Act 2009 (Qld) was constitutional.117 Under the Criminal Organisation Act, the Supreme Court was empowered to make declarations against organisations on the application of the Police Commissioner if satisfied, among other things, that ‘the organisation is an unacceptable risk to the safety, welfare or order of the Community’. The Police Commissioner must state the grounds for an application for a declaration, but was not required to state information that is declared to be ‘criminal intelligence’ in a separate hearing by the Supreme Court. The hearing to determine whether information was criminal intelligence must be ex parte and closed, including to the respondent. The legislation did allow for the Criminal Organisation Public Interest Monitor (a government-appointed lawyer) to attend the hearing, and to ‘test, and make submissions to the court about, the appropriateness and validity of the monitored application’.118 However, it was made clear that the Monitor was not representing the respondent. In any substantive application (for example, for a declaration or a subsequent control order), any part of the hearing in which declared criminal intelligence was considered must also be closed. An application for a declaration was made in the Supreme Court against the Finks, who raised a number of constitutional questions in their defence. The matter was removed to the High Court. The High Court held that even though the scheme created significant incursions into the open court principle, this was not enough to undermine the Court’s institutional integrity. French CJ explained that: The defining or essential characteristics of courts are not attributes plucked from a platonic universe of ideal forms. They are used to describe limits, deriving from Ch III of the Constitution, upon the functions which legislatures may confer upon State courts and the commands to which they may subject them. Those limits are rooted in the text and structure of the Constitution informed by the common law, which carries with it historically developed concepts of courts and the judicial function. Historically evolved as they are and requiring application in the real world, the defining characteristics of courts are not and cannot be absolutes.119

For French CJ, the scheme contained a number of factors that supported its validity despite its incursions into the open court principle, including the discretion vested in the court throughout the process, and its inherent power to make sure the process remained fair to the respondent, the retention of the rules of evidence, and the redress provided by the Public Interest Monitor in closed hearings.120 Hayne, 117 118 119 120

(2013) 252 CLR 38. Criminal Organisation Act 2009 (Qld) s 80. Condon v Pompano (2013) 252 CLR 38, 72 [68]. Ibid 78–9 [87].

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Crennan, Kiefel and Bell JJ relied on the Supreme Court’s overarching discretion in the legislation to determine whether the public interest in retaining confidentiality of criminal intelligence ‘outweighs any unfairness to the respondent’.121 Further, while the criminal intelligence provisions may deny a respondent knowledge of how an allegation will be proven, the allegation itself is known because of the requirement to state the grounds of the application.122 In contrast to French CJ, for Gageler J the principle of procedural fairness was ‘an immutable characteristic of a Supreme Court and of every other court in Australia’ and ‘admits no exceptions’, but may vary in its content.123 Rejecting all of the safeguards contained within the Act as sufficient to save it, Gageler J found that the legislation only avoided incompatibility with Chapter III of the Constitution because it did not remove the Supreme Court’s inherent jurisdiction to stay a substantive application (that is, to make an order suspending the application) where ‘practical unfairness to a respondent becomes manifest’.124 Gageler J’s resolution of the issue is novel, and raises a question about whether all legislation will avoid incompatibility with Chapter III provided the inherent jurisdiction to issue a stay to avoid an abuse of process is maintained. Following the Pompano decision, New South Wales and South Australia both took steps to bring their legislation closer to the Queensland Act held valid in that case. After Wainohu and Pompano, it would appear that, at least for now, the High Court has approved the use of control orders in the states in their present form. The response of the states to the decisions in Totani, Wainohu and Pompano illustrate the point made by Heydon J in International Finance Trust—the Kable principle has undoubtedly operated as a judicial check on legislative excess, even if it has been incapable of striking the laws down in their entirety. One of the interesting points to note is that even in the face of decisions like Totani and Wainohu, the states remained determined to use the courts in the scheme.125 As there is no separation of powers at the state level, the states could have reacted to the decisions by removing the role and therefore oversight of the courts altogether. The states’ reaction, rather, demonstrates an understanding of the importance of judicial oversight, particularly when incursions into liberty are involved. Despite these positive results from the recent cases, the reasoning employed in these cases continues to illustrate the opaque nature of the Kable principle. The cautionary words of Gummow J in Fardon and French CJ in K-Generation are

121 122 123 124 125

Ibid 101 [162]. Ibid 101 [163]. Ibid 105 [177]. Ibid 105 [178], 115 [212]. Although note the move by the Queensland Government to take these types of powers away from the courts in Criminal Law Amendment (Public Interest Declarations) Amendment Act 2013 (Qld) and the Queensland Court of Appeal’s judgment in Attorney-General (Qld) v Lawrence (2013) 306 ALR 281 striking down this attempt.

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worth noting—the Kable principle is not framed in terms that are apt to dictate future outcomes.126 This leaves the state legislatures in a precarious position when responding to serious threats to the community. In Totani, French CJ indicated that the insusceptibility of the Kable principle to codification:

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may require a prudential approach to the enactment of laws directing courts on how judicial power is to be exercised, particularly in areas central to the judicial function such as the provision of procedural fairness and the conduct of proceedings in open  court. It may also require a prudential approach to the enactment of laws authorising the executive government or its authorities effectively to dictate the process or outcome of judicial proceedings.127

The renewed vigour that we saw in the application of the Kable principle to the states’ anti-organised crime control order regimes has not been replicated in other matters. Since 2014, the High Court has upheld a regime in the Northern Territory that allowed for the forfeiture of the property of a person declared a ‘drug trafficker’, even where that property was not connected to the commission of any crime.128 It upheld another regime in the Northern Territory, known as the scheme for ‘paperless arrests’, that allowed the police to arrest a person without a warrant and detain them for up to four hours (or longer if the officer believed the person was intoxicated), on the basis that the officer believed on reasonable grounds the person had committed, was committing or was about to commit an offence.129 In Queensland, the Court rejected a challenge to legislation that empowered a judge to make directions for the indefinite detention of a person convicted of child sex crimes, where the judge was satisfied the person is ‘incapable of exercising proper control over [his or her] sexual instincts’.130 Also in Queensland, the Court upheld anti-organised crime measures that prohibited members of a ‘declared criminal organisation’ from various forms of meeting in public, as well as the wearing of symbols of members of a ‘declared criminal organisations’.131 In Victoria, the Court confirmed the constitutionality of a regime that targeted an individual (that is, ad hominem legislation, in the same way the Community Protect Act 1994 was ad hominem in its targeting of Mr Kable) and severely restricted the conditions under which the parole board may grant that individual parole.132

126 K-Generation Pty Ltd v Liquor Licensing Court (2009) 237 CLR 501, 530 [90] (French CJ), citing Fardon v Attorney-General (Qld) (2004) 223 CLR 575, 618 [105] (Gummow J). 127 South Australia v Totani (2010) 242 CLR 1, 44 [64]. 128 Attorney-General (NT) v Emmerson (2014) 253 CLR 393. 129 North Australian Aboriginal Justice Agency Ltd v Northern Territory (2015) 256 CLR 569. 130 Pollentine v Bleijie (2014) 253 CLR 629. 131 Kuczborksi v Queensland (2014) 254 CLR 51. 132 Knight v Victoria (2017) 345 ALR 560.

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In 2010, the High Court extended the application of the Kable principle beyond institutional integrity and impartiality. In Kirk v Industrial Court of New South Wales the High Court accepted that the supervisory jurisdiction of the Supreme Courts in respect of inferior state courts and the exercise of executive power was also an essential characteristic of Supreme Courts protected by Chapter  III.133 Kirk raised a legislative scenario which, if not constrained by the requirements of Chapter  III, would have allowed state Parliaments to remove significant questions of law from the supervisory jurisdiction of the Supreme Courts and, ultimately, through the appeal avenues guaranteed in s 73 of the Constitution, the High Court. The potential for Australia’s integrated court system and unified common law to be undermined would have been realised had the High Court not accepted an extension of the Kable principle. Kirk also has obvious consequences for the rule of law in Australia, a fact that was reflected in the submissions of the parties and interveners, as well as in the outcome, though not expressly in the decision itself. Mr Kirk was a director of a company that owned a farm in New South Wales. The company had employed a manager to run the farm, as Mr Kirk lived and worked in Sydney, was of poor health and had no farming experience. In 2001, the manager died in an accident on the farm when the all-terrain vehicle (ATV) he was driving overturned. The manager had overloaded the ATV in a manner that was at odds with the ATV manual and had driven down a steep embankment rather than use a gravel road that had been specifically built for travel between different parts of the farm. Mr Kirk and his company were successfully prosecuted, under ss 15 and 16 of the Occupational Health and Safety Act 1983 (NSW), for failing to ensure the safety at work of the farm manager. The interpretation of the Act by the Industrial Court, and the practice of WorkCover in stating the particulars of each charge, had created a situation where it was almost impossible for a defendant to mount a reasonable defence to the charges. Consequently, Mr Kirk’s legal team sought to have the original convictions reviewed for jurisdictional error in the New South Wales Court of Appeal, rather than appeal to the Full Bench of the Industrial Court. Mr Kirk was unsuccessful in the Court of Appeal, and also in a subsequent appeal to the Full Bench of the Industrial Court. An attempt to have the Full Bench decision judicially reviewed in the Court of Appeal was also unsuccessful, and Mr Kirk then applied for judicial review in the High Court. In the judicial review case before the Court of Appeal, Mr Kirk’s lawyers had focused on several alleged ‘jurisdictional errors’ committed by the Industrial Court, including that the Industrial Court had improperly interpreted s 15 and that the defence section had been too narrowly applied, thus rendering it ineffective. The 133 (2010) 239 CLR 531.

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Court of Appeal had dismissed the application on the basis that any such errors rested on findings of fact (rather than law) and were thus not ‘jurisdictional errors’ warranting the grant of certiorari, which would have quashed the decision.134 The reason why the lawyers had been required to demonstrate jurisdictional error was due solely to the existence of an extremely wide privative clause in the relevant New South Wales legislation. Using normal interpretive principles, the clause would be construed as only protecting decisions that were not affected by ‘jurisdictional error’. However, in the absence of an equivalent of s 75(v) of the Constitution (which guarantees the High Court’s jurisdiction to conduct judicial review of the actions of Commonwealth officers: see further discussion in Chapters 8 and 9), it was not clear what constitutional considerations were relevant to the interpretation of the privative clause protecting decisions of the New South Wales Industrial Court. According to the High Court, that answer was to be found in the significant constitutional role accorded the Supreme Court of every state. The High Court applied the Kable principle, as refined in a series of subsequent cases, but particularly in Forge v Australian Securities and Investment Commission, which has been set out in full above.135 Basically, this requires that the state courts maintain their defining characteristics of being courts, and that the Supreme Court maintains its defining characteristics of being a Supreme Court. In Kirk, the High Court accepted that, at federation, the Supreme Courts had each had the power to award the remedy of certiorari for jurisdictional error. The effect of certiorari was to quash the unlawful decision. Furthermore, the Court also accepted that the Supreme Courts’ supervisory power at federation would not be removed by a privative clause contained in a statute. The reasoning proceeded as follows: The supervisory jurisdiction of the Supreme Courts was at federation, and remains, the mechanism for the determination and the enforcement of the limits on the exercise of State executive and judicial power by persons and bodies other than the Supreme Court. That supervisory role of the Supreme Courts exercised through the grant of prohibition, certiorari and mandamus (and habeas corpus) was, and is, a defining characteristic of those courts. And because, ‘with such exceptions and subject to such regulations as the Parliament prescribes’, s 73 of the Constitution gives this Court appellate jurisdiction to hear and determine appeals from all judgments, decrees, orders and sentences of the Supreme Courts, the exercise of that supervisory jurisdiction is ultimately subject to the superintendence of this Court as the ‘Federal Supreme Court’ in which s 71 of the Constitution vests the judicial power of the Commonwealth.136

134 Kirk v Industrial Relations Commission (NSW) (2008) 173 IR 465, 474 [38]–[39] (Spigelman CJ). 135 (2006) 228 CLR 45, 76 (Gummow, Hayne and Crennan JJ). 136 (2010) 239 CLR 531, 580–1 [98] (French CJ, Gummow, Hayne, Crennan, Kiefel, Bell JJ).

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For Mr Kirk, the High Court’s finding meant that the jurisdiction of the New South  Wales Supreme Court to review the decisions of the Industrial Court for ‘jurisdictional error’ was constitutionally protected and could not be removed by the privative clause. What is significant about the High Court’s reasoning in Kirk is that the High Court did not just undertake a historical search for the ‘defining characteristics’ of the Supreme Courts, but articulated the importance of its own supervisory jurisdiction in all state matters. References to the uniform common law were made, together with implicit references to the rule of law and the need to avoid unrestrained or unsupervised power:

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There is but one common law of Australia. The supervisory jurisdiction exercised by the State Supreme Courts by the grant of prerogative relief or orders in the nature of that relief is governed in fundamental respects by principles established as part of the common law of Australia. That is, the supervisory jurisdiction exercised by the State Supreme Courts is exercised according to principles that in the end are set by this Court. To deprive a State Supreme Court of its supervisory jurisdiction enforcing the limits on the exercise of State executive and judicial power by persons and bodies other than that Court would be to create islands of power immune from supervision and restraint.137

The effect of Kirk is to entrench a minimum requirement of judicial review at the state  level. Kirk is therefore the state equivalent of Plaintiff S157/2002 v Commonwealth,138 discussed in Chapter  8, though that case rests upon the express words of s 75(v), whereas Kirk rests upon the Kable principle (as developed in subsequent cases) implied from the terms of Chapter III. The implications for the rule of law are clear: the High Court has strengthened its position as the ultimate court of appeal with supervisory jurisdiction in relation to all substantive errors of law; the High Court retains the ultimate authority to check the excess of power by state and federal public officers; and it now lies beyond the power of any Australian Parliament to create courts and tribunals outside the integrated court system envisaged by Chapter III. In 2018, the High Court found a further implication in Chapter III of the Constitution as it relates to the states, this time affecting not state courts but the state tribunal system. In Burns v Corbett,139 the High Court upheld a challenge to New South Wales legislation that conferred jurisdiction to hear disputes between residents of different states on the New South Wales Civil and Administrative Tribunal (‘NCAT’). It was common ground between the parties that NCAT was not a

137 Ibid 581 [99] (French CJ, Gummow, Hayne, Crennan, Kiefel, Bell JJ). 138 (2003) 211 CLR 476. 139 [2018] HCA 15.

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court of the state, but an administrative body. The High Court held that Chapter III, and specifically ss 75 and 76 of the Constitution which vest or give the Parliament power to vest original jurisdiction in the High Court, contains an implied limitation preventing state administrative bodies from exercising this jurisdiction. The Court found that Chapter III of the Constitution was predicated on the basis that these matters would be adjudicated by the courts conferred with jurisdiction under that chapter, and not by administrative bodies of the states. This decision has potentially far-reaching consequences for the jurisdiction of state tribunals, which are now no longer able to exercise jurisdiction, for instance, between residents of different states (a matter of federal jurisdiction under s 75(iv)).

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Conclusion In applying the limitations on legislative power that derive from Chapter III of the Constitution, the High Court has been able to protect, to some degree, fundamental individual rights, including the right to a fair trial, due process and freedom of association. However, it has been reluctant to use Chapter III to expressly or absolutely protect these rights and in many instances, starkly illustrated by the cases considering the constitutionality of immigration detention, it has not been used to address serious incursions into fundamental liberties. The Court’s approach to its application of both the Boilermakers’ and Kable principles has recognised the states’ duty to protect the security and safety of the Australian community, while ensuring a minimum level of safeguards for individual rights are maintained. In a community where individual liberties are not enshrined in a human rights instrument, it falls more heavily on the shoulders of the legislature and executive to implement policies that reflect their obligations not only to the community, but also to individual human rights. These themes are considered again in Chapter 12, when we look directly at human rights protection in Australia.

DISCUSSION QUESTIONS 1

To what extent does Chapter III of the Constitution protect human rights?

2

Explain when the executive can detain individuals without the involvement of the judiciary. Do you think the executive should ever be able to detain individuals without judicial involvement?

3

Why did the courts develop the persona designata doctrine? Do you agree that a distinction can be drawn between a judge exercising powers in their personal capacity and a judge exercising powers as a member of the court?

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Explain how the High Court derived the Kable doctrine from Chapter III of the Constitution. Consider the extent to which the Kable doctrine is different from the Boilermakers’ doctrine. Is there a good reason for this difference?

FURTHER READING Rebecca Ananian-Welsh, ‘Kuczborski v Queensland and the Scope of the Kable Doctrine’ (2015) 34 University of Queensland Law Journal 47 Gabrielle Appleby and John Williams, ‘A New Coat of Paint:  Law and Order and the Refurbishment of Kable’ (2012) 40 Federal Law Review 1 A J Brown, ‘The Wig or the Sword? Separation of Powers and the Plight of the Australian Judge’ (1992) 21 Federal Law Review 48 Elizabeth Handsley, ‘Public Confidence in the Judiciary: A Red Herring for the Separation of Judicial Power’ (1998) 20 Sydney Law Review 183 Stephen McDonald, ‘Involuntary Detention and the Separation of Judicial Power’ (2007) 35 Federal Law Review 25 James Stellios, The Federal Judicature: Chapter III of the Constitution (LexisNexis, 2010) Anthony Mason, ‘A New Perspective on the Separation of Powers’ (1996) 82 Canberra Bulletin of Public Administration 1 Denise Meyerson, ‘Extra-judicial Service on the Part of Judges: Constitutional Impediments in Australia and South Africa’ (2003) 3 Oxford University Commonwealth Law Journal 181 Fiona Wheeler, ‘The Doctrine of Separation of Powers and Constitutionally Entrenched Due Process in Australia’ (1997) 23 Monash University Law Review 248

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George Winterton, ‘The Separation of Judicial Power as an Implied Bill of Rights’ in Geoffrey Lindell (ed), Future Directions in Australian Constitutional Law: Essays in Honour of Professor Leslie Zines (Federation Press, 1994) 185 Matthew Zagor, ‘Uncertainty and Exclusion: Detention of Aliens and the High Court’ (2006) 34 Federal Law Review 127

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CHAPTER OVERVIEW Introduction

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The process of interpretation

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The contemporary approach to statutory interpretation

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The principle of legality

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The special case of constitutional interpretation

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Conclusion 

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Introduction The interpretation of the words of statutory instruments is fundamental to the practice of law. This is increasingly true as statutory rules grow in number and replace the dominance of the common law. Since the 1970s, Australian parliaments have been extremely active in the codification and reform of existing common law rules and the introduction of statutory regulation in new arenas.1 With the growth of statutes— both in the form of primary and delegated legislation—we have seen a growth in the exercise of the function of interpreting those statutes. While statutory interpretation is a fundamental function of law and lawyers, it is a peculiar public law function in a number of senses. In this book, we will explore the rules and application of statutory interpretation through this prism. The creation of laws involves an exercise of public law, as does their interpretation. According to the distribution of functions across the institutions of government, it is the judiciary who interprets the law. It is of vital importance to the separation of powers that this role lies with the judiciary. Since the judiciary has no power to make or apply law, it has no vested interest in maximising the power of government through the interpretation of laws. On the other hand, if the executive were empowered to have the final word on the interpretation of the extent of its legal authority, there would be no effective check on the extent of that authority. The existence of an independent judiciary is a fundamental element of the rule of law. While it is certainly true that it is the judiciary’s role to provide the authoritative interpretation of statutory words in the context of disputes before them, the judiciary’s role as the interpreter of law hides a much more complex system that involves the executive and individual citizens in the interpretation of laws. Indeed, it is the executive branch of government that does the day-to-day work of statutory interpretation: every time a government official considers the statutory criteria for making a decision, they are engaged in a process of statutory interpretation. As we will see, in this process, the government official will be guided by the decisions and principles set down by the Parliament and the courts, and often they will seek legal advice to inform their decision. The government decision maker will also face the prospect of having their decision challenged by an aggrieved person in the courts, or some other forum of review such as a tribunal. But, in the vast majority of instances, the decision maker’s interpretation is never challenged, leaving their interpretation as the final one. Where a challenge in the courts occurs, the judges will clarify the legal

1

See further Anthony J Connolly and Daniel Stewart, ‘Public Law and a Public Lawyer in the Age of Statutes’ in Anthony J Connolly and Daniel Stewart (eds), Public Law in the Age of Statutes: Essays in Honour of Dennis Pearce (Federation Press, 2015) 1.

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meaning of the text for future application by executive officers. However, even then, the meaning of a text may take on a different nuance in a different factual context, and the executive will again be making interpretative decisions on the meaning of the law. Leaving to one side interpretation by the different branches of government, individuals and corporations frequently interpret laws themselves with no recourse to the institutions of government. People regularly decide for themselves how quickly they need to slow down when entering a new speed zone, or read council by-laws to determine who has responsibility for the maintenance of fences, trees or retaining walls on the boundary between neighbours. Public law dictates that the interpretation of laws occurs within and must remain faithful to the separation of powers between the institutions of government. This constitutional relationship affects statutory interpretation in a number of ways. In our constitutional system, Parliament is empowered to make statutes, and, in recognition of this role, courts interpret laws in accordance with parliamentary intention.2 As the High Court recognised: ‘judicial findings as to legislative intention are an expression of the constitutional relationship between the arms of government with respect to the making, interpretation and application of laws’.3 The principles of statutory interpretation assist courts and others to reveal Parliament’s intention as expressed through the text of a law. As we will see, these principles have been developed both by courts and parliaments. The rules of statutory interpretation ensure that the courts remain faithful to parliamentary intention and do not themselves become lawmakers, thus respecting their constitutional roles. The separation of powers influences statutory interpretation in other ways. For instance, Parliament retains the power to overturn judicial interpretation of its statutory words by passing amending legislation. So, if a court interprets a statute in a way that was not intended by Parliament, Parliament can introduce a new law that achieves its purpose. Although this is the case in theory, in practice, passing a new law through both houses of Parliament may involve difficult negotiations with non-government parties. Previous indications of support for a law may change, and the court’s interpretation of the law may itself bear an influence on future legislative action. Across the legislative and judicial branches of government then, there is a constant interaction, sometimes referred to in constitutional theory as a ‘dialogue’ on how statutes should be interpreted. This dialogue occurs at the boundary of judicial and legislative power, with courts developing principles, and parliaments either

2 3

Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355, 384 (McHugh, Gummow, Kirby and Hayne JJ). Zheng v Cai (2009) 239 CLR 446, 455 (French CJ, Gummow, Crennan, Kiefel and Bell JJ).

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accepting them or overriding them by developing their own principles in legislation that the courts are then bound to apply.4 Statutory interpretation is also a public law function because it is integral to the application of public law rules and principles. We see this particularly in administrative law, because statutes are the means through which Parliament confers powers on the executive and, to a lesser extent, the judiciary. Therefore, statutory interpretation plays a fundamental role in determining the extent of the power of government. Where government officials make decisions and take actions under statutes they engage in an ongoing task of statutory interpretation, and individuals can seek review of their decisions on the basis the official took an incorrect interpretation of a statute. We also see the prevalence of statutory interpretation in constitutional law, because in determining whether a statute has been validly enacted under the Constitution, the first task is always to determine the correct interpretation and scope of that statute. One area of constitutional law in which this is particularly notable is where the court is asked to determine whether a Commonwealth law and a state law are inconsistent under s 109 of the Constitution, in which case the state law will be invalid. The High Court has repeatedly emphasised that in determining whether two laws are inconsistent, they must first be properly construed. As Gummow J said in Momcilovic v The Queen: the central question is one ‘of statutory interpretation to discern legislative “intent”’.5 The Parliament has also intertwined statutory interpretation and the Constitution in other ways. For instance, it is very common for the Commonwealth Parliament to pass laws that apply to what are known as ‘constitutional corporations’. These are those corporations—‘foreign corporations, and trading or financial corporations formed within the limits of the Commonwealth’—over which the Commonwealth Parliament has legislative jurisdiction in s 51(xx) of the Constitution. When drafting legislation, Parliament often simply picks up the language in s 51(xx), which means that to determine whether the law applies to a particular corporation requires recourse back to the constitutional words. Public law has a strong influence on the development of statutory interpretation principles. As Professor Cheryl Saunders explains, the Australian Constitution has influenced ‘the determination and use of legislative intent for the purposes of statutory interpretation’.6 The Constitution itself has given rise to the statutory presumption that Parliament intended words to have a meaning that is within its

4 5 6

See also Robert French, ‘The Courts and the Parliament’ (2013) 87 Australian Law Journal 820, 824. (2011) 245 CLR 1, 116 [261]. See further Cheryl Saunders, ‘Constitutional Dimensions of Statutory Interpretation’ in Anthony J Connolly and Daniel Stewart (eds), Public Law in the Age of Statutes: Essays in Honour of Dennis Pearce (Federation Press, 2015) 27, 36.

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constitutional power, and that the courts should read down or sever words that go beyond its powers.7 Mindful of the constraints of the separation of powers, the courts cannot go too far in this task and rewrite the law. This presumption is often associated with the idea of judicial parsimony; that is, the court will be reluctant to strike down a law on constitutional grounds if it can interpret the law in such a way as to avoid that outcome. Public law principles, particularly the rule of law and the protection of human rights, also have had a strong influence on the development of the principles of statutory interpretation. We see this, for instance, in the presumption that legislation does not operate retrospectively, which reflects the fundamental tenets of the rule of law that the law be prospective, known and certain. The principle of legality, which we consider in particular detail later in this chapter, is a presumption that Parliament did not intend to legislate in a way that intrudes on fundamental common law rights. This presumption clearly aligns with the liberal constitutional values of respecting individual rights against state incursion. Finally, statutory interpretation manifests itself in a unique way in public law in the form of constitutional interpretation, which is, as we discuss at the end of this chapter, a special form of statutory interpretation.

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The process of interpretation In our legal tradition, laws are usually expressed in written form—either in the words of the judges in case law or in the words of legislators in legal instruments such as constitutions, statutes and delegated legislation. While there are some unwritten sources for rules, such as conventions, these are non-justiciable and contests around their interpretation occur in the political, and not the legal, sphere. A fundamental assumption of legal systems that aspire to the rule of law is that written laws are capable of yielding a particular meaning, so that they can be made, applied and interpreted with consistency, and can act as a guide to lawful conduct. Words themselves have no meaning until they are brought to life through interpretation. For this reason, it is more accurate to say that a legal document only becomes ‘law’ when it is interpreted for the purpose of being applied to a particular set of facts that have arisen, or resolving a particular legal dispute. It is in this interpretation and application that the law has consequences for people, industry and government. As American law professor Karl N Llewellyn would tell his first year

7

Acts Interpretation Act 1901 (Cth) s 15A; Legislation Act 2001 (ACT) s 120; Interpretation Act 1987 (NSW) s 31; Interpretation Act 1978 (NT) s 59; Interpretation of Legislation Act 1984 (Vic) s 22; Acts Interpretation Act 1954 (Qld) s 9; Acts Interpretation Act 1915 (SA) s 22A; Acts Interpretation Act 1931 (Tas) s 3; Interpretation Act 1984 (WA) s 7.

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law students, the rules of the law are important only insofar as they influence and help lawyers predict what judges will do, and how they will act in a given dispute. He warned his students of the importance and limitations of the rules of law, telling them ‘[y]ou will discover that you can no more afford to overlook them than you can afford to stop with having learned their words’.8 There exist a range of views in literary theory on what it means to derive meaning from texts, and on the possibility of doing so. On one hand, positivists believe texts are capable of a determinate meaning. Acclaimed Italian novelist and author Umberto Eco once explained that ‘[b]etween the unattainable intention of the author and the arguable intention of the reader there is the transparent intention of the text which disproves an untenable interpretation’.9 The process of interpretation is simply a matter of applying syntactical rules to uncover that meaning. Positivists have had a deep and long-lasting impact on the approach to interpreting legal texts, with a persistent view that judges, when they apply the principles of statutory interpretation, are doing so in an endeavour to reveal the single correct meaning. This is closely associated with one of the traditional principles of the English system of common law, the ‘declaratory theory’ of judicial-decision making. According to the declaratory theory, judges, when they are engaging in common law reasoning, whether to interpret the words of a statute or to apply a common law principle, are uncovering the law, not creating it or making choices as to what it might be.10 At the other end of the spectrum are literary theorists who question the possibility of textual certainty. Philosopher Richard Rorty stated, ‘I should think that a text just has whatever coherence it happened to acquire during the last roll of the hermeneutic wheel, just as a lump of clay only has whatever coherence it happened to pick up at the last turn of the potter’s wheel’.11 The study of hermeneutics, which is the critical theory of interpretation, explores the relations between author, text and interpreter. One of the most important scholars of hermeneutics, Hans-Georg Gadamer, outlined a number of the factors that affect the understanding of a text and have a clear application to legal interpretation. First,

8 9 10

11

Karl N Llewellyn, The Bramblebush: The Classic Lectures on the Law and Law School (Oxford University Press, first published 1930, 2008 ed) 7–8. Umberto Eco, ‘Between Author and Text’ in Stefan Collini (ed), Interpretation and Overinterpretation (Cambridge University Press, 1992) 67, 78. In his Commentaries on the Laws of England, William Blackstone stated that the role of the judge is to determine the law ‘not according to his own private judgment, but according to the known laws and customs of the land’, so that the judge is ‘not delegated to pronounce a new law, but to maintain and expound the old one’: William Blackstone, Commentaries on the Laws of England (Clarendon Press, first published 1765–69, 1827 ed). See also Allan Beever, ‘The Declaratory Theory of Law’ (2013) 33(3) Oxford Journal of Legal Studies 421. Richard Rorty, ‘The Pragmatists Progress’ in Stefan Collini (ed), Interpretation and Overinterpretation (Cambridge: Cambridge University Press, 1992) 89, 89.

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interpreters enter the process of interpretation with predetermined ideas of what the text means based on their own experience. To get beyond their own projected meaning for a text, interpreters need to ‘be aware of [their] own bias[es], so that the text can … present itself in all its otherness and thus assert its own truth’.12 Second, the meaning of a text is dependent on its history. For Gadamer, the better interpretation is one that is more consistent with the history and tradition of the text. However, interpreters’ ability to uncover and understand this history depends on their ability to unpack their own biases and preconceptions as to the meaning of the text.13 Because of the central role of the interpreter to the process, and because each reading of a text occurs in a new and unique context, each reading of a text produces a new interpretation.14 The relationship between author, text and interpreter are all relevant factors to the process of legal interpretation. However, legal interpretation occurs within a very particular context. First, the law is interpreted to determine legal rights and responsibilities, and resolve disputes between parties to a dispute. Therefore, in law, interpretation is instrumental. Whereas a work of literature can have multiple meanings, none of which need be determinative, in the legal context a particular interpretation must be settled upon in an individual case to govern the outcome. So the indeterminacy of texts in a legal context does not lead to a conclusion that there is no single interpretation; it just points to the need to use other contextual information and interpretative techniques to reach a conclusion on the meaning of a law. Second, the author of legal texts is an institution, usually the Parliament, but also a member of the executive in relation to delegated legislation. These institutions have a particular role in making legal texts—to alter the law to achieve some public objective, which should influence how they are received and interpreted. The institutional nature of the author can also complicate questions of authorial intention, particularly where the author is actually the collective of hundreds of individual parliamentarians who might pass the legislation in pursuant of individual agendas. As High Court Justice Stephen Gageler explained, ‘[t]he intention of the legislature is not the psychological state of mind of any one or more legislators’.15 Third, when the judiciary interpret and apply a legal text to resolve a legal dispute, that judicial interpretation of the text carries authority for the future and must be considered, and sometimes must be followed (the principle of stare decisis) in any future interpretation of the text.

12

13 14 15

Hans-Georg Gadamer, Truth and Method (Joel Weinsheimer and Donald Marshall trans, Sheed and Ward, 2nd revised ed, 1993) 269 [trans of: Wahrheit und Methode: Grundzüge einer philosophischen Hermeneutik (2nd ed, 1965)]. Alexander Reilly, ‘Reading the Race Power: A Hermeneutic Analysis’ (1999) 23 Melbourne University Law Review 476, 477–8. Gadamer, above n 12, 309. Stephen Gageler, ‘Legislative Intention’ (2015) 41 Monash Law Review 1, 7.

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In what follows we interrogate how these factors peculiar to law have shaped the approach to statutory interpretation.

The contemporary approach to statutory interpretation As we have already emphasised, an interpretation that accords with Parliament’s intention is the primary factor in statutory interpretation, as it reflects the constitutional position of the Parliament as the institution responsible for making laws. This is commonly referred to as the ‘purposive’ approach to interpretation. It can be contrasted to the ‘literal’ approach to interpretation, which elevates the words of the statute as the guiding and, in some extreme versions, the only principle in construction. All Australian parliaments have now mandated that courts adopt the purposive approach.16 For example, s 15AA of the Acts Interpretation Act 1901 (Cth) states:

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In interpreting a provision of an Act, the interpretation that would best achieve the purpose or object of the Act (whether or not that purpose or object is expressly stated in the Act) is to be preferred to each other interpretation.

The search for parliamentary intention accepts that words do not necessarily yield certain meanings without an active process of interpretation. The first barrier to determining Parliament’s intention is to understand what it means for Parliament to have an intention at all. As we discussed in Chapter 6, the making of laws is a complex process. The path from drafting to final assent can involve a whole range of steps, including long and contentious debates in either or both houses of Parliament, and inquiries into the merits of legislation by parliamentary committees which have taken on the opinions of members of the public and government and non-government bodies after public inquiries. A law may pass both houses by slim majorities with a large minority of members opposing the law. The High Court has recognised, therefore, that parliamentary intention ‘is not an objective collective mental state. Such a state is a fiction which serves no useful purpose. Ascertainment of legislative intention is asserted as a statement of compliance with the rules of construction … which are known to parliamentary drafters and the courts’.17

16

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Acts Interpretation Act 1901 (Cth) s 15AA; Legislation Act 2001 (ACT) s 139; Interpretation Act 1987 (NSW) s 33; Interpretation Act 1978 (NT) s 62A; Acts Interpretation Act 1954 (Qld) s 14A; Acts Interpretation Act 1915 (SA) s 22; Acts Interpretation Act 1931 (Tas) s 8A; Interpretation of Legislation Act 1984 (Vic) s 35; Interpretation Act 1984 (WA) s 18. Lacey v Attorney-General (Qld) (2011) 242 CLR 573, 592.

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In Project Blue Sky v Australian Broadcasting Authority, the Court provided an authoritative statement of its role in statutory interpretation, which clarifies the search for parliamentary intent. In ascertaining the meaning of statutory terms, the search is not for Parliament’s actual intention, but what Parliament can be taken to have intended.18 This distinction relieves the Court of engaging in a fictitious exercise, but also provides much greater scope for judicial discretion in the process of interpretation. In Australia, the High Court has emphasised the importance of paying attention to three factors in the interpretation of laws: the text of the law, the context of the law, and the purpose of the law. Each of these factors is interlinked to the search for parliamentary intention. As the High Court explained in the case of Project Blue Sky Inc v Australian Broadcasting Authority: the duty of a court is to give the words of a statutory provision the meaning that the legislature is taken to have intended them to have. Ordinarily, that meaning (the legal meaning) will correspond with the grammatical meaning of the provision. But not always. The context of the words, the consequences of a literal or grammatical construction, the purpose of the statute or the canons of construction may require the words of a legislative provision to be read in a way that does not correspond with the literal or grammatical meaning.19

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The blended approach of considering the three factors of text, context and purpose is not necessarily an easily applicable or predictable one. Indeed, it is often unclear what weight a judge will place on one factor over another, and how distinct the factors are from each other, particularly the distinction between context and purpose. The High Court has repeatedly emphasised that the starting point must always be the text. One of the strongest statements of this position was in Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue, when Hayne, Heydon, Crennan and Kiefel JJ said: This Court has stated on many occasions that the task of statutory construction must begin with a consideration of the text itself. Historical considerations and extrinsic materials cannot be relied on to displace the clear meaning of the text. The language which has actually been employed in the text of legislation is the surest guide to legislative intention.20

As this passage reveals, sometimes the text itself will be straightforward, and there will be no need to resort to other factors to provide a determinate meaning. In these cases, the text reveals parliamentary intention.

18 19 20

(1988) 194 CLR 355, 384 (McHugh, Gummow, Kirby and Hayne JJ). Ibid. (2009) 239 CLR 27, 46–7.

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However, in most cases there will be more than one meaning open on the face of a law, and the context will be necessary to determine Parliament’s intent. Sometimes ambiguity arises as a result of the multiple meaning of words (semantic ambiguity). For example, the word ‘bank’ can mean a financial institution, land adjacent to a river, or a place to store blood. Sometimes ambiguity arises from the placement of words in a sentence. For example, a ‘race between vehicles’ might mean two vehicles are in a race, or it might refer to a foot race that occurs within the proximity of, and between, two vehicles. These textual ambiguities can sometimes be easily resolved through reading a particular phrase in the context of other sections of an Act. This will include looking through the whole scheme of the Act, as well as where the same words are used in different sections of the Act. Some ambiguities are less straightforward to resolve, and require interpreters to make choices about what interpretation is most in keeping with the intention of Parliament. In all Australian jurisdictions, if the text and the context do not reveal Parliament’s intent, the next step is to consider the purpose of the law, as gleaned from express objects clauses or from extrinsic materials. Parliaments use a number of techniques to convey the purpose of laws. First, statutes conventionally contain ‘objects’ clauses, which outline in general terms the purpose of the statute. For instance, the objects clause of the Migration Act 1958 (Cth) states that its object is as follows:

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The object of this Act is to regulate, in the national interest, the coming into, and presence in, Australia of non-citizens.21

In addition to these express statements of objects, interpretation acts authorise courts to look at extrinsic materials to determine the purpose of the law. Section 15AB of the Acts Interpretation Act (Cth) includes a list of extrinsic materials to which courts may refer, such as reports of royal commissions, law reform commissions, or parliamentary committees, international legal materials, the explanatory memorandum of the Act and the Minister’s second reading speech. Section 15AB indicates that this extrinsic material might be used in one of two ways: 

21

(a)

to confirm that the meaning of the provision is the ordinary meaning conveyed by the text of the provision taking into account its context in the Act and the purpose or object underlying the Act; or

(b)

to determine the meaning of the provision when: (i) the provision is ambiguous or obscure; or (ii) the ordinary meaning conveyed by the text of the provision taking into account its context in the Act and the purpose or object underlying the Act leads to a result that is manifestly absurd or is unreasonable.

Migration Act 1958 (Cth) s 4(1).

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While s 15AB has attempted to clarify when resort to extrinsic material is authorised, the High Court has been less directed on this point. For instance, French CJ, Hayne, Crennan, Bell and Gageler JJ have said in Federal Commissioner of Taxation v Consolidated Media Holdings Ltd that ‘context includes legislative history and extrinsic materials’.22 In CIC Insurance Ltd v Bankstown Football Club Ltd, Brennan CJ, Dawson, Toohey and Gummow revealed the complexity of when the Court thought it appropriate to refer to extrinsic materials: the modern approach to statutory interpretation (a) insists that the context be considered in the first instance, not merely at some later stage when ambiguity might be thought to arise; and (b) uses ‘context’ in its widest sense to include such things as the existing state of the law and the mischief which, by legitimate means such as [reference to reports of law reform bodies], one may discern the statute was intended to remedy … 23

Despite the aid of objects clauses and extrinsic materials, the purpose of an Act may still lack clarity. In Carr v Western Australia, Gleeson CJ pointed out that ‘[the purposive approach] may be of little assistance where a statutory provision strikes a balance between competing interests, and the problem of interpretation is that there is uncertainty as to how far the provision goes in seeking to achieve the underlying purpose or object of the Act’.24 Courts also face a dilemma when the apparent purpose of the Act, as reflected in the extrinsic materials, is not available based on the actual words used. Is it permissible to stretch the words of Parliament to achieve the purpose? Mason CJ, Wilson and Dawson JJ warned in Re Bolton; Ex Parte Beane that ‘[t]he words of a Minister must not be substituted for the text of the law’.25 In Mills v Meeking, Dawson J held that: 

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if the literal meaning of a provision is to be modified by reference to the purposes of the Act, the modification must be precisely identifiable as that which is necessary to effectuate those purposes and it must be consistent with the wording adopted by the draftsman.26

As well as statutory aids to interpretation, courts draw on a range of common law rules to assist in the process of interpretation, and to determine what Parliament intended when they used particular words, or adopted particular grammatical and syntactical tools. These common law rules operate as presumptions; that is, they apply unless there is an indication either by express parliamentary words or necessary implication to the contrary.

22 23 24 25 26

Federal Commissioner of Taxation v Consolidated Media Holdings Ltd (2012) 250 CLR 503, 519. (1997) 187 CLR 384, 408 (citations omitted). (2007) 232 CLR 138, 143. (1987) 162 CLR 514, 518. (1990) 169 CLR 214, 235.

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First, there are rules for how words should be read in particular statutory contexts. Some of the common syntactical presumptions, still referred to by their Latin maxims, include: Ejusdem generis: general words are limited to the same kind as particular words. For example, s 51(v) of the Constitution grants Parliament the power to make laws with respect to ‘postal, telegraphic, telephonic, and other like services’. The specific terms create a genus which determines the meaning of ‘other like services’. Under s 51(v), the High Court has held that s 51(v) empowers the Parliament to regulate radio,27 and television,28 but not newspapers. Nocitur a sociis: the meaning of a word is known from the accompanying words. So the meaning of ‘bank’ is clear from the accompanying words in the sentence: Go to the bank and sit under a tree’. Expressio unius est exclusio alterius: the express mention of something may draw attention to the absence of something else. The statement ‘Bank accounts can be opened by those 18 years of age and over’ clearly draws attention to the fact that those under 18 are not able to open bank accounts. Although in this example, the principle would not apply to the inverse: ‘Bank accounts can be opened by those under 18 years of age’. Generalia specialibus non derogant: where there is a conflict between general and specific provisions, the specific provisions prevail.29

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In addition to these syntactical rules, there are more substantive presumptions about what Parliament did or did not intend. 30 For instance, we have already seen the presumption that Parliament will legislate within its constitutional powers. At the federal level, we see this now given expression in s 15A of the Acts Interpretation Act (Cth):  Every Act shall be read and construed subject to the Constitution, and so as not to exceed the legislative power of the Commonwealth, to the intent that where any enactment thereof would, but for this section, have been construed as being in excess of that power, it shall nevertheless be a valid enactment to the extent to which it is not in excess of that power.

Other statutory presumptions are that statutes have only a prospective effect.31 For example, where a statute creates a new crime, the courts presume it applies after the passing of the law, and does not render action that was lawful at the time it was carried out unlawful. Courts will also assume that there is a mens rea (intention)

27 28 29 30 31

R v Brislan; Ex Parte Williams (1935) 54 CLR 262. Jones v Commonwealth [No 2] (1965) 112 CLR 206. See further discussion of the syntactical presumptions in Dennis Charles Pearce and Robert Stanley, Statutory Interpretation in Australia (LexisNexis, 8th ed, 2014) 169–91. See ibid 255–9. Maxwell v Murphy (1957) 96 CLR 261, 267 (Dixon CJ).

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element to crimes, even if not specified,32 and that statutes do not intend to deprive people of access to the courts.33 There is a presumption, although it has weakened, that statutes do not bind the Crown.34 Statutes are presumed to operate within their jurisdiction; that is, not to have an extraterritorial effect.35 There are presumptions that statutes will be interpreted in accordance with Australia’s international legal obligations.36 This is also known as the presumption of consistency: that the Parliament will be presumed to have intended to legislate in accordance with international law.37 Other presumptions are that beneficial statutes are construed broadly,38 and penal and taxation statutes must be construed strictly.39 Legislation is presumed not to affect an acquisition of property without adequate compensation (and, at the federal level in Australia, the Parliament is constitutionally prohibited from doing so under s 51(xxxi)).40 One of the most important presumptions of statutory interpretation in recent years has been the presumption known as the ‘principle of legality’.

The principle of legality

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The idea behind the principle of legality is that the rights and duties created by statute need to be considered in the context of the broader legal framework within which the statute is enacted. This framework includes the fundamental rights of individuals against the state. It is assumed that statutes did not intend to violate these rights, and if they are intended to, this must be expressed in unambiguous language. Recognised since 1908 in Australia,41 a common formulation of the statement of the principle is now taken from that of Lord Hoffman in R v Secretary of State for the Home Department; Ex parte Simms: Parliamentary sovereignty means that Parliament can, if it chooses, legislate contrary to fundamental principles of human rights. … The constraints upon [this power] are ultimately political, not legal. But the principle of legality means that Parliament must squarely confront what it is doing and accept the political cost. Fundamental rights cannot be overridden by general or ambiguous words. This is because there is too

32 33 34

35 36 37 38 39 40 41

He Kaw Teh v The Queen (1985) 157 CLR 523. Plaintiff 157/2002 v Commonwealth (2003) 211 CLR 476. See the modern approach in Bropho v State of Western Australia (1990) 171 CLR 1 and Commonwealth v Western Australia (1999) 196 CLR 392, 410 (Gleeson CJ and Gaudron J), although the presumption has been reversed in South Australia: Acts Interpretation Act 1915 (SA) s 20. Jumbunna Coal Mine NL v Victorian Coal Miners’ Association (1908) 6 CLR 309, 363 (O’Connor J). Ibid. Minister for Immigration and Ethnic Affairs v Teoh (1995) 183 CLR 273, 287. Bull v Attorney-General (NSW) (1913) 17 CLR 370, 384 (Isaacs J). Scott v Cawsey (1907) 5 CLR 132, 154–5 (Isaacs J). Clissold v Perry (1904) 1 CLR 363, 373 (Griffith CJ). Potter v Minahan (1908) 7 CLR 277.

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great a risk that the full implications of their unqualified meaning may have passed unnoticed in the democratic process. In the absence of express language or necessary implication to the contrary, the courts therefore presume that even the most general words were intended to be subject to the basic rights of the individual.42

The principle of legality draws attention to the relationship between the judiciary and the Parliament. It presents a way for the judiciary to guard against excessive power of Parliament and the executive through the process of interpretation, while purporting to be simply upholding the will of Parliament. This was acknowledged by former Chief Justice of the New South Wales Supreme Court, James Spigelman, who stated, ‘the protection which the common law affords to the preservation of fundamental rights is, to a very substantial degree, secreted within the law of statutory interpretation’.43 The principle of legality is also sometimes referred to as the ‘clear statement’ rule, reflecting the idea that the Parliament must be clear in its intentions to abrogate fundamental rights, and in the absence of a clear statement, the court will interpret parliamentary language in a rights-consistent way.44 The principle of legality reflects aspects of a ‘dialogue’ model of rights protection that we discuss in Chapter 12. So, for instance, s 32(1) of the Charter of Human Rights and Responsibilities Act 2006 (Vic) states: 

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So far as it is possible to do so consistently with their purpose, all statutory provisions must be interpreted in a way that is compatible with human rights.

The human rights that this provision of the Charter refers to are set out in an earlier part of the Charter itself. However, under the principle of legality, there is no such codification of the rights that engage it, or even an indication of the process by which they are determined.45 The rights that the courts draw on to limit the scope of legislation are not found in Commonwealth or state constitutions. From one point of view, they pre-date these documents, and are the fundamental principles upon which they are built. This still provides little guidance as to what they extend to. The courts have used the principle of legality to protect rights such as the right of citizens to re-enter Australia,46 to personal liberty,47 the right to property and to 42 43 44

45 46 47

[2000] 2 AC 115, 131. See also Bropho v Western Australia (1990) 171 CLR 1, 18 (Mason CJ, Deane, Dawson, Toohey, Gaudron and McHugh JJ). James Spigelman, Statutory Interpretation and Human Rights (University of Queensland Press, 2008) 12. See J J Spigelman, ‘Principle of Legality and the Clear Statement Principle’ (2005) 79 Australian Law Journal 769; John Basten, ‘The Principle of Legality—An Unhelpful Label?’ in Dan Meagher and Matthew Groves (eds) The Principle of Legality in Australia and New Zealand (Federation Press, 2017)  74; Dan Meagher, ‘The Principle of Legality as Clear Statement Rule: Significance and Problems’ (2014) 36 Sydney Law Review 413. Meagher, above 44. Potter v Minahan (1908) 7 CLR 277, 305 (O’Connor J). Re Bolton; Ex parte Beane (1987) 162 CLR 514, 523. See also some judgments in Al-Kateb v Godwin (2004) 219 CLR 562.

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prevent trespass,48 the right to procedural fairness, open court and the presumption of innocence,49 freedom of speech,50 and the privilege against self-incrimination.51 From another point of view, these underlying rights have not received the endorsement of the people, and might be considered an impermissible judicial encroachment on parliamentary sovereignty. Scott Stephenson suggests that it is ‘increasingly difficult to presume that the legislature intends to act in a manner that minimally affects rights’.52 He points to the fact that much legislation in the modern era, such as anti-terror laws, expressly limits certain fundamental rights. There are a number of responses to the concern of judicial overreach in relation to the principle of legality. First, the courts have made explicit their approach to interpreting legislation consistent with fundamental rights. Being forewarned, Parliament is able to make abundantly clear, through express words, the extent that it intends to encroach on individual rights. This being the case, the function of the principle of legality might be viewed as a mechanism for requiring the Parliament to be up front about its intentions in new legislation. This in turn adds an element of accountability in the law-making process, accountability to the public who will be able to express concern at the proposed encroachment of their rights, and accountability to the Members of Parliament, who will be able to exercise internal legislative scrutiny. The role of the courts in requiring Parliament to be abundantly clear when affecting fundamental rights is reflected in the use of the principle of legality by Gleeson CJ in Al-Kateb v Godwin. The case involved the detention of Ahmed Al-Kateb, who had sought asylum in Australia, but whose claim had been rejected. Under the Migration Act 1958, Al-Kateb was designated an ‘unlawful non-citizen’. The combination of ss 189 and 196 of the Act made it mandatory to place unlawful noncitizens in immigration detention until they were either granted a visa or removed from Australia. Section 198 required an officer to ‘remove as soon as practicable’ an unlawful non-citizen whose claim for a visa had been rejected. Al-Kateb was in immigration detention awaiting removal, but it was not possible to remove him in the foreseeable future because he was a stateless person and no country was prepared to take him. In these circumstances, Al-Kateb brought an action challenging the lawfulness of his detention under s 196. A  majority of the Court (McHugh, Hayne, Callinan and Heydon JJ) held that the combined operation of ss 189, 196 and 198 made it clear that Al-Kateb was required to be detained pending

48 49 50 51 52

Coco v The Queen (1994) 179 CLR 427. Momcilovic v The Queen (2011) 245 CLR 1, 47 (French CJ). Hogan v Hinch (2011) 243 CLR 506. X7 v Australian Crime Commission (2013) 248 CLR 92. Scott Stephenson, From Dialogue to Disagreement in Comparative Rights Constitutionalism (Federation Press, 2016) 68.

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his removal no matter how long it might take to achieve it. Gleeson CJ used the principle of legality to hold that Al-Kateb’s indefinite detention was not authorised by the Migration Act. In reaching this conclusion, he stated: Where … legislation [is] said to confer upon the Executive a power of administrative detention that is indefinite in duration, and that may be permanent, there comes into play a principle of legality, which governs both Parliament and the courts. …. Courts do not impute to the legislature an intention to abrogate or curtail certain human rights or freedoms (of which personal liberty is the most basic) unless such an intention is clearly manifested by unambiguous language, which indicates that the legislature has directed its attention to the rights or freedoms in question, and has consciously decided upon abrogation or curtailment.53

Gleeson CJ held that the fact that the legislature had not provided for the exact circumstances that faced Al-Kateb meant that the statute should be interpreted as not intending to cover his situation. The fact that the Act provided for mandatory detention was an important factor in Gleeson CJ’s interpretation of the Act:

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The possibility that a person, regardless of whether he or she is a danger to the community, regardless of whether he or she might abscond, can be subjected to indefinite, and perhaps permanent, administrative detention is not one to be dealt with by implication.54

The case of Independent Commission Against Corruption v Cunneen provides a further example of how the principle of legality will operate with, and complement, the other principles of statutory interpretation. The case involved a challenge by Margaret Cunneen SC, a senior New South Wales crown prosecutor, to the commencement of an investigation by the ICAC on the basis that the conduct she was alleged to have been involved in did not fall within the statutory definition of corrupt conduct. The particular provision in question was s 8(2) of the Independent Commission Against Corruption Act 1988 (NSW), which referred to conduct that ‘adversely affects, or that could adversely affect … the exercise of official functions by any public official’. Cunneen was alleged to have counselled her son’s girlfriend to lie to a police officer to avoid a breathalyser test. The majority and the dissenting judgments took different views of the interpretation of the provision. The case thus demonstrates the difficulty of identifying meaning through parliamentary intention, even after resort to the presumptions of interpretation and extrinsic materials. French CJ, Hayne, Kiefel and Nettle JJ took a narrow view of the provision: that it did not extend to the alleged conduct of Cunneen

53 54

Al-Kateb v Godwin (2004) 219 CLR 562, 577 (Gleeson CJ). Ibid 577–8.

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on the basis that it involved her in her private capacity, and it did not amount to any wrongdoing on the part of the police officer. Particularly in relation to the latter, their Honours explained that this interpretation accorded more closely with the ordinary understandings of corruption in public administration, and therefore with the objects of the Act. Their Honours also drew on the principle of legality,55 explaining that a wider interpretation would engage the ICAC’s ‘extraordinary coercive powers (with consequent abrogation of fundamental rights and privileges) in areas ranging well beyond the ordinary understanding of corruption in public administration and the principal objects of the ICAC Act’.56 Their Honours buttressed their reasoning even further by referring to the sheer breadth of the Commission’s jurisdiction should a wider interpretation be preferred, pointing to an ‘impracticality’ that would be ‘at odds’ with the intention of the Act.57 Extrinsic materials were drawn on here to indicate that the Commission was not intended to be ‘a general crime commission’.58 Gageler J disagreed that the broad meaning was inconsistent with the text, context, purposes and history of the ICAC Act. His Honour started with the term ‘corrupt conduct’, stating: ‘The definition of a term is the creation of the most basic building block of a statutory structure’.59 Gageler J’s approach was to take the ‘“natural and ordinary meaning unless some other course is clearly required,” and that “limitations and qualifications are not read into” the definition unless “clearly required by its terms or its context.”’60 His Honour thought the ordinary grammatical meaning of the term ‘could adversely affect’ in s 8(2) simply referred to impairment or impediment, and did not import any further limitation. Further, Gageler’s J interpretation gave the term a more precise operation.61 Finally, in contrast to the majority, for Gageler J, a broader interpretation of the term ‘corrupt conduct’ promoted the purposes of the Act. In particular, his Honour was concerned that the narrow provision would curtail the Commission from investigating conduct that might amount to defrauding a public official, state-wide endemic collusion among tenderers for government contracts, and serious and systemic fraud in making applications for licences, permits or clearances issued under New South Wales statutes.62 While such conduct does not involve misconduct on the part of public officials, it does have the capacity to undermine public confidence

55 56 57 58 59 60 61 62

Independent Commission Against Corruption v Cunneen (2015) 256 CLR 1, 27–8 [54]. Ibid 10 [3]. Ibid 27–8 [54]. Ibid. Ibid 32–3 [77]. Ibid, referring to PMT Partners Pty Ltd (In Liq) v Australian National Parks and Wildlife Service (1995) 184 CLR 301, 310. Ibid 34 [82]. See, eg, ibid at 36–7 [91]–[92].

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in government, and thus its investigation would promote the objectives of the Act. Gageler J buttressed this conclusion by reference to the legislative history of the Act, and in particular, amendments that Parliament had made that were consistent with the broader view of the provision. Unlike the majority, Gageler J did not resort to the principle of legality. Indeed, his Honour disavowed its relevance to the case. While it might be relevant on the basis that ICAC’s coercive powers derogate from common law rights, it would only be relevant ‘if and to the extent that the scope of [the] provisions is unclear’.63

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The special case of constitutional interpretation The interpretation of the constitutions is, or course, a central concern for public law. In Australia, we have two levels of constitutional document. State constitutions are pieces of ordinary legislation,64 and while they perform important constitutive functions in the states, they are not treated differently from legislation insofar as their interpretation is concerned. The Commonwealth Constitution, on the other hand, is a statute, but a special one. It has certain characteristics that affect the High Court’s approach to its interpretation: it is designed to last a long time and as such is expressed in less precise language than ordinary legislation; it cannot be amended by the Parliament acting alone, but only by the Parliament operating in conjunction with the people through a referendum; and it has a specific purpose of establishing the rules and institutions for the effective government of the whole nation. To conclude this chapter we set out some of the key issues that have arisen in the interpretation of the Commonwealth Constitution. The High Court is the ultimate interpreter of the Constitution. This is not guaranteed in the Constitution itself, but has been conferred on the Court by legislation. Section 76(i) of the Constitution empowers the Parliament to make laws conferring original jurisdiction on the High Court in any matter ‘[a]rising under this Constitution or involving its interpretation’. Section 30 of the Judiciary Act 1903 (Cth) conferred original jurisdiction on the Court in precisely these terms. Beyond this, the Constitution and the Judiciary Act provide no further guidance to the Court on how to interpret the Constitution. It is left entirely to the Court to

63 64

Ibid 35 [87]. Constitution Act 1902 (NSW); Constitution Act 1867 (Qld); Constitution Act 1934 (SA); Constitution Act 1934 (Tas); Constitution Act 1975 (Vic); Constitution Act 1889 (WA). In the self-governing territories, the constituting documents are pieces of Commonwealth legislation: the Australian Capital Territory (SelfGovernment) Act 1988 (Cth) and Northern Territory (Self-Government) Act 1978 (Cth).

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develop its interpretative principles. This in itself points to a fundamental difference between the Constitution and ordinary legislation. The Constitution establishes the institutions of government and allocates their powers. By conferring on the High Court the power to act as the final interpreter of its terms, the Constitution sets up a clear separation of powers, thus guarding against the possibility of the Parliament or the executive expanding the extent of its own power. The approach that the High Court takes to constitutional interpretation is politically salient, as it will dictate which government measures are valid, and which will be struck down. The executive’s power to appoint judges is thus fiercely guarded, and, as we explain in Chapter  9, has been explicitly wielded for political ends at various times in the High Court’s history. The purpose of this part of the chapter is not to provide a comprehensive explanation of how the High Court approaches constitutional interpretation, and how that has evolved over time, but rather to introduce some of the key approaches and some of the debates that have surrounded each one. Constitutional interpretation—including the different approaches and the Court’s particular approach to different constitutional provisions—is covered in greater detail in constitutional law texts. The starting point for understanding how the Australian High Court interprets the Constitution is the 1908 decision of Jumbunna Coal Mine NL v Victoria Coal Miners’ Association, in which the High Court followed the US case of McCulloch v Maryland to require that the Constitution be interpreted as broadly as the words would permit.65 Marshall CJ famously said: 

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Let the end be legitimate, let it be within the scope of the constitution, and all means which are appropriate, which are plainly adapted to that end, which are not prohibited, but consist with the letter and spirit of the constitution, are constitutional.66

While such a principle makes sense in theory to ensure that the Parliament has the capacity to govern, it has particular implications for the scope of the states’ capacity to govern themselves in the federal system, as the wider the powers of the Commonwealth to make laws, the more they encroach on the states. Until 1920, the states were protected from the full force of the principle in Jumbunna by the ‘reserved powers’ doctrine. Under this doctrine, when interpreting the scope of Commonwealth power, the High Court expressly considered the founding intention of the Constitution, interpreting the Constitution in its federal context and limiting the scope of Commonwealth power to conserve the legislative power of the states.

65 66

Jumbunna Coal Mine NL v Victoria Coal Miners’ Association (1908) 6 CLR 309; McCulloch v Maryland 17 US (4 Wheat) 316 (1819). McCulloch v Maryland 17 US (4 Wheat) 316, 421 (1819).

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In 1920, the Court adopted a new approach to interpretation, a more legalistic approach, which abandoned founding intentions and focused on the text of the Constitution. Given that the text itself imposed few limits on the scope of Commonwealth legislative power, the power expanded progressively from this time. As a result, the Commonwealth has become the dominant legislature in the federation. This has enabled the Commonwealth to encroach on areas of policy traditionally within the realm of the states and to become the financial powerhouse of the federation (see further discussion in Chapter 4). Other distinctions between the Constitution and ordinary legislation are that its text is intended to be relevant and applicable over a long period of time and it is more difficult to amend, requiring a referendum of the people and not just a vote in the Parliament. The longevity of the Constitution means that it will be applied in circumstances that were not within the contemplation of the framers. A  simple example is the scope of s 51(vi), the defence power, which mentions only the ‘naval and military defence of the Commonwealth’. The Court had no trouble in extending the scope of the power to air defence, even though the concept of an air force did not exist in 1900.67 One technique used by the High Court to enable it to apply the Constitution to modern circumstances is a distinction between the meaning of words and their application in particular circumstances. This distinction has been crucial to enabling the Constitution to remain relevant despite changes in technology, values and relationships. The distinction has been expressed in a range of ways by the Court. In Attorney-General (NSW) v Brewery Employees Union of NSW, Griffith CJ stated, ‘new developments, now unthought of, may arise with respect to many subject matters. … So long as those new developments related to the same subject matter the powers of the Parliament will continue to extend to them’.68 In the same case, Higgins J explained that ‘[t]he usage in 1900 gives us the central type; it does not give us the circumference of the power’.69 Or as Dawson J put it in Street v Queensland Bar Association, ‘the attributes which the words signify will not vary but as time passes new and different things may be seen to possess those attributes sufficiently to justify the application of the words to them’.70 The Court has been able to apply the words of the Constitution in ways that were not in contemplation in 1901. For example, the Court has held that at least since 1998

67

68 69 70

Kartinyeri v Commonwealth (1998) 195 CLR 337, 412–13 [156] (Kirby J); Thomas v Mowbray (2007) 233 CLR 307, 395–6 [252] (Kirby J). See also Thomas v Mowbray (2007) 233 CLR 307, 457 [436]–[437] (Hayne J). (1908) 6 CLR 469, 501. Ibid 610. (1989) 168 CLR 461, 537.

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the term ‘foreign power’ has included the UK, a nonsensical proposition at federation. As a result, Heather Hill’s British citizenship made her ineligible to sit as a senator in the Commonwealth Parliament for the purposes of s 44(i) of the Constitution.71 The Court has held that the term ‘jury’ in s 80 of the Constitution refers to a representative group of people, even though it referred only to propertied men at the time of federation.72 And the Court has held that while the common law defined ‘marriage’, which is referred to in s 51(xxi) of the Constitution, only as the union of a man and a woman in 1901, by 2013, the term extended to unions of same sex couples, thus providing the Commonwealth the power to legislate for same sex marriage, which it duly did in December 2017.73 The Court held that the core meaning of marriage related to ‘a status, reflective of a social institution, to which legal consequences attached, and not to the particular identity of the parties getting married’.74 The particular characteristics of the Constitution have been used to justify divergent approaches to interpretation. For some judges, the longevity of the Constitution requires a method of interpretation that ‘anchors’ the Constitution to the past to ensure it remains faithful to its original intention.75 For originalists, the difficulty of amending the Constitution emphasises that the text was not meant to be amended except through a rigorous democratic process. If the courts ‘update’ the Constitution through a progressive approach to its interpretation, they are usurping the people’s constitutional role of changing the constitution without their consent. Furthermore, if the High Court stretches the language of the Constitution to apply to new circumstances, the case for constitutional change through referendum will be less compelling. The people will be left with a Constitution with words that do not reflect its application. For others, the Constitution’s longevity means that it will become out of touch unless the judiciary updates it through a progressive approach to interpretation. The Constitution is not so much an anchor to the past but a guide for the present and the future. One of the framers of the Constitution, Andrew Inglis Clark, understood that the Constitution would need to be applied to situations not even in the contemplation of the framers, and that this would necessarily affect the approach to its interpretation.76 Inglis Clark argued, therefore, that the Constitution should be understood as ‘declaring the will and intentions of the present inheritors and possessors of sovereign power … who are in the immediate presence of the problems 71 72 73 74 75 76

Sue v Hill (1999) 199 CLR 462. Cheatle v The Queen (1993) 173 CLR 541. Commonwealth v Australian Capital Territory (2013) 250 CLR 441. (2013) 250 CLR 441, 456. Easterbrook, “Abstraction and Authority” (1992) 59 University of Chicago Law Review 349, 363 cited by McHugh J in Re Wakim: ex parte McNally (1999) 198 CLR 511, [35]. Andrew Inglis Clark, Studies in Australian Constitutional Law (Legal Books, first published 1901, 1997 ed).

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to be solved. It is they who enforce the Constitution and make a living force of that which would otherwise be a silent and lifeless document’.77 A number of High Court judges have emphasised the forward-looking aspect of the Constitution, and have understood their role as keeping the Constitution up to date and relevant.78 For those favouring a progressive approach to interpretation, the difficulty of its amendment is reason enough for a more active judicial role to keep the Constitution relevant and contemporary. A particular issue that arises for originalists is the extent to which it is legitimate to rely on the history of the Constitution, in particular the deliberations of the delegates in the 1890s in Sydney, Melbourne and Adelaide at which the Constitution was drafted, known as the ‘convention debates’.79 Right from the early years of the Commonwealth, the High Court rejected the use of the convention debates to support interpretations of the Constitution, but did allow recourse to other contextual material such as draft constitutions and Quick and Garran’s authoritative The Annotated Constitution of the Commonwealth of Australia, which provided commentary on the drafting of the Constitution.80 This ban on the use of the convention debates was overturned in Cole v Whitfield in 1988. The Court is now receptive to using the convention debates to assist in discovering the original meaning of the text of the Constitution (textual originalism). However, it remains hesitant to use the convention debates to uncover the intention of the framers as to the original meaning of the text (intentional originalism).81 Those following Inglis Clark and advocating a progressive interpretation must explain from where the Constitution gains its present day authority. For orginalists and intentionalists, there is a clear line of authority back to the process of enacting the Constitution. This moment of enactment provides the Constitution with its democratic legitimacy. For Inglis Clark, the very fact that the document needed to apply to new, unforeseen problems meant there was a necessary transfer of sovereignty into the present. In Theophanous, Deane J suggested that the authority may come from its continued ‘acceptance by the people’, which invokes a notion of present day popular sovereignty to replace the democratic process of the original enactment as the source of legitimacy.82 The responsibility of the Court is, then, to interpret the Constitution in a way that is faithful to the needs of present day Australians.

77 78 79 80 81 82

Ibid 21. See eg, Theophanous v Herald & Weekly Times Ltd (1994) 182 CLR 104, 172 (Deane J); Eastman v The Queen (2000) 203 CLR 1, 79–80 (Kirby J). See further discussion of these debates in Chapter 2. John Quick and Robert Randolph Garran, The Annotated Constitution of the Australian Commonwealth (Angus and Robertson, 1901). See, eg, New South Wales v Commonwealth (2006) 229 CLR 1. Theophanous v Herald & Weekly Times Ltd (1994) 182 CLR 104, 171.

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Constitutional law expert Professor Rosalind Dixon emphasises that in any exercise of interpretation, judges necessarily draw on values, whether or not this is acknowledged explicitly. What is crucial is that these values are directed to the purpose or function of the interpretation exercise. For Dixon, in a ‘functional approach’ to interpretation the focus is on the ‘substantive legal goals or values’ required to resolve issues of legal uncertainty and on the ‘potential consequences of the … legal choices’ made for realisation of those goals or values. This approach to interpretation places a great deal of responsibility on the present day judge to articulate these overarching constitutional values. However, Dixon argues that the approach can be strongly rooted in the origin of the Constitution if there is a rigorous accounting for the values that underpin the Constitution at the time of its enactment.83 The debate between those emphasising original intention, strict textual analysis or more progressive approaches to interpretation is itself part of the constitutional dialogue which maintains the authority and legitimacy of the Constitution. Although there is a temptation to want to settle these debates once and for all, the debates themselves serve an important purpose in articulating the foundational principles of public law. The point is to understand the competing sources of legitimacy and values that influence the development of our constitutional framework, rather than to resolve them.

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Conclusion Statutory interpretation reaches across all branches of the government, and directly affects the rights and interests of individuals. Parliament’s role is both as the original law maker, whose intention is articulated in the statute, and as the institution with the power to correct or change subsequent interpretations by the courts and the executive. Executive governments must grapple daily with the difficult task of statutory interpretation, particularly as statutes now provide the legal power and limits for almost every decision they make. Finally, the judiciary’s role is to act as the interpreter of the laws when disputes arise. The judiciary tries to constrain their interpretation through the somewhat elusive concept of parliamentary intention. In recognition that the concept is itself a construct, the Court has developed a particular approach to interpretation that emphasises the primacy of text, informed by text and purpose, supplemented by a number of interpretative rules found in statute and the common law. Clarification of how the Court will approach statutory interpretation

83

Rosalind Dixon, ‘The Functional Constitution:  Re-reading the 2014 High Court Constitutional Term’ (2015) 43(3) Federal Law Review 455. See further Rosalind Dixon (ed) Constitutional Values (Hart Publishing, 2018).

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through these rules provides a signal to Parliament, the executive and the people as to how they themselves should approach that task. This allows Parliament to legislate with greater certainty that its intention will be correctly interpreted, it allows the executive to exercise its powers with greater clarity as to their scope, and it allows individuals to organise their affairs with greater certainty and confidence of their legal entitlements and obligations. In relation to constitutional interpretation, the role of the judiciary as interpreters is different. No longer are the judges interpreting Parliament’s intention subject to parliamentary override, but they are the final arbiters of the words of a document that will be binding on future legislatures, executives and individuals. The distinct nature of this task is reflected in the High Court’s approach to constitutional interpretation, which emphasises the enduring nature of the document, as well as the ongoing debate as to whether the Court has adopted the most appropriate approach to the task.

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DISCUSSION QUESTIONS 1

Is statutory interpretation an exclusively judicial function? When might the other branches of government be called upon to interpret statutes? What is the unique function of the judiciary in interpreting statutes?

2

What does it mean for the courts to interpret statutes according to the intention of Parliament?

3

What is the difference between literal and purposive interpretation?

4

Through using the principle of legality are courts unjustifiably usurping the role of Parliament?

5

How does the interpretation of constitutions differ from the interpretation of ordinary statutes? Should it?

6

Can the ideas of the Constitution as an ‘anchor to the past’ and as a ‘living force’ be reconciled?

FURTHER READING Anthony J Connolly and Daniel Stewart, Public Law in the Age of Statutes: Essays in Honour of Dennis Pearce (Federation Press, 2015) Brendan Lim, ‘The Normativity of the Principle of Legality’ (2013) 37 Melbourne University Law Review 372 Dan Meagher and Matthew Groves (eds), The Principle of Legality in Australia and New Zealand (Federation Press, 2017)

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Dan Meagher, ‘The Principle of Legality in the Age of Rights’ (2011) 35 Melbourne University Law Review 449 Dan Meagher, ‘The Principle of Legality as Clear Statement Rule: Significance and Problems’ (2014) 36 Sydney Law Review 413 Rosalind Dixon, ‘The Functional Constitution: Re-reading the 2014 High Court Constitutional Term’ (2015) 43(3) Federal Law Review 455 D C Pearce and R S Geddes, Statutory Interpretation in Australia (LexisNexis, 8th ed, 2014)

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James Stellios, Zines’ High Court and the Constitution (Federation Press, 6th ed, 2015)

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CHAPTER 13 International Influences on Australian Public Law 474

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CHAPTER OVERVIEW Introduction

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The emergence of rights at the nation-state level

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The international emergence of human rights

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Australia’s current record of compliance with ratified international human rights treaties

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Human rights at the federal level

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Constitutional guarantees

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Legislative action

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Legislative protection of human rights

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Legislative curtailment of human rights

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New parliamentary scrutiny

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Common law protections

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Independent oversight institutions

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Shifting human rights debates

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Conclusion

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Introduction Public law comprises a complex set of rules and institutions that governs the exercise of public power by the state. Chapter 1 explained that there are views of public law, such as those propounded by positivists, legal process theorists and those who adhere to a formalistic conception of the rule of law, that go no further than a focus on the authority, existence and form of these rules and institutions. However, many others propound a view of the substantive role of those rules and institutions in ensuring the protection and promotion of individual rights within the state, or who propose that the public law of a state should reflect community expectations that the state will act in a way that is rights protective of its people. Human rights are understood as particular entitlements and freedoms:1 specifically, those that are necessary for human flourishing in a political community.2 They advance and promote the values that underpin the system of public law in Australia, namely equality, freedom and community. While there remains a small level of ongoing contestation regarding the actual content of human rights at any given time in any given society, the real tension lies in their interpretation and application, and around the question of the institution that is best suited to determining when limits on them are justified. In Australia, the protection of human rights has been largely left to the political realm; that is, there are few enforceable legal limits on the Parliament to act in a way that is contrary to rights. While many other countries have moved towards a more legally enforceable model of rights protection, whether this is the most appropriate way to protect rights in a modern democracy remains a hotly contested issue in Australia today. Rights protections are very seldom absolute. Rights are often legitimately limited— for instance, to ensure the protection of other conflicting rights, or to allow the state to achieve other government policy objectives on behalf of the community, such as public safety or national security. This weighing up, or balancing, of rights, or the public interest against individual rights, is often referred to as a ‘proportionality’ test. Many argue that the Parliament is the most legitimate institution for determining this question of proportionality, because it is Parliament that has democratic legitimacy and therefore represents the views of the community as to where the most appropriate balance lies. If Parliament miscalculates this exercise, it is accountable to the people for its failings.

1 2

Amartya Sen, The Idea of Justice (Harvard University Press, 2009) 357–8. John Finnis, Natural Law and Natural Rights (Oxford University Press, 2nd ed, 2011) 221.

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There are many others who point to legislative failures to protect rights as demonstrating a need to strengthen the legal protections afforded to rights in Australia that are able to be enforced in the courts. In the 21st century, Australia’s Federal Parliament has empowered the executive to hold children in immigration detention centres, it has introduced broad counter-terrorism legislation allowing the executive to detain individuals including non-suspects for up to seven days without charge,3 and it has suspended protections against racial discrimination, allowing the executive to use laws that single out Aboriginal people and communities for separate treatment.4 At the international level such actions have attracted concern for their lack of proportionality and necessity,5 and some have been determined to be human rights violations.6 The chapter begins by setting out how the notion of rights emerged in the AngloAmerican world and how this manifested in Australia. It then turns to the international level and how, through the United Nations (‘UN’) system, the international community has brought some uniformity to the articulation and protection of human rights through the drafting and monitoring of international human rights instruments, and how this has had particular salience in the Australian system with limited domestic articulation of legal rights protection. The chapter then turns to explain how the interaction of the different branches and institutions of government in Australia contributes to the protection of human rights, but how this has nonetheless allowed serious rights violations by the Parliament and executive to occur. It maps how our Constitution, legislation, the common law and federal human rights institutions provide an uneven or ‘patchwork’ level of legal human rights protection. We conclude by exploring the boundaries of debates about whether Australia’s system of human rights protections needs reform, and particularly whether there

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3 4

5 6

Australian Security Intelligence Organisation Act 1979 (Cth) s 34S. Under state laws, this can be extended to up to 14 days. See, eg, Terrorism (Preventative Detention) Act 2005 (SA) s 12(6)(b). See James Anaya, Report by the UN Special Rapporteur on the Situation of Human Rights and Fundamental Freedoms of Indigenous People—Annex—Situation of Indigenous Peoples in Australia, UN Doc A/HRC/ 15/37/Add.4 (1 June 2010) 13 [47], 25–41. This report relates to the Federal Government’s 2007 Northern Territory Emergency Response legislation, which was amended in 2010. For more detail, see the text below. See, eg, the concerns of the UN Human Rights Committee: Concluding Observations on the Sixth Periodic Report of Australia, 121st sess, UN Doc CCPR/C/AUS/CO/6 (1 December 2017) 3 [16], 8 [38]. For example, the UN Human Rights Committee has repeatedly found Australia’s policy of mandatory immigration detention for asylum seekers to violate the right not to be arbitrarily detained in art 9 of the International Covenant on Civil and Political Rights. See the text below for more detail. In 2015 the UN Special Rapporteur on Torture found that Australia’s immigration detention policies were violating the UN Convention Against Torture—see Juan Mendez, Report of the Special Rapporteur on Torture and Other Cruel, Inhuman or Degrading Treatment and Punishment—Addendum—Observations on Communications Transmitted to Governments and Replies Received, UN Doc A/HRC/28/68/Add.1 (5 March 2015) 8 [19]. The report specifies that Australia has violated the convention ‘by failing to provide adequate detention conditions; end the practice of detention of children; and put a stop to the escalating violence and tension at the Regional Processing Centre’.

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needs to be a shift from an almost exclusively political conception of rights protection to a framework that includes a legal conception of rights protection. To evaluate the operation of the current system in protecting and promoting human rights, it is necessary to consider how well it operates to resolve rights disputes when they affect particularly vulnerable sections of society, such as Aboriginal and Torres Strait Islander peoples, asylum seekers, elderly people, people with a disability, and those accused or convicted of crimes such as terrorism or paedophilia. We will see that the crux of the disagreement between those who advocate a predominantly political model of rights protection versus a model of rights protection which includes a role for the courts is whether a parliamentary democratic system can adequately protect the rights of minorities, or whether this responsibility is better fulfilled by independent actors, such as the judiciary or specialist human rights bodies. Another issue that we identify in this concluding section of the chapter is the technical and indirect nature of rights protection in Australia which has, arguably, led to a prevalence of misunderstanding, misinformation and complacency about rights in our parliaments, our institutions and the community. The chapter concludes by exploring how some Australian parliaments, specifically those of the Australian Capital Territory and Victoria, have themselves introduced Bills of Rights that are designed to motivate systematic engagement with human rights by all institutions, and how and why this has only been adopted in a far more limited form in the federal sphere.

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The emergence of rights at the nation-state level The emergence of rights at a national level and of human rights at international level are heavily intertwined due to the strong influence of Western states in the international community. In the Anglo-American world, the content of rights has been driven by liberal notions of freedom and the individual, which have led to the concept of civil and political rights, many of which have been articulated in agreements (such as the 1215 Magna Carta), declarations (such as the 1789 French Declaration of the Rights of Man and of the Citizen), constitutions (such as the first 10 amendments made to the US Constitution, commonly referred to as the Bill of Rights) and by the courts through the common law (such as Lord Coke’s assertion in Dr Bonham’s Case that there were certain fundamental common law rights and principles that bound the Parliament). In the Anglo-American world there is frequent reference to the role played by the 13th century Magna Carta because it records the first documented time that the

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absolute power of the King was challenged and the King was made subject to the law. Through this document, the barons of England were successful in demanding that the King consult with them in return for the taxes they paid, and they also secured other fundamental rights, particularly in relation to the right to a fair trial. In other words, the barons were successful in protecting their rights and privileges. This is not to say, however, that these rights and privileges were won for all the people at this point of time. A  second English progenitor of rights was the enactment of the 1689 Bill of Rights by the English Parliament. This document placed certain restrictions on the sovereign; for example, it required the King to gain the agreement of Parliament before imposing new taxes. The document also guaranteed various rights such as freedom of speech and freedom from cruel and unusual punishments. A century later, the French drafted the 1789 Declaration of the Rights of Man and of the Citizen, which declared that all men were equal by the laws of nature. This document influenced the drafting of the most influential constitutional rights document:  the US Bill of Rights. The US Constitution is the first written national constitution in the world to have a Bill of Rights. These rights were not included in the original Constitution, but were added a few years later in the form of the first 10 amendments to the Constitution. While some of these rights—such as the right to freedom of speech or religion—are considered universal, others—in particular the right to bear arms in the Second Amendment—are seen as unique to the historical development of American society. At the time of the drafting of the US Bill of Rights and the French Declaration of the Rights of Man and of the Citizen, it was thought that rights were innate, immutable and came from natural law—a law above the law of man. One problem with this natural law theory is that it is difficult to determine what exactly these ‘natural’ rights entail. An influential English philosopher, Jeremy Bentham (1748–1832), found the concept of natural rights to be ‘simple nonsense’: Rights is a child of law; from real law come real rights, but from imaginary law, from laws of nature, come imaginary rights … Natural rights is simple nonsense: natural and imprescriptible rights, rhetorical nonsense—nonsense upon stilts.7

In Bentham’s view, ‘real rights’ are rights that have a positive source in government; they cannot be simply asserted or assumed to exist. The writing and entrenching of rights into a state’s constitution, such as that of the US, was hence a significant step as rights became part of the positive law of the state.

7

Jeremy Bentham, ‘Nonsense Upon Stilts’ in Philip Schofield, Cyprian Blamires and Catherine PeaseWatkin (eds), Rights, Representation, and Reform: Nonsense Upon Stilts and Other Writings on the French Revolution (Oxford University Press, 2002) 317, 330.

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In contrast to the US, Australia does not have a constitutional tradition of human rights and has limited systemic legal articulation and protection of rights. As Chapter 2 explains, Australia did not follow the US model because its beginnings as a nation were not troubled by the same dramatic events that characterised the founding of the US. As a result, Australia’s Constitution includes very few express rights, and the framers were largely influenced by arguments that the best protection of human rights was through the institutions of representative and responsible government; that is, through strongly democratic political processes. In Australia, successive attempts to formally change the Constitution to boost the express rights protections in our Constitution have been unsuccessful.8 This sets us apart from Canada, which, in 1982, introduced the Charter of Rights and Freedoms through constitutional amendment. In Australia, without a systemic domestic articulation of rights, the international articulation of human rights takes on increased importance, and international human rights instruments have played a particularly important role in measuring Australia’s record in protecting rights.

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The international emergence of human rights Australian governments have been actively involved in the emergence and development of international human rights norms. One exemplar of Australian influence is Herbert V Evatt, a former High Court judge and then Deputy Prime Minister of Australia who, as the President of the 1948 UN General Assembly, became known at the UN as a champion for social and economic rights and for his advocacy for a World Court for Human Rights. In 1945 he argued successfully that the Charter of the United Nations (1945) (the UN Charter) include a pledge, now contained in art 56, that all nations will uphold human rights. This became known as the ‘Australian pledge’. Indeed, Australia appears to be a leader and model promoter of human rights, as it has ratified almost all the main international human rights treaties. In the international sphere it has been involved in drafting many human rights instruments that detail obligations to protect international rights and standards. Human rights as we know them today only emerged after the end of the Second World War. The UN was created as a response to the atrocities of the war and as a means of building a global form of collective security. As a response to the Holocaust,

8

See Constitution Alteration (Post-War Reconstruction and Democratic Rights) Act 1944 (Cth); Constitution Alteration (Rights and Freedoms) Bill 1988 (Cth). See also George Williams and Daniel Reynolds, A Charter of Rights for Australia (UNSW Press, 4th ed, 2017) 97ff.

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human rights were understood as a means of prescribing how governments worldwide should treat their populations. Article 1(3) of the UN Charter states that one purpose of the UN is:

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To achieve international co-operation in … promoting and encouraging respect for human rights and for fundamental freedoms for all without distinction as to race, sex, language, or religion.

These words are repeated in art 55 of the UN Charter, alongside statements regarding the need to promote ‘higher standards of living, full employment, and conditions of economic and social progress and development’. Overall, however, there are few references to human rights in the UN Charter, and those that exist are weak in that they use the language of promotion rather than protection. This inattention to human rights was partly remedied in 1948, when the Universal Declaration of Human Rights (‘UDHR’) was drafted and subsequently adopted by the UN General Assembly. The UDHR sets out universal human rights standards: it consists of a preamble and 27 articles setting forth human rights and fundamental freedoms that were conceived as ‘a common standard of achievement for all peoples and all nations’. As a declaration, the UDHR is not a binding instrument, although today many, but not all, of the articles of the UDHR have been included in binding treaty obligations, and many are considered binding on all states as part of customary international law.9 One of the important aspects of the UDHR is that it brought together in one single document three sets of rights, which are today considered by the UN to be interdependent and indivisible. The first set of these rights are civil and political rights, such as freedom of religion and freedom of speech. These rights have typically been championed by Western, developed nations. Such civil and political rights are found in the European Convention on Human Rights, which was drafted in 1949, as well as other Western domestic rights instruments including the US Bill of Rights and the UK Human Rights Act 1998. A second set of rights are social, economic and cultural rights, such as the right to housing and the right to health. These are rights that were particularly supported by the Communist Bloc during the Cold War. The third set of rights are collective or solidarity rights, articulated predominantly by developing countries, such as the right to self-determination. The UDHR included all three sets of rights, and was able to achieve this as it was drafted before the Cold War truly began.

9

See also Hurst Hannum, ‘The Status of the Universal Declaration of Human Rights in National and International Law’ (1996) 25 Georgia Journal of International and Comparative Law 287. See further explanation of customary international law in Chapter 13.

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After the adoption of the UDHR it was decided that the next step would be to draft a binding instrument with strong enforceable language to contain these rights. At this point, Cold War tensions between the West and the Communist Bloc meant that two separate covenants were drafted containing the first two sets of rights. These separate conventions, adopted in 1966, are the International Covenant on Civil and Political Rights (‘ICCPR’) and the International Covenant on Economic, Social and Cultural Rights (‘ICESCR’). These are often referred to as the ‘Twin Covenants’, because they were concurrently drafted and some of their provisions (such as art 1) are identical; however, the language and reporting and enforcement mechanisms contained in the ICCPR are stronger than those in the ICESCR. Together all three instruments—the UDHR, the ICCPR and the ICESCR—are known as the ‘International Bill of Rights’. Since the ICCPR and ICESCR came into force in 1976, seven more core human rights treaties have been drafted and have come into force: these are the International Convention on the Elimination of Racial Discrimination (‘ICERD’), the Convention on the Elimination of all forms of Discrimination Against Women (‘CEDAW’), the Convention on the Rights of the Child (CRC), the Convention on the Rights of Persons with Disabilities (‘CRPD’), the Convention Against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment (‘CAT’), the International Convention on the Rights of All Migrant Workers and Members of Their Families, and the International Convention for the Protection of All Persons from Enforced Disappearance. In addition to the ICCPR and the ICESCR, Australia has ratified the first five core human rights treaties listed but not the last two. While some of the third set of rights—such as the right to the environment and the right to economic and social development—are articulated in non-binding declarations, thus far they have not been directly set out in any treaties, with the exception of the right to self-determination, which is set out in art 1 of both the ICCPR and the ICESCR. These core human rights treaties articulate human rights at a fairly broad level and most allow for limitations. For example, art 21 of the ICCPR states: ‘The right of peaceful assembly shall be recognized. No restrictions may be placed on the exercise of this right other than those imposed in conformity with the law and which are necessary in a democratic society in the interests of national security or public safety, public order (ordre public), the protection of public health or morals or the protection of the rights and freedoms of others’.10 The word ‘necessary’ in this limitation clause triggers a proportionality approach. Another example of a proportionality mechanism is seen in art 4(1) of the ICCPR, which allows for ‘derogation’ (that is, suspension) of many, but not all, of ICCPR rights where appropriately justified (and properly notified):

10

Emphasis added.

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In time of public emergency which threatens the life of the nation and the existence of which is officially proclaimed, the State Parties to the present Covenant may take measures derogating from their obligations under the present Covenant to the extent strictly required by the exigencies of the situation.11

It is important to keep in mind that human rights treaties are drafted by states and  hence they set out state obligations to those people within their territory or subject to their jurisdiction. They do not directly bind non-state actors and unless they become part of customary international law, they only bind those states that voluntarily ratify them. The different types of international legal obligations are discussed further in Chapter 13. Treaty committees have been set up so as to assist with the interpretation, implementation and monitoring of these treaties. The international system envisages that for these treaties to have full effect, nation-states will use various means to incorporate and adopt these sets of human rights into their own national legal systems. Ideally this incorporation needs to be comprehensive and involve both consultation with the public and careful adaptation to ensure they meld with the national legal framework. Particularly in a dualist system of law as we have in Australia, without this full national incorporation the ratification of human rights treaties may have little direct effect at the domestic level. The international system also allows states to opt into complaints mechanisms for each treaty; these can be used for individual complaints in regard to state acts or state-to-state complaints (which are very rarely made). For example, Australia has opted into individual complaints being heard by the UN Human Rights Committee about the adequacy of its compliance with the ICCPR, but so far it has not opted into individual complaints being heard by the Committee on Economic, Social and Cultural Rights (‘CESCR’) in relation to its compliance with the ICESCR. Many of the individual complaints heard by the UN Human Rights Committee have been brought by asylum seekers in relation to Australia’s immigration detention policies; however, because the conclusions of these treaty bodies are not binding, they have often been ignored by the government and have led to no change in policy.12 In addition to the outcomes in these individual cases, we can gauge how well Australia is protecting human rights thanks to the monitoring performed by UN treaty bodies periodically scrutinising reports submitted by state parties. The treaty bodies publish ‘report cards’, which set out the positive and negative aspects of a state’s performance.13 In addition to these treaty bodies, the UN Human Rights 11 12 13

Emphasis added. Note that individual complaints regarding Australia can also be made in regard to ICERD, CEDAW, CAT and CRPD. While these report cards have no formal binding force, they are designed to pressure state parties to fulfil the obligations they have undertaken.

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Council monitors every nation-state’s compliance with international human rights law at a more holistic level by conducting a ‘universal periodic review’ of the human rights record of each of the UN’s 193 members every four years. Unlike the quasijudicial Human Rights Committee, which is made up of independent legal experts, the Human Rights Council is a political body made up of states, which means that the periodic review process is one whereby each UN member is reviewed by its peers. In 2017, Australia was successful in its bid for membership of the 47-member Human Rights Council for 2018–20. Membership of the world’s most important human rights forum places Australia’s record of compliance under greater scrutiny, but it also gives our government more opportunity to exert international influence.

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Australia’s current record of compliance with ratified international human rights treaties If one looks solely at Australia’s list of ratifications of the main human rights treaties, Australia looks like a model, rights-protecting nation. However, our latest report cards from the UN treaty bodies point to a different story. For example, in 2017 the UN Human Rights Committee and the CESCR expressed a number of substantive concerns relating to policies such as Australia’s system of mandatory immigration detention.14 In 2017 the UN Human Rights Committee stated in Australia’s report card that it was ‘particularly concerned about what appears to be the use of detention powers as a general deterrent against unlawful entry rather than in response to an individual risk, and the continued application of mandatory detention in respect of children and unaccompanied minors’.15 It called for Australia to ‘expand the use of alternatives to detention … [to ] consider introducing a time limit on the overall duration of immigration detention’ and to address conditions in detention centres. The CESCR labelled these detention conditions ‘harsh’ and stated it was ‘alarmed by the punitive approach’ taken by Australia towards asylum seekers arriving by boat without a valid visa.16

14

15 16

Concluding Observations on the Sixth Periodic Report of Australia, 121st sess, UN Doc CCPR/C/AUS/CO/6 (1 December 2017); UN Economic and Social Council, Committee on Economic, Social and Cultural Rights, Concluding Observations on the Fifth Periodic Report of Australia, UN Doc E/C.12/AUS/CO/5 (11 July 2017). Concluding Observations on the Sixth Periodic Report of Australia, 121st sess, UN Doc CCPR/C/AUS/CO/ 6 (1 December 2017) 7 [37]. UN Economic and Social Council, Committee on Economic, Social and Cultural Rights, Concluding Observations on the Fifth Periodic Report of Australia, UN Doc E/C.12/AUS/CO/5 (11 July 2017) 4 [17].

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Indigenous disadvantage is also a major human rights concern in the international sphere. In its 2017 report card, the CESCR repeatedly details the disadvantage suffered by Aboriginal and Torres Strait Islander peoples in accessing and enjoying the right to education, health, housing, social security and language. Similar concerns are expressed by the UN Human Rights Committee in regard to the disproportionate rates of incarceration of Aboriginal and Torres Strait Islander peoples as a result of mandatory sentencing laws and imprisonment for fine default,17 and the fact that the social exclusion of Aboriginal and Torres Strait Islander peoples is exacerbated by blanket restrictions on prisoner voting in states such as Queensland.18 Both treaty bodies recommended that the Federal Government enact comprehensive federal legislation to give full effect to the Twin Covenants, with the CESCR going further in recommending that Australia consider introducing a federal charter of rights. This latter committee expressed concern that Australia’s failure to fully incorporate ICESCR provisions into its domestic legal order meant that these social, economic and cultural rights were not justiciable in domestic courts. Many of these same criticisms and recommendations were articulated in August 2015 by the UN Human Rights Council following its second review of Australia’s human rights record.19 This 2015 review also highlighted the human rights abuses that occur as a result of Australia’s mandatory policy of immigration detention, and its extension to detaining children, and the poor standards of detention and lack of access to legal assistance for detainees. The review also highlighted the failure of the government to consult with Aboriginal and Torres Strait Islander peoples before imposing policies that would affect communities, as is required by the United Nations Declaration on the Rights of Indigenous Peoples, which Australia endorsed in 2009. Australia has been subject to over 150 registered individual complaints about its inadequate compliance with the ICCPR since it opted into the jurisdiction of the UN Human Rights Committee by ratifying the First Optional Protocol to the treaty in 1991. This is the fifth highest number of registered complaints after Canada, Belarus, Jamaica and Denmark. The Human Rights Committee has heard about 50 of these complaints and of these, in roughly 80 per cent, the Committee has found that Australia is or has acted in violation of the ICCPR. Australia’s ‘arbitrary detention’ of asylum seekers under its mandatory immigration detention policy has drawn particular attention. In 14 individual cases since 1997, the Committee has stated that this detention is contrary to art 9(1) and (4)  of the ICCPR—which provide a

17 18 19

Concluding Observations on the Sixth Periodic Report of Australia, 121st sess, UN Doc CCPR/C/AUS/CO/ 6 (1 December 2017) 8 [39]–[40]. Ibid 9 [47]. Human Rights Council, Report of the Working Group on the Universal Periodic Review— Second Cycle Australia, 31st sess, UN Doc A/HRC/WG/31/14 (31 January 2016).

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right against arbitrary detention and a right to have substantive judicial review of detention—and has called on Australia to remedy this breach.20 In its 2017 report card, the Human Rights Committee noted Australia’s ‘repeated failure to implement its Views [in these complaints]’ and reminded Australia that the Committee’s Views were ‘an important part of the obligation of States’ under the ICCPR.21 Australia’s ‘failure’ in this regard often relates to its disagreement with the Committee as to the interpretation of various relevant provisions of the ICCPR. Australian courts are not given general jurisdiction to adjudicate the constitutional validity of legislation or executive actions by reference to their compliance with international human rights standards. Indeed, whether laws are compliant with international human rights standards is generally not relevant to determining whether a law is valid under the Australian Constitution. In a number of cases, the UN Human Rights Committee has found laws to breach Australia’s obligations under the ICCPR when these same laws have survived challenges to their constitutional validity in the High Court. For example, in 2010 the UN Human Rights Committee considered the rights compliance of the Queensland Dangerous Prisoners (Sexual Offences) Act 2003, a law that allowed for a continuing detention order to be made against a person convicted of a serious sexual offence after they had finished their term of imprisonment. The Act had been upheld by the High Court in the case of Fardon v Attorney-General (Qld).22 The Committee held that the Act constituted a

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20

21 22

Human Rights Committee, Views:  Communication No 560/1993, 59th sess, UN Doc CCPR/C/59/ D/560/1993 (30 April 1997) (‘A v Australia’); Human Rights Committee, Views: Communication No900/ 1999, 76th sess, UN Doc CCPR/C/76/D/900/1999 (13 November 2002)  (‘Mr C v Australia’); Human Rights Committee, Views:  Communication No 1014/2001, 78th sess, UN Doc CCPR/C/78/D/1014/ 2001 (18 September 2003) (‘Baban v Australia’); Human Rights Committee, Views: Communication No 1069/2002, 79th sess, UN Doc CCPR/C/79/D/1069/2002 (6 November 2003) (‘Bakhtiyari v Australia’); Human Rights Committee, Views:  Communication No 1050/2002, 87th sess, UN Doc CCPR/C/87/D/ 1050/2002 (25 July 2006) (‘D and E v Australia’); Human Rights Committee, Views: Communication No 1324/2004, 88th sess, UN Doc CCPR/C/88/D/1324 (13 November 2006) (‘Shafiq v Australia’); Human Rights Committee, Views:  Communications Nos 1255, 1256, 1259, 1260, 1266, 1268, 1270, 1288/2004, 90th sess, UN Doc CCPR/C/90/D/1255, 1256, 1259, 1260, 1266, 1268, 1270, 1288/2004 (11 September 2007)  (‘Shams v Australia’); Human Rights Committee, Views:  Communication No 1442/2005, 97th sess, UN Doc CCPR/C/97/D/1442/2005 (23 November 2009)  (‘Kwok  v Australia’); Human Rights Committee, Views:  Communication No 2094/2011, 108th sess, UN Doc CCPR/C/108/D/2094/2011 (25 July 2013)  (‘FKAG et  al v Australia’); Human Rights Committee, Views:  Communication No 2136/ 2012, 108th sess, UN Doc CCPR/C/108/D/2136/2012 (25 July 2013) (‘MMM et al v Australia’); Human Rights Committee, Views:  Communication 1973/2010, 112th sess, UN Doc CCPR/C/112/D/1973/2010 (26 January 2015) (‘Griffths v Australia’); Human Rights Committee, Views: Communication 2005/2010, 115th sess, UN Doc CCPR/C/115/D/2005/2010 (19 February 2016) (‘Hicks v Australia’); Human Rights Committee, Views: Communication 2233/2013, 116th sess, UN Doc CCPR/C/116/D/2233/2013 (2 May 2016) (‘F J et al v Australia’); Human Rights Committee, Views: Communication 2229/2012, 116th sess, UN Doc CCPR/C/116/D/2229/2012 (17 November 2016) (‘Nasir v Australia’). Concluding Observations on the Sixth Periodic Report of Australia, 121st sess, UN Doc CCPR/C/AUS/CO/ 6 (1 December 2017) 2 [9]. (2004) 223 CLR 575. The High Court decision is discussed in more depth in Chapter 10.

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form of ‘arbitrary detention’ under art 9(1) of the ICCPR. The Committee reasoned that there was a breach of art 9(1) because the continued incarceration of ‘dangerous prisoners’ under such legislation amounted to a fresh term of imprisonment, which is not permissible in the absence of a conviction.23 In a case dealing with similar legislation in New South Wales, the Committee found that the civil procedures embedded in the legislation did not meet the due process guarantees, set out in art 14 of the ICCPR (due process is required for a fair trial in which a penal sentence is imposed).24 The international community has also been critical of Australia’s system of relying exclusively on parliamentary protection for human rights, particularly during times of heightened tension, such as the ‘War on Terror’ that succeeded the 11 September 2001 terrorist attacks in the US. Sometimes, the problem is that Parliament confers powers on the executive to respond to perceived emergencies without giving enough consideration to the human rights impact of such discretions. At other times, Parliament has failed to foresee how legislation may burden human rights because, as we consider in more detail below, its process for reviewing proposed legislation has been inadequate. In the 2017 Human Rights Committee’s report card for Australia, concern was expressed about the haste with which Federal Parliament enacted counter-terrorism laws and ‘the necessity and proportionality of certain counter-terrorism powers, including control orders, stop, search, and seizure powers, questioning and detention warrants, preventative and post-sentence detention order regimes, “declared areas” offences, and revocation of citizenship’.25 The Committee recommended that Australia conduct a review of its counter-terrorism law and ensure ‘that any limitations of human rights for national security purposes serve legitimate government aims, are necessary and proportionate to those legitimate aims and are subject to appropriate safeguards’.26 In this recommendation we see how these UN bodies use the language of proportionality and necessity to evaluate compliance with international obligations. To provide a clearer and more comprehensive picture as to how human rights are protected in Australia, the following section considers the three main sources of law in Australia—the Constitution, legislation and the common law—to compare and contrast how these sources operate to both protect and abrogate human rights.

23 24 25 26

Human Rights Committee, Views:  Communication No 1629/2007, 98th sess, UN Doc CCPR/C/98/D/ 1629/2007 (10 May 2010) (‘Fardon v Australia’). Human Rights Committee, Views:  Communication No 1635/2007, 98th sess, UN Doc CCPR/C/98/D/ 1635/2007 (18 March 2010) (‘Tillman v Australia’). Concluding Observations on the Sixth Periodic Report of Australia, 121st sess, UN Doc CCPR/C/AUS/CO/ 6 (1 December 2017) 3 [15]. Ibid 3 [16].

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Human rights at the federal level

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Constitutional guarantees Individual rights provisions in the Australian Constitution are few; and those that do exist are difficult for a non-lawyer to either identify or understand their scope. Most ‘rights’ in the Australian constitution are not even framed as such, but, rather, as limitations on legislative power. For instance, s 51(xxxi) states that the Commonwealth can only make laws that compulsorily acquire property on ‘just terms’ and s 116 states the Commonwealth cannot make laws with respect to religion or curtailing its free exercise. There are only two rights that are expressly framed in the Constitution: s 80 protects a limited right to trial by jury and s 117 requires freedom from discrimination on the basis of state residence. The High Court has often interpreted these rights very narrowly, and this is particularly seen in relation to ss 116 and 80. In addition, ss 51(xxxi), 80 and 116 are limited in their scope, in that they relate only to the actions of the Federal Parliament and do not restrict the actions of the states. Since 1901 various attempts have been made to extend these express rights protections in the Constitution, but these have failed partly due to the difficult referendum requirements imposed by s 128 of the Constitution, and possibly partly due to the low level of understanding of Australia’s constitutional rights among the electorate. In addition to these express guarantees, the High Court has also found implied limitations on power in the Constitution that operate to protect rights. Often these decisions have been met with controversy, and give rise to a renewal of the debate about whether the courts should be given a more direct and formal role in protection of rights, which we return to later in this chapter. One of the most significant among these implied limits have been those that protect the rights of individuals subject to the legal system via the requirements of Chapter III to protect the integrity of the federal judicial system (explained in more detail in Chapters  9 and 10). For human rights advocates, the indirect protections offered by the implications of Chapter III of the Constitution have been an invaluable tool, but this path of protection has produced highly circuitous forms of argument. For example, in cases involving the imposition of detention or control orders (parolelike conditions or house arrest where no charges have been laid), advocates are forced to make technical arguments about the nature and limits of judicial power and are unable to directly submit that federal legislation abrogates the right to liberty in a disproportionate and unjustifiable manner. The other significant protection has been implied by the Court by reference to the requirements of the system of representative and responsible government that

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is enshrined in the Constitution.27 The High Court has held that these requirements mean that the Federal Parliament cannot arbitrarily deprive Australian citizens of their right to vote or their freedom of political communication.28 The constitutional principles of responsible and representative government do not confer individual rights, but instead place limitations on the power of the Parliament. Within the limited rights jurisprudence that is evident in Australia, the High Court has often, although not universally, deployed a proportionality-style analysis. This is most evident in relation to the implied freedom of political communication and the implied protection of the franchise. As we saw in Chapter  5, the implied freedom of political communication, the Court requires the government to justify any infringements by reference to whether they are appropriate and adapted to a legitimate government objective, which is compatible with the system of representative and responsible government. A  majority of the Court has most recently explained that the answer to this question can be determined by reference to the three-stage proportionality test that has been developed in Europe and Canada for rightsinfringements.29 A similar test has been applied by the Court in determining whether there exists a ‘substantial reason’ for excluding a group of people from the franchise.30

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Legislative action Under our constitutional system, it is the legislatures that bear the primary responsibility of promoting and protecting our human rights. However, given the paucity of constitutional protection of human rights in Australia, they face few enforceable human rights constraints in undertaking their role. There are strong arguments that Parliament is not well suited to carry out this important role, particularly given that it is dominated (at least in the lower house) by the executive (see Chapter 7) and, as an elected body, it generally acts in the best interests of the majority rather than those who are most vulnerable, marginalised or unpopular. As the UN bodies’ reports have highlighted, this often manifests in rushed

27

28 29

30

See, eg, Australian Capital Television Pty Ltd v Commonwealth (1992) 177 CLR 106; Nationwide News Pty Ltd v Willis (1992) 177 CLR 1; Lange v Australian Broadcasting Corporation (1997) 189 CLR 520. See also Chapter 5 for a discussion of representative and responsible government. See Roach v Electoral Commissioner (2007) 233 CLR 162; Rowe v Australian Electoral Commissioner (2010) 234 CLR 1. For examples of where four judges of the High Court have used a proportionality analysis, see McCloy v NSW (2015) 257 CLR 178 (French CJ, Kiefel, Bell and Keane JJ); Brown v Tasmania (2017) 349 ALR 398 (Kiefel CJ, Bell, Keane and Nettle JJ). See also Gageler J’s reservations about this analytical approach in both cases, eg McCloy v NSW (2015) 257 CLR 178, 235 (Gageler J). See Roach v Electoral Commissioner (2007) 233 CLR 162, 182 (Gleeson CJ), 199 (Gummow, Kirby and Crennan JJ); Rowe v Australian Electoral Commissioner (2010) 234 CLR 1, 20 (French CJ), 59 (Gummow and Bell JJ).

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policy development and legislative passage of legislation that has profound impacts on human rights. In response to these and other concerns, a number of reforms have been implemented across the last decade. In 2009 a national consultation gauged how Australians viewed human rights protection and whether it could be improved. The Committee—chaired by Father Frank Brennan and known as the ‘Brennan Committee’—travelled the nation and received over 35,000 written submissions. The final report found that those Commonwealth Government actors formulating policy and legislation were giving insufficient attention to human rights considerations.31 Human rights were not being adequately integrated into the parliamentary process. In regard to Parliament, the Brennan Report recommended the establishment of a new joint parliamentary committee modelled on the UK’s Joint Committee on Human Rights (which is widely regarded as performing a robust level of scrutiny), together with a system of statements of human rights compatibility to accompany all new Bills and disallowable legislative instruments. The report also recommended that the Federal Government conduct an audit of all existing law, policies and practices to determine Australia’s compliance with its international human rights obligations and subsequently amend them where necessary. In particular, the report drew attention to the areas of national security and immigration as well as anti-discrimination law, which is covered by a number of different pieces of legislation. The 2010 government response to the Brennan Report, known as the Human Rights Framework,32 implemented a number of the report’s recommendations, particularly those relating to strengthening the parliamentary protection of human rights by establishing the Parliamentary Joint Committee on Human Rights (‘PJCHR’) (discussed briefly in Chapter 6) and introducing a system of statements of compatibility at the introduction of Bills. This section analyses these developments and charts Parliament’s trajectory in protecting human rights. It begins by explaining Parliament’s power to enact human rights legislation and traces some of the instances where Parliament has actively promoted human rights through enacting anti-discrimination legislation. This is followed by some instances of where Parliament has used legislation to curtail human rights in a bid to counter terrorism. It then sets out whether Australia’s system of parliamentary scrutiny is enhanced through the operation of the PJCHR and statements of compatibility.

31 32

National Human Rights Consultation Committee, National Human Rights Consultation Report (‘Brennan Report’) (September 2009). Commonwealth of Australia, Attorney-General’s Department, Australia’s Human Rights Framework (April 2010), .

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Legislative protection of human rights The Federal Parliament in Australia has enacted a number of important pieces of legislation that protect human rights; and there are many other protections that have been enacted at the state level. As we explain in Chapter 13, the Federal Parliament has power under s 51(xxix) to enact legislation that gives effect to our international treaty obligations. The Parliament has used this power to enact a number of pieces of legislation, but has fallen far short of enacting all of Australia’s international obligations. After signing the ICCPR in 1972, the Whitlam ALP Government introduced a legislative Bill of Rights so as to implement the ICCPR using the external affairs power. When the Whitlam Government was dismissed in 1975, this Bill stalled. Three years after Australia ratified the ICCPR in 1980, Cabinet once again approved the introduction of a legislative Bill of Rights, but this time the Bill was never introduced into Parliament. In the meantime, the Federal Parliament began enacting anti-discrimination legislation over a period of almost 40 years, piece by piece, starting with the Racial Discrimination Act 1975 (Cth) (‘RDA’), which implemented parts of the International Convention on the Elimination of Racial Discrimination (‘ICERD’). The use of the external affairs power to support legislation of this type was confirmed in the 1982 decision of Koowarta v Bjelke-Petersen.33 The enactment of further anti-discrimination legislation was very slow:  nine years after the RDA came the Sex Discrimination Act 1984 (Cth); a further eight years later came the Disability Discrimination Act 1992 (Cth); and, finally, in 2004 came the Age Discrimination Act 2004 (Cth). This suite of four separate discrimination Acts provides protection from discrimination on the grounds of race, sex, disability and age in relation to actions in the public sphere such as the workplace, education, and the provision of goods and services. The RDA goes further to prohibit discrimination in any field of public life. In addition, the Fair Work Act 2009 (Cth) sets out protections specifically relating to discrimination in employment. In 2012 the government introduced legislation to amend the Sex Discrimination Act in order to include sexual orientation, gender identity and intersex status as prohibited grounds of discrimination.34 A breach of anti-discrimination legislation is known as an ‘unlawful’ act, which most often leads to civil remedies. Such a breach can be addressed through a process of conciliation conducted by the Australian Human Rights Commission (‘AHRC’), or determined through a judicial hearing and binding order made by the Federal Court or the Federal Circuit Court. 33 34

(1982) 153 CLR 168. Sex Discrimination Amendment (Sexual Orientation, Gender Identity and Intersex Status) Act 2013 (Cth).

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The states and territories have also introduced anti-discrimination laws. In contrast to the federal Acts, this legislation is omnibus in that a single statute covers all the protected grounds of discrimination. The Tasmanian legislation is the most extensive, covering 22 grounds of discrimination. With the exception of the Australian Capital Territory and Victoria, the state bodies established by these Acts do not have a mandate to promote human rights generally—the anti-discrimination legislation is more narrowly concerned with equality, albeit formal equality. As a form of human rights protection, federal anti-discrimination legislation suffers from various weaknesses. For example, such legislation has no special constitutional status: this means that Parliament can suspend it, amend it in order to either strengthen or weaken it, or repeal it. The suspension of federal antidiscrimination legislation has occurred three times, all in relation to Aboriginal and Torres Strait Islander issues. The most controversial example was the suspension of the RDA in 2007 under the Northern Territory Emergency Response (‘NTER’) measures (discussed in Chapter  3), which received bipartisan support when they were passed with little deliberation by Parliament.35 The anti-discrimination laws in Australia form a collage of legislation, which has led to calls for consolidation and uniformity, at least at the federal level. In 2011, the Rudd Government commenced a process of consolidating the federal antidiscrimination legislation, but this was abandoned in 2013. Under the current array of legislation, the tests for discrimination are different across the different Acts even at the federal level, making this field of law sometimes complex for individual complainants and businesses to navigate. An employee who is not promoted because of more than one ground covered under the four Acts (such as age and race and sex—for example, an older Aboriginal woman) is not able to commence action under more than one Act, but must choose one regime. Adding to this issue, enforcement of anti-discrimination law is left to individual complainants who shoulder the entire onus of proof. In contrast, the Fair Work Act shares this onus between the individual and the employer: once the complainant has been able to prove that an adverse action has taken place, the employer must then establish that the action was not based on a prohibited ground. This shifting of the burden of proof is in line with other jurisdictions such as the UK, the US, Canada and the European Union. More recently, there has been significant public debate around whether the current anti-discrimination laws have established the best balance between equality rights and the rights to exercise religious freedom. Under the current system, there are a number of specific and limited exemptions for religious practices, but no general

35

The two other instances were the Native Title Amendment Act 1998 (Cth) and the Hindmarsh Island Bridge Act 1997 (Cth).

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exemption for religious organisations. The most recent debate on this issue was started after Federal Parliament enacted an amendment to the Marriage Act allowing samesex couples to marry in December 2017. This change was opposed by a number of religious organisations, with concerns raised that the changes would require people to provide services and goods to same-sex weddings that would be contrary to their religious beliefs. In response to these specific concerns, the government established a more general inquiry into whether Australian law adequately protects religious freedoms: the Religious Freedom Review.36

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Legislative curtailment of human rights While the Federal Parliament has chosen to enact anti-discrimination legislation to protect human rights, there are also statutes that curtail human rights. The Australian Law Reform Commission (‘ALRC’) has undertaken a valuable audit of how federal laws impact on ‘traditional rights and freedoms’, often referred to as common law rights and freedoms. In its report the ALRC sets out a number of areas that need further review by Parliament, in particular highlighting concerns regarding our national security laws passed after 11 September 2001, and migration laws. When Parliament curtails existing rights, it often offers a justification which broadly articulates the tension in its twin role of empowering and restraining. Parliament’s ‘empowerment’ of security agencies such as ASIO is based on the extent to which they can assist the state in achieving the greater good—for example, by protecting our society from the threat of harm—but there is also need for ‘restraint’ of these agencies so that individual freedoms are preserved as far as possible, safeguarding security and preserving individual liberty. As we have already seen earlier in this chapter, at the international level and even within our own constitutional system, the principle of proportionality is the preferred mechanism for this weighing process; that is, any incursion on a right must be necessary and proportionate to the security dividend achieved in light of the risk posed by the identified threat.37 For example, proportionality ensures minimum encroachment on individual liberties in order to ensure security. Under this approach, it is accepted that protection from threats can never be absolute, but neither can the protection of individual rights. Often security measures disproportionately affect some individuals

36 37

Department of the Prime Minister and Cabinet, Australian Government, Religious Freedom Review, . See Siracusa Principles on the Limitation and Derogation Provisions in the International Covenant on Civil and Political Rights, 41st sess, UN Doc E/CN.4/1985/4 (28 September 1984) annex. In the context of counter-terrorism, see Christopher Michaelsen, ‘The Proportionality Principle in the Context of AntiTerrorism Laws: An Inquiry into the Boundaries between Human Rights Law and Public Policy’ in Miriam Gani and Penelope Mathew (eds), Fresh Perspectives on the ‘War on Terror’ (Australian National University Press, 2008) 109,109.

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and parts of the community, raising serious questions about whether these incursions can be justified for the greater good. For example, while it does not do so expressly, anti-terrorism legislation often leads to the targeting of disadvantaged or minority members of the community because of its focus on political, religious or ideological motivation for actions. This may lead to racial profiling and discriminatory treatment of vulnerable members of the community, and in turn may further ostracise these groups and lead to additional security threats.38 The Security Legislation Review Committee reported in 2006: The negative effects upon minority communities, and in particular the escalating radicalisation of young members of such communities, have the potential to cause long term damage to the Australian community.39

Since September 2001, the Federal Parliament has passed more than 50 new counter-terrorism laws, partly under the external affairs power, but also under the defence power and other powers. The suite of legislation initially introduced in 2002 was wide ranging,40 and it led to much debate around how to balance security needs with individual liberty. At the introduction of the legislation, the AttorneyGeneral said: In developing this legislation, the Government has been conscious of the need to protect our community from the threat of terrorism without unfairly or unnecessarily encroaching on the individual rights and liberties that are fundamental to our democratic system. We think the legislation does just that.41

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In late 2004, the ASIO Legislation Amendment (Terrorism) Act 2003 (Cth) amended the ASIO Act 1979 (Cth) to expand ASIO’s powers of questioning and detention. The Act authorises ASIO to question and detain for up to seven days any person who is not necessarily suspected of being involved in committing or planning to commit

38 39 40

41

Christopher Michaelsen, ‘Balancing Civil Liberties Against National Security? A  Critique of Counterterrorism Rhetoric’ (2006) 29 University of New South Wales Law Journal 1, 17. House of Representatives Security Legislation Review Committee, Parliament of Australia, Report (2006) [10.97]. The main measures included the creation of new offences relating to terrorist acts that made it an offence punishable by life imprisonment to engage in or plan a terrorist attack (Security Legislation Amendment (Terrorism) Act 2002 (Cth), which inserted new offences into the Criminal Code 1995 (Cth)); the creation of a framework for proscribing organisations and criminalising membership of, training with or funding such organisations; increasing the powers of ASIO in order to gather information about terrorist attacks including powers to indefinitely detain individuals (even if they were not suspects) (ASIO Legislation Amendment (Terrorism) Act 2003 (Cth)); facilitating the freezing of terrorist assets (Suppression of the Financing of Terrorism Act 2002 (Cth)); strengthening border security (Border Security Legislation Amendment Act 2002 (Cth)); and allowing the greater use of telecommunication interceptions (Telecommunications Interception Legislation Amendment Act 2002 (Cth)). Daryl Williams, Attorney-General, ‘Counter-Terrorism Package’ (News Release, 56/02, 4 June 2002), .

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a terrorist offence. It can apply to anyone who is able to ‘substantially assist in the collection of intelligence that is important in relation to a terrorist offence’.42 In these circumstances, a detained person has no right to seek judicial review of the warrant and has no right to be brought before a court. This arguably breaches the right to a fair hearing and to have an independent body review the legality of one’s detention. Initially when the counter-terrorism Bills were introduced, they included a very broad definition of terrorism and very broad investigatory powers for ASIO.43 After critical parliamentary debate, an adverse report from the Senate Legal and Constitutional Affairs Legislation Committee,44 other parliamentary committees45 and public outcry,46 the government agreed to a number of amendments, including narrowing the breadth of the definition of a terrorist act to ensure that legitimate civil protests were not captured by it. The investigatory powers of ASIO were reduced. The power to detain and question people, which previously allowed for the detention of children, was restricted to people over the age of 16. The amendments also ensured access by detainees to a lawyer of their choice, and reduced the time people could be questioned by ASIO to 24 hours over a one-week period in detention (or 48 hours where interpreters were used). In addition, the amendments required judicial oversight of the exercise of these investigative powers. Despite these amendments, academic experts have described this coercive questioning and detention scheme as ‘extraordinary … [with] no precedent … in Australia or in other like nations’.47 One of the reasons for this assessment is that the legislation which broadens ASIO’s powers does not tightly constrain executive discretion. For example, the legislation does not stipulate that the power to issue a detention warrant can only be used once it is established that this detention is necessary to protect the community. The danger of wide conferrals of discretion on the executive is discussed in Chapters 7 and 8. Where legislation makes extraordinary inroads into our liberties, it should ideally offer a careful justification of these limitations in alignment with the principles of proportionality and necessity.

42 43 44

45

46 47

See ASIO Act 1979 (Cth) s 34G. George Williams, ‘Australian Values and the War Against Terrorism’ (2003) 26(1) University of New South Wales Law Journal 191, 194–5. Senate Legal and Constitutional Legislation Committee, Parliament of Australia, Consideration of Legislation Referred to the Committee:  Security Legislation Amendment (Terrorism) Bill 2002 (No 2) (2002). Senate Standing Committee for the Scrutiny of Bills, Parliament of Australia, Alert Digest No 3 of 2002 (20 March 2002) 49–52; Senate Standing Committee for the Scrutiny of Bills, Parliament of Australia, Report No 4 of 2002 (2002). Jenny Hocking, Terror Laws: ASIO, Counter-Terrorism and the Threat to Democracy (University of New South Wales Press, 2004). Lisa Burton, Nicola McGarrity and George Williams, ‘The Extraordinary Questioning and Detention Powers of the Australian Security Intelligence Organisation’ (2012) 36 Melbourne University Law Review 415, 466.

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The range of amendments made to this first suite of anti-terror legislation does demonstrate the strength of the democratic process to restrain state power and force a readjustment of the balance between protection against threat and individual liberties. But public scrutiny and the democratic process can be undermined when Parliament decides to act quickly by truncating debate, and this brings into question the effectiveness of parliamentary oversight.48 After the 2005 London bombings, the speedy passage of new anti-terror laws based on UK legislation expanded the offences relating to terrorist actions. The Anti-Terrorism Act (No 2) (Cth) gives the police power to impose control orders and preventative detention orders on suspected terrorists thereby restricting their movement and association. This form of ‘precrime’ legislation is focused on preventing terrorism, but it departs from traditional criminal law in failing to safeguard due process protections such as being given access to the evidence upon which an order is made. In the case of Thomas v Mowbray, already introduced in Chapters 9 and 10, one such suspected terrorist, Jack Thomas, attempted to challenge the control order imposed upon him under the legislation on the grounds that the legislation was not validly enacted under the Constitution’s defence power and that it breached the Constitution’s strict separation of judicial power, particularly in its adoption of a non-traditional judicial process.49 Thomas was unable to challenge the legislation directly for placing unreasonable restrictions on his liberty or in breach of his right to a fair trial because there is no constitutional or even legislative guarantee of liberty in Australia. In contrast, in the UK—which has a legislative Bill of Rights known as the Human Rights Act 1998 (UK)—the courts effectively placed limits on legislative provisions dealing with both control orders and the secret evidence they were based upon, on the ground that such provisions cannot be read compatibly with the various civil and political rights protected by the UK Human Rights Act.50 This followed numerous reports of the UK Parliament’s Joint Committee on Human Rights warning Parliament that the control orders regime was breaching rights such as the right to due process and the right to liberty.

New parliamentary scrutiny The PJCHR joined Federal Parliament’s team of ‘rights watchdogs’ (alongside the Senate Standing Committee for the Scrutiny of Bills and the Senate Standing Committee on Regulations and Ordinances) in early 2012 and shares their mandate to alert Parliament and the public through various avenues when there are potential 48

49 50

See Andrew Lynch, ‘Legislating with Urgency—The Enactment of the Anti-Terrorism Act (No 1)  2005’ (2006) 30 Melbourne University Law Review 747. The limited capacity of Parliament to effectively oversee compliance with individual rights and liberties is discussed further in Chapter 6. Thomas v Mowbray (2007) 233 CLR 307, discussed in Chapter 8. These particular forms of control orders are no longer in use in the UK following the enactment of the Terrorism Prevention and Investigation Measures Act 2011 (UK) c 23.

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rights incursions. Like the two existing Senate Committees, the PJCHR systematically scrutinises every Bill, but it differs in that its focus specifically lies on the compatibility of all Bills with our international human rights obligations. The PJCHR was established under the Human Rights (Parliamentary Scrutiny) Act 2011 (Cth) (‘HRPS Act’), and under s 7(a) and (b) of this Act the Committee’s function is to scrutinise how proposed legislation (and disallowable legislative instruments) as well as existing Acts measure up to Australia’s international obligations under the seven core human rights treaties it has ratified. This scrutiny takes place not only when a Bill is first introduced, but also once amendments have been made at the time of the third reading.51 In addition, the HRPS Act introduced a new requirement that all new Bills and disallowable legislative instruments are accompanied by a statement of compatibility to assess whether the Bill is compatible with the seven core human rights treaties.52 These statements of compatibility are not binding on any court or tribunal, and a failure to present such a statement to accompany a Bill does not affect the validity, operation or enforcement of the Act. The rationale behind these statements of compatibility is that human rights considerations be observed throughout the pre-legislative stage so as to guide the development of policy and minimise the risk of new legislation giving rise to human rights breaches. They are not intended to be prepared as an afterthought as a Bill is about to be introduced into Parliament. An illustration of this point is the passing of the Stronger Futures legislation in mid-2012, which effectively extended the NTER measures for a further 10 years and imposed income management-measures, predominantly on Aboriginal communities.53 The Bill was introduced into Parliament in late 2011 and hence was not accompanied by a statement of compatibility. The National Congress of Australia’s First Peoples called for such a statement of compatibility to be presented.54 While it was not successful at the time, it was successful in requesting the PJCHR to scrutinise the Stronger Futures legislation and report to Parliament regarding its compatibility. This report offers a useful measure of the legislation’s human rights compatibility.55 51 52 53

54

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A second function is ‘to inquire into any matter relating to human rights which is referred to it by the Attorney-General, and to report to both Houses of Parliament on that matter’: HRPS Act s 7(c). See further Chapter 6. Stronger Futures in the Northern Territory Act 2012 (Cth); Stronger Futures in the Northern Territory (Consequential and Transitional Provisions) Act 2012 (Cth); Social Security Legislation Amendment Act 2012 (Cth). See, eg, National Congress of Australia’s First Peoples, Statement to the Senate Standing Committee on Community Affairs on Conditions affecting Aboriginal Communities in the Northern Territory including the Proposed Stronger Futures in the Northern Territory Bill (2011) and accompanying Bills (February 2012) [9]. See PJCHR, Examination of Legislation in Accordance with the Human Rights (Parliamentary Scrutiny) Act 2011:  Stronger Futures in the Northern Territory Act 2012 and Related Legislation (Report No 11, June 2013).

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The PJCHR has indicated that it expects all statements of compatibility to address three questions:  whether the limitation of a right is aimed at achieving a legitimate objective; whether there is a rational connection between the limitation and the objective; and whether that limitation is proportionate.56 The principle of proportionality is set out by the Committee as follows:

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To demonstrate that a limitation is permissible, the limitation must be proportionate to the objective being sought. In considering whether a limitation on a right might be proportionate, key factors include: •

whether there are other less restrictive ways to achieve the same aim;

•

whether there are effective safeguards or controls over the measures, including the possibility of monitoring and access to review;

•

the extent of any interference with human rights—the greater the interference the less likely it is to be considered proportionate;

•

whether affected groups are particularly vulnerable; and

•

whether the measure provides sufficient flexibility to treat different cases differently or whether it imposes a blanket policy without regard to the merits of an individual case.57

The PJCHR is made up of 10 members of various parties, some of whom may have availed themselves of human rights training, and its work is guided by an expert legal advisor. Where statements of compatibility have been absent or inadequate, the PJCHR has asked the relevant Minister to justify how the legislation complies with Australia’s international human rights obligations. One example is the PJCHR’s response to the government’s introduction of a mandatory data retention scheme—giving it more general powers to require the collection and storage of ‘metadata’ from individual internet users—in 2015.58 The legislation allows about 85 security and policing agencies to access two years’ worth of an individual’s metadata in a bid to thwart terrorism attacks and prevent serious crime. This followed the 2013 revelations from Edward Snowden, a contractor to the National Security Agency (one of the largest intelligence organisations in the US), that the US and UK governments had been engaging in extensive secret surveillance of internet users and had been storing this data for up to a year. In Australia, the Joint Committee on Intelligence and Security (‘JCIS’) noted that a mandatory data retention scheme ‘raises fundamental privacy issues, and is arguably a significant extension of the power of the state over the citizen. No regime should be enacted unless those

56 57 58

Parliament of Australia, PJCHR, Guidance Note 1: Drafting Statements of Compatibility (December 2014). Ibid 2–3. Telecommunications (Interception and Access) Amendment (Data Retention) Act 2015 (Cth).

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privacy and civil liberties concerns are sufficiently addressed.’59 In its report the JCIS did not comment on whether the government had achieved a proper balance between national security and civil liberties such as the right to privacy. Scrutiny was also conducted by the PJCHR, examining whether the regulation under which ASIO and the police can seek warrants to access journalists’ metadata was ‘reasonable and proportionate’ in light of our international human rights obligations.60 The government’s rationale was that a journalist might opt to flee the country if they became aware of an investigation. The PJCHR assessed this warrant scheme against arts 2 (right to an effective remedy), 14 (right to a fair hearing), 17 (right to privacy) and 19 (right to freedom of expression) of the ICCPR and questioned the scheme’s compatibility with these rights. In addition, the PJCHR concluded that the statement of compatibility was inadequate and ‘does not sufficiently justify that limitation for the purposes of international human rights law’. The PJCHR sought further information from the Attorney-General as to ‘whether the limitation is proportionate to the stated objective’ of the scheme.61 The Attorney-General’s reply set out a more detailed explanation of the government’s process of balancing but the Committee, chaired by a former Attorney-General, Philip Ruddock, nevertheless concluded that the Regulation, taken together with the Act, remained incompatible with our international human rights obligations.62 This exchange demonstrates how the PJCHR can contest the government’s official line that Australia consistently complies with its international human rights obligations. Another example is the PJCHR’s response to the Criminal Code Amendment (High Risk Offenders) Bill 2016 whereby those convicted of terrorism offences can be detained indefinitely beyond their sentences after an assessment made by a judge in civil proceedings. As mentioned above, this type of continuing detention scheme was previously found by the UN Human Rights Committee to breach Australia’s obligations under the ICCPR.63 Despite this, the Bill’s statement of compatibility argued that the Bill was compatible with Australia’s international obligations and it did not mention the relevant Human Rights Committee Views. The PJCHR noted that while the scheme was not exactly the same as those in Queensland and New South Wales, it was concerned that in practice it could be the same. The Committee

59 60 61 62 63

Parliamentary Joint Committee on Intelligence and Security, Parliament of Australia, Report of the Inquiry into Potential Reforms of Australia’s National Security Legislation (2013). Telecommunications (Interception and Access) Amendment (Public Interest Advocates and Other Matters) Regulation 2015 (Cth). PJCHR, Human Rights Scrutiny Report: 32nd Report of the 44th Parliament (1 December 2015) 48. PJCHR, Human Rights Scrutiny Report: 35th report of the 44th Parliament (25 February 2016) 25. Human Rights Committee, Views:  Communication No 1629/2007, 98th sess, UN Doc CCPR/C/98/D/ 1629/2007 (10 May 2010) (‘Fardon v Australia’); Human Rights Committee, Views: Communication No 1635/2007, 98th sess, UN Doc CCPR/C/98/D/1635/2007 (18 March 2010) (‘Tillman v Australia’).

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wrote to the Attorney-General about the Bill’s inadequate safeguards and for more information as to how it would operate in practice.64 It asked the Attorney-General to address the specific concerns of the UN Human Rights Committee regarding such ‘post-sentencing preventative detention’ schemes. It also went a step further by offering some recommendations to the Attorney-General with the aim of making the Bill’s limitations of the right to liberty more proportionate. Alongside the SSCSB, the PJCHR and its concerns were largely ignored by the Attorney-General, who chose to respond to the committees only a few days before the Bill was passed;65 the AttorneyGeneral opted instead to address the concerns articulated by the JCIS through introducing a set of amendments based on the JCIS’s recommendations. Although in this case the three committees worked together to enhance the Bill,66 the PJCHR’s concerns were not fully addressed by the amendments. To date, the overall impact of the PJCHR has been mixed. Currently there is concern that PJCHR’s effectiveness is low as the Committee’s reports are being undermined by internal dissent and by poor timing, meaning that its reports are often tabled after debate has concluded.67 However, while it cannot be claimed that the PJCHR has successfully steered Parliament away from legislating in violation of international human rights norms, it does achieve the function of providing a useful record of how each federal Bill complies (or does not) with our international human rights obligations. Constitutional law experts Professor George Williams and Daniel Reynolds argue that the PJCHR has had minimal influence when it comes to improving the content of proposed laws,68 and the quality of parliamentary debate has been only minimally enhanced, showing a ‘slow improvement from a low base’.69 They have attributed some of this to our constitutional system as a whole: in a system in which Parliament, or at least the lower house, remains weak with respect to the executive, it is hard to see any parliamentary based scheme for human rights protection producing major alterations to executive proposals for new laws. It is simply not realistic in such a system to expect that a parliamentary scrutiny regime will overcome the power imbalance between these two arms of government.70

64 65 66

67 68 69 70

PJCHR, Report 7 of 2016 (11 October 2016) 19–20. PJCHR, Report 2 of 2017 (March 2017) 60. For an analysis, see Sarah Moulds, Committees in Dialogue:  Parliamentary Scrutiny of the High Risk Terrorist Offenders Bill  (AUSPUBLAW, January  2017), . See, eg, Gabrielle Appleby ‘The 2014 Counter-Terrorism Reforms in Review’ (2015) 26 Public Law Review 4. George Williams and Daniel Reynolds, ‘The Operation and Impact of Australia’s Parliamentary Scrutiny Regime for Human Rights’ (2016) 41(2) Monash University Law Review 469, 490. Ibid 488. Ibid 507.

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Williams and Reynolds argue that ‘in the absence of independent judicial supervision of Parliament’s work, the incentives to comply with the [human rights compliance] regime are few’.71 So far it seems unlikely that the PJCHR and system of statements of (human rights) compatibility are mechanisms that alone can ensure that human rights are respected and promoted throughout the legislative process. One indicator of Parliament’s ability and willingness to be the primary defender of rights is whether it is capable of giving greater protection to minorities who presently look to the courts and the common law for human rights protection because the courts are not influenced by the democratic pressures of acting in the best interests of the majority. The next section considers how the courts have been able to use the common law to protect human rights.

Common law protections

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The Australian courts have held that the common law contains a range of protections of rights and freedoms. Some of these are recognised as human rights and protected in international human rights treaties. Over time common law rights and human rights have been mutually reinforcing.72 A non-exhaustive list of rights that the common law has protected includes the following: the privilege against self-incrimination; legal professional privilege; access to the courts; access to legal counsel when an indigent person is accused of a serious crime; immunity from interference with vested property rights, including native title rights; immunity from deprivation of liberty except by law; freedom of speech and movement; and procedural fairness when affected by the exercise of public power.73 These protections are not actionable unless argued in the context of an actionable wrong, such as interference with one’s liberty or property. In the context of the privilege against self-incrimination, Murphy J explained in Hammond v Commonwealth how the privilege had come to exist and how it was protected under the common law: The privilege against self-incrimination is part of our legal heritage where it became rooted as a response to the horrors of the Star Chamber. In the United States it is entrenched as part of the Federal Bill of Rights. In Australia it is part of the common law of human rights. … the privilege is presumed to exist unless it is excluded by express words or necessary implication, that is by unmistakeable language.74

71 72

73 74

Ibid. On the relationship between the common law and international human rights law, see Robert French, ‘Oil and Water? International Law and Domestic Law in Australia’ (Speech delivered at the Brennan Lecture, Bond University, 26 June 2009) 21. For a fuller list, see Australian Law Reform Commission, Traditional Rights and Freedoms—Encroachments by Commonwealth Laws (Summary Report 129) (December 2015). (1982) 152 CLR 188, 199–200 (Gibbs CJ; Mason, Brennan and Deane JJ agreeing). The ‘horrors of the Star Chamber’ included the use of torture.

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Here Murphy J is discussing the common law statutory presumption that legislation is construed consistently with fundamental rights, which has become known as ‘the principle of legality’. This principle was introduced in greater depth in Chapter 11. The presumption is that Parliament does not intend to curtail common law rights and freedoms unless such an intention is manifested by Parliament through the use of unambiguous language. Given the establishment of the PJCHR, such explicit language should trigger scrutiny and produce a level of political debate as well as media attention. Other relevant presumptions of statutory interpretation include the presumption against retrospectivity of certain laws that affect substantive rights. There is also the presumption that Parliament intends to legislate consistently with its international law obligations; this means that the (few) extant legislative provisions that implement international human rights treaties will be read consistently with the relevant treaty.75 For some commentators, these common law presumptions effectively offer a Bill of Rights: for example, former New South Wales Chief Justice James Spigelman refers to them collectively as a ‘common law bill of rights’ and he argues that they enjoy a quasi-constitutional status.76 It is, however, difficult to share Spigelman’s optimism about the scope of the common law protection of human rights. The common law is a limited vehicle for human rights protection for a number of reasons. First, common law rights and freedoms can be easily extinguished by Parliament. For example, the ASIO Legislation Amendment (Terrorism) Act 2003 (Cth), mentioned above, partly extinguishes the privilege against self-incrimination, as there is clear legislative intention to remove the right to remain silent.77 Second, it is unclear what rights are fundamental at common law. Spigelman asserts that:  ‘What is to be regarded as a “fundamental right, freedom or immunity” is informed by the history of the common law.’78 The history of the common law does not fill one with confidence: up until the late 19th century in Australia, the common law was actively involved in discrimination in that it denied legal rights to women, in particular the status of legal personhood.79 Indeed, the common law has a history of protecting a narrow set of 75 76

77 78 79

See Chapter 11 for a discussion of this presumption of statutory interpretation. James Spigelman, Statutory Interpretation and Human Rights (University of Queensland Press, 2008) vol 3. Note that a number of recent cases have also treated the principle of legality as one having a ‘constitutional dimension’. See, eg, Evans v New South Wales (2008) 168 FCR 576, 593–4 [70]. This sentiment was also echoed in the unanimous decision of Black CJ, French and Weinberg JJ in Minister for Immigration and Citizenship v Haneef (2007) 163 FCR 414, 444 [113]. See ASIO Act 1979 (Cth) ss 34E, 34L. Spigelman, above n 76, 27–9. For example, upon marriage, women lost the capacity to contract and to deal with property in their own right. In Australia the common law was slow to remedy this: as late as 1893 the New South Wales Supreme Court held that a married woman was not a ‘person’ under the common law: Ex parte Ogden (1893) 14 NSWLR 86. The common law was even slower in Canada, where women were not recognised as ‘legal persons’ until 1930. See Edwards v Attorney General for Canada [1930] AC 124.

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rights—predominantly property rights—by strictly construing penal and tax statutes, but such an approach has not been applied to statutes interfering with personal liberty.80 Despite this sketchy record, the common law is often relied upon by human rights advocates because other remedies are scarce or absent. Another area of the common law where we can find a measure of human rights protection is administrative law, which, as explained in Chapter 8, protects the right to challenge government decisions. More specifically, it protects the right to procedural fairness in that all decisions made by government officials and ministers must be made lawfully, and those affected by a decision must be given a proper hearing. However, there is no general requirement that government decisions be otherwise compliant with human rights. The exception to this is procedural, in that a decision maker must give an affected person an opportunity to argue why the decision should comply with a human rights treaty ratified by Australia if the decision maker does not intend to comply.81 In 2015, as part of an audit of how federal laws impact on our ‘traditional rights and freedoms’, the ALRC expressed concern that ‘[s]ome migration laws … encroach on the duty to afford procedural fairness’, in particular the fast track review process for decisions to refuse protection visas under the Migration Act. It argued that such laws ‘would benefit from further review [by the Parliament], given the gravity of the consequences for those affected by the relevant decision’,82 and it emphasised that limitations on common law rights such as procedural fairness ‘should be proportionate’.83 One area of the common law often overlooked in the sphere of human rights law is the private law of torts, which deals with interpersonal relations. Various human rights—such as the right to life, liberty and security, and freedom from torture, slavery and servitude (arts 6 and 7 of the ICCPR)—intersect with the tort actions of trespass and its sub-categories of assault and battery. Similarly, the tort of false imprisonment intersects with the right to be free from arbitrary detention found in art 9 of the ICCPR. While tort law is designed to protect individuals and their property, it differs from human rights law in that it is remedial in nature—it is concerned with harm suffered rather than prescribing standards of treatment. In the sphere of private tort law, however, common law protections become seen as ‘rights’ because in the context of interpersonal relationships they are justiciable and binding in nature.

80 81 82 83

Dan Meagher, ‘The Common Law Principle of Legality in the Age of Rights’ (2011) 35 Melbourne University Law Review 449, 453. Minister for Immigration and Ethnic Affairs v Teoh (1995) 183 CLR 273. For further discussion of the Teoh principle, see Chapter 13. Australian Law Reform Commission, above n 73, [58]. Ibid. See also ibid ch 14.

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At a broad level, international human rights norms can be influential in the development of the common law, as Chapter  13 outlines. In Mabo v Queensland [No 2] Brennan J stated: The common law does not necessarily conform with international law, but international law is a legitimate and important influence on the development of the common law, especially when international law declares the existence of universal human rights. A common law doctrine founded on unjust discrimination in the enjoyment of civil and political rights demands reconsideration.84

Brennan J then qualified this statement by explaining that the common law could not be developed in such a way as ‘to fracture a skeletal principle of our legal system’.85 Brennan J’s words in Mabo make it clear that human rights are not one of the ‘skeletal principles’ of our common law system. The next section considers the other institutions in Australia that have the dual role of assisting the Parliament and the executive in protecting human rights while monitoring the government’s compliance.

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Independent oversight institutions Currently at the federal level, government institutions can, unless there is legislation to the contrary, act inconsistently with Australia’s international human rights obligations. These institutions include government departments and agencies, public officials and the public service. There are few independent institutions to monitor Australia’s compliance with human rights. The main one is the AHRC, although the Commonwealth Ombudsman, Privacy Commissioner and the National Security Legislation Monitor and Information Commissioner also play a role. As Chapter 8 explained, although they are statutorily independent, these institutions form part of the federal executive. In 1981 the Federal Government established the first Human Rights Commission. Over time the name and functions of the Commission have changed.86 From 1981 to 1995, one of its main functions was to conciliate and hear complaints under the Human Rights and Equal Opportunity Commission Act 1986 (Cth) (renamed the Australian Human Rights Commission Act 1986 (Cth) (‘AHRC Act’)), the Racial Discrimination Act 1975 (Cth), the Sex Discrimination Act 1984 (Cth) and the Disability Discrimination Act 1992 (Cth). Following the case of Brandy v Human Rights and Equal Opportunity

84 85 86

(1992) 175 CLR 1, 42. Ibid 43. The institution’s name changed to the Human Rights and Equal Opportunity Commission (‘HREOC’) in 1986 when it finally became a full-time institution, but in 2009 it once again became known as the Australian Human Rights Commission.

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Commission (in which the High Court found that the Commission was exercising federal judicial power in breach of Chapter III of the Constitution),87 the Commission can no longer make conclusive determinations but engages in conciliation only: all discrimination cases are now heard by the Federal Court and the Federal Circuit Court. The effect of this change was to make discrimination hearings more formal, but also to bring discrimination cases into mainstream legal jurisprudence. The AHRC is chiefly involved with promoting rights articulated in the international instruments annexed to the AHRC Act;88 in reviewing and monitoring legislation, particularly anti-discrimination legislation; and in reporting to the federal AttorneyGeneral as to whether new law or policy is necessary. The President of the AHRC can also investigate and conciliate complaints of unlawful discrimination under federal anti-discrimination legislation. Under the AHRC Act, complaints can be made to the AHRC about a government department where the matter cannot be resolved through conciliation. In this situation, the AHRC reports to the Attorney-General as to its recommendations for action, and in practice this report is usually tabled in Parliament. For example, the AHRC may recommend that the Federal Government compensate victims of human rights breaches because a government department has breached their rights under the ICCPR, which is annexed to the AHRC Act. There is, however, no requirement that Parliament respond to these reports or even that it table them. In addition, the AHRC can be asked by Parliament or the government to review policy and legislative proposals, but this has never occurred. The AHRC can also intervene in court cases or coronial inquests if given leave by the Court, but such interventions are rare, and overall they have had little impact on government policy. In contrast, the UK’s Equal Opportunity Commission has the power to initiate and sponsor litigation. While there is certainly scope for the AHRC to conduct a stronger form of monitoring, Parliament and government appear wary and unwilling to allow it to fulfil its potential in effectively overseeing compliance with Australia’s international human rights obligations. In its 2009 report, the Brennan Committee recommended that human rights be made a relevant consideration in the making of all government decisions under the Administrative Decisions (Judicial Review) Act 1977 (Cth),89 which would have brought the fields of human rights law and administrative law one step closer together.90 This

87 88

89 90

(1995) 183 CLR 245. Five international instruments are annexed to the Act: the International Labour Organization’s Convention 111 Concerning Discrimination in Respect of Employment and Occupation; the ICCPR; the Declaration of the Rights of the Child; the Declaration on the Rights of Mentally Retarded Persons; and the Declaration on the Rights of Disabled Persons. One problem is that the AHRC Act annexes only one of the seven core international human rights treaties that Australia has ratified (the ICCPR). Brennan Report, above n 31. See Chapter 8 for discussion of the Administrative Decisions (Judicial Review) Act 1977 (Cth).

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was not accepted and, furthermore, the government did not institute the Brennan Report’s recommendation that all Federal Government departments be required to report on human rights compliance in their annual reports, a feature of the Australian Capital Territory scheme of human rights protection. The Commonwealth Ombudsman is another institution broadly involved in monitoring human rights in that the Ombudsman investigates maladministration by government. Following international criticism of Australia’s treatment of asylum seekers and terrorism suspects, as well as the mistaken detention and deportation of Australian citizens and permanent residents, the Commonwealth Ombudsman’s powers have been expanded to include the power to review cases of immigration detention and detention under anti-terrorism legislation and to report on these cases to Parliament. The powers, and the limits on those powers, are further discussed in Chapter 8. In 2010 the Federal Government established the office of the Independent National Security Legislation Monitor (‘INSLM’), which was set up to conduct an independent review of Australia’s counter-terrorism laws. The aim of this statutory office is to provide systematic and regular reports to Parliament as to the impact, operation and proportionality of counter-terrorism laws, particularly in regard to effectiveness and accountability, and their consistency with Australia’s international obligations under human rights treaties. INSLM has had mixed success:  the government has adopted various recommendations to expand the counter-terrorism regime, but it has not responded to recommendations that would wind back these laws or introduce additional safeguards.91 For example, INSLM recommended that Parliament repeal ASIO’s special powers to detain and question non-suspects on the ground that these powers were ineffective. Despite these detention powers never having been used, Parliament extended them for a further four years.92 It is clear that the above independent monitoring institutions are strengthening human rights protection at the federal level. As we explained in Chapter 8, in contrast to the courts, these institutions offer a ‘soft’ form of accountability which ‘relies on reporting, criticizing and demanding explanation’.93 Their constitutional position within the executive means that the degree of their effectiveness is ‘necessarily vulnerable to executive and parliamentary whim’.94 At the federal level, human rights would likely be better protected if all Commonwealth government actors were guided

91 92 93 94

Jessie Blackbourn, ‘The Independent National Security Legislation Monitor’s First Term: An Appraisal’ (2016) 39 University of New South Wales Law Journal 975, 976. Ibid 989. Gabrielle Appleby, ‘Horizontal Accountability: The Rights-Protective Promise and Fragility of Executive Integrity Institutions’ (2017) Australian Journal of Human Rights 1, 2. Ibid 1.

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by a human rights framework in their decision making and service delivery. As we will see below, such an approach focused on the daily interactions between government actors and citizens is emerging in those jurisdictions with legislative Bills of Rights.

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Shifting human rights debates Currently in Australia there is no coordinated systematic engagement with rights by all our state institutions, across the executive, legislative and judicial branches. The Brennan Committee’s 2009 report proposed that Australia adopt a federal legislative Bill of Rights, basing its recommendation on the support of 87 per cent of the submissions received by the Committee.95 This echoes the repeated calls for Australia to ‘adopt comprehensive federal legislation giving full effect, to those international human rights norms to which Australia has agreed to be bound’.96 In response to the recommendations of the report, the PJCHR was established to boost parliament’s systematic engagement with rights. One of the Brennan Report’s key recommendations was that a legal mechanism, namely the federal courts, become another avenue for protecting human rights through performing post-legislative scrutiny in light of particular concrete facts, a role that would complement the abstract pre-legislative scrutiny conducted by the PJCHR and statements of compatibility. This would expand the Court’s current role in rights protection through the common law principles, and particularly the principle of legality. This would enable the courts to enjoy a more formalised and broader role in adjudicating and protecting human rights. In its report the Brennan Committee canvassed some of the counterarguments for such involvement by the courts. In particular, the Committee considered arguments about the importance of the judiciary remaining a completely independent institution, untarnished by questions of a political and moral nature that are inevitably posed by human rights. In this respect, the US Bill of Rights has functioned as an ‘anti-model’, with many opponents to Bills of Rights, such as former Commonwealth AttorneyGeneral George Brandis and former New South Wales Premier Bob Carr,97 citing it as an example of harmful politicisation of the judicial branch. Closely related to this argument, the Committee also considered the argument that such an arrangement may diminish parliamentary sovereignty, considered to be

95

96 97

Under the Committee’s terms of reference issued by the Commonwealth Attorney-General, it was directed to ensure that it identify options for enhancing the protection of human rights in Australia that ‘preserve the sovereignty of parliament and not include a constitutionally entrenched bill of rights’. Ibid, app A. Concluding Observations on the Sixth Periodic Report of Australia, 121st sess, UN Doc CCPR/C/AUS/CO/ 6 (1 December 2017) 2 [6]. See, eg, Bob Carr, ‘The Rights Trap’ (2001) 17(2) Policy 4.

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a cornerstone of our constitutional system (see Chapter 6). This argument regarding parliamentary sovereignty was the basis upon which the New South Wales Parliament decided, following two separate inquiries,98 that it was unnecessary to enact a legislative Bill of Rights as this would undermine the supremacy of Parliament and the independence of the judiciary. The report of the 2001 New South Wales inquiry stated that it was not in the public interest ‘to hand over primary responsibility for the protection of human rights to an unelected judiciary who are not directly accountable to the community’.99 It needs to be emphasised that the force of such arguments regarding parliamentary sovereignty depends on the particular design of the Bill of Rights. In regard to the Bills of Rights currently operating in Australia—namely in Victoria and the Australian Capital Territory—Bills of Rights can be devised in such a way as to guarantee parliamentary sovereignty while giving the courts a formal role in performing post-legislative human rights scrutiny. The Australian Capital Territory Human Rights Act 2004 (‘HRA’) and the Victorian Charter of Human Rights and Responsibilities Act 2006 (the ‘Charter’) are aimed at ensuring that primary responsibility for human rights protection remains with, and is explicitly given to, the Parliament and the executive by introducing a system of human rights engagement into the operation of government. These two statutory Bills of Rights transfer minimal responsibility for human rights protection to the judiciary while formally including the courts in this engagement. Both the HRA and the Charter are based on the parliamentary rights model found in the UK and New Zealand, in that they do not give courts the power to strike down inconsistent legislation. The focus of these statutory Bills of Rights is not on the courts and possible remedies that can be gained there. The two Bills take a wholeof-government approach, aiming to build human rights thinking into policy making, legislative drafting, the entire legislative process as well as the manner in which public authorities (state and local government authorities but not the courts) interpret and apply their powers when making decisions and delivering services. According to the 2011 review of the Charter, there is some early evidence that public authorities are changing their practices in order to comply with the Charter and in some cases this has led to some negotiated outcomes instead of litigation.100 Under these Bills of Rights the role of the courts is to interpret laws in a manner that is compatible with human rights but not contrary to the purpose of the law. Where a law (such as a reverse

98

Since 2000, every jurisdiction in Australia, except South Australia, has debated the advantages and disadvantages of such a move through instigating community consultations and/or parliamentary inquiries. 99 Standing Committee on Law and Justice, Parliament of New South Wales, A NSW Bill of Rights (2001) xiii. 100 Scrutiny of Acts and Regulations Committee, Parliament of Victoria, Review of the Charter of Human Rights and Responsibilities Act 2006 (2011) [471].

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onus provision) cannot be interpreted compatibly with the rights in the Charter (for example, the right to the presumption of innocence) the Supreme Court must notify the government and Parliament with a declaration of inconsistent interpretation. The law remains valid. Therefore, nothing in these Bills of Rights prevents Parliament from enacting laws that are incompatible with human rights. In many respects, the HRA and the Charter are very similar. For example, both contain a list of mostly civil and political rights drawn from the ICCPR. Critically, both the HRA and the Charter also have a general limitation clause, which recognises that rights are subject to justifiable limits. For example, s 7(2) of the Charter provides:

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A human right may be subject under law only to such reasonable limits as can be demonstrably justified in a free and democratic society based on human dignity, equality and freedom, and taking into account all relevant factors including— (a)

the nature of the right; and

(b)

the importance of the purpose of the limitation; and

(c)

the nature and extent of the limitation; and

(d)

the relationship between the limitation and its purpose; and

(e)

any less restrictive means reasonably available to achieve the purpose that the limitation seeks to achieve.

Section 7(2) places the onus on the government to satisfy these conditions in order for a limitation to be placed on Charter rights. Thus, when a legislative provision is introduced that limits one of the rights set out in the Charter, the government must be able to establish through a statement of compatibility that the limits are reasonable and that they can be justified according to the conditions set out in the provision. This process is similar to the proportionality assessment expected by the PJCHR to be set out in statements of compatibility accompanying Bills in Federal Parliament. In Victoria, it is the role of the Scrutiny of Acts and Regulations Committee (‘SARC’) to scrutinise these statements of compatibility in light of the Charter as well as common law rights and to report to Parliament. Like the federal system, there is little evidence that the Victorian Charter and SARC have had significant influence on the quality of parliamentary debate but there is some evidence that they are having a greater impact behind-the-scenes where policy is being developed and legislation drafted.101 Unlike the federal system, however, the frameworks in the Australian Capital Territory and Victoria articulate a list of minimum human rights standards. This articulation can have an important impact on government as well as community

101 Michael Brett Young, From Commitment to Culture: The 2015 Review of the Charter of Human Rights and Responsibilities Act 2006 (State of Victoria, 2015) 177.

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understandings of their rights, which has been shown to be very poor within Australia. In 2017 the UN Human Rights Committee expressed its concern about reports that Australian officials had ‘limited awareness’ of one of the core international human rights treaties, the ICCPR, and it recommended training for ‘judges, lawyers, prosecutors, law enforcement and public servants’.102 Arguably this limited awareness is mirrored in Parliament where many Members of Parliament without any legal training doubt their own ability to identity human rights concerns or evaluate possible consequences of certain forms of legislation for human rights.103 The patchwork nature of human rights protection likely also contributes to a poor understanding of human rights within the community. Indeed, few Australians are acquainted with their rights, and many find it difficult to articulate them. In a 2006 survey, 61 per cent of those Australians surveyed mistakenly believed that Australia has a federal Bill of Rights.104 The Brennan Committee observed that ‘[h]uman rights are not well understood by the Australian community’.105 The first three of the report’s 31 recommendations as to how Australia could strengthen its protection of human rights identify the need for better human rights education, including a readily identifiable list of Australian rights and responsibilities. Articulation and knowledge of rights also has the potential to assist the community in daily interactions with government. The articulation of rights can be empowering as it provides ordinary members of the public with a language through which they can communicate their grievances to government. According to constitutional scholar Professor Stephen Gardbaum, within the common law world the Australian Capital Territory and Victorian Bills of Rights (like those in the UK and New Zealand) represent a ‘new model’, or the ‘new Commonwealth model of constitutionalism’, which self-consciously departs from the traditional model of legislative supremacy (still present at the federal level in Australia) and from the alternative model of judicial supremacy (as seen in the US with its Bill of Rights). He explains that the ‘new model treats legislatures and courts as joint or supplementary rather than alternative exclusive protectors and promoters of rights’ but ‘with the legal power of the final word going to the politically accountable branch of government’.106

102 Concluding Observations on the Sixth Periodic Report of Australia, 121st sess, UN Doc CCPR/C/AUS/CO/ 6 (1 December 2017) 2 [5]–[6]. 103 Carolyn Evans and Simon Evans, ‘Messages from the Front Line: Parliamentarians’ Perspectives on Rights Protection’ in Tom Campbell, Keith Ewing and Adam Tomkins (eds) The Legal Protection of Human Rights: Sceptical Essays (Oxford University Press, 2011) 338. 104 Roy Morgan Research, Anti-Terrorism Legislation Community Survey (Amnesty International Australia, 2006) 5. 105 Brennan Report, above n 31, pt 6.7. 106 Stephen Gardbaum, The New Commonwealth Model of Constitutionalism: Theory and Practice (Cambridge University Press, 2013) 1–2.

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Australian constitutional lawyer Dr Scott Stephenson describes these two Bills of Rights as ‘develop[ing] some of the most sophisticated forms of multi-state rights review to date while also continuing to demonstrate the greatest fidelity to legislative supremacy’.107 Gardbaum’s assessment of the Australian Capital Territory and Victorian Bills of Rights is more cautious, concluding that while ‘neither … has created a system of de facto judicial supremacy … the more plausible concern is whether they are, and (if they survive) will remain, distinct from traditional parliamentary sovereignty [Parliament]’.108 Despite the attempts of these two jurisdictions to strike a careful balance, strong antipathy towards Bills of Rights in Australia, largely based on the US experience of judicial supremacy, has, to date, undermined efforts to implement a similar model at the federal level.109 Nevertheless, the two Bills of Rights have shifted debate in Australia with greater attention being shone on how the executive and parliament can boost their performance in developing and reviewing law and policy in light of rights considerations.

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Conclusion Australia continues to have a patchwork of human rights protections that allow indefinite detention of asylum seekers, detention of counter-terrorism nonsuspects, children to be kept in immigration detention, and the enactment of laws that disproportionately impact on particular races and minorities. Such actions and treatment of individuals are inconsistent with the values of equality, freedom and community that our public law should uphold. As we have seen, the Constitution provides few rights guarantees and federal legislation is far from comprehensive in protecting human rights. In addition, the common law is not a strong protector of human rights, as common law rights are opaque and can be easily extinguished through clear and specific legislation. Furthermore, our independent institutions for monitoring government compliance with human rights are weak and are frequently undermined by the government and Parliament. However, human rights scrutiny within Federal Parliament is slowly becoming more systematic and rigorous through the system of statements of compatibility and 107 Scott Stephenson, From Dialogue to Disagreement in Comparative Rights Constitutionalism (Federation Press, 2016) 28. 108 Gardbaum, above n 109, 220–1. 109 There is also uncertainty about whether such a model could be implemented due to the High Court’s decision in Momcilovic v The Queen (2011) 245 CLR 1, which concerned the Supreme Court’s declaration of a Victorian statute’s inconsistency with the Charter. In this case the High Court indicated that a similar power could not be conferred by a national Bill of Rights on a federal court due to the Constitution’s separation of judicial power and its implications.

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the establishment of the PJCHR, which works with other parliamentary scrutiny committees to blunt some of the rights intrusions posed by our laws. The same can be seen in Victoria and the Australian Capital Territory, which have gone a step further than the Federal Government by articulating minimum rights, and requiring all public authorities to act compatibly with human rights.

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DISCUSSION QUESTIONS 1

Who has the primary responsibility for protecting human rights in Australia? What mechanisms are used to protect our human rights? Are these mechanisms sufficient to protect the rights of the vulnerable, marginalised and unpopular?

2

What are the strengths and weaknesses of the Australian Human Rights Commission? Consider its powers and functions and how it could be strengthened.

3

Evaluate the new federal system of legislative scrutiny. Begin by finding and reading a statement of compatibility accompanying a recent federal Bill (consider whether human rights considerations have guided the process of the drafting of the Bill and developing the policy); then find out whether the PJCHR has scrutinised this Bill as well as its statement of compatibility. How compelling is the review conducted by the PJCHR? What are the benefits of this review process?

4

Why does Stephen Gardbaum characterise the Victorian Charter and Australian Capital Territory HRA as part of the ‘new model’? How do they differ from how the federal system protects human rights? How do they differ from how rights are protected under the US Bill of Rights? Do you think some aspects of the Charter should be adopted at the federal level?

5

Do you think that the courts should play a greater or lesser role in the protection of human rights? What are the advantages and disadvantages of such judicial involvement?

FURTHER READING Philip Alston and Ryan Goodman, International Human Rights: The Successor to International Human Rights in Context (Oxford University Press, 2013) Andrew Byrnes, Hilary Charlesworth and Gabrielle McKinnon, Bills of Rights in Australia: History, Politics and Law (University of New South Wales Press, 2009) Tom Campbell, Jeffrey Goldsworthy and Adrienne Stone (eds), Protecting Rights without a Bill of Rights (Ashgate, 2006) Stephen Gardbaum, The New Commonwealth Model of Constitutionalism: Theory and Practice (Cambridge University Press, 2013)

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Paula Gerber and Melissa Castan (eds), Contemporary Perspectives on Human Rights Law in Australia (Lawbook, 2013) National Human Rights Consultation Committee, National Human Rights Consultation Report (September 2009) Scott Stephenson, From Dialogue to Disagreement in Comparative Rights Constitutionalism (Federation Press, 2016)

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George Williams and David Hume, Human Rights under the Australian Constitution (Oxford University Press, 2nd ed, 2013)

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13

CHAPTER OVERVIEW Introduction

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The international legal system

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The institutions of public international law

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Sources of public international law

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Direct influences of international obligations on Australian public law

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Indirect influences of international law on Australian public law

490

The Constitution

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Legislation

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The Polites principle

492

Influence on executive decision making (the Teoh principle)

493

Influence on the common law (the legitimate influence principle)

493

The reception of international custom into the common law (the rule in Chow Hung Ching)

494

Comparative public law in Australia

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Conclusion

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Introduction In this chapter we introduce sources of law that are external to the Australian legal system and we map how they interact with, and influence, that system. Australian law is necessarily influenced by legal developments outside of our nation-state, and we look here specifically at the influence of international law and the law of foreign countries. As we explained in Chapter 2, at its very heart, the Australian state rests on the application of a norm of international law. It was international law that facilitated the acquisition of British sovereignty over the land, the settlers having declared it ‘terra nullius’ despite the existence of Aboriginal and Torres Strait Islander peoples. And foreign law also plays a pivotal role in the origin story of Australian constitutional law, with our written Constitution the result of a combination of English and American constitutional systems. In light of this history, and also as a result of Australia’s contemporary levels of interaction with other nations and international entities, the influence of international developments on Australian public law would seem obvious and inevitable. But the Constitution offers minimal guidance for the interaction between Australian law and institutions and the rules and norms developed outside Australia. The Australian Constitution establishes a system of law for the federation, with a particular relationship between the Commonwealth and the states. This was at least partly because of the assumption at federation that international relations would continue to be conducted by the UK on behalf of Australia. The only references to matters outside Australia in the Constitution are a power conferred on the Parliament with respect to ‘external affairs’(s 51(xxix)), and jurisdiction for the High Court to resolve matters ‘arising under a treaty’ (s 75(i)).1 The foundation of the relationship between international law and the Australian public law system is found in the common law. Under the common law, international law is separate from Australian law. An Act of Parliament is required to incorporate international law into Australian law. This relationship, known as a dualist system, is in contrast to some nation-states in which international law automatically becomes part of the domestic legal system of the state. These states are described as having monist systems.2 Australia’s dualist system aims to ensure that international law is not able to displace the careful delineation of powers between the three branches of government.

1 2

Section 75(i) has rarely been discussed by the High Court and has been narrowly construed in the few cases where it has arisen. In this chapter we focus our attention on the external affairs power. For example, The Netherlands.

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The chapter begins with an overview of international law and the international legal system, particularly as it has developed since the Second World War. The chapter then looks in more detail at the interactions between international law and the Australian legal system, because, despite the separation of domestic and international law in Australia, the influence of international law filters through to the Australian legal system in a variety of ways. First, we examine the direct influence of international obligations on Australian public law through the incorporation of international law by the Parliament. We discuss how this has created a tension in the constitutional system between the different branches of government, which each have an important but restrained role, in adopting treaties; as well as creating friction between the federal and state governments. The chapter then moves to discuss more indirect influences of international law in the interpretation of the Constitution, statutes and the development of the common law. We also consider how international law can, in some circumstances, require the executive to take into account norms expressed in international legal instruments when making decisions that affect the interests of individuals. Finally, we will move from our discussion of international law on Australian public law to consider the interaction between the laws of foreign countries and Australian public law. We consider the extent to which the influence of foreign law after the drafting of the Constitution has been ongoing, particularly in judicial decision making and the development of law reform proposals. The study of this influence is known as comparative constitutional law or, more broadly, comparative public law.

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The international legal system International law is a horizontal legal order, in the sense that all states are sovereign. It comprises rules made by and agreed to by states. International law is based on a notion of state sovereignty whereby each state enjoys the exclusive right to govern its own affairs subject only to its own constitutional limits. Sovereignty entails the recognition that no state or supra-national authority can interfere in the affairs of other states. Article 2 of the Charter of the United Nations (‘Charter’) outlines ‘the principle of the sovereign equality of all [UN] Members’ and stipulates that ‘all Members shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any states, or in any other manner inconsistent with the Purposes of the United Nations’.3 States may only use force in self-defence or under the authorisation of the Security Council. The primary purpose of international law is to provide a system for collective security. International law aims to provide an 3

Charter of the United Nations arts 2(1), (4).

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element of certainty in international relations where economic, military, political and ideological factors of powers are overtly at play. International law has two branches:  public international law and private international law. Public international law concerns the relationship between states in terms of their public functions as states. It has many branches including the law of diplomatic relations, the law of the sea, international humanitarian law (also known as the law of war), international trade law, international environmental law and international human rights law. Private international law relates to private activities between individuals and corporations across national borders. It is largely concerned with determining which law applies to disputes where they occur across national borders. This chapter focuses on public international law, the United Nations (‘UN’) institutions through which public international law is exercised, and their relationship with Australian public law. Unlike Australian public law, there are many lacunae in public international law and the courts are rarely involved as decision makers. Decisions are often made according to political considerations rather than the legalities of a dispute. The international legal order is an order based primarily on consensus. The consensual nature of public international law is puzzling for strict positivists who understand law as a sovereign command backed up by the enforcement of sanctions. Sanctions play a minimal role in the international legal order, meaning that consensus is pivotal as states need to believe that there is a mutual advantage in exercising self-restraint in relation to international norms.

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The institutions of public international law The UN was established in mid-1945 following the end of the Second World War. The purposes of the UN are set out in art 1 of the UN Charter, and include the maintenance of international peace and security, protecting human rights, delivering humanitarian aid, promoting sustainable development and upholding international law.4 In 2018, the UN had 193 members, up from 51 at the time of its establishment in 1945.5 The UN plays an active role in the development and codification of international law. In regard to law making, the UN Charter sets up two relevant bodies: the General Assembly and the Security Council. The International Court of Justice (‘ICJ’) is the UN’s principal judicial organ, established by its own treaty. In addition, the Economic and Social Council (‘ECOSOC’) coordinates economic, social and environmental

4 5

See also United Nations, What We Do, . In addition to the 193 member states, there are two observers, the Holy See (popularly known as the Vatican) and Palestine. In addition, there are 11 territories whose status is disputed and who do not have membership of the UN, including Kosovo (claimed by Serbia) and Taiwan (claimed by China).

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policy for the UN and the implementation of international development goals. There are also subsidiary councils established by the UN, including the United Nations Human Settlements Programme (‘UH-Habitat’) and the Human Rights Council. A  number of important international institutions and agencies are associated with the UN, such as the World Bank, the International Monetary Fund (‘IMF’) and the International Labour Organization (ILO), while other international organisations, such as the World Trade Organization (WTO) and International Criminal Court (‘ICC’), were established separately from the UN. Further, a number of human rights treaties have established committees that monitor human rights compliance and produce jurisprudence, as explained in Chapter 12. Regionally representative organisations play an important role in promoting international law outside the UN framework, including the European Union, the Council of Europe, the Organization of American States, the League of Arab States, and the African Union. Many of these bodies produce their own treaties and jurisprudence governing state-to-state relations at the regional level as part of their systems for monitoring and adjudicating these regional treaties. Australia is not party to any of these regional organisations. The UN General Assembly is the ‘chief deliberative, policymaking and representative organ’ of the UN. 6 All 193 member states of the UN have a representative in the General Assembly, and each has a single vote,7 although wherever possible matters are decided by reaching consensus on issues, rather than deciding by a formal vote. General Assembly resolutions are persuasive but not binding on UN members.8 The most famous resolution of the General Assembly is the Universal Declaration on Human Rights of 1948, which is often mistaken as a binding treaty.9 Despite the limits on its power to create international law, under art 13 of the UN Charter, the General Assembly has the task of making recommendations for the purpose of ‘encouraging the progressive development of international law’ and it does this through the work of two permanent institutions whose function it is to develop and codify international law:  the International Law Commission, and the Sixth Committee of the General Assembly.

6 7

8 9

General Assembly of the United Nations, Functions and Powers of the General Assembly, United Nations, . Votes on important issues, such as the election of Security Council and Economic and Social Council members, matters relating to peace and security, and questions relating to the General Assembly’s budget require a two-thirds majority of member states. Other questions are decided by a simple majority. Under Chapter IV of the UN Charter, the General Assembly only has the power to make ‘recommendations’. Neither the General Assembly nor the Security Council drafted the Universal Declaration on Human Rights or the other core human rights treaties. The drafting task is known as ‘standard setting’, and the General Assembly has always passed this role to a smaller body, formerly known as the Human Rights Commission and now called the Human Rights Council, which passes the drafted treaties back to the UN General Assembly to adopt or for states to ratify.

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The Security Council is responsible for maintaining international peace and security. It has 15 members. Article 23  of the Charter of the UN establishes ‘the Republic of China, France, the Union of Soviet Socialist Republics, the United Kingdom of Great Britain and Northern Ireland, and the United States of America’ as the five permanent members of the Council (these countries represent the major victorious powers at the end of the Second World War, and do not necessarily reflect those countries which have the largest population, size of economy, military power and influence in modern world affairs). The remaining 10 members are elected by the General Assembly for two-year terms. Australia has held a non-permanent seat on the Security Council on five occasions, most recently in 2013–14. Permanent members are more powerful than the 10 elected members, having the power of veto over any decisions of the Council. This power paralysed the Security Council for 40 years during the Cold War, and remains a present day threat to the legitimacy and the effectiveness of the Council. Unlike resolutions of the General Assembly, under art 25 all members of the UN agree to accept the decisions of the Security Council, and obligations imposed by the Security Council can take precedence over the obligations imposed under international treaties.10 Under international law, individual states may only use force in self-defence, and the Security Council has a monopoly on authorising the use of collective force.11 The Security Council has the power to require a state to perform or refrain from performing acts in order to maintain and restore international peace and security. In addition to authorising force, the Security Council has become highly active in the field of peacekeeping and, since 2001, in leading the international response to terrorism. Further, under art 41 of the Charter, the Security Council can authorise the use of non-military action; for example, it can pass a resolution requiring member states to impose economic and trade sanctions. While the Security Council is empowered to act when there is a threat to international peace and security in accordance with Chapter VII of the Charter, the dynamics of the five permanent members means that the Council rarely undertakes an enforcement role. An example can be seen through its inaction in the Syrian Civil War, which has been ongoing since 2011. Since the war’s outbreak in 2011, dozens of chemical weapon attacks have taken place, with many of these alleged to have been carried out by the Syrian Government against its own people. Russia, considered a longtime ally of the Syrian Government, has repeatedly threatened to use its veto power in the Security Council to block the authorisation of any collective action against Syria and has also voted against renewing the mandate of the Joint 10 11

Questions of Interpretation and Application of the 1971 Montreal Convention Arising from the Aerial Incident at Lockerbie (Libya v UK; Libya v US) (Judgment) [1992] ICJ Rep 3, 15 [39]. Charter of the United Nations chs VI, VII.

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Investigative Mechanism investigating chemical weapons attacks in Syria. Over the course of the war, Russia has instead pressured Syria into acceding to the Convention on the Prohibition of the Development, Production, Stockpiling and Use of Chemical Weapons and on their Destruction and supported a Security Council resolution requiring Syria to cease using, and to destroy, its chemical weapons.12 The resolution affirms that the use of chemical weapons is a serious violation of international law and it states that ‘in the event of non-compliance with this resolution, including … any use of chemical weapons by anyone in the Syrian Arab Republic, [the Security Council decides] to impose measures under Chapter VII of the United Nations Charter’, but it did not directly authorise the use of force.13 In April 2018, the US, UK and France ordered missile strikes on Syrian chemical weapons operations after a suspected chemical weapons attack in the Syrian city of Douma. Russia described these strikes as an ‘aggression against a sovereign state’ and showing ‘blatant disregard for international law’.14 Currently there is no norm in international law justifying the use of unilateral military force to enforce the ban against the use of chemical weapons. The Security Council called an emergency meeting to discuss the strike, but opinions on the Council about the legality of the strikes were mixed.15 China joined Russia in favour of a resolution to condemn the US, UK and France for the missile strikes. The UN Secretary General called on UN member states to act compatibly with the UN Charter and he expressed his ‘deep disappointment that the Security Council failed to agree on a dedicated mechanism for effective accountability for the use of chemical weapons in Syria’.16 The reactions of the five permanent members of the Security Council to the use of chemical weapons by the Syrian Government demonstrate the complex relationship between the role of the Security Council in upholding international law and the desire of the five permanent members of the Security Council to pursue their own foreign policy agenda. The ICJ is composed of 15 judges who are elected by the General Assembly on the recommendation of the Security Council.17 These judges come from different member

12 13 14

15 16 17

SC Res 2118, UN SCOR, 68th sess, 7038th mtg, UN Doc S/Res/2118 (27 September 2013). Ibid preamble and para 21. Spencer Ackerman, Ed Pilkington, Ben Jacobs and Julian Borger, ‘Syria Missile Strikes: US launches First Direct Military action against Assad’, The Guardian (online), 8 April 2017, . Ibid. UN Press Release, ‘Addressing Security Council on Air Strikes against Syria, Secretary-General Reminds Members of Responsibility for Maintaining Peace’, 14 April 2018 (UN Doc SG/SM/18990-SC/13297). Statute of the International Court of Justice arts 3 and 4. Under art 31 of the statute, a state party to a case before the ICJ that does not have a judge of its nationality on the bench may choose a person to sit as an ad hoc judge in that specific case. In the 2013 whaling case of Australia v Japan (Application of Japan’s JARPA II Program of Scientific Whaling (Australia v Japan) (31 May 2010), discussed below), Australia chose Professor Hilary Charlesworth to sit as the ad hoc judge.

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states, serve for a period of nine years and may be re-elected.18 The ICJ has a number of different sources of jurisdiction. When a dispute threatens the maintenance of international peace and security, the Security Council may refer the parties to the ICJ, and both the Security Council and the General Assembly can request the ICJ to give an advisory opinion on any question of international law. In addition, the ICJ has authority to adjudicate disputes between member states who have consented to the Court’s jurisdiction. Of the 193 UN member states, only 73 — including Australia — have opted to make a unilateral declaration to recognise the jurisdiction of the Court as compulsory. However, states in dispute who have not made such a declaration can still access the ICJ by entering into a special agreement with each other to submit the dispute to the Court. Under art 94 of the UN Charter, member states are under an obligation to comply with the ICJ’s decisions to which they are a party. Where there is non-compliance, an aggrieved party may have recourse to the Security Council, which may make recommendations or decide to take measures to give effect to the judgment. The Security Council has never exercised this enforcement power, but of the 100 or so contentious cases that the ICJ has decided, there has been a lack of immediate compliance in only five or six cases.19 The role of the Security Council to enforce compliance means that it is difficult to enforce ICJ judgments against a permanent member of the Security Council.20 This dynamic makes it unlikely that the ICJ will declare a Security Council action null and void. The consent-based nature of the ICJ’s jurisdiction means that states are able to avoid review of the legality of their actions in contentious disputes. For example, in March 2002 Australia modified its declaration regarding the ICJ’s jurisdiction so as to exclude disputes relating to maritime boundaries and the continental shelf. This was two months before East Timor (to become known as Timor-Leste) became an independent state. Australia’s action meant that Timor-Leste was unable to ask the ICJ to adjudicate its dispute with Australia about the delimitation of the continental shelf in the Timor Gap (negotiated between Australia and Indonesia) where lucrative gas fields exist.

18 19

20

Statute of the International Court of Justice arts 3 and 13. On compliance and its differing levels, see Constanze Schulte, Compliance with the Decisions of the International Court of Justice (Oxford University Press, 2004); Coulter Paulson, ‘Compliance with Final Judgments of the International Court of Justice since 1987’ (2004) 98 American Journal of International Law 434. One example is Nicaragua’s case against the US for illegally mining its harbours: Military and Paramilitary Activities In and Against Nicaragua (Nicaragua v US) (Merits) [1986] ICJ Rep 14. In this case the ICJ found against the US, which it found to have violated its obligations under customary international law. Nicaragua subsequently asked the Security Council to enforce compliance with the judgment, but this resolution was vetoed by the US.

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In October 2015, Japan modified its acceptance of compulsory jurisdiction of the ICJ so that it excluded ‘any dispute arising out of, concerning, or relating to research on, or conservation, management or exploitation of, living resources of the sea’.21 This retraction of jurisdiction by Japan came a little over 12  months after the ICJ ordered Japan in March 2014 to halt its whaling program in the Antarctic. The case was successfully brought by Australia against Japan in 2010, alleging Japan’s whaling operations were in breach of its obligations under the International Convention for the Regulation of Whaling.22 The Court did not accept Japan’s claim that its whaling operations were for the purposes of scientific research as allowed by the Convention. In August 2015 Japan recommenced its whaling operations, once again claiming that it was killing whales for ‘scientific purposes’, and withdrew the jurisdiction of the ICJ to resolve any further disputes on this question. There are several other international tribunals and courts in addition to the ICJ. The  ICC was established in 1998 with general prospective jurisdiction over the prosecution of individuals for the commission of the most serious international crimes. The ICC has jurisdiction over those states that have ratified the ICC statute, as well as in those matters referred to it by the Security Council. So, for instance, while Syria is not a party to the ICC statute, there was an attempt in 2014, supported by 60 states, to refer the Syrian Government to the ICC for war crimes and crimes against humanity. Russia and China vetoed the resolution. The Permanent Court of Arbitration (‘PCA’) has the power to arbitrate disputes between states and multinational corporations and individuals. In addition to these general courts, there are a number of other specific international tribunals, such as the International Tribunal for the Law of the Sea and the WTO’s Dispute Settlement Body. Not all these tribunals are benign oversight mechanisms. Particularly in relation to the increase in the number of investor-state dispute settlement clauses in free trade agreements and investment treaties, there has been an increasing concern that states are submitting their constitutional integrity to the mercy of these internationally constituted tribunals. These clauses allow foreign investors the right to seek review by an international tribunal of any investment dispute under a treaty. For instance, in 2011, while also filing a constitutional challenge to the validity of Australia’s plain packaging laws (requiring tobacco in its different forms to be sold in plain packaging),23 which it would eventually lose,24 tobacco giant Philip Morris Asia

21 22 23 24

Motohide Yoshikawa, Declarations Recognizing the Jurisdiction of the Court as Compulsory (6 October 2015) ICJ, . Whaling in the Antarctic (Australia v Japan) (Judgment) [2014] ICJ Rep 226. Tobacco Plain Packaging Act 2011 (Cth). JT International SA v Commonwealth (2012) 250 CLR 1.

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challenged the laws in the PCA under the 1993 Agreement between the Government of Australia and the Government of Hong Kong for the Promotion and Protection of Investments. Australia was ultimately successful in having the investor-state dispute thrown out as an abuse of process.25 In addition, at the WTO Dispute Settlement Body a number of countries (including Ukraine, Honduras, Indonesia, Dominican Republic and Cuba) filed complaints against Australia’s plain packaging laws, alleging that the laws breached a number of Australia’s obligations under WTO treaties.26 In 2017, the WTO Dispute Panel rejected the claims, and held that the plain packaging laws represented a genuine health measure. These matters demonstrate that such treaties and dispute resolution mechanisms can threaten the integrity of domestic legal systems.

Sources of public international law

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Public international law is not a single, uniform code of law. Rather, it is a complex amalgam of written law (conventions, or treaties), customary law, and the practice and writings of nation-states and other actors. Article 38 of the Statute of the International Court of Justice sets out the sources of international law to be applied by the ICJ. The provision summarises the accepted sources of international law, the first two of which are most significant: a

international conventions, whether general or particular, establishing rules expressly recognized by the contesting states;

b

international custom, as evidence of a general practice accepted as law;

c

the general principles of law recognized by civilized nations;

d

… judicial decisions and the teachings of the most highly qualified publicists of the various nations, as subsidiary means for the determination of rules of law.

International conventions include a wide range of legal instruments including treaties, covenants, protocols, conventions, statutes, charters and Acts. In Australia, they are most commonly referred to as treaties. Treaties only bind the states or international organisations that are parties to them (unless their obligations become part of international custom). The two key steps in entering a treaty are signature, when the text of the document is first agreed, and ratification, which means that a state consents to be bound by a treaty on the international plane.27 In Australia, the process of ‘ratification’ has been described as follows:

25 26 27

Philip Morris Asia Limited v Australia (Award on Jurisdiction and Admissibility) (Permanent Court of Arbitration, Case No 2012-12, 17 December 2015). The  Agreement on Trade-Related Aspects of Intellectual Property Rights, the  Agreement on Technical Barriers to Trade and the General Agreement on Tariffs and Trade 1994. Vienna Convention on the Law of Treaties art 1(b).

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[first,] the decision by the Governor-General in Council to approve the Treaty [and second,] a deposit of an instrument of ratification … drafted by the legal office of the Department of Foreign Affairs and Trade … It will express Australia’s acceptance of the terms of the treaty including any qualifications or reservations to that approval. It will occur after the relevant domestic procedures have taken place, allowing ratification.28

It is possible for states to ratify a treaty after it has already come into force; this is known as ‘accession’. Treaties may be amended and revised. For example, in 1967 the Refugee Convention was amended via a protocol to the Convention, which broadened it by removing its geographical and temporal limits.29 The UN Charter is the supreme treaty: art 103 of the Charter establishes that in the event of a conflict between the Charter and a treaty, the Charter will prevail. The law of treaties is governed by the 1969 Vienna Convention  on the Law of Treaties (‘Vienna Convention’). This Convention sets out the rules governing the creation, operation, interpretation and termination of treaties. For example, art 31 states that when interpreting a treaty, preference should be given to the ordinary meaning of the terms of the treaty in their context and in light of the treaty’s object and purpose. While it will often be international institutions such as the ICJ that are asked to interpret treaties, there are times when domestic courts will also have to interpret treaty obligations. In Australia, for instance, the judiciary may have to grapple with the meaning of treaties in determining the scope of the power of the Federal Parliament to enact treaties into legislation, or if international law is being drawn upon as an influence in statutory interpretation or the development of the common law. The Vienna Convention sets out the process by which states can make reservations to (arts 19–23), amend (arts 39–40), or withdraw from (art 56) treaties. Under art 19 of the Vienna Convention, reservations must not be incompatible with the object or purpose of the treaty. By making a reservation, a state signals its intention to exclude or modify a provision of the treaty. For example, when Australia ratified the Convention on the Rights of the Child (1989), it made a reservation to art 37(c) which provides: ‘every child deprived of liberty shall be separated from adults unless it is considered in the child’s best interest not to do so and shall have the right to maintain contact with his or her family through correspondence and visits, save in exceptional circumstances’. In its reservation to this article, Australia stated: The obligation to separate children from adults in prison is accepted only to the extent that such imprisonment is considered by the responsible authorities to be feasible

28 29

Senate Legal and Constitutional References Committee, Parliament of Australia, Trick or Treaty? Commonwealth Power to Make and Implement Treaties (1995) [3.15]–[3.16]. Convention Relating to the Status of Refugees, opened for signature 28 July 1951, 189 UNTS 137 (entered into force 22 April 1954).

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and consistent with the obligation that children be able to maintain contact with their families, having regard to the geography and demography of Australia. Australia, therefore, ratifies the Convention to the extent that it is unable to comply with the obligation imposed by article 37(c).30

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Under the Vienna Convention, treaties can be invalidated on account of fraud (art 49), which includes deliberately deceitful behaviour in the negotiation of  an international agreement. In 2007, Australia and Timor-Leste entered a bilateral treaty, Certain Maritime Arrangements in the Timor Sea, which divided revenue from lucrative gas fields in disputed territory between the two countries. In 2012, information came to light that the Australian Security and Intelligence Service (‘ASIS’) had planted listening devices in the East Timor Government offices for the purpose of gathering information relevant to the treaty negotiations. In 2014 East Timor took Australia to the ICJ, and in 2016 East Timor commenced a parallel action in the PCA. In the latter forum, behind closed doors, East Timor succeeded in terminating the treaty and the dispute was finally settled in September 2017, when the two states reached a negotiated settlement over the share of revenue from the gas fields.31 A second primary source of international law, as set out in art 38(1)(c) of the Statute of the International Court of Justice, is international custom, which, unlike treaty law, binds all states. Custom has two elements: 1

The objective element of state practice. This is what states do and omit to do; that is, how state governments conduct themselves, including practices that are widespread among states and consistent across time for the basis of international custom.32

2

The subjective element of opinio juris. This is the mental element that explains why states follow this practice. This mental element distinguishes laws from mere protocols such as a practice of greeting a head of state with military honours.

Custom is not written law like a treaty and hence it can be challenging to identify and establish. The relationship between treaties and customary law is complex. A  provision of a multilateral treaty can reflect and codify an existing custom, or assist an emerging custom to crystallise. Some international customs, known as jus cogens, are considered so fundamental that they cannot be amended by treaty law. While there is no universal agreement as to which customary laws are jus cogens, 30 31

32

See Convention on the Rights of the Child, opened for signature 20 November 1989, [1991] ATS 4 (entered into force 2 September 1990) 4. See Jane Norman, ‘Australia and Timor-Leste Strike Deal to End Maritime Boundary Dispute’, ABC News (online), 3 September 2017, . See North Sea Continental Shelf Cases (Federal Republic of Germany v Netherlands) (Judgment) [1969] ICJ Rep 3.

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the prohibitions against genocide, slavery, piracy, torture and aggression are widely regarded to be in this category.33

Direct influences of international obligations on Australian public law

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Now we turn from our brief survey of the international legal system to consider the way international law influences Australia’s system of public law. First we consider the more direct influence that international obligations have; we examine how international obligations are entered into by the Australian state, as well as how they are transformed from being international to domestic obligations. In Australia’s dualist system, the adoption and implementation of international law creates a tension between the relationship of legislative, executive and judicial branches of government; it has also created friction in state–Commonwealth relations. It is important to understand that international law does not have the position of a higher law, like a Constitution, in our legal system. International law sits outside the Australian legal system, but it infuses and permeates our system through the actions and approaches of our three arms of government. The constitutional role of each arm of government results in each institution being both empowered and restrained in its engagement with, or use of, international law. These separate constitutional roles were articulated in the joint decision of Mason CJ and Deane J in Minister for Immigration and Ethnic Affairs v Teoh: It is well established that the provisions of an international treaty to which Australia is a party do not form part of Australian law unless those provisions have been validly incorporated into our municipal law by statute. This principle has its foundation in the proposition that in our constitutional system the making and ratification of treaties fall within the province of the Executive in the exercise of its prerogative power whereas the making and the alteration of the law fall within the province of Parliament, not the Executive. So, a treaty which has not been incorporated into our municipal law cannot operate as a direct source of individual rights and obligations under that law.34

As the judges explain, it is the executive government that represents the Australian nation in the international sphere. Exercising the prerogative powers conferred on it by s 61 of the Constitution, the federal executive is the branch that determines when Australia goes to war, sets our foreign policy objectives and defence budgets,

33

34

On the prohibition of torture as a jus cogens norm, see Prosecutor v Furundzija (Judgment) (International Criminal Tribunal for the Former Yugoslavia, Trial Chamber II, Case No JL/PIU/372-E, 10 December 1998) [153]–[157]. On genocide, see Armed Activities on the Territory of the Congo (DR Congo v Rwanda) (Judgment) [2006] ICJ Rep 6, 31–2 [64]. (1995) 183 CLR 273, 286–7 (emphasis added).

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conducts negotiations with foreign governments, represents Australia’s interests in international bodies such as the UN, and decides which treaties Australia signs and ratifies. However, it will be for the Parliament to determine whether to pass laws to implement these international commitments. Parliamentary supremacy, as well as bicameralism, means that executive governments cannot guarantee that a treaty will be fully implemented once it has been signed and ratified. The lack of any parliamentary involvement in the process of treaty ratification led to considerable tension between the Parliament and the executive. A series of reforms adopted by the Howard Coalition Government in 1996 fundamentally shifted the way in which treaties were considered by Parliament and placed important constraints (albeit non-binding) upon the treaty-making power of the executive government. The reforms, which are now outlined on the Department of Foreign Affairs website,35 included: • that all proposed treaty action (excluding sensitive or urgent treaties) be tabled in Parliament at least 15 sitting days prior to the taking of binding action; • that each treaty be accompanied by a National Interest Analysis outlining the major obligations contained in the treaty and the benefits for Australia; • the establishment of a Joint Standing Committee on Treaties (JSCOT); and

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• the establishment of a Treaties Council comprising the Prime Minister, Premiers and Chief Ministers. The most significant of these 1996 reforms was the establishment of JSCOT, which is empowered to inquire into and report upon matters arising from a National Interest Analysis or proposed treaty action, and any question relating to a treaty or international instrument referred to in the Parliament or by a Minister. JSCOT has been a very active committee, whose work has generally been well received by governments.36 As of February 2018, JSCOT had created 177 reports, which have reviewed over 600 treaties.37 Australia’s engagement with international law, and particularly its incorporation of treaty law into its domestic legal system, highlights one of the limitations of a federal system of government. Nations engage with each other on the full range of legislative issues, many of which are traditionally the concern of the states in the federation. As the High Court observed in Commonwealth v Tasmania (‘Tasmanian Dam Case’)

35 36 37

See Department of Foreign Affairs and Trade, Treaty Making Process, . Hilary Charlesworth, Madelaine Chiam, Devika Hovell, and George Williams, ‘Deep Anxieties: Australia and the International Legal Order’ (2003) 25 Sydney Law Review 423, 441–4. See Parliament of Australia, Completed Inquiries, .

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in 1983,38 it is imperative that Australia be able to represent itself effectively on the international stage, to have the capacity to conduct foreign affairs, and to determine which obligations are accepted by Australia under international law. It is equally important that Australia have a national Parliament with the power to implement those international obligations—incorporating them into domestic law and policy, and thereby ensuring that Australia meets its legal obligations. It seems inevitable, then, that engagement with international law will be a centralising influence on the Australian legal system. Putting this aside, states and territories share the Federal Government’s international obligations and the responsibility for fulfilling them. Under international law, states with federal systems cannot evade their international responsibilities on the basis of being federal systems. Section 51(xxix) of the Constitution confers legislative power upon the Federal Parliament with respect to ‘external affairs’. This includes the power to pass laws that deal with matters geographically external to Australia (such as Antarctica),39 and Australia’s relations with other nations or international bodies (such as the UN),40 and, most controversially, the power to enact laws with respect to international law—both customary law and conventional (treaty) law (although most of the case law regarding the reception of international law into the Australian legal system concerns treaty law; in contrast, little political or judicial attention has been given to the position of customary international law). The scope and extent of the external affairs power was not fully tested in the High Court until the 1980s, when the combination of Australia having gained full independence from the UK,41 and the desire of (predominantly ALP) governments to implement a raft of international treaties on human rights and the environment provided the impetus for a controversial expansion of federal laws. The majority of the ensuing High Court challenges were instigated by the states after the Commonwealth passed laws that introduced protections against racial discrimination and authorised world heritage proclamations protecting significant parts of Tasmania42 and sections of Queensland’s tropical rainforests.43 In Koowarta v Bjelke-Petersen,44 the Queensland Premier challenged the introduction of the Racial Discrimination Act 1975 by the Federal Government

38 39

40 41 42 43 44

(1983) 158 CLR 1. Polyukhovich v Commonwealth (1991) 172 CLR 501; Horta v Commonwealth (1994) 181 CLR 183; Victoria v Commonwealth (‘Industrial Relations Act Case’) (1996) 187 CLR 416; XYZ v Commonwealth (2006) 227 CLR 532. R v Sharkey (1949) 79 CLR 121; Koowarta v Bjelke-Petersen (1982) 153 CLR 168, 258 (Brennan J); Thomas v Mowbray (2007) 233 CLR 307, 364 (Gummow and Crennan JJ). For a discussion of Australia’s path to independence, see Chapter 2. Tasmanian Dam Case (1983) 158 CLR 1; Richardson v Forestry Commission of Australia (1988) 164 CLR 261. See Queensland v Commonwealth (‘Daintree Rainforest Case’) (1989) 167 CLR 232. (1982) 153 CLR 168.

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under the external affairs power, in particular as a means to implement the 1965 International Convention on the Elimination of All Forms of Racial Discrimination. The Queensland Government opposed acquisition of land by Aboriginal and Torres Strait Islander peoples and desired to maintain overtly racially discriminatory policies and laws. The High Court grappled with the argument that the implementation of a treaty under the external affairs power should be limited to a subject matter of international concern. The landmark 1983 decision in the Tasmanian Dam Case decided that Parliament can pass laws implementing international obligations on any subject matter, regardless of whether they have an international or a purely domestic effect.45 This gave the Commonwealth Parliament far-reaching powers over matters such as human rights protection, labour protection and the environment. These subject areas had previously been considered to be the responsibility of the states, and the decision therefore represented a significant shift in power from the states to the Commonwealth. The High Court has emphasised that only binding international obligations, such as those in treaties or that exist under international custom, will enliven the external affairs power. It might extend to declarations of international organisations such as the ILO,46 but only if there is a precise and identifiable legal obligation upon states to follow a clear course of conduct.47 In addition to locating a precise legal obligation, the High Court has also indicated that the Federal Parliament must closely follow the treaty obligation in the domestic law. That is, the domestic legislation must be ‘reasonably capable of being considered appropriate and adapted’ to the international obligation.48 By imposing these restrictions, the Court is concerned to ensure that the Parliament does not rely on the external affairs power in a way that unjustifiably encroaches into the states’ spheres of responsibility, and thus undermine the federal distribution of power to which s 51 of the Constitution gives effect. Despite these attempts to mitigate the effect of the cases on the federal division powers, Dawson J, who sat in dissent in the Tasmanian Dam Case, was highly critical of the effect on the federation of this line of cases. Writing after the judgment, he said: Since there is no theoretical limit to what may be the subject-matter of international agreement, the external affairs power may, as a matter of constitutional theory, be regarded as open-ended. Of course, there are practical limits. International obligations are not assumed lightly. … But the point remains that even with existing treaties to

45 46 47 48

(1983) 158 CLR 1. See further Industrial Relations Act Case (1996) 187 CLR 416. Industrial Relations Act Case (1996) 187 CLR 416. See, eg, Pape v Commissioner of Taxation (2009) 238 CLR 1, 127 (Hayne and Kiefel JJ), 167 (Heydon J). Tasmanian Dam Case (1983) 158 CLR 1, 260 (Deane J).

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which Australia is a party, the Commonwealth presently has the capacity to cut a swathe through the areas hitherto thought to be within the residual powers of the States.49

Despite Dawson’s concerns, the external affairs power has not been the cause of a significant redistribution of legislative responsibility across the federation in Australia. Rather, as we saw in Chapter 4, this has been the result of the High Court’s broad interpretation of other heads of power, and particularly the power to make laws with respect to the activities of corporations.

Indirect influences of international law on Australian public law In this part, we turn from the more direct influence of international obligations on Australian public law, as the Australian state adopts and implements treaty obligations, to consider the less direct influences on Australian public law, including the influence on constitutional interpretation, statutory interpretation, the exercise of executive discretion and the development of the common law.

The Constitution

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The majority of the High Court has not embraced the use of international law to interpret the Constitution. However, one judge, Kirby J, consistently applied an interpretive principle that recognises the beneficial use of international law when construing ambiguous provisions of the Constitution.50 In Al-Kateb v Godwin, Kirby J offered the following arguments in support of his interpretive approach: Whatever may have been possible in the world of 1945, the complete isolation of constitutional law from the dynamic impact of international law is neither possible nor desirable today. That is why national courts, and especially national constitutional courts such as this, have a duty, so far as possible, to interpret their constitutional texts in a way that is generally harmonious with the basic principles of international law.51

To support an interpretation of the race power (s 51(xxvi)) that limited the power to supporting only beneficial laws, Kirby J explained exactly how he saw international law influencing constitutional interpretation:

49 50 51

Sir Daryl Dawson, ‘The Constitution—Major Overhaul or Simply Tune Up?’ (1984) 14 Melbourne University Law Review 353, 358. Newcrest Mining (WA) Ltd v Commonwealth (1997) 190 CLR 513, 657–8; Hindmarsh Island Bridge Case (1998) 195 CLR 337, 417; Al-Kateb v Godwin (2004) 219 CLR 562, 616–17 [150]. Al-Kateb v Godwin (2004) 219 CLR 562, 624 [175].

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Where there is ambiguity, there is a strong presumption that the Constitution, adopted and accepted by the people of Australia for their government, is not intended to violate fundamental human rights and human dignity. Such violations are ordinarily forbidden by the common law and every other statute of this land is read, in the case of ambiguity, to avoid so far as possible such a result. In the contemporary context it is appropriate to measure the prohibition by having regard to international law as it expresses universal and basic rights. Where there is ambiguity in the common law or a statute, it is legitimate to have regard to international law. Likewise, the Australian Constitution, which is a special statute, does not operate in a vacuum. It speaks to the people of Australia. But it also speaks to the international community as the basic law of the Australian nation which is a member of that community.52

Not only have the other judges not followed Kirby J’s suggested approach, but there have been open attacks on its legitimacy in Australian constitutional law. McHugh J, also in Al-Kateb v Godwin, responded to the approach of Kirby J: The claim that the  Constitution  should be read consistently with the rules of international law has been decisively rejected by members of this Court on several occasions. As a matter of constitutional doctrine, it must be regarded as heretical.53

McHugh J explained his position by reference to the fact that adopting an approach whereby international law informed constitutional interpretation would, in effect, mean that the legislative powers of the Parliament are to be read down to confirm with international law. As McHugh J explained, the Constitution ‘is a source of, not an exercise of, legislative power’.54 His Honour was willing to accept, as we see next, that international law could inform statutory interpretation; but this, he warned, was very different from informing the interpretation of the constitutional text itself.

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Legislation In contrast to constitutional interpretation, there is judicial consensus that international law may be used legitimately in the process of statutory interpretation. We have already seen this in Chapter 11, where we considered one of the presumptions of statutory interpretation that Parliament intended to enact legislation consistent with its international obligations (the principle of consistency). We also saw in Chapter  11 that there is a presumption that statutes will only be interpreted as removing fundamental rights (which are often contained in international instruments) where unambiguous language is employed to that effect (the principle of legality).

52 53 54

Hindmarsh Island Bridge Case (1998) 195 CLR 337, 417. (2004) 219 CLR 562, 589 [63]. Ibid 591 [66].

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Further, we saw in Chapter 11 that recourse can be had to international instruments in interpreting a statutory provision where the statute expressly refers to the treaty or agreement. In this chapter, we focus our discussion on the principle that the Federal Parliament’s power is not limited by international law and a constitutionally valid law needs not be consistent with international law (the Polites principle).55 We then discuss how international law has been used by the Court to impose some limits on administrative decision making (the Teoh principle) and to develop the common law (the legitimate influence principle). Overall we argue that the courts have generally been hesitant to embrace the influence of international law on our constitutional framework, but in some circumstances the courts are more open to the influence of foreign law.

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The Polites principle According to the Polites principle, which is drawn from the High Court decision in Polites v Commonwealth,56 valid laws need not be consistent with international law. Parliament’s power is plenary and is not limited by the rules of international law; accordingly, provided that a law of Parliament is constitutionally valid, it must be applied, irrespective of whether it contravenes international law. In Polites, it was argued that legislation providing for compulsory military service by foreign nationals resident in Australia during the Second World War should be construed and applied in accordance with the rules of international law. The argument failed.57 The notion that international law should operate as a restriction on legislative power was raised directly in the 1994 case of Horta v Commonwealth.58 The case involved a challenge to the validity of legislation implementing a bilateral treaty between Australia and Indonesia, and centred on the treaty’s claimed invalidity under international law and the effect of that claim on the external affairs power. In other words:  could the external affairs power be enlivened where Australia had ratified a treaty that was arguably invalid under international law? The argument made by the plaintiffs was that the bilateral treaty, concerning the division and exploitation of petroleum resources in the Timor Sea, was invalid on the basis that Indonesia’s original assertion of sovereignty over East Timor had been unlawful. In a unanimous decision, the High Court quickly rejected the relevance of these claims to the scope or availability of s 51(xxix).59 55 56 57 58 59

Polites v Commonwealth (1945) 70 CLR 60. Ibid. See Horta v Commonwealth (1994) 181 CLR 183. Ibid. Ibid 195.

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Influence on executive decision making (the Teoh principle) One of the most controversial areas in which international law has influenced Australian public law is in restricting the discretion of government decision makers. In Minister for Immigration and Ethnic Affairs v Teoh, a majority of the High Court held that the ratification of a treaty can be equated with a considered statement of public policy and this can occasionally create a legitimate expectation that executive decision makers will take into account when making their decisions.60 In Teoh, a majority of the High Court considered that Australia’s ratification of the 1989 Convention on the Rights of the Child gave rise to a legitimate expectation that the Minister for Immigration would consider his decision to deport Teoh for drug offences in light of the impact on Teoh’s seven children who lived in Australia and their ‘best interests’. The High Court quashed the Minister’s deportation decision because the process of making the decision did not afford Teoh procedural fairness in that he was not given an opportunity to be heard in this regard.61

Influence on the common law (the legitimate influence principle) In Australia, international law is also an indirect and legitimate influence on the development of the common law, although this has been circumscribed by the institutional role of the judicial branch. In the landmark case of Mabo v Queensland [No 2] in 1992, Brennan J issued the following seminal statement of the ‘legitimate influence’ principle:

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The common law does not necessarily conform with international law, but international law is a legitimate and important influence on the development of the common law, especially when international law declares the existence of universal human rights.62

Brennan J referred to the ICJ’s decision in the Western Sahara Case,63 noting the modified status of the doctrine of terra nullius (relied upon to legally justify the settlement of Australia) under international law.64 His Honour considered that the doctrine could no longer inform the Australian common law with regard to Aboriginal

60 61

62 63 64

Minister for Immigration and Ethnic Affairs v Teoh (1995) 183 CLR 273. The Teoh decision prompted successive governments to propose laws to clarify that government policy and the entry into international obligations did not give rise to legitimate expectations. These proposed laws were not enacted. However, the High Court has subsequently narrowed the effect of the decision in Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Lam (2003) 214 CLR 1. See further Wendy Lacey, ‘In the Wake of Teoh: Finding an Appropriate Government Response’ (2001) 29 Federal Law Review 219; Henry Burmester, ‘Teoh Revisited after Lam’ (2004) 40 AIAL Forum 33. (1992) 175 CLR 1, 42. Western Sahara (Advisory Opinion) [1975] ICJ Rep 12. Mabo v Queensland [No 2] (1992) 175 CLR 1, 40.

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and Torres Strait Islander peoples’ title to land.65 Brennan J was also influenced by the opening up in 1991 of remedies for individual Australians under the First Optional Protocol to the International Covenant on Civil and Political Rights (ICCPR), which enables individuals to submit complaints regarding breaches of the ICCPR to the UN Human Rights Committee in Geneva. 66 The courts have taken a cautious approach to applying the legitimate influence principle in the development of the common law. This is encapsulated in the opinion of Mason CJ and Deane J in Teoh: The provisions of an international convention to which Australia is a party, especially one which declares universal fundamental rights, may be used by the courts as a legitimate guide in developing the common law. But the courts should act in this fashion with due circumspection when the Parliament itself has not seen fit to incorporate the provisions of a convention into our domestic law. Judicial development of the common law must not be seen as a backdoor means of importing an unincorporated convention into Australian law.67

The principle of legitimate influence enables international norms to help shape the common law, but judges have discretion to adapt these international norms to suit Australia’s constitutional context. In  Teoh, Mason CJ and Deane J advise a ‘cautious approach to the development of the common law’;68 this approach has been widely adopted by Australian judges and there have been no major common law developments in the vein of Mabo since.69 Even greater judicial caution is evident regarding the reception of international custom into the Australian legal system.

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The reception of international custom into the common law (the rule in Chow Hung Ching) The Australian High Court has favoured an approach that rejects the automatic incorporation of customary rules, but accepts that they constitute a legitimate source of the common law. In other words, Australian courts accept that a customary rule of international law may, through a process of adoption or transformation, become a part

65 66 67 68 69

Ibid 42. Ibid. Minister for Immigration and Ethnic Affairs v Teoh (1995) 183 CLR 273, 288. Ibid. In the same year as Mabo, the High Court used the principle of legitimate influence in Dietrich v The Queen (1992) 177 CLR 292. The case involved an indigent accused of a serious criminal offence facing possible imprisonment but unable to afford legal representation. Reliance was partly placed on art 14 of the ICCPR, which guarantees the right to a fair trial. The majority of the High Court held that courts retained the right to stay proceedings where the absence of legal representation would result in an unfair trial. In developing the common law the majority referred to international law, but in a manner that adapted international law to suit Australia’s constitutional context.

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of the common law.70 This approach is generally consistent with English practice, but also reflects the separation of powers to the extent that the process of transformation by judges (given effect through the common law) will always be subject to existing statutory laws. In Chow Hung Ching v The King,71 the appellants sought unsuccessfully to rely on international customary rules of immunity to avoid certain criminal charges. While some discussion of the place of custom in domestic law had occurred in Polites v Commonwealth,72 this case offered the first opportunity for the High Court to properly consider the subject. Starke J approved of comments made in the UK decision of Chung Chi Cheung v The King,73 where it was accepted that a rule of international custom would be treated as incorporated into domestic law ‘so far as it is not inconsistent with rules enacted by statutes or finally declared by their tribunals’.74 Latham CJ held that, although international law is not a part of Australian law, ‘a universally recognised principle of international law would be applied by our courts’.75 It is, however, the opinion of Dixon J, in which his Honour adopted an approach that favoured transformation over automatic incorporation, that has proven to be the most influential.76 In adopting the transformation approach, Dixon J explained that, ‘international law is not a part, but is one of the sources, of English law’.77 Dixon J’s opinion has been repeatedly endorsed obiter dicta in subsequent Australian cases.78 However, there has only been one significant case decided on this question since Chow Hung Ching—the case of Nulyarimma v Thompson.79 Nulyarimma involved a challenge to federal native title laws on the ground that the operative effect of the statutory scheme amounted to genocide. The Full Court of the Federal Court was required to determine whether genocide, the prohibition of which is treated as a peremptory norm, or jus cogens under international law,80 constituted a crime under Australian law in the absence of any statutory provision in the Commonwealth Criminal Code 1995. Only Merkel J accepted that proposition,81 although his Honour 70 71 72 73 74 75 76 77 78

79 80 81

Chow Hung Ching v The King (1949) 77 CLR 449. Ibid. (1945) 70 CLR 60. Chow Hung Ching v The King (1949) 77 CLR 449, 470–1. [1939] AC 160, 168. Chow Hung Ching v The King (1949) 77 CLR 449, 462. Ibid 477. Ibid, quoting J L Brierly, ‘International Law in England’ (1935) 51 Law Quarterly Review 24, 31. Jago v District Court of New South Wales (1988) 12 NSWLR 558, 569; Environment Protection Authority v Caltex Refining Co Pty Ltd (1993) 178 CLR 477, 498–9 (Mason CJ and Toohey J); Ballina Shire Council v Ringland (1994) 33 NSWLR 680, 709–10; Minister for Immigration and Ethnic Affairs v Teoh (1995) 183 CLR 273, 287–8 (Mason CJ and Deane J); Western Australia v Commonwealth (‘Native Title Act Case’) (1995) 183 CLR 373, 486. (1999) 96 FCR 153. See above for an explanation of jus cogens norms. (1999) 96 FCR 153, 190–1.

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rejected that the crime had been proven in this case. For the majority judges, either policy reasons or technical legal impediments prevented the transformation of the customary rule into the common law. Whitlam J felt restrained by the abolition of common law offences under federal statute law.82 Wilcox J held that, in the absence of legislation and given the policy questions involved, judicial restraint was appropriate in declining to transform customary international law into the common law.

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Comparative public law in Australia The comparison of public law systems is a growing discipline of scholarship.83 In this chapter, we are concerned chiefly with how the public law institutions and norms of foreign jurisdictions influence the exercise of public power in Australia, and specifically how comparative public law influences law reform, judicial reasoning and the interpretation of the Constitution. From its founding in 1901, the idea of ‘transplanting’, ‘migrating’ or ‘borrowing’ public law institutions as well as constitutional principles and rules from foreign jurisdictions was uncontroversial.84 The Australian colonies were, in many respects although not all, replicas of the parliamentary system in the UK (see further discussion of the colonial legal system development in Chapter 2). The new federal Constitution involved borrowings from the UK, the US, Canada and Switzerland. Some of its provisions, such as s 116, are almost word for word replicas of the provisions of the US Constitution. Since that date, constitutional and significant public law reform has regularly looked to international trends. For instance, we saw in Chapter  8 that in the 1970s, the states and the Commonwealth adopted the Swedish innovation of an ombudsman as a part of its new administrative law reforms. Law reform commissions and parliamentary inquiries will regularly look to comparative foreign experience to determine the best mechanism to resolve pressing social, economic, political, and environmental problems. In such exercises, caution must always be exercised, as each country’s unique history, culture, and contemporary social, political and economic dimensions will determine the best solution to any particular policy dilemma.

82 83

84

Ibid 172, referring to Criminal Code 1995 (Cth) s 1.1. See, eg, Ran Hirschl, Comparative Matters: The Renaissance of Comparative Constitutional Law (Oxford University Press, 2014)  2–14; Tania Groppi and Marie-Claire Ponthoreau (eds), The Use of Foreign Precedents by Constitutional Judges (Hart Publishing, 2013). See, in relation to these concepts, Vlad Perju, ‘Constitutional Transplants, Borrowing, and Migrations’ in Michel Rosenfeld and András Sajó (eds), Oxford Comparative Constitutional Law Handbook (Oxford University Press, 2012)  1304; Alan Watson, Legal Transplants (Scottish Academic Press, 1974); Sujit Choudhry (ed), The Migration of Constitutional Ideas (Cambridge University Press, 2006); Barry Friedman, ‘Symposium: Constitutional Borrowing’ (2003) 1 International Journal of Constitutional Law 177.

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Nonetheless, it is now well accepted that an informed law reform process will gain much from considering and analysing the approaches of other countries. The influence of foreign law on legal reasoning, particularly in constitutional interpretation, is more controversial. A characteristic expression of this controversy is the debate that erupted between two judges of the US Supreme Court in the 1990s: Justices Scalia and Breyer. Writing for the majority, Scalia J opined: ‘We think such comparative analysis inappropriate to the task of interpreting a constitution, though it was of course quite relevant to the task of writing one.’85 Scalia J’s rejection of comparative analysis relates not just to the differences in constitutional and political structures and histories of different constitutional systems and the nationalistic base of constitutional law, but because such analysis expands the capacity of judicial choice in constitutional adjudication. In contrast, Breyer J, in dissent, defended the practice, indicating that, despite jurisdictional differences that would, of course, exist, comparative experience should not be discounted as it might ‘cast an empirical light on the consequences of different solutions to a common legal problem’.86 Despite this ongoing debate, in Australia consideration of developments in other jurisdictions has not proved uncommon or controversial, at least where that reference is to cases from the UK (an unsurprising proposition remembering that the Australian courts were historically bound by the decisions of the Privy Council as well as the House of Lords and the Court of Appeal, and even the High Court was subject to appeal to the Privy Council when it was first established), or from common law jurisdictions with shared Commonwealth provenance.87 Beyond these jurisdictions, the High Court has traditionally been reluctant to embrace the use of foreign precedent, although there are indications that this resistance is lessening. This reluctance to use foreign precedent more widely is perhaps most surprising in relation to the US Supreme Court cases interpreting provisions that had been adopted by the Australian framers directly from the US Constitution. However, the majority of the Australian High Court in the Engineers’ Case were at pains to explain the unique context in which these provisions operated in the Australian constitutional system: But we conceive that American authorities, however illustrious the tribunals may be, are not a secure basis on which to build fundamentally with respect to our own Constitution. While in secondary and subsidiary matters they may, and sometimes do, afford considerable light and assistance, they cannot, for the reasons we are about to state, be recognised as standards whereby to measure the respective rights

85 86 87

Printz v United States, 521 US 898, 2377 (1997). Ibid 977. Nicholas Aroney, ‘Comparative Law in Australian Constitutional Jurisprudence’ (2007) 26(2) The University of Queensland Law Journal 317, 331.

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of the Commonwealth and States under the Australian Constitution. For the proper construction of the Australian Constitution it is essential to bear in mind two essential cardinal features of our political system which are interwoven in its texture and, notwithstanding considerable similarity of structural design … they must be taken into account in determining the meaning of its language. One is the common sovereignty of all parts of the British Empire; the other is the principle of responsible government.88

Since this date, there has been limited recourse to US judgments in Australian constitutional law.89 However, we have seen an increasing expansion of foreign reference, even extending to civil law jurisdictions. Most recently, for instance, as we saw in Chapter  5, a majority of the High Court adopted a proportionality test for determining whether the implied freedom of political communication had been breached. This test drew substantially on an approach to proportionality initially developed in Germany, before being adopted in English administrative law and other European jurisdictions.90 This has not caused widespread consternation despite the dissimilar nature of the compared systems.91 In contrast to the US’s ‘exceptionalism’ stance articulated above by Scalia J, other countries have embraced the influence of both international law and foreign jurisprudence in the interpretation of their constitutions. For example, s 39(1) of South Africa’s 1996 Constitution provides:  ‘When interpreting the Bill of Rights, a court, tribunal or forum …. must consider international law; and … may consider foreign law’. In contrast to the opaque position of comparative jurisprudence and international law in the Australian legal system, South Africa’s modern constitution explicitly sets out the position of foreign law and international law in its constitutional context.

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Conclusion Australia’s engagement with international law increased as independence from the UK was gradually attained. However, the role of international law within the Australian legal system continues to reflect the dualist tradition of the English common law. In Australia, that role is governed by the text and structure of the Constitution, but also 88 89

90 91

Amalgamated Society of Engineers v Adelaide Steamship Co Ltd (‘Engineers’ Case’) (1920) 28 CLR 129, 146. Cheryl Saunders and Adrienne Stone, ‘Reference to Foreign Precedents by the Australian High Court: A Matter of Method’ in Tania Groppi and Marie-Claire Ponthoreau (eds), The Use of Foreign Precedents by Constitutional Judges (2013) 22. McCloy v New South Wales (2015) 257 CLR 178. See, for example, the comments of the federal Attorney-General in welcoming the leading proponent of this adoption, Kiefel J, to the position of Chief Justice: George Brandis, ‘Address at the Swearing-in of the Honourable Susan Kiefel AC as Chief Justice of Australia’ (Speech delivered at the High Court of Australia, Canberra, 30 January 2017), .

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CHAPTER 13: International Influences on Australian Public Law

(and equally as much) by the principles of the common law that have been adapted by judges since federation. Through the interpretive principles of the common law, the courts have been able to use international law indirectly, particularly in cases where the legislature has not implemented treaty obligations using the external affairs power. This has been particularly evident in human rights matters, where Parliament has only given effect to a very narrow set of rights (most of which prohibit discrimination) and has failed to implement the majority of Australia’s obligations under international law. Historically, Australia has been wary of international law and its impact on domestic law and policy. Australia’s legal and constitutional framework presently engages rather awkwardly with international law, particularly where Parliament fails to enact implementing legislation. For a young nation that only gained full independence many decades after its establishment, this is perhaps not surprising, but it is evidence that our institutions and the legal framework regulating their engagement with international law will continue to evolve. While there is a wariness in the relationship between Australia’s public law system and international law, it has shown a remarkable embrace of foreign law. This is particularly evident in relation to Australia’s willingness to look to foreign experience in the process of law reform, and it has also been a defining characteristic of the High Court’s approach to resolving difficult questions of constitutional interpretation.

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DISCUSSION QUESTIONS 1

What role does Federal Parliament play in the treaty-making process? Consider the advantages and disadvantages (at both the national and international level) of enlarging this role.

2

The states and territories have limited involvement in the treaty-making process— how does this influence our federal system? Could this involvement be expanded?

3

Do you think that our Constitution should be interpreted by the courts in ‘complete isolation’ from the rules and norms of international law? Do you agree that judges should consider these dynamics when developing the common law and interpreting statutes, but not for the purpose of constitutional interpretation?

4

The Constitution is virtually silent on the reception of international law into Australian law. Consider how judges have developed the common law to fill in these constitutional gaps. Are these measures sufficient, or would it be better to seek an amendment of the Constitution?

5

Is it legitimate for judges to look at the decisions of courts from foreign jurisdictions when deciding cases before them? Why or why not?

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FURTHER READING Philip Alston and Madelaine Chiam (eds), Treaty-Making and Australia: Globalisation versus Sovereignty? (Federation Press, 1995) Hilary Charlesworth, Madelaine Chiam, Devika Hovell and George Williams, ‘Deep Anxieties: Australia and the International Legal Order’ (2003) 25 Sydney Law Review 423 Hilary Charlesworth, Madelaine Chiam, Devika Hovell and George Williams (eds), The Fluid State: International Law and National Legal Systems (Federation Press, 2005) M D Kirby, ‘The Role of the Judge in Advancing Human Rights by Reference to International Human Rights Norms’ (1988) 62 Australian Law Journal 514 Wendy Lacey, ‘In the Wake of Teoh: Finding an Appropriate Government Response’ (2001) 29 Federal Law Review 219 Andrew D Mitchell, ‘Genocide, Human Rights Implementation and the Relationship between International and Domestic Law: Nulyarimma v Thompson’ (2000) 24 Melbourne University Law Review 15

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Brian R Opeskin and Donald R Rothwell (eds), International Law and Australian Federalism (Melbourne University Press, 1997)

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Appendix Commonwealth of Australia Constitution Act (The Constitution)1

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An Act to constitute the Commonwealth of Australia [9th July 1900] WHEREAS the people of New South Wales, Victoria, South Australia, Queensland, and Tasmania, humbly relying on the blessing of Almighty God, have agreed to unite in one indissoluble Federal Commonwealth under the Crown of the United Kingdom of Great Britain and Ireland, and under the Constitution hereby established: And whereas it is expedient to provide for the admission into the Commonwealth of other Australasian Colonies and possessions of the Queen: Be it therefore enacted by the Queen’s most Excellent Majesty, by and with the advice and consent of the Lords Spiritual and Temporal, and Commons, in this present Parliament assembled, and by the authority of the same, as follows: 1.

Short title [see Note 1] This Act may be cited as the Commonwealth of Australia Constitution Act.

2.

Act to extend to the Queen’s successors The provisions of this Act referring to the Queen shall extend to Her Majesty’s heirs and successors in the sovereignty of the United Kingdom.

1

All legislative material herein is reproduced by permission but does not purport to be the official or authorised versions. It is subject to Commonwealth of Australia copyright.

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3.

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Proclamation of Commonwealth [see Note 2] It shall be lawful for the Queen, with the advice of the Privy Council, to declare by proclamation that, on and after a day therein appointed, not being later than one year after the passing of this Act, the people of New South Wales, Victoria, South Australia, Queensland, and Tasmania, and also, if Her Majesty is satisfied that the people of Western Australia have agreed thereto, of Western Australia, shall be united in a Federal Commonwealth under the name of the Commonwealth of Australia. But the Queen may, at any time after the proclamation, appoint a Governor-General for the Commonwealth.

4.

Commencement of Act The Commonwealth shall be established, and the Constitution of the Commonwealth shall take effect, on and after the day so appointed. But the Parliaments of the several colonies may at any time after the passing of this Act make any such laws, to come into operation on the day so appointed, as they might have made if the Constitution had taken effect at the passing of this Act.

5.

Operation of the Constitution and laws [see Note 3] This Act, and all laws made by the Parliament of the Commonwealth under the Constitution, shall be binding on the courts, judges, and people of every State and of every part of the Commonwealth, notwithstanding anything in the laws of any State; and the laws of the Commonwealth shall be in force on all British ships, the Queen’s ships of war excepted, whose first port of clearance and whose port of destination are in the Commonwealth.

6.

Definitions

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The Commonwealth shall mean the Commonwealth of Australia as established under this Act. The States shall mean such of the colonies of New South Wales, New Zealand, Queensland, Tasmania, Victoria, Western Australia, and South Australia, including the northern territory of South Australia, as for the time being are parts of the Commonwealth, and such colonies or territories as may be admitted into or established by the Commonwealth as States; and each of such parts of the Commonwealth shall be called a State. Original States shall mean such States as are parts of the Commonwealth at its establishment. 7.

Repeal of Federal Council Act [see Note 4] The Federal Council of Australasia Act 1885, is hereby repealed, but so as not to affect any laws passed by the Federal Council of Australasia and in force at the establishment of the Commonwealth.

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Any such law may be repealed as to any State by the Parliament of the Commonwealth, or as to any colony not being a State by the Parliament there of. 8.

Application of Colonial Boundaries Act After the passing of this Act the Colonial Boundaries Act 1895, shall not apply to any colony which becomes a State of the Commonwealth; but the Commonwealth shall be taken to be a self-governing colony for the purposes of that Act.

9.

Constitution [see Note 1] The Constitution of the Commonwealth shall be as follows:

The Constitution This Constitution is divided as follows: Chapter I—The Parliament Part I—General Part II—The Senate Part III—The House of Representatives Part IV—Both Houses of the Parliament Part V—Powers of the Parliament Chapter II—The Executive Government Chapter III—The Judicature Chapter IV—Finance and Trade Chapter V—The States

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Chapter VI—New States Chapter VII—Miscellaneous Chapter VIII—Alteration of the Constitution The Schedule

Chapter I—The Parliament Part I—General 1.

Legislative power The legislative power of the Commonwealth shall be vested in a Federal Parliament, which shall consist of the Queen, a Senate, and a House of

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Representatives, and which is hereinafter called The Parliament, or The Parliament of the Commonwealth. 2.

Governor-General A Governor-General appointed by the Queen shall be Her Majesty’s representative in the Commonwealth, and shall have and may exercise in the Commonwealth during the Queen’s pleasure, but subject to this Constitution, such powers and functions of the Queen as Her Majesty may be pleased to assign to him.

3.

Salary of Governor-General There shall be payable to the Queen out of the Consolidated Revenue fund of the Commonwealth, for the salary of the Governor-General, an annual sum which, until the Parliament otherwise provides, shall be ten thousand pounds. The salary of a Governor-General shall not be altered during his continuance in office.

4.

Provisions relating to Governor-General The provisions of this Constitution relating to the Governor-General extend and apply to the Governor-General for the time being, or such person as the Queen may appoint to administer the Government of the Commonwealth; but no such person shall be entitled to receive any salary from the Commonwealth in respect of any other office during his administration of the Government of the Commonwealth.

5.

Sessions of Parliament. Prorogation and dissolution

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The Governor-General may appoint such times for holding the sessions of the Parliament as he thinks fit, and may also from time to time, by Proclamation or otherwise, prorogue the Parliament, and may in like manner dissolve the House of Representatives.

Summoning Parliament After any general election the Parliament shall be summoned to meet not later than thirty days after the day appointed for the return of the writs.

First session The Parliament shall be summoned to meet not later than six months after the establishment of the Commonwealth. 6.

Yearly session of Parliament

There shall be a session of the Parliament once at least in every year, so that twelve months shall not intervene between the last sitting of the Parliament in one session and its first sitting in the next session.

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Part II—The Senate 7.

The Senate [see Note 5]

The Senate shall be composed of senators for each State, directly chosen by the people of the State, voting, until the Parliament otherwise provides, as one electorate. But until the Parliament of the Commonwealth otherwise provides, the Parliament of the State of Queensland, if that State be an Original State, may make laws dividing the State into divisions and determining the number of senators to be chosen for each division, and in the absence of such provision the State shall be one electorate. Until the Parliament otherwise provides there shall be six senators for each Original State. The Parliament may make laws increasing or diminishing the number of senators for each State, but so that equal representation of the several Original States shall be maintained and that no Original State shall have less than six senators. The senators shall be chosen for a term of six years, and the names of the senators chosen for each State shall be certified by the Governor to the Governor-General. 8.

Qualification of electors

The qualification of electors of senators shall be in each State that which is prescribed by this Constitution, or by the Parliament, as the qualification for electors of members of the House of Representatives; but in the choosing of senators each elector shall vote only once. 9.

Method of election of senators [see Note 6]

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The Parliament of the Commonwealth may make laws prescribing the method of choosing senators, but so that the method shall be uniform for all the States. Subject to any such law, the Parliament of each State may make laws prescribing the method of choosing the senators for that State.

Times and places [see Note 6] The Parliament of a State may make laws for determining the times and places of elections of senators for the State. 10. Application of State laws Until the Parliament otherwise provides, but subject to this Constitution, the laws in force in each State, for the time being, relating to elections for the more numerous House of the Parliament of the State shall, as nearly as practicable, apply to elections of senators for the State. 11. Failure to choose senators The Senate may proceed to the despatch of business, notwithstanding the failure of any State to provide for its representation in the Senate.

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12. Issue of writs The Governor of any State may cause writs to be issued for elections of senators for the State. In case of the dissolution of the Senate the writs shall be issued within ten days from the proclamation of such dissolution. 13. Rotation of senators As soon as may be after the Senate first meets, and after each first meeting of the Senate following a dissolution thereof, the Senate shall divide the senators chosen for each State into two classes, as nearly equal in number as practicable; and the places of the senators of the first class shall become vacant at the expiration of three years, and the places of those of the second class at the expiration of six years, from the beginning of their term of service; and afterwards the places of senators shall become vacant at the expiration of six years from the beginning of their term of service. The election to fill vacant places shall be made within one year before the places are to become vacant. For the purposes of this section the term of service of a senator shall be taken to begin on the first day of July following the day of his election, except in the cases of the first election and of the election next after any dissolution of the Senate, when it shall be taken to begin on the first day of July preceding the day of his election. 14. Further provision for rotation [see Note 7] Whenever the number of senators for a State is increased or diminished, the Parliament of the Commonwealth may make such provision for the vacating of the places of senators for the State as it deems necessary to maintain regularity in the rotation.

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15. Casual vacancies [see Note 8] If the place of a senator becomes vacant before the expiration of his term of service, the Houses of Parliament of the State for which he was chosen, sitting and voting together, or, if there is only one House of that Parliament, that House, shall choose a person to hold the place until the expiration of the term. But if the Parliament of the State is not in session when the vacancy is notified, the Governor of the State, with the advice of the Executive Council thereof, may appoint a person to hold the place until the expiration of fourteen days from the beginning of the next session of the Parliament of the State or the expiration of the term, whichever first happens. Where a vacancy has at any time occurred in the place of a senator chosen by the people of a State and, at the time when he was so chosen, he was publicly recognized by a particular political party as being an endorsed candidate of that party and publicly represented himself to be such a candidate, a person chosen or appointed under this section in consequence of that vacancy, or in consequence of that vacancy and a subsequent vacancy or vacancies, shall, unless there is no member of that party available to be chosen or appointed, be a member of that party.

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Where: (a)

in accordance with the last preceding paragraph, a member of a particular political party is chosen or appointed to hold the place of a senator whose place had become vacant; and

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(b) before taking his seat he ceases to be a member of that party (otherwise than by reason of the party having ceased to exist); he shall be deemed not to have been so chosen or appointed and the vacancy shall be again notified in accordance with section twenty-one of this Constitution. The name of any senator chosen or appointed under this section shall be certified by the Governor of the State to the Governor-General. If the place of a senator chosen by the people of the State at the election of senators last held before the commencement of the Constitution Alteration (Senate Casual Vacancies) 1977 became vacant before that commencement and, at that commencement, no person chosen by the House or Houses of Parliament of the State, or appointed by the Governor of the State, in consequence of that vacancy, or in consequence of that vacancy and a subsequent vacancy or vacancies, held office, this section applies as if the place of the senator chosen by the people of the State had become vacant after that commencement. A senator holding office at the commencement of the Constitution Alteration (Senate Casual Vacancies) 1977, being a senator appointed by the Governor of a State in consequence of a vacancy that had at any time occurred in the place of a senator chosen by the people of the State, shall be deemed to have been appointed to hold the place until the expiration of fourteen days after the beginning of the next session of the Parliament of the State that commenced or commences after he was appointed and further action under this section shall be taken as if the vacancy in the place of the senator chosen by the people of the State had occurred after that commencement. Subject to the next succeeding paragraph, a senator holding office at the commencement of the Constitution Alteration (Senate Casual Vacancies) 1977 who was chosen by the House or Houses of Parliament of a State in consequence of a vacancy that had at any time occurred in the place of a senator chosen by the people of the State shall be deemed to have been chosen to hold office until the expiration of the term of service of the senator elected by the people of the State. If, at or before the commencement of the Constitution Alteration (Senate Casual Vacancies) 1977, a law to alter the Constitution entitled “Constitution Alteration (Simultaneous Elections) 1977” came into operation, a senator holding office at the commencement of that law who was chosen by the House or Houses of Parliament of a State in consequence of a vacancy that had at any time occurred in the place of

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a senator chosen by the people of the State shall be deemed to have been chosen to hold office: (a)

if the senator elected by the people of the State had a term of service expiring on the thirtieth day of June, One thousand nine hundred and seventy-eight—until the expiration or dissolution of the first House of Representatives to expire or be dissolved after that law came into operation; or

(b) if the senator elected by the people of the State had a term of service expiring on the thirtieth day of June, One thousand nine hundred and eighty-one—until the expiration or dissolution of the second House of Representatives to expire or be dissolved after that law came into operation or, if there is an earlier dissolution of the Senate, until that dissolution. 16. Qualifications of senator The qualifications of a senator shall be the same as those of a member of the House of Representatives. 17. Election of President The Senate shall, before proceeding to the despatch of any other business, choose a senator to be the President of the Senate; and as often as the office of President becomes vacant the Senate shall again choose a senator to be the President. The President shall cease to hold his office if he ceases to be a senator. He may be removed from office by a vote of the Senate, or he may resign his office or his seat by writing addressed to the Governor-General. 18. Absence of President Before or during any absence of the President, the Senate may choose a senator to perform his duties in his absence.

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19. Resignation of senator A senator may, by writing addressed to the President, or to the Governor-General if there is no President or if the President is absent from the Commonwealth, resign his place, which thereupon shall become vacant. 20. Vacancy by absence The place of a senator shall become vacant if for two consecutive months of any session of the Parliament he, without the permission of the Senate, fails to attend the Senate. 21. Vacancy to be notified Whenever a vacancy happens in the Senate, the President, or if there is no President or if the President is absent from the Commonwealth, the Governor-General shall notify the same to the Governor of the State in the representation of which the vacancy has happened.

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22. Quorum Until the Parliament otherwise provides, the presence of at least one-third of the whole number of the senators shall be necessary to constitute a meeting of the Senate for the exercise of its powers. 23. Voting in the Senate Questions arising in the Senate shall be determined by a majority of votes, and each senator shall have one vote. The President shall in all cases be entitled to a vote; and when the votes are equal the question shall pass in the negative.

Part III—The House of Representatives 24. Constitution of House of Representatives The House of Representatives shall be composed of members directly chosen by the people of the Commonwealth, and the number of such members shall be, as nearly as practicable, twice the number of the senators. The number of members chosen in the several States shall be in proportion to the respective numbers of their people, and shall, until the Parliament otherwise provides, be determined, whenever necessary, in the following manner: (i)

a quota shall be ascertained by dividing the number of the people of the Commonwealth, as shown by the latest statistics of the Commonwealth, by twice the number of the senators;

(ii) the number of members to be chosen in each State shall be determined by dividing the number of the people of the State, as shown by the latest statistics of the Commonwealth, by the quota; and if on such division there is a remainder greater than one-half of the quota, one more member shall be chosen in the State.

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But notwithstanding anything in this section, five members at least shall be chosen in each Original State. 25. Provision as to races disqualified from voting For the purposes of the last section, if by the law of any State all persons of any race are disqualified from voting at elections for the more numerous House of the Parliament of the State, then, in reckoning the number of the people of the State or of the Commonwealth, persons of that race resident in that State shall not be counted. 26. Representatives in first Parliament Notwithstanding anything in section twenty-four, the number of members to be chosen in each State at the first election shall be as follows: New South Wales............................................twenty-three; Victoria..............................................................twenty;

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Queensland.......................................................eight; South Australia................................................six; Tasmania...........................................................five Provided that if Western Australia is an Original State, the numbers shall be as follows: New South Wales............................................twenty-six; Victoria..............................................................twenty-three; Queensland.......................................................nine; South Australia................................................seven; Western Australia............................................five; Tasmania...........................................................five. 27. Alteration of number of members Subject to this Constitution, the Parliament may make laws for increasing or diminishing the number of the members of the House of Representatives. 28. Duration of House of Representatives Every House of Representatives shall continue for three years from the first meeting of the House, and no longer, but may be sooner dissolved by the Governor-General. 29. Electoral divisions [see Note 9] Until the Parliament of the Commonwealth otherwise provides, the Parliament of any State may make laws for determining the divisions in each State for which members of the House of Representatives may be chosen, and the number of members to be chosen for each division. A division shall not be formed out of parts of different States. In the absence of other provision, each State shall be one electorate. Copyright © 2018. OUPANZ. All rights reserved.

30. Qualification of electors Until the Parliament otherwise provides, the qualification of electors of members of the House of Representatives shall be in each State that which is prescribed by the law of the State as the qualification of electors of the more numerous House of Parliament of the State; but in the choosing of members each elector shall vote only once. 31. Application of State laws Until the Parliament otherwise provides, but subject to this Constitution, the laws in force in each State for the time being relating to elections for the more numerous House of the Parliament of the State shall, as nearly as practicable, apply to elections in the State of members of the House of Representatives. 32. Writs for general election The Governor-General in Council may cause writs to be issued for general elections of members of the House of Representatives.

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After the first general election, the writs shall be issued within ten days from the expiry of a House of Representatives or from the proclamation of a dissolution thereof. 33. Writs for vacancies Whenever a vacancy happens in the House of Representatives, the Speaker shall issue his writ for the election of a new member, or if there is no Speaker or if he is absent from the Commonwealth the Governor-General in Council may issue the writ. 34. Qualifications of members Until the Parliament otherwise provides, the qualifications of a member of the House of Representatives shall be as follows: (i)

he must be of the full age of twenty-one years, and must be an elector entitled to vote at the election of members of the House of Representatives, or a person qualified to become such elector, and must have been for three years at the least a resident within the limits of the Commonwealth as existing at the time when he is chosen;

(ii) he must be a subject of the Queen, either natural-born or for at least five years naturalized under a law of the United Kingdom, or of a Colony which has become or becomes a State, or of the Commonwealth, or of a State. 35. Election of Speaker

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The House of Representatives shall, before proceeding to the despatch of any other business, choose a member to be the Speaker of the House, and as often as the office of Speaker becomes vacant the House shall again choose a member to be the Speaker. The Speaker shall cease to hold his office if he ceases to be a member. He may be removed from office by a vote of the House, or he may resign his office or his seat by writing addressed to the Governor-General. 36. Absence of Speaker Before or during any absence of the Speaker, the House of Representatives may choose a member to perform his duties in his absence. 37. Resignation of member A member may by writing addressed to the Speaker, or to the Governor-General if there is no Speaker or if the Speaker is absent from the Commonwealth, resign his place, which thereupon shall become vacant. 38. Vacancy by absence The place of a member shall become vacant if for two consecutive months of any session of the Parliament he, without the permission of the House, fails to attend the House.

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39. Quorum Until the Parliament otherwise provides, the presence of at least one-third of the whole number of the members of the House of Representatives shall be necessary to constitute a meeting of the House for the exercise of its powers. 40. Voting in House of Representatives Questions arising in the House of Representatives shall be determined by a majority of votes other than that of the Speaker. The Speaker shall not vote unless the numbers are equal, and then he shall have a casting vote.

Part IV—Both Houses of the Parliament 41. Right of electors of States No adult person who has or acquires a right to vote at elections for the more numerous House of the Parliament of a State shall, while the right continues, be prevented by any law of the Commonwealth from voting at elections for either House of the Parliament of the Commonwealth. 42. Oath or affirmation of allegiance Every senator and every member of the House of Representatives shall before taking his seat make and subscribe before the Governor-General, or some person authorised by him, an oath or affirmation of allegiance in the form set forth in the schedule to this Constitution. 43. Member of one House ineligible for other A member of either House of the Parliament shall be incapable of being chosen or of sitting as a member of the other House. 44. Disqualification Copyright © 2018. OUPANZ. All rights reserved.

Any person who: (i)

is under any acknowledgment of allegiance, obedience, or adherence to a foreign power, or is a subject or a citizen or entitled to the rights or privileges of a subject or a citizen of a foreign power; or

(ii) is attainted of treason, or has been convicted and is under sentence, or subject to be sentenced, for any offence punishable under the law of the Commonwealth or of a State by imprisonment for one year or longer; or (iii) is an undischarged bankrupt or insolvent; or (iv) holds any office of profit under the Crown, or any pension payable during the pleasure of the Crown out of any of the revenues of the Commonwealth; or (v)

has any direct or indirect pecuniary interest in any agreement with the Public Service of the Commonwealth otherwise than as a member and in common

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with the other members of an incorporated company consisting of more than twenty-five persons; shall be incapable of being chosen or of sitting as a senator or a member of the House of Representatives. But subsection (iv) does not apply to the office of any of the Queen’s Ministers of State for the Commonwealth, or of any of the Queen’s Ministers for a State, or to the receipt of pay, half pay, or a pension, by any person as an officer or member of the Queen’s navy or army, or to the receipt of pay as an officer or member of the naval or military forces of the Commonwealth by any person whose services are not wholly employed by the Commonwealth. 45. Vacancy on happening of disqualification If a senator or member of the House of Representatives: (i)

becomes subject to any of the disabilities mentioned in the last preceding section; or

(ii) takes the benefit, whether by assignment, composition, or otherwise, of any law relating to bankrupt or insolvent debtors; or (iii) directly or indirectly takes or agrees to take any fee or honorarium for services rendered to the Commonwealth, or for services rendered in the Parliament to any person or State; his place shall thereupon become vacant. 46. Penalty for sitting when disqualified

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Until the Parliament otherwise provides, any person declared by this Constitution to be incapable of sitting as a senator or as a member of the House of Representatives shall, for every day on which he so sits, be liable to pay the sum of one hundred pounds to any person who sues for it in any court of competent jurisdiction. 47. Disputed elections Until the Parliament otherwise provides, any question respecting the qualification of a senator or of a member of the House of Representatives, or respecting a vacancy in either House of the Parliament, and any question of a disputed election to either House, shall be determined by the House in which the question arises. 48. Allowance to members Until the Parliament otherwise provides, each senator and each member of the House of Representatives shall receive an allowance of four hundred pounds a year, to be reckoned from the day on which he takes his seat. 49. Privileges etc. of Houses The powers, privileges, and immunities of the Senate and of the House of Representatives, and of the members and the committees of each House, shall be such

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as are declared by the Parliament, and until declared shall be those of the Commons House of Parliament of the United Kingdom, and of its members and committees, at the establishment of the Commonwealth. 50. Rules and orders Each House of the Parliament may make rules and orders with respect to: (i)

the mode in which its powers, privileges, and immunities may be exercised and upheld;

(ii) the order and conduct of its business and proceedings either separately or jointly with the other House.

Part V—Powers of the Parliament 51. Legislative powers of the Parliament [see Notes 10 and 11] The Parliament shall, subject to this Constitution, have power to make laws for the peace, order, and good government of the Commonwealth with respect to: (i)

trade and commerce with other countries, and among the States;

(ii) taxation; but so as not to discriminate between States or parts of States; (iii) bounties on the production or export of goods, but so that such bounties shall be uniform throughout the Commonwealth; (iv) borrowing money on the public credit of the Commonwealth; (v)

postal, telegraphic, telephonic, and other like services;

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(vi) the naval and military defence of the Commonwealth and of the several States, and the control of the forces to execute and maintain the laws of the Commonwealth; (vii) lighthouses, lightships, beacons and buoys; (viii) astronomical and meteorological observations; (ix) quarantine; (x)

fisheries in Australian waters beyond territorial limits;

(xi) census and statistics; (xii) currency, coinage, and legal tender; (xiii) banking, other than State banking; also State banking extending beyond the limits of the State concerned, the incorporation of banks, and the issue of paper money;

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(xiv) insurance, other than State insurance; also State insurance extending beyond the limits of the State concerned; (xv) weights and measures; (xvi) bills of exchange and promissory notes; (xvii) bankruptcy and insolvency; (xviii) copyrights, patents of inventions and designs, and trade marks; (xix) naturalization and aliens; (xx) foreign corporations, and trading or financial corporations formed within the limits of the Commonwealth; (xxi) marriage; (xxii) divorce and matrimonial causes; and in relation thereto, parental rights, and the custody and guardianship of infants; (xxiii) invalid and old-age pensions; (xxiiiA) the provision of maternity allowances, widows’ pensions, child endowment, unemployment, pharmaceutical, sickness and hospital benefits, medical and dental services (but not so as to authorize any form of civil conscription), benefits to students and family allowances; (xxiv) the service and execution throughout the Commonwealth of the civil and criminal process and the judgments of the courts of the States; (xxv) the recognition throughout the Commonwealth of the laws, the public Acts and records, and the judicial proceedings of the States;

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(xxvi) the people of any race for whom it is deemed necessary to make special laws; (xxvii) immigration and emigration; (xxviii) the influx of criminals; (xxix) external affairs; (xxx) the relations of the Commonwealth with the islands of the Pacific; (xxxi) the acquisition of property on just terms from any State or person for any purpose in respect of which the Parliament has power to make laws; (xxxii) the control of railways with respect to transport for the naval and military purposes of the Commonwealth; (xxxiii) the acquisition, with the consent of a State, of any railways of the State on terms arranged between the Commonwealth and the State;

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(xxxiv) railway construction and extension in any State with the consent of that  State; (xxxv) conciliation and arbitration for the prevention and settlement of industrial disputes extending beyond the limits of any one State; (xxxvi) matters in respect of which this Constitution makes provision until the Parliament otherwise provides; (xxxvii) matters referred to the Parliament of the Commonwealth by the Parliament or Parliaments of any State or States, but so that the law shall extend only to States by whose Parliaments the matter is referred, or which afterwards adopt the law; (xxxviii) the exercise within the Commonwealth, at the request or with the concurrence of the Parliaments of all the States directly concerned, of any power which can at the establishment of this Constitution be exercised only by the Parliament of the United Kingdom or by the Federal Council of Australasia; (xxxix) matters incidental to the execution of any power vested by this Constitution in the Parliament or in either House thereof, or in the Government of the Commonwealth, or in the Federal Judicature, or in any department or officer of the Commonwealth. 52. Exclusive powers of the Parliament The Parliament shall, subject to this Constitution, have exclusive power to make laws for the peace, order, and good government of the Commonwealth with respect to:

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(i)

the seat of government of the Commonwealth, and all places acquired by the Commonwealth for public purposes;

(ii) matters relating to any department of the public service the control of which is by this Constitution transferred to the Executive Government of the Commonwealth; (iii) other matters declared by this Constitution to be within the exclusive power of the Parliament. 53. Powers of the Houses in respect of legislation Proposed laws appropriating revenue or moneys, or imposing taxation, shall not originate in the Senate. But a proposed law shall not be taken to appropriate revenue or moneys, or to impose taxation, by reason only of its containing provisions for the imposition or appropriation of fines or other pecuniary penalties, or for the demand or payment or appropriation of fees for licences, or fees for services under the proposed law.

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The Senate may not amend proposed laws imposing taxation, or proposed laws appropriating revenue or moneys for the ordinary annual services of the Government. The Senate may not amend any proposed law so as to increase any proposed charge or burden on the people. The Senate may at any stage return to the House of Representatives any proposed law which the Senate may not amend, requesting, by message, the omission or amendment of any items or provisions therein. And the House of Representatives may, if it thinks fit, make any of such omissions or amendments, with or without modifications. Except as provided in this section, the Senate shall have equal power with the House of Representatives in respect of all proposed laws. 54. Appropriation Bills The proposed law which appropriates revenue or moneys for the ordinary annual services of the Government shall deal only with such appropriation. 55. Tax Bill Laws imposing taxation shall deal only with the imposition of taxation, and any provision therein dealing with any other matter shall be of no effect. Laws imposing taxation, except laws imposing duties of customs or of excise, shall deal with one subject of taxation only; but laws imposing duties of customs shall deal with duties of customs only, and laws imposing duties of excise shall deal with duties of excise only. 56. Recommendation of money votes

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A vote, resolution, or proposed law for the appropriation of revenue or moneys shall not be passed unless the purpose of the appropriation has in the same session been recommended by message of the Governor-General to the House in which the proposal originated. 57. Disagreement between the Houses If the House of Representatives passes any proposed law, and the Senate rejects or fails to pass it, or passes it with amendments to which the House of Representatives will not agree, and if after an interval of three months the House of Representatives, in the same or the next session, again passes the proposed law with or without any amendments which have been made, suggested, or agreed to by the Senate, and the Senate rejects or fails to pass it, or passes it with amendments to which the House of Representatives will not agree, the Governor-General may dissolve the Senate and the House of Representatives simultaneously. But such dissolution shall not take place within six months before the date of the expiry of the House of Representatives by effluxion of time.

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If after such dissolution the House of Representatives again passes the proposed law, with or without any amendments which have been made, suggested, or agreed to by the Senate, and the Senate rejects or fails to pass it, or passes it with amendments to which the House of Representatives will not agree, the GovernorGeneral may convene a joint sitting of the members of the Senate and of the House of Representatives. The members present at the joint sitting may deliberate and shall vote together upon the proposed law as last proposed by the House of Representatives, and upon amendments, if any, which have been made therein by one House and not agreed to by the other, and any such amendments which are affirmed by an absolute majority of the total number of the members of the Senate and House of Representatives shall be taken to have been carried, and if the proposed law, with the amendments, if any, so carried is affirmed by an absolute majority of the total number of the members of the Senate and House of Representatives, it shall be taken to have been duly passed by both Houses of the Parliament, and shall be presented to the Governor-General for the Queen’s assent. 58. Royal assent to Bills When a proposed law passed by both Houses of the Parliament is presented to the Governor-General for the Queen’s assent, he shall declare, according to his discretion, but subject to this Constitution, that he assents in the Queen’s name, or that he withholds assent, or that he reserves the law for the Queen’s pleasure.

Recommendations by Governor-General The Governor-General may return to the house in which it originated any proposed law so presented to him, and may transmit therewith any amendments which he may recommend, and the Houses may deal with the recommendation. Copyright © 2018. OUPANZ. All rights reserved.

59. Disallowance by the Queen The Queen may disallow any law within one year from the Governor-General’s assent, and such disallowance on being made known by the Governor-General by speech or message to each of the Houses of the Parliament, or by Proclamation, shall annul the law from the day when the disallowance is so made known. 60. Signification of Queen’s pleasure on Bills reserved A proposed law reserved for the Queen’s pleasure shall not have any force unless and until within two years from the day on which it was presented to the GovernorGeneral for the Queen’s assent the Governor-General makes known, by speech or message to each of the Houses of the Parliament, or by Proclamation, that it has received the Queen’s assent.

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Chapter II—The Executive Government 61. Executive power The executive power of the Commonwealth is vested in the Queen and is exercisable by the Governor-General as the Queen’s representative, and extends to the execution and maintenance of this Constitution, and of the laws of the Commonwealth. 62. Federal Executive Council There shall be a Federal Executive Council to advise the Governor-General in the government of the Commonwealth, and the members of the Council shall be chosen and summoned by the Governor-General and sworn as Executive Councillors, and shall hold office during his pleasure. 63. Provisions referring to Governor-General The provisions of this Constitution referring to the Governor-General in Council shall be construed as referring to the Governor-General acting with the advice of the Federal Executive Council. 64. Ministers of State The Governor-General may appoint officers to administer such departments of State of the Commonwealth as the Governor-General in Council may establish. Such officers shall hold office during the pleasure of the Governor-General. They shall be members of the Federal Executive Council, and shall be the Queen’s Ministers of State for the Commonwealth.

Ministers to sit in Parliament

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After the first general election no Minister of State shall hold office for a longer period than three months unless he is or becomes a senator or a member of the House of Representatives. 65. Number of Ministers Until the Parliament otherwise provides, the Ministers of State shall not exceed seven in number, and shall hold such offices as the Parliament prescribes, or, in the absence of provision, as the Governor-General directs. 66. Salaries of Ministers There shall be payable to the Queen, out of the Consolidated Revenue Fund of the Commonwealth, for the salaries of the Ministers of State, an annual sum which, until the Parliament otherwise provides, shall not exceed twelve thousand pounds a year.

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67. Appointment of civil servants Until the Parliament otherwise provides, the appointment and removal of all other officers of the Executive Government of the Commonwealth shall be vested in the Governor-General in Council, unless the appointment is delegated by the Governor-General in Council or by a law of the Commonwealth to some other authority. 68. Command of naval and military forces The command in chief of the naval and military forces of the Commonwealth is vested in the Governor-General as the Queen’s representative. 69. Transfer of certain departments On a date or dates to be proclaimed by the Governor-General after the establishment of the Commonwealth the following departments of the public service in each State shall become transferred to the Commonwealth: posts, telegraphs, and telephones; naval and military defence; lighthouses, lightships, beacons, and buoys; quarantine. But the departments of customs and of excise in each State shall become transferred to the Commonwealth on its establishment.

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70. Certain powers of Governors to vest in Governor-General In respect of matters which, under this Constitution, pass to the Executive Government of the Commonwealth, all powers and functions which at the establishment of the Commonwealth are vested in the Governor of a Colony, or in the Governor of a Colony with the advice of his Executive Council, or in any authority of a Colony, shall vest in the Governor-General, or in the Governor-General in Council, or in the authority exercising similar powers under the Commonwealth, as the case requires.

Chapter III—The Judicature 71. Judicial power and Courts The judicial power of the Commonwealth shall be vested in a Federal Supreme Court, to be called the High Court of Australia, and in such other federal courts as the Parliament creates, and in such other courts as it invests with federal jurisdiction. The High Court shall consist of a Chief Justice, and so many other Justices, not less than two, as the Parliament prescribes.

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72. Judges’ appointment, tenure, and remuneration The Justices of the High Court and of the other courts created by the Parliament: (i)

shall be appointed by the Governor-General in Council;

(ii) shall not be removed except by the Governor-General in Council, on an address from both Houses of the Parliament in the same session, praying for such removal on the ground of proved misbehaviour or incapacity;

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(iii) shall receive such remuneration as the Parliament may fix; but the remuneration shall not be diminished during their continuance in office. The appointment of a Justice of the High Court shall be for a term expiring upon his attaining the age of seventy years, and a person shall not be appointed as a Justice of the High Court if he has attained that age. The appointment of a Justice of a court created by the Parliament shall be for a term expiring upon his attaining the age that is, at the time of his appointment, the maximum age for Justices of that court and a person shall not be appointed as a Justice of such a court if he has attained the age that is for the time being the maximum age for Justices of that court. Subject to this section, the maximum age for Justices of any court created by the Parliament is seventy years. The Parliament may make a law fixing an age that is less than seventy years as the maximum age for Justices of a court created by the Parliament and may at any time repeal or amend such a law, but any such repeal or amendment does not affect the term of office of a Justice under an appointment made before the repeal or amendment. A Justice of the High Court or of a court created by the Parliament may resign his office by writing under his hand delivered to the Governor-General. Nothing in the provisions added to this section by the Constitution Alteration (Retirement of Judges) 1977 affects the continuance of a person in office as a Justice of a court under an appointment made before the commencement of those provisions. A reference in this section to the appointment of a Justice of the High Court or of a court created by the Parliament shall be read as including a reference to the appointment of a person who holds office as a Justice of the High Court or of a court created by the Parliament to another office of Justice of the same court having a different status or designation. 73. Appellate jurisdiction of High Court The High Court shall have jurisdiction, with such exceptions and subject to such regulations as the Parliament prescribes, to hear and determine appeals from all judgments, decrees, orders, and sentences: (i)

of any Justice or Justices exercising the original jurisdiction of the High Court;

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(ii) of any other federal court, or court exercising federal jurisdiction; or of the Supreme Court of any State, or of any other court of any State from which at the establishment of the Commonwealth an appeal lies to the Queen in Council; (iii) of the Inter-State Commission, but as to questions of law only; and the judgment of the High Court in all such cases shall be final and conclusive. But no exception or regulation prescribed by the Parliament shall prevent the High Court from hearing and determining any appeal from the Supreme Court of a State in any matter in which at the establishment of the Commonwealth an appeal lies from such Supreme Court to the Queen in Council. Until the Parliament otherwise provides, the conditions of and restrictions on appeals to the Queen in Council from the Supreme Courts of the several States shall be applicable to appeals from them to the High Court.

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74. Appeal to Queen in Council [see Note 12] No appeal shall be permitted to the Queen in Council from a decision of the High Court upon any question, howsoever arising, as to the limits inter se of the Constitutional powers of the Commonwealth and those of any State or States, or as to the limits inter se of the Constitutional powers of any two or more States, unless the High Court shall certify that the question is one which ought to be determined by Her Majesty in Council. The High Court may so certify if satisfied that for any special reason the certificate should be granted, and thereupon an appeal shall lie to Her Majesty in Council on the question without further leave. Except as provided in this section, this Constitution shall not impair any right which the Queen may be pleased to exercise by virtue of Her Royal prerogative to grant special leave of appeal from the High Court to Her Majesty in Council. The Parliament may make laws limiting the matters in which such leave may be asked, but proposed laws containing any such limitation shall be reserved by the GovernorGeneral for Her Majesty’s pleasure. 75. Original jurisdiction of High Court In all matters: (i)

arising under any treaty;

(ii) affecting consuls or other representatives of other countries; (iii) in which the Commonwealth, or a person suing or being sued on behalf of the Commonwealth, is a party; (iv) between States, or between residents of different States, or between a State and a resident of another State;

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(v)

The Australian Constitution

in which a writ of Mandamus or prohibition or an injunction is sought against an officer of the Commonwealth;

the High Court shall have original jurisdiction. 76. Additional original jurisdiction The Parliament may make laws conferring original jurisdiction on the High Court in any matter: (i)

arising under this Constitution, or involving its interpretation;

(ii) arising under any laws made by the Parliament; (iii) of Admiralty and maritime jurisdiction; (iv) relating to the same subject-matter claimed under the laws of different States. 77. Power to define jurisdiction With respect to any of the matters mentioned in the last two sections the Parliament may make laws: (i)

defining the jurisdiction of any federal court other than the High Court;

(ii) defining the extent to which the jurisdiction of any federal court shall be exclusive of that which belongs to or is invested in the courts of the States; (iii) investing any court of a State with federal jurisdiction. 78. Proceedings against Commonwealth or State The Parliament may make laws conferring rights to proceed against the Commonwealth or a State in respect of matters within the limits of the judicial power. 79. Number of judges

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The federal jurisdiction of any court may be exercised by such number of judges as the Parliament prescribes. 80. Trial by jury The trial on indictment of any offence against any law of the Commonwealth shall be by jury, and every such trial shall be held in the State where the offence was committed, and if the offence was not committed within any State the trial shall be held at such place or places as the Parliament prescribes.

Chapter IV—Finance and Trade 81. Consolidated Revenue Fund All revenues or moneys raised or received by the Executive Government of the Commonwealth shall form one Consolidated Revenue Fund, to be appropriated for

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the purposes of the Commonwealth in the manner and subject to the charges and liabilities imposed by this Constitution. 82. Expenditure charged thereon The costs, charges, and expenses incident to the collection, management, and receipt of the Consolidated Revenue Fund shall form the first charge thereon; and the revenue of the Commonwealth shall in the first instance be applied to the payment of the expenditure of the Commonwealth. 83. Money to be appropriated by law No money shall be drawn from the Treasury of the Commonwealth except under appropriation made by law. But until the expiration of one month after the first meeting of the Parliament the Governor-General in Council may draw from the Treasury and expend such moneys as may be necessary for the maintenance of any department transferred to the Commonwealth and for the holding of the first elections for the Parliament.

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84. Transfer of officers When any department of the public service of a State becomes transferred to the Commonwealth, all officers of the department shall become subject to the control of the Executive Government of the Commonwealth. Any such officer who is not retained in the service of the Commonwealth shall, unless he is appointed to some other office of equal emolument in the public service of the State, be entitled to receive from the State any pension, gratuity, or other compensation, payable under the law of the State on the abolition of his office. Any such officer who is retained in the service of the Commonwealth shall preserve all his existing and accruing rights, and shall be entitled to retire from office at the time, and on the pension or retiring allowance, which would be permitted by the law of the State if his service with the Commonwealth were a continuation of his service with the State. Such pension or retiring allowance shall be paid to him by the Commonwealth; but the State shall pay to the Commonwealth a part thereof, to be calculated on the proportion which his term of service with the State bears to his whole term of service, and for the purpose of the calculation his salary shall be taken to be that paid to him by the State at the time of the transfer. Any officer who is, at the establishment of the Commonwealth, in the public service of a State, and who is, by consent of the Governor of the State with the advice of the Executive Council thereof, transferred to the public service of the Commonwealth, shall have the same rights as if he had been an officer of a department transferred to the Commonwealth and were retained in the service of the Commonwealth.

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85. Transfer of property of State When any department of the public service of a State is transferred to the Commonwealth: (i)

all property of the State of any kind, used exclusively in connexion with the department, shall become vested in the Commonwealth; but, in the case of the departments controlling customs and excise and bounties, for such time only as the Governor-General in Council may declare to be necessary;

(ii) the Commonwealth may acquire any property of the State, of any kind used, but not exclusively used in connexion with the department; the value thereof shall, if no agreement can be made, be ascertained in, as nearly as may be, the manner in which the value of land, or of an interest in land, taken by the State for public purposes is ascertained under the law of the State in force at the establishment of the Commonwealth; (iii) the Commonwealth shall compensate the State for the value of any property passing to the Commonwealth under this section; if no agreement can be made as to the mode of compensation, it shall be determined under laws to be made by the Parliament; (iv) the Commonwealth shall, at the date of the transfer, assume the current obligations of the State in respect of the department transferred. 86. [Customs, excise, and bounties] [see Note 13] On the establishment of the Commonwealth, the collection and control of duties of customs and of excise, and the control of the payment of bounties, shall pass to the Executive Government of the Commonwealth.

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87. [Revenue from customs and excise duties] [see Note 13] During a period of ten years after the establishment of the Commonwealth and thereafter until the Parliament otherwise provides, of the net revenue of the Commonwealth from duties of customs and of excise not more than one-fourth shall be applied annually by the Commonwealth towards its expenditure. The balance shall, in accordance with this Constitution, be paid to the several States, or applied towards the payment of interest on debts of the several States taken over by the Commonwealth. 88. Uniform duties of customs Uniform duties of customs shall be imposed within two years after the establishment of the Commonwealth. 89. Payment to States before uniform duties

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Until the imposition of uniform duties of customs: (i)

the Commonwealth shall credit to each State the revenues collected therein by the Commonwealth;

(ii) the Commonwealth shall debit to each State: (a)

the expenditure therein of the Commonwealth incurred solely for the maintenance or continuance, as at the time of transfer, of any department transferred from the State to the Commonwealth; (b) the proportion of the State, according to the number of its people, in the other expenditure of the Commonwealth; (iii) the Commonwealth shall pay to each State month by month the balance (if any) in favour of the State. 90. Exclusive power over customs, excise, and bounties On the imposition of uniform duties of customs the power of the Parliament to impose duties of customs and of excise, and to grant bounties on the production or export of goods, shall become exclusive. On the imposition of uniform duties of customs all laws of the several States imposing duties of customs or of excise, or offering bounties on the production or export of goods, shall cease to have effect, but any grant of or agreement for any such bounty lawfully made by or under the authority of the Government of any State shall be taken to be good if made before the thirtieth day of June, one thousand eight hundred and ninety-eight, and not otherwise.

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91. Exceptions as to bounties Nothing in this Constitution prohibits a State from granting any aid to or bounty on mining for gold, silver, or other metals, nor from granting, with the consent of both Houses of the Parliament of the Commonwealth expressed by resolution, any aid to or bounty on the production or export of goods. 92. Trade within the Commonwealth to be free On the imposition of uniform duties of customs, trade, commerce, and intercourse among the States, whether by means of internal carriage or ocean navigation, shall be absolutely free. But notwithstanding anything in this Constitution, goods imported before the imposition of uniform duties of customs into any State, or into any Colony which, whilst the goods remain therein, becomes a State, shall, on thence passing into another State within two years after the imposition of such duties, be liable to any duty chargeable on the importation of such goods into the Commonwealth, less any duty paid in respect of the goods on their importation.

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93. Payment to States for five years after uniform tariffs During the first five years after the imposition of uniform duties of customs, and thereafter until the Parliament otherwise provides: (i)

the duties of customs chargeable on goods imported into a State and afterwards passing into another State for consumption, and the duties of excise paid on goods produced or manufactured in a State and afterwards passing into another State for consumption, shall be taken to have been collected not in the former but in the latter State;

(ii) subject to the last subsection, the Commonwealth shall credit revenue, debit expenditure, and pay balances to the several States as prescribed for the period preceding the imposition of uniform duties of customs. 94. Distribution of surplus After five years from the imposition of uniform duties of customs, the Parliament may provide, on such basis as it deems fair, for the monthly payment to the several States of all surplus revenue of the Commonwealth.

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95. Customs duties of Western Australia Notwithstanding anything in this Constitution, the Parliament of the State of Western Australia, if that State be an Original State, may, during the first five years after the imposition of uniform duties of customs, impose duties of customs on goods passing into that State and not originally imported from beyond the limits of the Commonwealth; and such duties shall be collected by the Commonwealth. But any duty so imposed on any goods shall not exceed during the first of such years the duty chargeable on the goods under the law of Western Australia in force at the imposition of uniform duties, and shall not exceed during the second, third, fourth, and fifth of such years respectively, four-fifths, three-fifths, two-fifths, and one-fifth of such latter duty, and all duties imposed under this section shall cease at the expiration of the fifth year after the imposition of uniform duties. If at any time during the five years the duty on any goods under this section is higher than the duty imposed by the Commonwealth on the importation of the like goods, then such higher duty shall be collected on the goods when imported into Western Australia from beyond the limits of the Commonwealth. 96. Financial assistance to States During a period of ten years after the establishment of the Commonwealth and thereafter until the Parliament otherwise provides, the Parliament may grant financial assistance to any State on such terms and conditions as the Parliament thinks fit. 97. Audit

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Until the Parliament otherwise provides, the laws in force in any Colony which has become or becomes a State with respect to the receipt of revenue and the expenditure of money on account of the Government of the Colony, and the review and audit of such receipt and expenditure, shall apply to the receipt of revenue and the expenditure of money on account of the Commonwealth in the State in the same manner as if the Commonwealth, or the Government or an officer of the Commonwealth, were mentioned whenever the Colony, or the Government or an officer of the Colony, is mentioned. 98. Trade and commerce includes navigation and State railways The power of the Parliament to make laws with respect to trade and commerce extends to navigation and shipping, and to railways the property of any State. 99. Commonwealth not to give preference The Commonwealth shall not, by any law or regulation of trade, commerce, or revenue, give preference to one State or any part thereof over another State or any part thereof. 100. Nor abridge right to use water The Commonwealth shall not, by any law or regulation of trade or commerce, abridge the right of a State or of the residents therein to the reasonable use of the waters of rivers for conservation or irrigation. 101. Inter-State Commission There shall be an Inter-State Commission, with such powers of adjudication and administration as the Parliament deems necessary for the execution and maintenance, within the Commonwealth, of the provisions of this Constitution relating to trade and commerce, and of all laws made thereunder.

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102. Parliament may forbid preferences by State The Parliament may by any law with respect to trade or commerce forbid, as to railways, any preference or discrimination by any State, or by any authority constituted under a State, if such preference or discrimination is undue and unreasonable, or unjust to any State; due regard being had to the financial responsibilities incurred by any State in connexion with the construction and maintenance of its railways. But no preference or discrimination shall, within the meaning of this section, be taken to be undue and unreasonable, or unjust to any State, unless so adjudged by the Inter-State Commission. 103. Commissioners’ appointment, tenure, and remuneration The members of the Inter-State Commission: (i)

shall be appointed by the Governor-General in Council;

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The Australian Constitution

(ii) shall hold office for seven years, but may be removed within that time by the Governor-General in Council, on an address from both Houses of the Parliament in the same session praying for such removal on the ground of proved misbehaviour or incapacity; (iii) shall receive such remuneration as the Parliament may fix; but such remuneration shall not be diminished during their continuance in office. 104. Saving of certain rates Nothing in this Constitution shall render unlawful any rate for the carriage of goods upon a railway, the property of a State, if the rate is deemed by the Inter-State Commission to be necessary for the development of the territory of the State, and if the rate applies equally to goods within the State and to goods passing into the State from other States. 105. Taking over public debts of States The Parliament may take over from the States their public debts, or a proportion thereof according to the respective numbers of their people as shown by the latest statistics of the Commonwealth, and may convert, renew, or consolidate such debts, or any part thereof; and the States shall indemnify the Commonwealth in respect of the debts taken over, and thereafter the interest payable in respect of the debts shall be deducted and retained from the portions of the surplus revenue of the Commonwealth payable to the several States, or if such surplus is insufficient, or if there is no surplus, then the deficiency or the whole amount shall be paid by the several States. 105A. Agreements with respect to State debts (1)

The Commonwealth may make agreements with the States with respect to the public debts of the States, including:

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(a) the taking over of such debts by the Commonwealth; (b) the management of such debts; (c) the payment of interest and the provision and management of sinking funds in respect of such debts; (d) the consolidation, renewal, conversion, and redemption of such debts; (e) the indemnification of the Commonwealth by the States in respect of debts taken over by the Commonwealth; and (f ) the borrowing of money by the States or by the Commonwealth, or by the Commonwealth for the States. (2)

The Parliament may make laws for validating any such agreement made before the commencement of this section.

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(3)

The Parliament may make laws for the carrying out by the parties thereto of any such agreement.

(4)

Any such agreement may be varied or rescinded by the parties thereto.

(5)

Every such agreement and any such variation thereof shall be binding upon the Commonwealth and the States parties thereto notwithstanding anything contained in this Constitution or the Constitution of the several States or in any law of the Parliament of the Commonwealth or of any State.

(6)

The powers conferred by this section shall not be construed as being limited in any way by the provisions of section one hundred and five of this Constitution.

Chapter V—The States 106. Saving of Constitutions The Constitution of each State of the Commonwealth shall, subject to this Constitution, continue as at the establishment of the Commonwealth, or as at the admission or establishment of the State, as the case may be, until altered in accordance with the Constitution of the State. 107. Saving of Power of State Parliaments Every power of the Parliament of a Colony which has become or becomes a State, shall, unless it is by this Constitution exclusively vested in the Parliament of the Commonwealth or withdrawn from the Parliament of the State, continue as at the establishment of the Commonwealth, or as at the admission or establishment of the State, as the case may be.

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108. Saving of State laws Every law in force in a Colony which has become or becomes a State, and relating to any matter within the powers of the Parliament of the Commonwealth, shall, subject to this Constitution, continue in force in the State; and, until provision is made in that behalf by the Parliament of the Commonwealth, the Parliament of the State shall have such powers of alteration and of repeal in respect of any such law as the Parliament of the Colony had until the Colony became a State. 109. Inconsistency of laws When a law of a State is inconsistent with a law of the Commonwealth, the latter shall prevail, and the former shall, to the extent of the inconsistency, be invalid. 110. Provisions referring to Governor The provisions of this Constitution relating to the Governor of a State extend and apply to the Governor for the time being of the State, or other chief executive officer or administrator of the government of the State.

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111. States may surrender territory The Parliament of a State may surrender any part of the State to the Commonwealth; and upon such surrender, and the acceptance thereof by the Commonwealth, such part of the State shall become subject to the exclusive jurisdiction of the Commonwealth. 112. States may levy charges for inspection laws After uniform duties of customs have been imposed, a State may levy on imports or exports, or on goods passing into or out of the State, such charges as may be necessary for executing the inspection laws of the State; but the net produce of all charges so levied shall be for the use of the Commonwealth; and any such inspection laws may be annulled by the Parliament of the Commonwealth. 113. Intoxicating liquids All fermented, distilled, or other intoxicating liquids passing into any State or remaining therein for use, consumption, sale, or storage, shall be subject to the laws of the State as if such liquids had been produced in the State. 114. States may not raise forces. Taxation of property of Commonwealth or State A State shall not, without the consent of the Parliament of the Commonwealth, raise or maintain any naval or military force, or impose any tax on property of any kind belonging to the Commonwealth, nor shall the Commonwealth impose any tax on property of any kind belonging to a State. 115. States not to coin money A State shall not coin money, nor make anything but gold and silver coin a legal tender in payment of debts.

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116. Commonwealth not to legislate in respect of religion The Commonwealth shall not make any law for establishing any religion, or for imposing any religious observance, or for prohibiting the free exercise of any religion, and no religious test shall be required as a qualification for any office or public trust under the Commonwealth. 117. Rights of residents in States A subject of the Queen, resident in any State, shall not be subject in any other State to any disability or discrimination which would not be equally applicable to him if he were a subject of the Queen resident in such other State. 118. Recognition of laws etc. of States Full faith and credit shall be given, throughout the Commonwealth to the laws, the public Acts and records, and the judicial proceedings of every State. 119. Protection of States from invasion and violence The Commonwealth shall protect every State against invasion and, on the application of the Executive Government of the State, against domestic violence.

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120. Custody of offenders against laws of the Commonwealth Every State shall make provision for the detention in its prisons of persons accused or convicted of offences against the laws of the Commonwealth, and for the punishment of persons convicted of such offences, and the Parliament of the Commonwealth may make laws to give effect to this provision.

Chapter VI—New States 121. New States may be admitted or established The Parliament may admit to the Commonwealth or establish new States, and may upon such admission or establishment make or impose such terms and conditions, including the extent of representation in either House of the Parliament, as it thinks fit. 122. Government of territories The Parliament may make laws for the government of any territory surrendered by any State to and accepted by the Commonwealth, or of any territory placed by the Queen under the authority of and accepted by the Commonwealth, or otherwise acquired by the Commonwealth, and may allow the representation of such territory in either House of the Parliament to the extent and on the terms which it thinks fit. 123. Alteration of limits of States The Parliament of the Commonwealth may, with the consent of the Parliament of a State, and the approval of the majority of the electors of the State voting upon the question, increase, diminish, or otherwise alter the limits of the State, upon such terms and conditions as may be agreed on, and may, with the like consent, make provision respecting the effect and operation of any increase or diminution or alteration of territory in relation to any State affected. Copyright © 2018. OUPANZ. All rights reserved.

124. Formation of new States A new State may be formed by separation of territory from a State, but only with the consent of the Parliament thereof, and a new State may be formed by the union of two or more States or parts of States, but only with the consent of the Parliaments of the States affected.

Chapter VII—Miscellaneous 125. Seat of Government The seat of Government of the Commonwealth shall be determined by the Parliament, and shall be within territory which shall have been granted to or acquired by the

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The Australian Constitution

Commonwealth, and shall be vested in and belong to the Commonwealth, and shall be in the State of New South Wales, and be distant not less than one hundred miles from Sydney. Such territory shall contain an area of not less than one hundred square miles, and such portion thereof as shall consist of Crown lands shall be granted to the Commonwealth without any payment therefor. The Parliament shall sit at Melbourne until it meet at the seat of Government. 126. Power to Her Majesty to authorise Governor-General to appoint deputies [see Note 14] The Queen may authorise the Governor-General to appoint any person, or any persons jointly or severally, to be his deputy or deputies within any part of the Commonwealth, and in that capacity to exercise during the pleasure of the GovernorGeneral such powers and functions of the Governor-General as he thinks fit to assign to such deputy or deputies, subject to any limitations expressed or directions given by the Queen; but the appointment of such deputy or deputies shall not affect the exercise by the Governor-General himself of any power or function.

Chapter VIII—Alteration of the Constitution

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128. Mode of altering the Constitution [see Note 1] This Constitution shall not be altered except in the following manner: The proposed law for the alteration thereof must be passed by an absolute majority of each House of the Parliament, and not less than two nor more than six months after its passage through both Houses the proposed law shall be submitted in each State and Territory to the electors qualified to vote for the election of members of the House of Representatives. But if either House passes any such proposed law by an absolute majority, and the other House rejects or fails to pass it, or passes it with any amendment to which the first-mentioned House will not agree, and if after an interval of three months the firstmentioned House in the same or the next session again passes the proposed law by an absolute majority with or without any amendment which has been made or agreed to by the other House, and such other House rejects or fails to pass it or passes it with any amendment to which the first-mentioned House will not agree, the GovernorGeneral may submit the proposed law as last proposed by the first-mentioned House, and either with or without any amendments subsequently agreed to by both Houses, to the electors in each State and Territory qualified to vote for the election of the House of Representatives.

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When a proposed law is submitted to the electors the vote shall be taken in such manner as the Parliament prescribes. But until the qualification of electors of members of the House of Representatives becomes uniform throughout the Commonwealth, only one-half of the electors voting for and against the proposed law shall be counted in any State in which adult suffrage prevails. And if in a majority of the States a majority of the electors voting approve the proposed law, and if a majority of all the electors voting also approve the proposed law, it shall be presented to the Governor-General for the Queen’s assent. No alteration diminishing the proportionate representation of any State in either House of the Parliament, or the minimum number of representatives of a State in the House of Representatives, or increasing, diminishing, or otherwise altering the limits of the State, or in any manner affecting the provisions of the Constitution in relation thereto, shall become law unless the majority of the electors voting in that State approve the proposed law. In this section, Territory means any territory referred to in section one hundred and twenty-two of this Constitution in respect of which there is in force a law allowing its representation in the House of Representatives.

Schedule Oath I, A.B., do swear that I will be faithful and bear true allegiance to Her Majesty Queen Victoria, Her heirs and successors according to law. SO HELP ME GOD!

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Affirmation I, A.B., do solemnly and sincerely affirm and declare that I will be faithful and bear true allegiance to Her Majesty Queen Victoria, Her heirs and successors according to law. (NOTE: The name of the King or Queen of the United Kingdom of Great Britain and Ireland for the time being is to be substituted from time to time.)

The Australian Constitution

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Note 1 The Commonwealth of Australia Constitution Act (the Constitution) as shown in this compilation comprises the Constitution amended as indicated in the Tables below. Table of Acts Act Constitution Alteration (Senate Elections) 1906 Constitution Alteration (State Debts) 1909 Constitution Alteration (State Debts) 1928 Constitution Alteration (Social Services) 1946 Constitution Alteration (Aboriginals) 1967 Constitution Alteration (Senate Casual Vacancies) 1977 Constitution Alteration (Retirement of Judges) 1977 Constitution Alteration (Referendums) 1977

Number and year 1, 1907

Date of Assent 3 Apr 1907

3, 1910

6 Aug 1910

1, 1929

13 Feb 1929

81, 1946

19 Dec 1946

55, 1967

10 Aug 1967

82, 1977

29 July 1977

83, 1977

29 July 1977

84, 1977

29 July 1977

Table of Amendments

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ad.  =  added or inserted am.  =  amended rep.  =  repealed rs.  =  repealed and substituted Provision affected S. 13.................................... S. 15.................................... S. 51.................................... S. 72.................................... S. 105.................................. S. 105A............................... S. 127.................................. S. 128..................................

How affected am. No. 1, 1907 rs. No. 82, 1977 am. No. 81, 1946; No. 55, 1967 am. No. 83, 1977 am. No. 3, 1910 ad. No. 1, 1929 rep. No. 55, 1967 am. No. 84, 1977

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Note 2 Covering Clause 3—The Proclamation under covering clause 3 was made on 17 September 1900 and published in the Gazette 1901. Note 3 Covering Clause 5—see also the Statute of Westminster Adoption Act 1942. Note 4 Covering Clause 7—The following Acts have repealed Acts passed by the Federal Council of Australasia: Defence Act 1903 (No. 20, 1903), s. 6 Pearl Fisheries Act 1952 (No. 8, 1952), s. 3 (Pearl Fisheries Act 1952 repealed by Continental Shelf (Living Natural Resources) Act 1968, s. 3) Service and Execution of Process Act 1901 (No. 11, 1901), s.  2 (subsequently repealed by Service and Execution of Process Act 1963, s. 3). Note 5 Section 7—The number of senators for each State was increased to 12 by the Representation Act 1983, s. 3. Note 6 Section 9—The following State Acts have been passed in pursuance of the powers conferred by s. 9: State New South Wales

Number No. 73, 1900

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No. 9, 1903 Victoria

No. 1715 No. 1860

No. 2399

No. 2723

Short title How affected Federal Elections Act Ss. 2, 3, 4, 5 and 6 1900 and the Schedule repealed by No. 9, 1903; wholly repealed by No. 41, 1912 Senators’ Elections (still in force) Act 1903 Federal Elections Act Repealed by No. 1860 1900 Repealed by No. 2723 Senate Elections (Times and Places) Act 1903 Repealed by No. 2723 Senate Elections (Times and Places) Act 1912 Repealed by No. 3769 Senate Elections (Times and Places) Act 1915

The Australian Constitution

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State

Queensland

South Australia

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Western Australia Tasmania

Number No. 3769

Short title Senate Elections (Times and Places) Act 1928 No. 6365 Senate Elections Act 1958 64 Vic. No. 25 The Parliament of the Commonwealth Elections Act and the Elections Acts 1885 to 1898 Amendment Act of 1900 3 Edw. VII. No. 6 The Election of Senators Act 1903 9 Eliz. II. No. 20 Senate Elections Act 1960 No. 834 Election of Senators Act 1903 No. 11, 1903 Election of Senators Act 1903 64 Vic. No. 59 The Federal Elections Act 1900 3 Edw. VII. No. 5 Election of Senators Act 1903 26 Geo. V. No. 3 Senate Elections Act 1935

How affected Repealed by No. 6365

(still in force) Operation exhausted

Repealed by 9 Eliz. II. No. 20 (still in force) (still in force) (still in force) Repealed by 26 Geo. V. No. 3 Repealed by 26 Geo. V. No. 3 (still in force)

Note 7 Section 14—For the provisions applicable upon the increase in the number of senators to 12 made by the Representation Act 1983, see s. 3 of that Act. Note 8 Section 15—The proposed law to alter the Constitution entitled “Constitution Alteration (Simultaneous Elections) 1977” was submitted to the electors in each State of the Commonwealth on 21 May 1977: it was not approved by a majority of all the electors voting in a majority of the States. See Gazette 1977, No. S100. Note 9 Section 29—The following State Acts were passed in pursuance of the powers conferred by s. 29, but ceased to be in force upon the enactment of the Commonwealth Electoral Act 1902:

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State New South Wales Victoria

Number No. 73, 1900 No. 1667

Queensland

64 Vic. No. 25

Western Australia 64 Vic. No. 6

Short title Federal Elections Act 1900 Federal House of Representatives Victorian Electorates Act 1900 The Parliament of the Commonwealth Elections Act and The Elections Acts 1885 to 1898 Amendment Act of 1900 Federal House of Representatives Western Australian Electorates Act 1900

Note 10 Section 51—The following Imperial Acts extended the legislative powers of the Parliament: Whaling Industry (Regulations) Act 1934, s. 15 Geneva Convention Act, 1937, s. 2 Emergency Powers (Defence) Act 1939, s. 5 Army and Air Force (Annual) Act 1940, s. 3. Note 11 Section 51 (xxxvii)—The following Acts have been passed by the Parliaments of the States to refer matters to the Parliament under section 51 (xxxvii): State New South Wales

Number No. 65, 1915

No. 33, 1942

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No. 18, 1943 No. 48, 1983

No. 182, 1986

Short title Commonwealth Powers (War) Act 1915 Commonwealth Powers Act 1942 Commonwealth Powers Act 1943 Commonwealth Powers (Meat Inspection) Act 1983 Commonwealth Powers (Family Law-Children) Act 1986

How affected Expired 9 Jan 1921; see s. 5 Expired; see s. 4 Expired; see s. 4 (still in force)

(still in force)

The Australian Constitution

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State

Number No. 61, 1992

No. 104, 1992

No. 100, 1993

No. 1, 2001

No. 114, 2002

Victoria

No. 3108

No. 3658

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No. 4009

No. 4950

No. 92, 1986

Short title Mutual Recognition (New South Wales) Act 1992 Commonwealth Powers (State Banking) Act 1992 Commonwealth Powers (Poultry Processing) Act 1993 Corporations (Commonwealth Powers) Act 2001 Terrorism (Commonwealth Powers) Act 2002 Commonwealth Powers (Air Navigation) Act 1920 Commonwealth Arrangements Act 1928 (Part III) Debt Conversion Agreement Act 1931 (No. 2) Commonwealth Powers Act 1943

Commonwealth Powers (Family Law-Children) Act 1986

How affected (still in force)

(still in force)

(still in force)

(still in force)

(still in force)

Repealed by No. 4502

Part III Repealed by No. 4502: Parts I & II Repealed by No. 6223 (still in force)

Not proclaimed to come into operation and cannot now be so proclaimed (still in force)

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State

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Number No. 2, 1993

No. 59, 1996

No. 6, 2001

No. 14, 2003

Queensland

12 Geo. V. No. 30

22 Geo. V. No. 30

7 Geo. VI. No. 19

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14 Geo. VI. No. 2

No. 37, 1990

No. 67, 1992

Short title Mutual Recognition (Victoria) Act 1993 Commonwealth Powers (Industrial Relations) Act 1996 Corporations (Commonwealth Powers) Act 2001 Terrorism (Commonwealth Powers) Act 2003 Commonwealth Powers (Air Navigation) Act 1921 Commonwealth Legislative Power Act 1931 Commonwealth Powers Act 1943 Commonwealth Powers (Air Transport) Act 1950 Commonwealth Powers (Family Law-Children) Act 1990 Mutual Recognition (Queensland) Act 1992

How affected (still in force)

(still in force)

(still in force)

(still in force)

Repealed by 1 Geo. VI. No. 8

Repealed by No. 46, 1983 Expired; see s. 4 (still in force)

(still in force)

(still in force)

The Australian Constitution

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State

Number No. 43, 2001

No. 79, 2002

South Australia

No. 1469, 1921

No. 2061, 1931

No. 3, 1943 No. 89, 1986

No. 72, 1993

No. 21, 2001

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No. 50, 2002

Western Australia

No. 4, 1943 No. 57, 1945 No. 30, 1947

Short title Corporations (Commonwealth Powers) Act 2001 Terrorism (Commonwealth Powers) Act 2002 Commonwealth Powers (Air Navigation) Act 1921 Commonwealth Legislative Power Act 1931 Commonwealth Powers Act 1943 Commonwealth Powers (Family Law) Act 1986 Mutual Recognition (South Australia) Act 1993 Corporations (Commonwealth Powers) Act 2001 Terrorism (Commonwealth Powers) Act 2002 Commonwealth Powers Act 1943 Commonwealth Powers Act 1945 Commonwealth Powers Act 1943, Amendment Act 1947

How affected (still in force)

(still in force)

Repealed by No. 2352, 1937

(still in force)

Expired; see s. 5 (still in force)

(still in force)

(still in force)

(still in force)

Repealed by No. 58, 1965 Repealed by No. 58, 1965 Repealed by No. 58, 1965

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State

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Number No. 31, 1947

No. 73, 1947

No. 81, 1947

No. 53, 1995

No. 7, 2001

No. 53, 2002

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Tasmania

11 Geo. V. No. 42

No. 46, 1952

No. 62, 1966

Short title Commonwealth Powers Act 1945, Amendment Act 1947 Commonwealth Powers Act 1945, Amendment Act (No. 2), 1947 Commonwealth Powers Act 1945– 1947, Amendment (Continuance) Act 1947 Mutual Recognition (Western Australia) Act 1995 Corporations (Commonwealth Powers) Act 2001 Terrorism (Commonwealth Powers) Act 2002 Commonwealth Powers (Air Navigation) Act 1920 Commonwealth Powers (Air Transport) Act 1952 Commonwealth Powers (Trade Practices) Act 1966

How affected Repealed by No. 58, 1965

Repealed by No. 58, 1965

Repealed by No. 58, 1965

(still in force)

(still in force)

(still in force)

Repealed by 1 Geo. VI. No. 14

(still in force)

Expired; see s. 2

The Australian Constitution

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State

Number No. 5, 1987

No. 33, 1993

No. 20, 1994

No. 39, 2001

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No. 68, 2002

Short title Commonwealth Powers (Family Law) Act 1987 Mutual Recognition (Tasmania) Act 1993 Commonwealth Powers (Family Law) Amendment Act 1994 Corporations (Commonwealth Powers) Act 2001 Terrorism (Commonwealth Powers) Act 2002

How affected (still in force)

(still in force)

(still in force)

(still in force)

(still in force)

Note 12 Section 74—See Privy Council (Limitation of Appeals) Act 1968, Privy Council (Appeals from the High Court) Act 1975 and Kirmani v Captain Cook Cruises Pty. Ltd [No. 2] (1985) 159 CLR 461. Note 13 Sections 86 and 87—the headings for these sections have been added for compilation purposes. Note 14 S. 126—See clause IV of the Letters Patent relating to the Office of Governor-General, published in the Gazette 1984, S334.

543

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INDEX Aboriginal and Torres Strait Islander Commission (ATSIC) 78, 84, 92 Aboriginal and Torres Strait Islander peoples 72–117 Aboriginal courts 100 assertion of UK sovereignty in Australia 41–42 basis for claims against the state 86–89 types of claims 90–107 claims against the state 90–107 citizenship and voting rights 100–102 closing the gap on social outcomes 107 compensation for harm 102–105 equality rights 100–107 land rights 93–97 Northern Territory Emergency Response 105–107 protection of cultural heritage 97–99 recognition of customary law 99–100 self-determination and self-government 90–93 competing claims to sovereignty 78–81 First Nations Constitutional Convention viii, 9, 112 identity 75–78 native title property right 85. see also Mabo case Ngarrindjeri women 319 no comprehensive legal definition for 77–78 structural reform options 108–116 constitutional recognition 108–114 treaties 114–116 struggle for rights 81–86 Uluru Statement from the Heart (2017) 9, 75, 112–114, 116 accountability x, 256–260. see also executive accountability; judicial accountability; Parliamentary accountability; public accountability ‘act of state’ doctrine 9–10 Administrative Appeals Tribunal (AAT) 308–310, 382 administrative law 22, 259–260, 289–290, 294, 302. see also constitutions; executive branch of government human rights and 304, 463, 465 statutory interpretation and 410 administrative state, modern 289–290 administrative tribunals 308–312 advertising, political 203 AEC. see Australian Electoral Commission affirmative action 32 African Union 478 annual reports 243–244

anti-corruption bodies 196, 290, 293–294, 319–322, 363–364. see also whistle-blowing anti-discrimination laws 103, 294, 320, 450–453, 465. see also discrimination appropriation Bills 231–234, 243–244, 265, 281, 299–300. see also money Bills arbitration 136–137, 187 Court of Conciliation and Arbitration 348–349 Permanent Court of Arbitration 482 ASIO (Australian Security Intelligence Organisation) 66, 256, 258, 305, 453–455, 459, 462, 466 ASIS (Australian Secret Intelligence Service) 256 assets forfeiture orders 396 association, freedom of 198–199. see also free speech asylum seekers 68, 208, 242, 278–280, 374–375, 379–380, 443–446 Attorney-General 144, 285, 304, 344, 354–355, 459–460, 465 Auditor-General 295, 297, 299–300 Australia Acts 56, 63–64, 222–227 Australian Capital Territory Human Rights Act 468–469 Australian Constitution. see also administrative law; Chapter III (Constitution); federal Commonwealth anchor to past and guide for future 427 Commonwealth of Australia Constitution Act 501–534 Schedule 534 Table of Acts 535 Table of Amendments 535–543 consideration of international and foreign law 496–498 constitutional conventions x, 48–49, 53, 59–61 constitutional human rights guarantees 448–449 constitutional interpretation 424–429 constitutional powers and the GovernorGeneral 262–266 indirect influences of international law 490–491 recognition of Aboriginal and Torres Strait Islander peoples 108–114 United Kingdom and 48 Australian Electoral Commission 201–202 Australian federation. see federation Australian Human Rights Commission (AHRC) 85, 291, 320–321, 358, 451, 464–465

Index

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Australian identity Aboriginal and Torres Strait Islander 75–78 national 34, 69, 154 Australian Law Reform Commission (ALRC) 304, 453 Australian National Audit Office 299 Australian Parliaments 100, 216–217 bicameral 52, 170, 216–217, 230–231, 487 eligibility of candidates for 174–177 relationship between houses of 230–234 unicameral 171, 216 voting in Parliament 246–247 Australian public law 26–29, 37–70. see also human rights; international legal system assertion of UK sovereignty 41–42 beginnings as an autocratic state 39–41 comparative public law in Australia 496–498 development of key institutions 49–56 judicial independence 53–54 representative and responsible government 49–53 repugnancy and the Colonial Laws Validity Act 55–56 English system of public law 44–49 federation and 56–61 international influences on 474–499 direct influences 486–490 indirect influences 490–496 post-federation developments 62–69 immigration and border control 66–69 national security 65–66, 437, 447, 454– 455, 466 severing ties to the UK 62–65 reception of English law 42–44 terms and concepts xii Australian Secret Intelligence Service (ASIS) 256 Australian Security Intelligence Organisation (ASIO) 66, 256, 258, 305, 453–455, 459, 462, 466 authority Commonwealth 154 origin of law's authority 9–11 autocracy 40–41 autonomy Aboriginal and Torres Strait Islander communities 74, 78, 91, 117 individual 31 political 53, 78, 121–122, 127, 153 awards, industrial 136 Balfour Declaration 62 ballots. see elections bicameralism 52, 170, 216–217, 230–231, 487

Bills of Rights 451, 462, 467–471 Bill of Rights (US) 467 Human Rights Act 1998 (UK) 456 International Bill of Rights 442 block grants 153 Boilermakers’ case 347–352, 354, 357–360, 365 exceptions 382–384 state courts 388–389, 391 border control and immigration 66–69 Brennan Report 109, 450, 465–467, 470 Bringing Them Home Report (1997) 82, 85, 103–104 Britain. see United Kingdom broadcast media 203. see also media and democracy budget Bills. see appropriation Bills burden of proof 25, 452 Cabinet

xvi, 48, 235–236, 242–243, 255, 259, 263–264. see also ministers advises the Governor-General 263, 268 centralisation of government 120, 150, 153 ‘A Certain Maritime Incident’ 241, 245, 298 certiorari 306, 403 chaplaincy programs in schools 274–277 Chapter III (Constitution) 338–347 Commonwealth of Australia Constitution Act, text of 520–523 federal courts jurisdiction 339–343 federal judicial power and detention 374–381 integrated federal judiciary and general court of appeal 339 judges engaging in non-judicial functions 382–388 limitations implied from 371–405 rights, freedoms and implied guarantees 371–381 rights protections 371–381 state courts invested with federal jurisdiction 346–347, 388–405 Kable 388–390 post-Kable jurisprudence 390–395 reinvigoration of Kable 395–405 tenure and remuneration of the federal judiciary 343–346 text of 520–523 Charter of Human Rights and Responsibilities Act 2006 (Victoria) 468–469 Charter of the United Nations 86, 440, 476, 480 Chartist movement 49, 51–52 chemical weapons 479–480 ‘Children Overboard’ incident 208, 242 Chow Hung Ching rule 494–496 church and state, separation of 10

545

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546

Index

citizenship qualification of candidates 174–177 voting rights and 100–102 who are ‘the people’? 164–165 ‘Citizenship Seven’ case 175–176 civil law tradition 18 claims by Aboriginal and Torres Strait Islander peoples 86–89 types of claims 90–107 ‘clear statement’ rule. see principle of legality closing the gap on social outcomes 107 COAG (Council of Australian Governments) 107, 151–152, 155–156 coalition of parties 171, 183 coercive federalism 152 Cold War 441–442, 479 Colonial Laws Validity Act 1865 (Imp), repugnancy and 55–56 colonisation of Australia. see also Aboriginal and Torres Strait Islander peoples; Australian public law; federal Commonwealth; United Kingdom beginnings as an autocratic state 39–41 colonial constitutions 51–53 command theory of law 12 commerce, trade and 17, 123, 134, 348. see also free trade commissions. see independent commissions; law reform commissions; royal commissions Committee on Economic, Social and Cultural Rights (CESCR) 443 committees 239–246 estimates committees 243–244 executive action scrutiny by 241–243 Joint Standing Committee on Electoral Matters 202 legislative scrutiny by 240–243 Parliamentary committees 239–246 powers of 244–246 UN Human Rights Committee 443 common good xv, 10, 18–20, 22, 25, 32–34 common law tradition 18 capacities of the Crown 273–277 legitimate influence principle 493–494 protection of human rights at the federal level 461–464 Commonwealth. see Australian Parliaments; executive branch of government; federal Commonwealth Commonwealth Grants Commission 149 Commonwealth of Australia Constitution Act (The Constitution), text of 501–534. see also Australian Constitution

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Commonwealth Ombudsman 290, 312–316, 466 Commonwealth-State relations. see also federal Commonwealth; states Commonwealth–state law inconsistency 130 federal financial relations 147–150 implied legislative restrictions on laws that affect other levels of government 145–150 practice of 150–153 roles in treaty-making process 487–488 communication. see also media and democracy free speech 186–198 implied freedom of political communication 187–188 Communism ASIO as ‘political police force’ 258 Communist Bloc 441–442 Communist Party Case 26, 140–141, 341, 391–392 Communist Party Dissolution Act 1950 (Cth) 341–342 communitarianism 33 community 32 comparative public law 496–498 compensation for harm 102–105 complacency 30, 438 compulsory voting 165, 169, 178–180, 201 Aboriginal and Torres Strait Islander peoples 101 concepts in Australian public law x–xvi conciliation 136–137, 293, 348–349, 451, 465 confidentiality 264, 393–394, 400 conflicts. see also Commonwealth-State relations chemical weapons in 479–480 colonisation and 82 conscience votes 246–247 consensus 163, 166 international legal system 477–478, 491 constitutions. see also Australian Constitution; Westminster system colonial 51–53 constitutional change 18 constitutional conventions x, 48–49, 53, 59–61 constitutional crises 234, 266 constitutional interpretation 424–429 constitutional limits 226–228 constitutionalism x–xi, 16–18 state 53 United Kingdom 48 United States 58, 61 constraints on government power 13–25, 254 controversies, law and 353, 356–358, 366. see also judicial power conventions, United Nations 442

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convicts 38, 40–41, 45, 49, 52 cooperative federalism 150 coordinate federalism 150 Corowa People’s Convention 59 corporations 136–138, 141–142, 146–147 corruption, anti-corruption bodies 196, 290, 293–294, 318–322, 363–364. see also fraud; whistle-blowing Council of Australian Governments (COAG) 107, 151–152, 155–156 Council of Europe 478 counter-terrorism 66, 437, 447, 454–455, 466 terrorism control order provisions 139–140, 356, 456, 459 Court of Conciliation and Arbitration 348–349 Court of Disputed Returns 174, 202 courts 315, 367, 400–401, 421, 461, 463. see also federal judiciary; High Court; judicial power; state courts; statutory interpretation; Supreme Courts Aboriginal courts 100 courts of appeal 339 federal court jurisdiction 339–343 Industrial Court 402–404 ‘integrated court system’ 143–145, 339 International Criminal Court 478 justiciability 42, 219, 229, 258, 304–305, 353, 411, 445, 463 Permanent Court of Arbitration 482 principle of legality 419–424 procedural fairness 30, 302, 305, 311–312 state courts invested with federal jurisdiction 346–347, 388–405 Criminal Code 364, 367 offensive communication by post 193 terrorism control order provisions 139–140, 356, 456, 459 criminal intelligence 393–394, 399–400 criminal law 24–25, 44, 66 Aboriginal and Torres Strait Islander peoples 80, 100 jurisdiction 134, 139 retrospective 372–373 The Crown xi. see also executive branch of government defined 254–255 distinction between US and Australian Crowns 64 English 41, 45–46, 50, 64, 79–81 land rights and 93–95 ‘office for profit under the Crown’ 173–174, 177 representative of the 217 in Uluru Statement from the Heart 113 cultural heritage, protection of 97–99. see also Hindmarsh Island Bridge affair

Index

customary law Aboriginal and Torres Strait Islander peoples 99–100 international public law sources 483, 485–486, 488–489 reception into the common law 494–496 customs duties and bounties 129, 132, 148–149 defence power 140–141, 341, 352, 359, 377, 426, 454, 456. see also military personnel; national security delegated legislation 268–269 deliberation 163–164 democracy. see also elections; High Court; referendums; representative government defined 163 democratic representation 165–169 e-democracy 211 free speech and 186–191 freedom of association 198–199 liberalism and 163 participation and deliberation 163–164 ‘the people’ in 164–165 plebiscites as a form of 167–169 protecting 199–213 electoral governance 201–202 integrity of political parties 202–205 the media and democracy 205–213 three institutions of government 163 deportation 310, 375, 377–378, 466 Teoh principle 493 detention, federal judicial power and 374–381, 448, 454–456, 459–460, 463, 466. see also asylum seekers; Kable principle exceptions 374–381 direct democracy 163 disclosures, public interest 323, 329–330 discrimination 102–105. see also anti-discrimination laws; equality; racial discrimination dispossession 76, 79, 82, 88, 91, 96–97, 109 distribution of powers 134–145. see also executive branch of government; judicial power; Parliamentary power diversity citizenship debate and 176 diverse representation 166 domestic law, international law connections 488– 489, 494–495, 499 domestic violence 267, 357 domination 20–21 donations, political 204–205 double dissolution elections 232 drug offences 310, 318, 401 dual citizenship, election candidates and 174–177

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dualist system of law 443, 475, 486 due process 25, 30, 45, 61, 372, 447, 456 duties, customs and excise 129, 132, 148–149 duties, rights and 292, 343, 355, 358, 419 Economic and Social Council (ECOSOC) 477–478 elections. see also representative government; voting double dissolution elections 232 extent of the franchise 177–183 foreign citizenship and 174–177 standing for election 173–177 value of the franchise 183–186 electoral boundaries 185–186 electoral funding 195–196 electoral governance 201–202 Australian Electoral Commission 201–202 Court of Disputed Returns 202 Joint Standing Committee on Electoral Matters 202 eligibility to vote 164–165 empowerment and constraint from public law 13–15, 254 Engineers’ case 128, 134–138, 497 English system of public law 44–49. see also United Kingdom reception of in Australia 42–44 equality 31–32. see also anti-discrimination laws equality rights for Aboriginal and Torres Strait Islander peoples 100–107 citizenship and voting rights 100–102 closing the gap on social outcomes 107 compensation for harm resulting from discriminatory policies and conduct 102–105 Northern Territory Emergency Response 105–107 estimates committees 243–244 European Convention on Human Rights 441 European Union 7, 478 evidence, rules of 392, 399 exceptional power 11 excise duties and bounties 129, 132, 148–149 executive accountability 288–330 executive power and accountability 256–260 judicial review 300–307 Parliamentary accountability 295–300 public accountability 322–330 FOI legislation 323–328 opinion polls and 322 right to reasons 328–329 transparency 322–330 whistle-blowing 329–330 responsible government 295–300 self-administered accountability 307–322 administrative tribunals 308–312

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independent commissions 320–322 internal review 308 Ombudsman schemes 312–316 Public Service Commissioner 316–317 royal commissions 317–319 specialist government inquiries 317–319 executive branch of government 253–286. see also Cabinet; government power Crown and 254–256 defined 254–255 detention without judicial arm 374–381 empowerment/constraint tensions 13–25, 254 executive decision making (the Teoh principle) 493 executive power and accountability 256–260 indirect influences of international law on 493 legislature regulating executive power 283–285 modern administrative state 257 non-statutory powers 220, 254, 267–268, 271, 279–280, 283 Queen, Governor-General, governors and Administrator as part of 255 quest for control 234–239 roles in treaty-making process 486–488 scrutiny by committees 241–243 sources of executive power 260–283 common law capacities of the Crown 273–277 constitutional powers and the GovernorGeneral 262–266 delegated legislation 268–269 executive nationhood power 277–283 prerogative powers 269–273 statutory powers 254, 266–268 executive nationhood power 277–283 external affairs power 138–139, 451, 454, 488–490, 492, 499 external influences on public law. see human rights; international legal system external sovereignty xv–xvi extra-territoriality 55, 64, 225–226 extreme laws 228–230 fair trial, right to a 358–359, 371–373. see also procedural fairness curtailed 305 judicial process 366, 447 legislative incursions on 373 Magna Carta 439 military courts martial 359 no constitutional guarantee of liberty 456 presumption of innocence 25, 421, 469 ‘fake news’ 212

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false imprisonment 47, 463 federal Commonwealth. see also Australian Constitution; colonisation of Australia; Commonwealth-State relations; unitary system centralisation of government 120, 150, 153 distribution of powers 134–145 ‘integrated court system’ 143–145, 339 federation and Australian public law 56–61 origins of the Australian federation 125–129 post-federation developments 62–69 national security 437, 447, 454–455, 466 severing Australia’s ties to the UK 62–65 protecting the federation: implied immunities federal financial relations 147–150, 153–156 implied legislative restrictions on laws that affect other levels of government 145–150 statutory authorisation for federal spending 276–277 structure of the Australian federation 129–134 Federal Council of Australasia 57 federal executive. see executive branch of government federal judiciary. see also judicial power Chapter III framework and history 339, 343–346 indicia of judicial power 352, 358 integrated federal judiciary and a general court of appeal 339 separation of federal judicial power 347–352 federal jurisdiction Chapter III (Constitution) federal courts jurisdiction 339–343 state courts invested with federal jurisdiction 346–347, 388–405 human rights at the federal level 448–453 federal nations 123 federal representation 171 federalism xi–xii, 120–125 2014 white paper reform process 153–154 character of federal states 123–125 as legal pluralism 120–121 values of federalism 121–123 federation 56–61 constitutional conventions 59–61 federal financial relations 147–150, 153–156 origins of the Australian federation 125–129 post-federation developments 62–69 protecting the federation 145–150, 153–156 severing ties to the UK 62–65 structure of the Australian federation 129–134 Financial Framework (Supplementary Powers) Act 1997 (Cth) 276–277 financial relations, federal 147–150 fiscal relations 153–155 Finkelstein Report 205–207

Index

First Nations. see Aboriginal and Torres Strait Islander peoples First Nations Constitutional Convention viii, 9, 112 fiscal relations. see financial relations, federal Fitzgerald Inquiry into police corruption 318 FOI legislation 323–328 foreign affairs, executive role in 486–488 foreign citizenship, election candidates and 174–177 franchise 185–186. see also elections exclusion from 60, 165 extent of 177–183 value of 183–186 electoral boundaries and 185–186 voting systems and 183–185 ‘fraternity’. see community fraud 297, 303, 341, 423, 485. see also corruption free press 205–206. see also media and democracy free speech democracy and 186–191 implied freedom of political communication 187–198 free trade 57–58, 126, 482 freedom 31. see also liberty separation of powers and 374–381 freedom of association 198–199. see also free speech freedom of information (FOI) 323–328 freedom of political communication, implied 187–198 communication that is protected 191–198 formulating the test 189–191 laws infringing 194–198 funding of political parties 203–204 gender discrimination 451 General Assembly (UN) 86, 440–441, 477–481 genocide 96–97, 486, 495 Holocaust 440–441 GetUp 212 Global Financial Crisis (GFC) 281–282 globalisation 7, 34 goods and services tax (GST) 149 governance, electoral 201–202 government business enterprises (GBEs) 272–273 government power. see also executive branch of government; Parliamentary power arms of government 254–255 centralisation of government 120, 150, 153 constitutionalism x–xi, 16–18 control of information 205–211 empowerment of and constraints on 13–25, 254 ‘integrity branch’ 291–293 scope of public law 18–23 social contract 13–15

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Governor-General, constitutional powers Grundnorms (basic norms) 12 GST (goods and services tax) 149

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262–266

habeas corpus 289, 374, 403 High Court 17–18, 26. see also Chapter III (Constitution); names of specific cases, eg, Mabo case approach to constitutional interpretation 342, 430 Chapter III jurisprudence 347 Commonwealth immunity doctrine 145, 147 constitutional judicial review xii–xiii as Court of Disputed Returns 174, 202 federal financial relations 147–149 as general court of appeal 339 implied constitutional principle 188 independence 125 influence on federal system 134–142, 151 'integrated court system' 143–144 on voting and representative government 165, 170, 172, 174–175, 178–182, 185–186 Hindmarsh Island Bridge affair 85, 98, 319, 386 Holocaust 440–441 House of Assembly 52, 184, 217, 224 House of Lords 28, 45, 53, 56, 225, 231, 497, 558 House of Representatives 130, 170–171, 184, 187, 217–218, 230–234, 243, 265, 295, 344 presiding officers 238–239 houses of Parliament, relationships between 230–234 human rights xii. see also Chapter III (Constitution); rights Aboriginal and Torres Strait Islander peoples struggle for 81–86 Australian compliance with ratified international human rights treaties 444–447 common law protections 461–464 constitutional guarantees 448–449 emergence of at the nation-state level 435–472 independent oversight institutions 464–467 international emergence of 440–444 legislative action at the federal level 449–461 curtailment of human rights 453–456 legislative scrutiny 456–461 protection of human rights 451–453 principle of legality 419–424 proportionality test 436, 449, 498 shifting human rights debates 467–471 Human Rights and Equal Opportunity Commission (HREOC). see Australian Human Rights Commission human rights treaties, international 444–447 ICCPR (International Covenant on Civil and Political Rights) 442–443

ICESCR (International Covenant on Economic, Social and Cultural Rights) 442 identity Aboriginal and Torres Strait Islander 75–78 national 34, 69, 154 ideology 45 immigration and border control 66–69. see also asylum seekers immunities. see implied immunities Imperial laws, repugnancy to 55–56. see also United Kingdom implied freedom of political communication 187–188 communication that is protected 191–198 formulating the test 189–191 laws infringing 194–198 implied guarantees 371–381 implied immunities federal financial relations 147–150, 153–156 implied legislative restrictions on laws that affect other levels of government 145–150 imprisonment. see detention independent commissions 320–322. see also anticorruption bodies independent human rights oversight institutions 464–467 independent judiciary. see judicial independence Independent National Security Legislation Monitor (INSLM) 466 independent statutory authorities 272 indicia of judicial power 352, 358 Indigenous peoples. see Aboriginal and Torres Strait Islander peoples; United Nations Declaration on the Rights of Indigenous Peoples, individual rights. see human rights industrial awards 136 Industrial Court 402–404 information, control of government, media and 205–211 in Parliament 236–239 innocence, presumption of 25, 421, 469. see also fair trial, right to a inquiries, specialist government 317–319 institutional accountability. see accountability institutions, development of key 49–56 judicial independence 53–54 representative and responsible government 49–53 repugnancy and the Colonial Laws Validity Act 55–56 ‘integrated court system’ 143–145, 339 integrity government ‘integrity branch’ 291–293 political parties 202–205

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intellectual property 100, 294 intelligence, criminal 393–394, 399–400 interim control orders 356–357, 364, 367 internal review 308 internal sovereignty xv–xvi International Convention on the Elimination of Racial Discrimination (ICERD) 442, 451 International Court of Justice (ICJ) 477, 483, 485 International Covenant on Civil and Political Rights (ICCPR) 442–443 International Covenant on Economic, Social and Cultural Rights (ICESCR) 442 International Criminal Court (ICC) 478 international humanitarian law 477 International Law Commission 478 international legal system 440–444, 476–496. see also comparative public law; customary law; sovereignty Australia’s compliance with 444–447 Chow Hung Ching rule 494–496 direct influences of international obligations on Australian public law 486–490 indirect influences of international law on Australian public law 490–496 Constitution 490–491 influence on executive decision making 493 influence on the common law 493–494 legislation 491–492 Polites principle 492 reception of international custom into the common law 494–496 influences on development of Australian public law 37–70 assertion of UK sovereignty 41–42 competing claims to sovereignty in Australia 78–81 development of key institutions 49–56 English system of public law 44–49 federation and 56–61 immigration and border control 66–69 judicial independence 53–54 national security 65–66 post-federation developments 62–69 reception of English law 42–44 representative and responsible government 49–53 repugnancy and the Colonial Laws Validity Act 55–56 severing Australia’s ties to the UK 62–65 international custom received into the common law 494–496 international influences on Australian public law 474–499 norms of 475–477, 494

Index

public international law 477 institutions of 477–483 sources of 483–486 state sovereignty in 476 internet Commonwealth-State relations and 150 metadata 458 online information and communication 203, 211–212 WikiLeaks 325 interpretation of laws. see statutory interpretation Joint Standing Committee on Electoral Matters 202 journalism. see media and democracy judicial accountability 300–307 judicial independence 53–54. see also separation of powers judges engaging in non-judicial functions 382–388 judicial power. see also courts; federal judiciary appointment of justices 387 common law protections of human rights 461–464 defining 336, 352–367 judicial discretion and legislative usurpation 361–365 judicial process 366–367 nature of the judicial function 353–361 distribution of powers in federal Commonwealth 143–145 indicia of 352, 358 ‘integrated court system’ 143–145, 339 interpretation of laws. see statutory interpretation separation of federal judicial power 347–352 separation of judicial power 335–368 judicial review xii–xiii. see also judicial power constitutional xii–xiii executive accountability 300–307 juries 427 right to trial by jury 25, 49–50, 53, 337, 362, 372, 448 jurisdiction Chapter III (Constitution) federal courts jurisdiction 339–343 state courts and federal jurisdiction 346–347 state courts invested with federal jurisdiction 388–405 distribution of powers in federal Commonwealth 134–143 jurisprudential theories 11–12 jus cogens norms 485, 495 justice, principles of 30 justiciability (reviewable in the courts) 42, 219, 229, 258, 304–305, 353, 411, 445, 463

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Kable principle 388–390 post-Kable jurisprudence 390–395 reinvigoration of Kable 395–405 Kerr Report 290 land rights, Aboriginal and Torres Strait Islander peoples 93–97 law. see also common law tradition; customary law; legislation; public law; sovereignty nature of 11–13 origin of authority of 9–11 law of torts 24, 463 law of war 477 law reform commissions 99–100, 304, 416, 453, 496 League of Arab States 478 legal constitutionalism xi, 16–17 legal counsel, access to 461 legal pluralism, federalism as 120–121 legal professional privilege 236, 326, 461 legal system. see international legal system; law; public law legality principle 419–424 legislation. see also law Commonwealth/state law inconsistency 130 delegated legislation 268–269 human rights at the federal level 449–461 legislative curtailment of human rights 453–456 legislative protection of human rights 451–453 new parliamentary scrutiny 456–461 statement of compatibility 457, 459, 469 Legislative Assembly 40, 52, 171, 217 Legislative Councils 50–52, 101, 171–172, 217, 219, 223–224, 236–237, 243 legislative power. see also Parliamentary power affecting other levels of government 145–150 distribution of powers in federal Commonwealth 134–143 Melbourne Corporation doctrine 146–147 legislative process. see also Parliamentary power control of information 235–236 legislative scrutiny by committees 240–241 legislative usurpation 361–365 legislature, regulating executive power 283–285 legitimacy 9–13 Constitution and 428–429 voting and 163–164 legitimate influence principle 493–494 liberalism xiii, 163 liberty 13, 15, 21, 29, 31–33, 61, 179, 283, 338, 371–374, 380–381, 460–463. see also freedom no legislative guarantee of 456

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licence fees 148–149 local government, in federal Commonwealth

120

Mabo case 42, 79, 83, 88, 91, 94–95, 103 Magna Carta 1215 45–46, 271, 438 Makarrata Commission 112–114, 116 manner and form provisions 52, 56, 64, 221–225 media and democracy 205–213 access to journalists’ metadata 459 broadcast media 203 control of information 205–211 Finkelstein Report 205–207 Fitzgerald Inquiry and 318 journalistic ethics and standards 205–207 journalists’ sources of information 208–209 online information and communication 211–213 whistle-blowing 329–330 Melbourne Corporation doctrine 146–147 migrants. see diversity; immigration and border control military courts martial 359 military personnel 176–177, 259, 267, 352, 359, 375, 492. see also defence power ministerial advisers 256, 297–298 ministers 53. see also Cabinet assessments of culture by 98 Code of Conduct for Ministerial Staff 298–299 as core of the executive 255–256 English system of public law 48–51 immigration decisions 68, 493 lawful decisions 463 personal political staff 256, 297–298 Queen acts on advice of 64, 255 representative government 51, 126 responsible to the Parliament xiv treaty action by 487 minority government 183–184 miscegenation 82 modern administrative state 289–290 monarchs xi money Bills 45, 128, 171, 231–232. see also appropriation Bills morality, law and 8, 27–30 multiculturalism. see diversity Murray River 58. see also Hindmarsh Island Bridge affair MV Tampa 374 national identity 34, 69, 154 national security 65–66 counter-terrorism 66, 437, 447, 454–455, 466 terrorism control order provisions 139–140, 356, 456, 459

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nationhood power 277–283 nation-states, public law and 4, 7. see also states native title. see land rights; Mabo case natural justice 302, 396 natural law 10–11, 13, 228, 439 New South Wales Act 1823 (Imp) 50, 54 non-discrimination. see equality non-domination 20–21 non-judicial detention 374–381 non-justiciability. see justiciability non-statutory powers 220, 254, 267–268, 271, 279–280, 283 norms Grundnorms (basic norms) 12 human rights norms 259, 440, 460, 464, 467 international norms 475–477, 494 jus cogens norms 485, 495 Northern Territory Emergency Response 105–107

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Ombudsman schemes 290, 293–294, 312–316, 466 interlocking accountability mechanisms 294 South Africa 291–292 omnibus legislation 452 online information and communication 211–213 Operation Sovereign Borders 208 opinion polls 322 organised crime 396, 401 Organization of American States 478 outlaw motorcycle gangs 396 paramount force 43, 55 Parliamentary accountability 295–300 Parliamentary committees 239–246 estimates committees and annual reports 243–244 legislative scrutiny by 240–241 Parliamentary Joint Committee on Human Rights 456–462, 467, 469 powers of 244–246 scrutiny of executive action by 241–243 Parliamentary power 234–239. see also government power; legislative power control of information 236–239 question time 237–238 role of the presiding officers 238–239 control of the legislative process 235–236 voting in Parliament 246–247 parliamentary privileges 217–220 Parliamentary sovereignty/supremacy xiii, 220–230, 283–285 binding future parliaments 221–225 constitutional limits 226–228 extra-territoriality 225–226 extreme laws 228–230

Index

Parliaments. see Australian Parliaments; federal Commonwealth; representative government participation. see representative government Permanent Court of Arbitration (PCA) 482 permanent residents 69, 180 persona designata doctrine 352, 368, 382, 385 plebiscites as a form of representation 167–169 pluralism, federalism as legal pluralism 120–121 police corruption, Fitzgerald Inquiry into 493 Polites principle 492 political advertising 203 political communication, implied freedom of. see implied freedom of political communication political constitutionalism x–xi, 16 political donations 204–205 political parties, integrity of 202–205 political advertising 203 political donations 204–205 public funding 203–204 political protest 196–198 popular sovereignty 428 positive discrimination 32 positive liberty 33 post-federation developments. see federal Commonwealth power xv. see also Chapter III (Constitution); defence power; executive branch of government; judicial power; Parliamentary power constraints on 13–25, 254 distribution of powers in federal Commonwealth 134–145 executive nationhood power 277–283 non-statutory powers 220, 254, 267–268, 271, 279–280, 283 prerogative powers 269–273 rights, exceptions and state courts 371–405 separation of federal judicial power 347–352 separation of judicial power 335–368 statutory powers 254, 266–268 predominance of states 6–8 prerogative powers 269–273 prerogative writs 289 presiding officers, role of 238–239 presumption of consistency 419 presumption of innocence 25, 421, 469. see also fair trial, right to a prime ministers. see also ministers ‘Children Overboard’ incident 242 power to appoint and dismiss 264–265 social media presence 212 principle of legality 419–424 principles of justice (Rawls) 30 prison. see detention, federal judicial power and

553

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554

Index

privacy 23–24, 458–459, 464 Privacy Commissioner 327 private international law 477 private law 23–25 private space 31 procedural approach to rule of law 26–29 procedural fairness 30, 302, 305, 311–312 property rights, native title as 85. see also land rights proportional voting systems 184 proportionality test 436, 449, 498 protectionism 58, 132 protest, political 196–198 public accountability 322–330 FOI legislation 323–328 opinion polls and 322 right to reasons 328–329 transparency 322–330 whistle-blowing 329–330 public authorities 468 public funding of political parties 203–204 public interest disclosures (whistle-blowing) 323, 329–330 public international law 477 institutions of 477–483 sources of 483–486 public law. see also Australian public law; states Aboriginal and Torres Strait Islander peoples and 73–116 empowerment and constraint from 13–15, 254 English system 44–49 idea of 3–35 private law and 23–25 public international law 477 institutions of 477–483 sources of 483–486 scope of 18–23 statutory interpretation and 407–430 terminology x–xvi values underpinning 30–34 Public Service Commissioner 316–317 Queen, as part of executive xi, 255 question time in Parliament 237–238 racial discrimination 32, 74, 87–88, 103, 110, 437, 442, 451, 464, 488–489 redress 254, 260, 289, 291, 294 referendums 81, 84–85, 200–201, 221–223, 225, 327, 424 Aboriginal peoples 74, 93, 110–112, 114 Communist Party dissolution 342 double majority requirement 125–126, 133–134, 171 express rights protections 448

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federation 59–60, 127–128 local government 156, 276 on NT becoming seventh state 63 office of profit under the Crown 177 plebiscites vs 168 republic 65, 200, 266 refugees. see asylum seekers religion 7, 10–11, 77, 104, 187, 439, 448 separation of church and state 10 representative democracy 163 representative government xiii–xiv, 161–248 constitutional foundations of 169–186 democratic representation 165–169 key institutions 49–53 plebiscites as a form of 167–169 republicanism xv 1999 republic referendum 65, 200, 266 US republicanism 20, 56 repugnancy to Imperial laws 55–56 responsible government xiv, 49–53 Parliamentary accountability 295–300 restraining orders 356, 396 right to a fair trial 358–359, 371–373. see also procedural fairness curtailed 305 judicial process 366, 447 legislative incursions on 373 Magna Carta 439 military courts martial 359 no constitutional guarantee of liberty 456 presumption of innocence 25, 421, 469 right to reasons 328–329 rights. see also Bills of Rights; equality; human rights; land rights Aboriginal and Torres Strait Islander peoples struggle for 81–86 civil and political rights 441 collective or solidarity rights 441 emergence of at the nation-state level 438–440 rights, freedoms and implied guarantees 371–381 role of Chapter III in protection of 371–381 separation of powers and 371–381 social, economic and cultural rights 441 royal commissions 317–319 rule of law xiv, 25–30, 336, 393, 397, 404, 411 procedural and substantive approaches to 26–29 safeguarding Australia. see national security same-sex marriage plebiscite 168–169 sanctions 316–317, 477, 479 Scrutiny of Acts and Regulations Committee (SARC) 469 ‘secondary’ rules 12

Index

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OXFORD UNIVERSITY PRESS

security. see national security Security Council (UN) 476–482 self-determination and self-government 90–93, 441 self-incrimination 421, 461–462 Senate 230–234 federation and 128 money Bills 171, 231–232 presiding officers 238–239 representative nature of 131, 166, 184 standing for election 173 terms 170 territories and 130–131 voting for 178 separation of church and state 10 separation of powers xv. see also Chapter III (Constitution); executive branch of government; judicial independence; Parliaments rights, exceptions and state courts 371–405 separation of federal judicial power 347–352 separation of judicial power 335–368 two-limbed test 348–349, 351 Serious and Organised Crime (Control) Act 2008 (SA) 396–399 sex discrimination 451 single-member electorates 183 Sixth Committee of the General Assembly 478 slavery 463, 486 social contract 13–15 social media 212 social outcomes, closing the gap on 107 social union 132–133 sovereignty xv–xvi. see also Parliamentary sovereignty/supremacy assertion of UK sovereignty in Australia 41–42 competing claims to 78–81 origin of law’s authority and 9–11 state sovereignty in international legal system 476 specialist government inquiries 317–319 speech, free. see free speech state courts. see also Supreme Courts federal jurisdiction and 346–347 invested with federal jurisdiction 388–405 Kable 388–390 post-Kable jurisprudence 390–395 reinvigoration of Kable 395–405 state sovereignty. see sovereignty statement of compatibility 457, 459, 469 states. see also Commonwealth-State relations; executive branch of government; public law Commonwealth/state law inconsistency 130 detention without the judicial arm 374–381 emergence of rights at the nation-state level 438–440

predominance of states 6–8 roles in treaty-making process 487–488 separation of church and state 10 Statute of Westminster 1931 (UK) 62–64, 226 statutory authorisation for federal spending 276–277 statutory authorities, independent 272 statutory interpretation approaches to 414, 429 constitutional interpretation 424–429 contemporary approach 414–419 Parliamentary power to overturn 409–410 principle of legality 419–424 process of interpretation 411–414 public law and 407–430 role across all branches of the government 408–409, 429–430 role of individual citizens 408–409 statutory powers 254, 266–268 stolen generations 85, 105 subsidiary law 483 substantive approach to rule of law 26, 28–29 supply Bills 232. see also money Bills supremacy of law. see rule of law ‘supremacy of the Constitution’. see rule of law Supreme Courts 291, 394–395, 399–400, 402–404, 469. see also Kable principle colonial 49–50, 54–55, 79–80, 127 as Court of Disputed Returns 202 jurisdiction 301, 343 US Supreme Court 122, 497 surveillance by ASIO 258 by Edward Snowden 213 of internet users 458 Surveillance Devices Act 2007 (NSW) 361 Syrian Civil War 479–480, 482 Tampa case 374 tariff policy 132 tax Bills 232. see also money Bills taxation. see also customs duties and bounties Australian Taxation Office 266 Commonwealth-State relations 132–133, 155, 282 England 45–46, 49, 51, 58 goods and services tax (GST) 149 money Bills 171, 231–232 state economies 20 ‘tax bonuses’ 281–282 Taxation Ombudsman 313 taxation statutes construed strictly 419 wholesale sales tax 149 Teoh principle 493 terminology in Australian public law x–xvi

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terra nullius 41–42 territoriality 63, 226 territories in federal Commonwealth 120. see also Commonwealth-State relations; states terrorism. see national security tied grants 147, 149, 152–153 Torres Strait Islander peoples. see Aboriginal and Torres Strait Islander peoples torts, law of 24, 463 torture 99, 442, 463, 486 trade and commerce 17, 123, 134, 348. see also free trade trade secrets 294, 326 trade unions 126, 191, 319 transparency in government FOI legislation 323–328 public accountability 322–330 right to reasons 328–329 whistle-blowing 329–330 treaties Aboriginal and Torres Strait Islander peoples 114–116 international human rights treaties 444–447 executive and Parliamentary roles 487–488 multilateral 139, 485 state and territory roles 487–488 treaty ratification 443–444, 483–484, 486– 487, 493 trespass 219, 463 trials. see courts; judicial power; juries; right to a fair trial tribunals. see administrative tribunals two-limbed test 348–349, 351 Uluru Statement from the Heart (2017) 75, 112–114, 116 sovereignty as a ‘spiritual notion’ 9 UN. see United Nations unicameralism 171, 216 unions, trade 126, 191 unitary system 121–122, 125. see also federal Commonwealth United Kingdom assertion of UK sovereignty in Australia 41–42, 78–81 English system of public law 44–49 reception of English law in Australia 42–44 repugnancy to Imperial laws 55–56 severing Australia’s ties to 62–65 United Nations Charter of the United Nations 86, 440, 476, 480 conventions 442 General Assembly 86, 440–441, 477–481 Human Rights Committee 443 Human Rights Council 443–444 International Court of Justice 477, 483, 485

OXFORD UNIVERSITY PRESS

Security Council 476–482 United Nations Declaration on the Rights of Indigenous Peoples 75, 86, 445 Universal Declaration of Human Rights (UDHR) xii, 28, 86, 441, 478 untied grants 149 values. see also community; equality; freedom; liberalism of federalism 121–123 underpinning public law 30–34 vertical fiscal imbalance (VFI) 148 veto 50, 345 Security Council 479, 482 Victorian Charter of Human Rights and Responsibilities Act 2006 468–469 violence 9–10, 21, 82–83, 106, 267, 357, 397 visas 68, 180, 257, 300–301, 305, 367, 375, 377–379, 421, 444, 463 voting. see also elections citizenship and voting rights 100–102 eligibility to vote 164–165 extent of the franchise 177–183 plebiscites as a form of representation 167–169 value of the franchise 183–186 electoral boundaries and 185–186 voting systems and 183–185 voting in Parliament 246–247 war 34 ANZACs in Gallipoli 34 Cold War 441–442, 479 international humanitarian law 477 Second World War 62–63, 66–67 Syrian Civil War 479–480, 482 wealth, disparity of 32 websites. see internet Western Australian Law Reform Commission 100 Westminster system xvi, 26, 38, 49, 56, 61, 128, 171, 231, 235, 246, 298 whistle-blowing (public interest disclosures) 323, 329–330 White Australia Policy 57, 67 WikiLeaks 325 Williams [No 1] and [No 2] 274–277 women CEDAW 442 franchise and representation 60, 101, 164–167, 170, 177 gender discrimination 451 Hindmarsh Island Bridge affair 319 legal personhood 462 public sphere 23–24 Work Choices 137–138, 142 world heritage 139, 488 World War II 62–63, 66–67

Australian Public Law, third edition, provides a comprehensive foundation for understanding the principles and institutions that underpin public law, and develops a concept of public law through analysis of the mechanisms of power and control. It provides a theoretical framework for investigating and interpreting the Australian Constitution and introduces the core concepts that are required for the successful study of constitutional and administrative law.

KEY FEATURES • Comprehensive coverage of the foundational principles of public law • Clear discussion and analysis of the Parliament and democratic process, the executive, the tribunal system and the judiciary • Examples and case studies that demonstrate real-life applications of public law • Thorough and clear explanations of complex principles • Written in an engaging and accessible style.

NEW TO THIS EDITION • New chapter on ‘Public Law and Statutory Interpretation’ • Explanation and analysis of new developments, including: – The developments in constitutional recognition of Aboriginal and Torres Strait Islander peoples, including the 2016−2017 Regional Dialogues and First Nations Constitutional Convention leading to the creation of the Uluru Statement from the Heart – The failed attempt at federalism reform under the 2014 White Paper process – Plebiscites with a focus on the 2017 same-sex marriage plebiscite – The High Court decisions on section 44 of the Constitution regarding the eligibility of parliamentarians (including the dual-citizenship cases) – Recent developments in the High Court’s implied freedom of political communication and freedom of association cases – The High Court’s recent decisions regarding Chapter III of the Constitution. GABRIELLE APPLEBY is an Associate Professor in the Faculty of Law at the University of New South Wales.

ALEXANDER REILLY is a Professor in the Adelaide Law School at the University of Adelaide.

LAURA GRENFELL is an Associate Professor in the Adelaide Law School at the University of Adelaide.

ISBN 978-0-19-031089-9

9 780190 310899