Tag Archives: Australia

Paul Kildea: Australia’s abandoned local government referendum

photo-paul-kildeaIt is almost forgotten now, but Australians were recently set to vote in a referendum on the constitutional recognition of local government. Had it gone ahead, the referendum would have been the first since the republic poll in 1999, and potentially would have seen the first amendment to the Constitution in 36 years.

But the planned referendum was effectively cancelled when Prime Minister Kevin Rudd announced in August that the federal election would be held on 7 September, a week earlier than anticipated. A combination of constitutional and electoral rules prevented the local government poll from running sooner than 14 September, and so it had to be abandoned. This was a huge disappointment to local government, compounded by the fact that the referendum is unlikely to run under the new conservative Liberal-National government led by Prime Minister Tony Abbott.

Given no votes were cast, analysis of the abandoned referendum naturally turns to questions of process. Now that the push for local government recognition has ended in a whimper, is there anything that we can learn from its failure? This question matters more than it usually might, as the Abbott government has indicated that it will run a referendum of its own in the coming years – on the constitutional recognition of Aboriginal and Torres Strait Islander peoples. Advocates of that reform will be hoping that the government can learn from the mistakes of the past three years. In particular, they will hoping for something different when it comes to public engagement in the process, and campaign funding.

Before turning to these process issues, it is worth sketching some background to the local government reform that didn’t quite make it to the people. The proposal was to amend section 96 of the Australian Constitution to allow the federal (ie, national) government to give funding directly to local government bodies, rather than having to go through the States. Canberra has been making direct payments to local councils for decades, but the constitutional validity of this practice was cast into doubt by recent High Court decisions in the Pape and Williams cases.

Advocates of the reform proposal argued that existing and future spending programs on essential services like road maintenance would be vulnerable to challenge unless the Constitution was altered. Local government also saw the referendum as a way to enhance its status in the eyes of the community. Opponents argued that the reform was unnecessary, given the ability of the federal government to fund councils indirectly through the States. And they viewed it as a means of enhancing central power at the expense of the States.

It is perhaps not surprising that debate about these issues never quite captured the public imagination. What was on the table was a technical amendment and, notwithstanding attempts by local government to link it to everyday concerns like road safety and local parks, encouraging citizens to take an interest was always going to be a challenge.

The cause was not helped by the fact that little groundwork had been done to educate and involve the public in the process. In 2011 the government appointed an expert panel to conduct community consultations, but gave it insufficient time and resources to do the job properly. In total the Panel held six consultations, attracting just 127 participants, most of whom were local council representatives. The chair of the expert panel, James Spigelman, later noted that the consultations ‘did not attract much in the way of public response’. It is fair to say that most Australians would have heard about local government recognition for the first time in May 2013, when the government announced its intention to hold the referendum.

It is interesting to speculate whether or not the Australian people would have approved the proposed constitutional amendment, irrespective of the absence of public engagement. An Australian Financial Review/Nielsen poll taken in May found that 65 per cent of voters supported it, but a Morgan poll in June registered support at just 47 per cent. The historical record suggests little cause for optimism: since 1901, Australians have voted ‘Yes’ in just 8 of 44 referendums.

The Gillard government no doubt had this historical record in mind when it made what was the most controversial announcement of the referendum campaign. On 17 June 2013, Local Government Minister Anthony Albanese announced that the government was going to make available $10.5 million to assist both supporters and opponents of local government recognition in promoting their arguments to the community. Albanese explained, however, that this funding was to be allocated on an unequal basis, with $10 million going to the Australian Local Government Association (to prosecute the Yes case) and just $500,000 to opponents of constitutional change.

Equal campaign funding is widely considered to be an element of good referendum practice. The Venice Commission, for instance, endorses ‘a neutral attitude by administrative authorities’ towards campaign funding in its Code of Good Practice on Referendums. But, as a result of legislative amendments made by the Parliament earlier this year, the government was free to distribute its funding as it wished.

Albanese justified the disparity on the basis that it was in line with the level of support that the proposed constitutional amendment had received in Parliament. Indeed, the proposal had attracted broad cross-party support, garnering roughly 95 per cent of votes in Parliament. An unspoken motivation might have been to ‘load up’ the Yes case in advance of the possible launch of well-financed No campaigns run by State governments.

Whatever the rationale, the decision to allocate promotional funding unequally backfired. Tony Abbott (then the Opposition Leader) accused the government of trying to ‘buy’ the referendum result, saying that ‘argument, not money, should determine the outcome’. Conservative MPs, already divided on the merits of local government recognition, were upset by the funding announcement and it was soon reported that it had placed bipartisan support in jeopardy. This was not an insignificant development, as no referendum in Australia’s history has succeeded without bipartisan support. Had the referendum proceeded, this cooling of support may have proved decisive.

The Gillard government’s approaches to public engagement and funding are each understandable in the context of a government trying to push through a rather technical reform that was never going to attract much in the way of public interest. But the constitutional recognition of Aboriginal and Torres Strait Islander peoples requires a different approach.

Unlike local government recognition, Indigenous constitutional recognition is not, at heart, a technical issue. It raises emotional questions around racial discrimination, reconciliation and cultural identity. Broad public engagement, and intensive consultations with Indigenous peoples in particular, are essential to the legitimacy of the process.

Fortunately, the Gillard government oversaw a nationwide consultation process on the issue in 2012 that attracted large numbers of participants and submissions. It also funded a campaign group, Recognise, which has helped to maintain momentum on the issue through initiatives like its Journey to Recognition. This has provided a solid foundation for public involvement that the local government referendum never had.

The challenge for the Abbott government will be to build on this. A joint parliamentary committee has been tasked with further consultation, but it is unclear what form this will take. As time passes, the case for another round of broad-based consultations becomes stronger. And mass engagement remains elusive, pointing to the need to actively raise awareness and understanding.

On campaign funding, the local government example demonstrates that the credibility of the process can be damaged where funds are allocated in a highly disproportionate way. This lesson is particularly important with respect to Indigenous constitutional recognition, given the complexity of the proposed reforms and the strength of feeling about the issues. Another ad hoc funding arrangement that favours the government’s position could impair trust in the process.

Having said that, equal funding may not be the most desirable approach on this issue. Should a broad community consensus develop around a particular suite of reforms, the government may not wish to spend millions of dollars supporting a No case that has little public support. But if the government would like some flexibility in how it spends promotional funds, it should obtain Parliament’s agreement to this well in advance of any future referendum. This will prevent a funding controversy flaring up mid-campaign like it did in 2013.

The push for constitutional recognition of local government has stalled, but Indigenous recognition need not share the same fate. Most of the attention in the coming years will naturally be on the substance of reform proposals. But, with the abandonment of the local government referendum in mind, Australia’s political leaders must also take time to build a fair and credible process that is underscored by popular ownership.

Dr Paul Kildea is a Lecturer in the Faculty of Law at the University of New South Wales, and Referendums Project Director at the Gilbert + Tobin Centre of Public Law

Suggested citation: P. Kildea, ‘Australia’s abandoned local government referendum’  UK Const. L. Blog (29th November 2012) (available at http://ukconstitutionallaw.org).

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Scott Stephenson: Federalism and Liberty in Australia Through the Lenses of Same-Sex Marriage and Organised Crime

STEPHENSON%20ScottAmerican constitutional scholarship is replete with discussions of the relationship between federalism and liberty. Some argue that a plurality of jurisdictions creates competition, allowing citizens to ‘vote with their feet’ thereby providing a potentially more effective means of resisting oppression—relocation—than attempting to challenge state action at the ballot box or in the courtroom. Federalism can also generate greater sensitivity to local welfare, creating opportunities for national minorities to employ subnational apparatuses to pursue their interests, transforming them from political outsiders to political insiders. Others contest these claims, arguing, for example, that there is no basis for assuming that one level of government will be more protective of rights than another.

With some notable exceptions, this debate plays a less prominent role in Australian constitutional theory. Partly it is because the country’s federal system has not produced the level of policy diversity necessary to substantiate such claims. While some differences exist, Brian Galligan and Cliff Walsh observe that, ‘given the cultural homogeneity of the Australian people and the fiscal dominance of the Commonwealth, there are striking similarities in the policies of the various States’. In recent decades, the tenor of Australian federalism is towards greater policy uniformity and more consistent administration under the banner of cooperative federalism or, more controversially, through unilateral federal takeover where possible. Yet, as I intend to highlight in this post, recent legislative developments in two areas—same-sex marriage and organised crime—illustrate that Australia’s federal system continues to provide a laboratory for policy experimentation and that federalism’s connection to the protection of liberty demands close, critical scrutiny.

Same-sex marriage

As in the United States, there is a prominent federal dimension to Australia’s ongoing moves to secure legal recognition for same-sex relationships. In 2004, Commonwealth Parliament amended federal marriage legislation to define ‘marriage’ as ‘the union of a man and a woman to the exclusion of all others’ and to prohibit same-sex marriages solemnised in foreign countries from being recognised in Australia. In 2006, the Australian Capital Territory (‘the ACT’) sought to provide equal legal protection for same-sex couples with the introduction of civil unions. It was the first jurisdiction in Australia to introduce a law of this kind. The Commonwealth resisted the move, understanding it to be inconsistent with its prohibition against same-sex marriage. Soon after the law’s enactment, the Commonwealth government instructed the Governor-General to disallow the law, effectively repealing it.

It is worth pausing at this point to explain briefly the Commonwealth’s power to override State and Territory legislation. Under the Australian Constitution, the Commonwealth’s legislative power is limited to specified subject areas, one of which is ‘marriage’. Section 109 of the Constitution provides that ‘[w]hen 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.’ Territories are in a more precarious constitutional position. Commonwealth Parliament has power to make laws for the Territories. In 1988, the Commonwealth granted the ACT self-government, establishing a Legislative Assembly with the power ‘to make laws for the peace, order and good government of the Territory’. But this power was qualified. The Governor-General, acting on the advice of the Commonwealth government, was empowered to disallow any Legislative Assembly law within six months of enactment. Prompted in part by the controversy of disallowing the ACT’s civil unions legislation and by a change of federal government, Commonwealth Parliament removed its power of disallowance in 2011, placing Territories in a similar position to States—Commonwealth laws prevail over inconsistent Territory laws.

The ACT’s attempt to introduce civil unions helped prompt a national discussion about the law on same-sex relationships. In 2008, the Commonwealth granted de facto same-sex couples the same rights as de facto opposite-sex couples and today some States and Territories allow the registration of same-sex civil unions. Debate has not, however, stopped there. Same-sex marriage is the new battleground and it also has a prominent federal dimension.

On 22 October 2013, the ACT enacted legislation permitting persons who are not eligible to marry under Commonwealth law to marry in the ACT. The Commonwealth government is once again resisting. Stripped of its disallowance power, it is challenging the ACT’s legislation in the High Court. In an expedited hearing, the case will be argued before the High Court on December 3 and 4. The ACT’s argument will be that its law supplements, but does not frustrate, undermine, modify or replace, the right to marry under federal law—the two can coexist. Defeat for the ACT will set back efforts in the States where bills for the recognition of same-sex marriage have been introduced, but not passed, in New South Wales and Tasmania, leaving campaigners to concentrate on the more difficult task of federal reform.

Organised crime

On 28 September 2013, around twenty members from a motorcycle group ‘stormed’ into a restaurant on the Gold Coast in Queensland. Seven people were assaulted, including four police, and eighteen were arrested. Less than three weeks later, Queensland Parliament passed a package of laws, including the Vicious Lawless Association Disestablishment Act 2013. Under these laws, it is now an offence for a person who is a member, associate member or prospective member of a ‘criminal organisation’ (a) to be knowingly present in public with two or more persons who are also participants in criminal organisations, (b) to enter or attempt to enter a ‘prescribed place’ and (c) to attend or attempt to attend a ‘prescribed event’. The minimum penalty for each offence is six months imprisonment. A criminal organisation, a prescribed place and a prescribed event can be declared by regulation. The legislation declares 26 motorcycle clubs to be criminal organisations.

Many other measures are included in the package of laws. There are mandatory custodial sentences of 15 to 25 years (in addition to the original sentence) for persons who commit certain offences in the course of participating in an association that has as its purpose the commission of these offences. Association is defined broadly, including a group of three or more persons ‘by whatever name called, whether associated formally or informally and whether the group is legal or illegal’. There are also mandatory sentences for failing to answer questions in hearings before the Crime and Misconduct Commission. A separate jail for motorcycle group members is created where inmates’ telephone calls are monitored except for those to lawyers, their mail is opened and read, there are no gym or television facilities and visitors’ contact is restricted to one hour per week.

When Queensland’s Premier described the laws as ‘very tough … the toughest in Australia’, he alluded to the issue’s federal dimension. In recent years, an admixture of policy experimentation and competition has characterised relations between the States and Territories as they vie to enact measures for the suppression of organised crime, especially motorcycle groups, that are as restrictive as, if not more restrictive than, each other. It began in South Australia with the Serious and Organised Crime (Control) Act 2008. Following a violent confrontation between two motorcycle groups at Sydney Airport in 2009 that resulted in the murder of one member, several jurisdictions followed suit: New South Wales’ Crimes (Criminal Organisations Control) Act 2009, Queensland’s Criminal Organisation Act 2009 and the Northern Territory’s Serious Crime Control Act 2009. Not to be left behind, Western Australia enacted the Criminal Organisations Control Act 2012. All these laws employ a combination of asset seizures, restrictions on the freedom to associate and mandatory minimum sentences to control the activities of motorcycle groups. After Queensland’s latest round of laws, another wave of emulation may be about to commence.

As with same-sex marriage, the High Court is implicated in policing the boundaries of acceptable policy experimentation—and the nature of its role has a strong federal dimension. Judicial intervention in this area is not directly related to the protection of rights for Australia is without a judicially enforceable bill of rights (except in the ACT and Victoria). However, Australia’s Constitution provides, according to the High Court, for a separation of judicial powers doctrine at the federal level. The doctrine places certain restrictions on Commonwealth Parliament vis-à-vis federal courts, for example, it cannot vest them with non-judicial powers. Australia’s Constitution is a document that establishes and regulates the federal government. Thus, the doctrine does not apply at the state level. However, beginning in 1996, the High Court has held that State legislatures cannot vest State courts with powers that undermine their institutional integrity. The reason is federalism. As Australia’s Constitution permits Commonwealth Parliament to invest State courts with federal jurisdiction and State courts provide the basis for the High Court’s appellate jurisdiction, the High Court has said that State legislatures must maintain State courts that are suitable for these purposes. In 2010 and 2011, the High Court invalidated aspects of South Australia and New South Wales’ organised crime legislation on this basis. Under these laws, judges or courts were tasked with issuing control orders against members of declared criminal organisations in special proceedings. As these proceedings deviated from the regular judicial process, it was held that they undermined the judiciary’s institutional integrity and were, therefore, invalid. It appears that Queensland’s latest laws will soon be challenged in the High Court on this ground.

Federalism and liberty

Placing the issues of same-sex marriage and organised crime side-by-side raises three questions about the complex relationship between federalism and liberty in Australia. First, do multiple jurisdictions promote democratic deliberation about matters of liberty? On the one hand, the States and Territories have helped invigorate public discussion about legal recognition of same-sex relationships, creating multiple sites for popular engagement and preventing government ossification. The ACT’s actions pushed opponents of same-sex marriage to mount an affirmative case for their position rather than relying on silence and obfuscation to protect the status quo. Experiments with different levels and forms of recognition—non-discrimination, unions, partnerships, marriage—provided interlocutors with tangible policies to debate. On the other hand, Australia’s subnational jurisdictions can be exemplars of poor democratic process. Queensland has a unicameral legislature after the upper house was abolished in 1922. Using its majority in Parliament, Queensland’s government enacted its collection of organised crime laws in three days with little or no public consultation and no legislative committee review despite their significant ramifications for rights. Indeed, they were enacted with such haste that Queensland Parliament had to amend the legislation just days later after an important typographical error was detected and it appears that a second grammatical error has been detected that will also require legislative remedy. While such issues can also arise in a unitary system, federalism creates an additional reason for governments to rush the passage of legislation and to ignore dissent: avoidance of spillover effects. After Queensland enacted its legislation, reports emerged that motorcycle groups were migrating to Western Australia, prompting Western Australia to expedite the implementation of its organised crime legislation. Victoria and South Australia may also be preparing to follow Queensland’s lead. The potential for spillover—an influx of criminal organisations—places pressure on jurisdictions to enact similar legislation without delay and to downplay the concerns of dissentients.

Second, does Australia’s current allocation of powers between the two levels of government create incentives to adopt policy positions that negatively implicate liberty? As Commonwealth power has directly and indirectly expanded over the course of the twentieth century, criminal law is one of the few areas where States and Territories retain a significant degree of autonomy. Consequently, as Gabrielle Appleby and John Williams note, ‘state political leaders have sought to maximise political gain from tough law and order policies’. The latest round of laws illustrates how far some politicians will go to appear ‘tough’ on crime, demonstrating a lack of respect for established constitutional principles and resorting to simplistic and potentially misleading appeals to democratic accountability. Queensland’s Premier dismissed criticism from the legal community that the new laws violate the separation of powers, calling the concept ‘more of an American thing’. He resorted to the argument that it is for the majority of voters to decide whether Parliament unduly infringed rights, stating ‘the laws that were passed recently in Parliament were passed by democratically elected people of this State and in 18 months time, the people of this State get a chance to say, “well we didn’t like those laws” and we can get rid of them’.

Third, should we look to judicial or political solutions to safeguard the boundaries of federalism and to prevent unnecessary restrictions on liberty? Next month the High Court will need to decide whether it will impose a judicial prohibition on policy experimentation in relation to same-sex marriage, forcing debate exclusively to the federal level, or whether it will step out of the arena, allowing the two levels of government to debate both (a) the substantive content of policy proposals and (b) the appropriate forum in which it should be resolved. New South Wales’ Premier illustrated the distinction between the two questions when he recently resisted the introduction of same-sex marriage laws in State Parliament, claiming that, although he is personally in favour of same-sex marriage, the issue requires national consistency and thus resolution by the Commonwealth. A further complication in this area is that different issues produce different effects depending on whether the federal dispute has horizontal or vertical dimensions—or perhaps both. Invalidation of the ACT’s legislation would not put an end to efforts to recognise same-sex marriage, but instead convert it into a national debate. Invalidation of Queensland’s legislation, by contrast, may prompt a further round of policy experimentation at the State and Territory level. Indeed, invalidation of aspects of South Australia and New South Wales’ organised crime legislation did not put an end to legislative reform, but instead prompted more creative ways of restricting the freedom of association of certain groups while remaining within constitutional limits. It seems, therefore, that reports of federalism’s death are greatly exaggerated.

Scott Stephenson is a J.S.D. Candidate and Tutor in Law at Yale University

Suggested citation: S. Stephenson, ‘Federalism and Liberty in Australia Through the Lenses of Same-Sex Marriage and Organised Crime’  UK Const. L. Blog (13th November 2013) (available at http://ukconstitutionallaw.org)

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Greg Weeks: Proposed changes to Australia’s Migration Act

gregAustralia is in the midst of an election campaign and, as has been the norm over recent years, both major parties have taken an aggressive line on asylum seekers who enter Australia by boat.  Both parties have released new, unashamedly harsher policies.  They have also drawn distressed responses from those who advocate a more humane approach to dealing with the issue of those who undertake the arduous journey to reach Australia by boat in order to claim refugee status.  While smaller parties, such as the Greens, lament the major parties’ policies for their inhumanity, the same policies appear to be welcome to a large number of Australians, particularly in the marginal electorates of Western Sydney.

The policy of the governing Australian Labor Party (ALP) is new, but can nonetheless be seen as an extension of its recent policy of offshore assessment.  This policy was damaged by successive High Court judgments in regard to assessment of asylum seekers in the Australian territory of Christmas Island and in Malaysia, the latter provoking a furious response from then-Prime Minister Julia Gillard.  The new policy seeks to avoid the scrutiny of the High Court by making it clear that people who arrive in Australia by boat will not be settled in Australia, regardless of whether they are owed obligations as refugees.  Instead, they can expect to have their claims for asylum processed in Papua New Guinea and, if it is found that they are in fact refugees, can expect also to be resettled in PNG.  The government has controversially advertised the ALP’s new policy throughout the election campaign so far, supposedly for the information of potential asylum seekers.

The coalition of Liberal and National parties (LNP) has made a rather more radical set of proposals, although LNP policy is still largely similar to the policy of the ruling ALP.  However, last week the Leader of the Opposition, Tony Abbott, announced changes to the LNP policy on asylum seekers which have drawn immediate, heartfelt opposition.  The point over which they have raised the greatest amount of disquiet is the LNP’s stated intention to prevent asylum seekers from obtaining access to courts.  Indeed, the LNP has proposed that it will also abolish the Refugee Review Tribunal (RRT), which has existed since amendments to the Migration Act made in 1989 to provide merits review of decisions regarding refugee status made by the Minister for Immigration’s department.  Rather, the LNP policy proposes that asylum seekers’ claims will now be assessed “by a single caseworker”.  Seemingly, amending legislation will be introduced which states explicitly that the process of assessing refugee status is to be conducted entirely by the executive.  It seems that the LNP believes that such an approach would limit the scope of any claim for judicial review to claims that there had been a breach of procedural fairness.  The content of procedural fairness in a non-statutory context is unlikely to be great.

A number of commentators have stated categorically that if, as expected, the LNP wins the election on 7 September, the new government can expected to see its asylum seeker policy reduced to dust in short order by the High Court.  They may be right, although there are aspects of the LNP proposals which have the potential to confound such expectations.  Much has been made of the fact that the High Court, in a landmark 2003 decision of Plaintiff S157, rendered useless the Howard government’s immigration policy by holding that a privative clause could not be used to prevent a party from seeking relief from the High Court for jurisdictional error.  This does not automatically mean that the proposed LNP policy will suffer the same fate, particularly if it does not hinge on the application of a privative clause.

Other warnings are more likely to come to pass.  In particular, concerns that the High Court will be overwhelmed by asylum seekers whose applications have been rejected by the departmental decision-makers may be well founded.  Because the High Court has original jurisdiction to grant certain remedies where a jurisdictional error has been made by an officer of the Commonwealth, it follows that legislation cannot validly prevent people from seeking remedies on that basis.  However, the Federal Circuit Court and Federal Court of Australia are creatures of statute and it is within the competence of the legislature to prevent those courts from hearing matters seeking review of decisions made in relation to the refugee status of asylum seekers.  It is possible on this basis that the entire weight of hearing judicial review matters challenging refugee status decisions would fall on the seven members of the High Court.

Moreover, there is precedent for this concern.  The Howard government’s legislative attempts over the course of a decade to keep asylum seekers out of the court system succeeded only in creating a massive spike in judicial review applications from asylum seekers.  The government was not always unsuccessful in these matters, although there are several prominent examples of cases which the government won but felt like it had lost, such as Plaintiff S157.  After that case, limitations on the jurisdiction of the Federal Court continued to apply in a way that increased the workload of the High Court.

While not likely, a third possibility presents itself.  The High Court is a conservative body by international standards, as I have commented before.  However, it can be provoked into disobedience on occasions.  A salutary example is that, in Plaintiff S157, the High Court held that the legislature had not intended to prevent access to the High Court in the event of jurisdictional error.  A decision affected by jurisdictional error was not a “decision” to which the relevant privative clause applied.  Of course, the legislature ‘intended’ no such thing and the government of the day felt that it had a strong argument for its privative clause being read such that it prevented access to the High Court.

More recently, the High Court’s decision in the Malaysian Solution Case provoked such outrage from leading members of the government (and indeed from Heydon J in dissent) because the majority judges were prepared to demonstrate a level of judicial creativity that few outside the court had predicted.  There, asylum seekers were able to be sent legally to Malaysia to have their applications for refugee status processed only if the Minister had first made a declaration that Malaysia met four statutory criteria.  The first three hinged on whether Malaysia is a country which “provides” certain protections and procedures.  The majority of the High Court was prepared to read these legislative criteria as amounting to a requirement that certain jurisdictional facts exist.  In other words, it held that the Minister could not validly make the declaration if there was no domestic Malaysian law on point, which the Minister conceded there was not.  This issue has now been dealt with by more explicit legislative drafting but it points to the fact that the High Court is prepared, on occasion, to entertain strained approaches to statutory interpretation where important issues are at stake.

Another possibility is that the High Court will start to apply a more probing level of review to matters concerning asylum seekers, if their cases have not (as now) been through two stages of consideration on the merits and either two or three judicial review hearings before reaching the High Court.  It may be more explicit about what it expects of decision makers in terms of procedural fairness, or require a certain thoroughness in the decision making process that has in the past been left largely to the discretion of the decision maker.

However, there is one thing which the High Court can never do and that is to grant a substantive remedy based upon a review the merits of a matter.  The Court’s remedies are procedural only.  For this reason, if for no other, independent scrutiny of the decision making regarding asylum seekers will inevitably be poorer if the RRT is abolished.

Greg Weeks is a Lecturer in Law at the University of New South Wales

 Suggested citation: G. Weeks, ‘Proposed changes to Australia’s Migration Act’   UK Const. L. Blog (19th August 2013) (available at http://ukconstitutionallaw.org)


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Leah Grolman and Greg Weeks: Guidelines and Assisted Suicide: an Australian Perspective

LeahgregThe morally and politically charged area of assisted suicide has many of the hallmarks of an insoluble problem. This has not prevented courts in some jurisdictions considering how they might ‘legalise’ assisted suicide without really legalising it. In doing so, they have raised manifold challenges in the minds of administrative and constitutional lawyers, including, in some jurisdictions, whether the prohibition on assisted suicide is itself constitutional, such as Rodriguez in Canada, Fleming in Ireland and Pretty in the ECtHR.

In Australia, assisted suicide is a topic which can be considered apart from constitutional considerations of the type which were determinative in Fleming. It can also be discussed, in general, in isolation from the human rights provisions which were determinative in Purdy. As is notorious, Australia has no statutory or constitutional protection of specific human rights at Commonwealth level or in most States. We propose to look at the issues which have arisen in other jurisdictions as though they took place in Australia, specifically in the State of New South Wales. We think that this will assist to isolate some of the substantive issues in relation to prosecuting persons who breach criminal legislation by aiding or abetting another person to commit suicide.

Of particular interest, as has been raised previously by contributors to this blog and elsewhere, is the potential of prosecutorial guidelines. While much has already been said about the way the Irish High Court has departed from the House of Lords decision in Purdy and failed to embrace the Canadian Ménard Report, how this might play out in Australian jurisdictions might provide a worthwhile addition to the conversation. Specifically, such an analysis may shed some light on how the issues around assisted suicide play out in the absence of either legislatively protected human rights or considerations of whether the prohibition itself is constitutional.

As in other jurisdictions, assisted suicide is a criminal offence in all Australian jurisdictions. The relevant provision in New South Wales, for example, is section 31C of the Crimes Act 1900. It is also a federal offence to use a ‘carriage service’ for suicide related material or possess, control, produce, supply or obtain suicide related material for use through a carriage service: Criminal Code Act 1995 (Cth). This is despite the growing public acceptance of the idea of legalising ‘voluntary life-ending behaviours’ and the short-lived legalisation by the Northern Territory which legalised assisted suicide.

A person found guilty of committing the crime of assisting another person to commit suicide is liable to serve a period of imprisonment of 10 years. Also in common with other jurisdictions, NSW has long since decriminalised both suicide and attempted suicide. The crime of aiding or abetting a person to commit suicide is therefore a crime of primary, rather than accessorial, liability. As in the UK, the decision as to whether a person will be prosecuted for this offence is within the discretion of the Director of Public Prosecutions (DPP).

The DPP in NSW has a statutory power under section 13 of the Director of Public Prosecutions Act 1986 to issue prosecutorial guidelines, and has done so. However, there are restrictions on the purposes for which such guidelines can be issued:

  • They are issued for the benefit of prosecutors in making discretionary decisions, such as exercising the discretion whether to commence a prosecution. Although they are published, they are not issued for the benefit of people who are seeking to order their behaviour such that it does not attract criminal liability.
  • They are not specific to any single offence but are designed to relate to offences generally, or to particular areas of law in which sensitive decisions are required, such as child protection (Appendix F) and domestic violence (Appendix E).
  • There is long-standing High Court authority that indemnity cannot be given for a breach of the law prior to the commission of the offence in respect of which indemnity is sought. Even after the commission of an offence, the granting of immunity from criminal liability lies, conventionally in Australia, with the Attorney-General.

Additionally, there is a strong tradition of courts declining to interfere in the exercise of prosecutorial discretion by the DPP, other than where there is an abuse of the court’s process. Even in that circumstance, the prosecution is terminated without resort to judicial review. This tradition harks back to the days where prosecutorial decisions were viewed as part of the Crown prerogative and, therefore, unreviewable. The High Court has confirmed, however, that even though prosecutorial discretion is today based in statute in all Australian jurisdictions, it still remains beyond the reach of judicial review. That this remains the case is crucial to maintaining the separation of executive power (prosecutorial decisions) and judicial power (hearing and determining criminal proceedings). In Australia, this separation has a ‘constitutional dimension’: the ‘separation of powers’ doctrine entrenched in the Constitution – a feature of the Australian system of government which operates distinctly from the similar doctrine in the UK.

The separation of judicial and executive power has significant ramifications with respect to the prospect of a court ordering the DPP to issue guidelines in any context, let alone for the offence of assisted suicide whose treatment involves considerations which are more political than legal. First, Australian courts would not, as a matter of their long-established practice of non-interference with DPP decisions, order a DPP to issue guidelines like the House of Lords in Purdy.

The second significant ramification relates to the potential legal effect of guidelines issued by an Australian DPP. UK administrative law has adopted a doctrine of substantive legitimate expectations, as illustrated by Coughlan. Miss Coughlan was transferred to North and East Devon Heath Authority in disappointment of her expectation, induced by a promise made by the NHS, that her and other patients would remain at Mardon House (where they were previously) for as long as they chose. The Court of Appeal remedied the unfairness to Miss Coughlan, not procedurally as an Australian Court would have done, but substantively by enforcing her expectation that Mardon House would be her home for life.

In contrast, as one of the authors has explained elsewhere, no specific doctrine of public law estoppel has developed in Australia. This is despite the apparent potential of the equitable doctrine of estoppel to remedy the lacuna exposed by situations where a public authority deviates from the terms of a non-statutory instrument (eg, guidelines) or representation (eg, a statement of policy) to the detriment of an individual. Therefore, Australians would unlikely be able to hold the DPP to any guidelines issued via the doctrine of legitimate expectations or by raising estoppel.

Guidelines may also be precluded from being issued by the rule that a public authority cannot be bound by something that prevents the exercise of one of its statutory duties or discretions of a public character (the ‘rule against fettering’). This is, of course, assuming that the guidelines amounted, in effect, to an undertaking by the DPP not to prosecute, as Kearns P reasoned in Fleming:

Whatever the stated objective of seeking guidelines may be, there can be no doubt but that the intended effect of obtaining such relief would be to permit an assisted suicide without fear of prosecution. No amount of forensic legerdemain can alter that fact. For, absent such effect, one is driven to ask what practical purpose or value lies in seeking such guidance? There is, in truth, none. It follows therefore that in this context ‘effect’ is every bit as important as ‘object’ …

Moreover, the High Court has made clear that any ‘agreement’, such as a ‘plea agreement’, between the prosecution and the defence ‘does not bind the judge … It is for the judge, assisted by the submissions of counsel, to decide and apply the law.’ So, even if a person intending to offend, or having offended, persuades the prosecution to agree to prosecute but to argue for, say, a nominal penalty because of the altruistic motives of the person assisting the deceased to commit suicide, this does not guarantee that a nominal sentence will fall from the bench.

But what about areas where prosecuting bodies other than the DPP make ‘rulings’ (the Australian Taxation Office) or issue ‘no-action letters’ (the Australian Securities and Investments Commission)? Surely, these are exceptions to the principle that indemnity for criminal liability will not be forthcoming prior to an offence being committed. Not so. If an individual were to rely on this as an undertaking by the relevant prosecuting authority, go ahead with the offending behaviour in respect of which they sought an undertaking, and then argue that the prosecuting authority is estopped from prosecuting, the court would find the individual’s reliance ‘unreasonable’. As highlighted by the Full Federal Court in Bellinz, ATO rulings state that they are subject to legislation and appellate rulings; the ATO could not be estopped from making a decision either required or allowed by the relevant legislation. A similar situation prevails in Britain. Likewise, Regulatory Guideline 108 cl 16 makes clear that no-action letters do not restrict ASIC’s right to take action, even where such a letter has been issued.

We agree with Paul Daly’s statement that guidelines are a form of “law”, albeit with important differences from forms of law grounded in judicial or legislative expression.  Nonetheless, it is more difficult for an Australian lawyer to find resonance with any characterisation of guidelines, particularly relating to a topic like assisted suicide, which gives primacy to a concept as loose as “the popular will”. There are different ways of approaching the question of administrative discretion. American scholars, such as K C Davis, and judges have expressed distrust of important discretionary decisions being left unconfined in the hands of “unelected bureaucrats”. An Australian might just as easily laud such a circumstance on the basis that a sensitive decision has been left in the hands of an apolitical public servant, such as a DPP. There is no culture in Australia of such officers being elected, nor of them abusing their power. The DPP holds a broad discretion with regard to prosecuting those who assist another person to die precisely because the matter is both highly sensitive and extremely difficult to define legislatively with the precision required of a criminal act.

Leah Grolman final-year LLB student at the University of New South Wales and Sir Anthony Mason Intern at the Gilbert and Tobin Centre of Public Law, Faculty of Law, University of New South Wales

Greg Weeks is a Lecturer in Law at the University of New South Wales


Suggested citation: L. Grolman and G. Weeks, ‘Guidelines and Assisted Suicide: an Australian Perspective’   UK Const. L. Blog (7th August 2013) (available at http://ukconstitutionallaw.org)


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Luke Beck: Swear Words and the Australian Constitution

LukeIt seems Australia’s new (and also former) Prime Minister Kevin Rudd likes to swear.

There is a leaked video posted on YouTube of Rudd using a number of colourful expressions as he expressed his frustration at the difficulty of recording a video message in Mandarin some time ago. He also swore again last Thursday (27 June 2013) in front of Australia’s Governor-General. This time, however, it was a different sort of swearing and the footage of it was broadcast live. Rudd was being sworn in as Prime Minister.

But Rudd did not need to be sworn in as Prime Minister.

Australian Ministers are appointed by the Governor-General under Section 64 of the Australian Constitution, which says simply that the Governor-General has power to appoint Federal Ministers. The Australian Constitution does not expressly mention the position of Prime Minister, but the PM is a Minister and is therefore appointed under section 64. That power of appointment is, of course, exercised in accordance with unwritten conventions. Last Thursday, the Governor-General, Quentin Bryce, exercised this power to appoint Rudd as PM.

The Australian Constitution says that MPs and Senators must take an oath or affirmation of office before taking their seats in Parliament, but it does not say that Ministers have to. The practice of Ministers taking an oath or affirmation of office is just something that has developed. It has no constitutional basis or significance.

So Rudd didn’t need to swear last Thursday. However, as with lots of constitutional issues in Australia, there is a but.

Section 64 of the Australian Constitution says that Ministers must also be members of the Federal Executive Council, which is the body the Australian Constitution establishes to give advice to the Governor-General. It is made up of all Ministers, but it is legally distinct from the Cabinet. Indeed, membership of the Federal Executive Council is for life (unless a member is removed, which is rare). However, only currently serving Ministers participate. This means that Ministers hold three positions: their seat in Parliament, their Ministerial position, and their position as a Federal Executive Councillor.

Section 62  of the Australian Constitution says that Federal Executive Councillors must be sworn in. However, Rudd was not sworn in as a Federal Executive Councillor last Thursday. He had been sworn in to that position following his win at the 2007 election and continued to hold it ever since.

So there was no constitutional need for any sort of swearing by Rudd at all last Thursday.

There is an interesting drafting anomaly in section 62’s requirement that Federal Executive Councillors be sworn in. That section only uses the word ‘sworn’. There is no mention of affirmations. This is different to section 42 of the Australian Constitution, which says MPs and Senators may take ‘an oath or affirmation of allegiance’.

‘Sworn’ is the past participle of ‘swear’, which in its relevant sense – as Wiktionary explains – means to take an oath. In 1744, the English Court of Chancery in a case called Omichund v Barker said that oaths were religious in character and that any person who holds some sort of religious belief may lawfully take an oath. Affirmations are the non-religious alternative to oaths.

If you read section 62 literally it looks like affirmations are not available to Federal Executive Councillors. After all, the Australian Constitution appears capable of providing for both oaths and affirmations when it wants.

However, because of another section of the Australian Constitution it is necessary to give ‘sworn’ a bit of a stretched non-literal meaning. Ssection 116 of the Australian Constitution says that ‘no religious test shall be required as a qualification for any office or public trust under the Commonwealth’. As I have explained elsewhere:

religious tests come in many forms. These include a requirement to participate in particular religious practices, a requirement to disclaim belief in a particular religious doctrine, a requirement to take a religious oath of office such that a person must hold some religious belief, a requirement to be or not to be of a particular religious status, as well as a requirement to swear or affirm to particular religious beliefs.

Historically, the requirement to take an oath of office has excluded from public office atheists and others, like Quakers and Moravians, who are not permitted or unwilling due to their religious beliefs from swearing oaths.

A famous British case is that of Charles Bradlaugh. Despite being elected to the House of Commons, Bradlaugh was unable to take up his seat because the law required MPs to take an oath of office and Bradlaugh was an atheist. The matter went to court a number of times. The court held that in the absence of any express legal authorisation affirmations were not available in lieu of oaths and that because Bradlaugh was an atheist he could not lawfully take the oath. After much fuss and a number of by-elections which Bradlaugh kept on winning, the Speaker of the House of Commons allowed Bradlaugh to, unlawfully, take the oath of office and take his seat.

So giving the word ‘sworn’ in section 62 of the Australian Constitution its literal meaning would have the effect of imposing a religious test for the position of Federal Executive Councillor and consequently for membership of the Australian ministry. This means that if section 62 was read literally the woman who replaced Rudd as Prime Minister in 2010 and who Rudd replaced last week, Julia Gillard, an atheist, could never have been Prime Minister.

It follows that the word ‘sworn’ in section 62 must be understood as meaning ‘sworn or affirmed’ in order to avoid a conflict with section 116. This drafting anomaly might be enough to make you swear!

Luke Beck is a PhD Candidate, Postgraduate Fellow and Associate of the Constitutional Reform Unit at the University of Sydney.

Suggested citation: L. Beck, ‘Swear Words and the Australia Constitution’, UK Const. L. Blog (1st July 2013) (available at http://ukconstitutionallaw.org).


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Mark Aronson: Statutory Interpretation or Judicial Disobedience?

MarkIn Australia as in England, courts began “reading down” legislative grants of broad and seemingly unfettered discretionary power long before the currently fashionable “principle of legality” entered the public lawyer’s lexicon. Judges typically explained themselves as merely engaging in an exercise of statutory interpretation, saying that in the absence of express words or an absolutely necessary implication to the contrary, they could not believe that Parliament intended to override fundamental principles, rights, or freedoms. Legislative drafters, they reasoned, were well aware of this interpretive approach, and could always respond with clearer language.

The only real novelty of the principle of legality was to add a “democratic” justification to the judicial claim of disbelief; any government seeking such an untoward power should be forced to ‘fess up to the Parliament, and face the political music. But if the actual intentions of the legislators were determinative, then both the curial expression of disbelief and the more recent democracy-forcing justification would be entirely unconvincing. Government can state its intention with absolute clarity and transparency, but to no avail if the statutory text itself leaves any loophole; what counts is statutory meaning, not legislative intent. In every case considered below, the government’s actual intentions could not have been clearer, nor more clearly stated during the Bill stages.

None of this would strike English readers as particularly noteworthy, although they might consider it further grist to the mill of the perennial debates about the limits (if any) to Parliamentary supremacy. The UK Supreme Court and its predecessor have occasionally suggested the possibility of outright disobedience to legislation threatening the rule of law itself, the usual instance being a privative clause so clearly drafted as to leave no wriggle-room whatsoever. For the moment, however, the UK Parliament has not tested the judicial mettle. Australian parliaments pushed the issue considerably further, but they have surprisingly little to show for their efforts. Indeed, they may well be playing with fire. Australia’s judicial review jurisdictions are constitutionally entrenched, and legislative attempts to get around that might end up nudging the courts beyond a judicial review jurisprudence focused primarily on good process, to a review that is overtly more substantive.

The story starts with privative clauses, which in Australia have long gone much further than the Anisminic Act’s exclusion of certiorari. Working around “no certiorari” clauses was always easy, because they could be read down to apply only to certiorari for non-jurisdictional errors of law, a work-around that English courts might now find slightly more difficult in light of their decision that all errors of law are reviewable for invalidity. However, Australian privative clauses went further, banning judicial review remedies (such as prohibition and mandamus) that were only ever available to overturn decisions or conduct that were invalid. For more than 60 years, the High Court adopted a convoluted, interpretive approach to privative clauses (see R v Hickman; Ex parte Fox and Clinton (1945) ).  As an exercise in interpretation, it was scarcely convincing, but at least it applied to both federal and State Acts, in an era when everyone had assumed that the judicial review powers of the State courts were not entrenched. That assumption has now been overturned by a decision with a dubious historical premise that nevertheless led to a result that everyone has welcomed.  Now that the interpretive approach to privative clauses is no longer needed, the High Court’s approach is much more straight forward – they can never diminish judicial review for “jurisdictional error”.

Shortly after the High Court had gutted a federal privative clause, it did the same to a limitation clause that had failed to allow the court the discretion to extend a strict statutory deadline for seeking judicial review.

With privative clauses and limitations clauses now being a waste of ink, attention is now turned to whether legislatures can use other methods to exclude some, or even all, of the basic tenets of judicial review. In all probability, the fight is still in its infancy, but it is producing some surprising results.

The common law’s procedural fairness requirements are famously indeterminate, but they did not start causing serious problems for the immigration bureaucracy until the mid-1980s. That was when the High Court expanded the protective reach of natural justice beyond legal rights to “legitimate expectations”, an expansion designed to accord fair process to migrants with no legal rights whatsoever to stay in the country. Natural justice challenges flourished, and immigration ministers responded by trying to replace the common law rules of procedural fairness with a statutory code of procedure. Their first attempt was to insert into the Act a very detailed set of procedures, supplemented by two novel features. The new procedures themselves came with a new sub-heading, namely:

Code of procedure for dealing fairly, efficiently and quickly with visa applications.

Further, they included a provision that a Minister who

deals with a visa application in a way that complies with [the new procedures] … is not required to take any other action in dealing with it.

The court acknowledged that the Minister had told parliament that his amendments would replace the common law’s natural justice requirements, but what counted was the meaning of the statutory text itself, which in this case did not actually say that it supplanted the common law.

The parliament responded by adding sections declaring that various procedural provisions were to be

taken to be an exhaustive statement of the requirements of the natural justice hearing rule in relation to the matters .. [dealt] with.

The High Court found two loopholes in that one. In 2010, the court said that the new procedures did not deal with visa applications made from abroad, with the surprising result that even though foreign-based applicants had no access to tribunal reviews, they did get some procedural protections denied to applications made within Australia.

The court went even further this year, in Minister for Immigration v Li. It struck down a migration decision because the tribunal had given no good reason for refusing to delay the hearing to give the appellant time to organise proper evidence of her work qualifications. The tribunal had forced on a hearing when it appeared fairly clear that a gap in the appellant’s documentation had been the fault of another government agency, and was in the process of being remedied.

The Li tribunal had a specific power to grant the adjournment request, but because the Act was silent on how to treat (ie, “deal with”) such requests, French CJ said that it had no procedure to supplant the common law’s natural justice requirements for dealing fairly with adjournment applications. That loophole might have been a step too far for the other judges; in any event, they chose not to explore it. Instead, they said that requirements of natural justice, “reasonableness”, and “rationality” overlap, and that even if (although this was not decided) the Act supplanted the common law’s natural justice, the tribunal had nevertheless to act reasonably or rationally in everything it did (French CJ also gave this as a reason for granting judicial review).

By itself, Li‘s manipulation of the labels was no great surprise, because the court has form in outflanking a statutory ban of one ground of review by using another ground in its stead. But in a decision that will have government lawyers pondering for some time, Li did much more than that.

Wednesbury unreasonableness was until Li the last card in an Australian lawyer’s pack – a plea for desparate counsel. In stark contrast to the English position, the Australian version of Wednesbury unreasonableness virtually required the challenged decision to have been so unreasonable that it was almost lunatic. Until Li, the fear was that anything less demanding would see Wednesbury slide inexorably into “merits in drag” (The epithet comes from New Zealand (Powerco Ltd v Commerce Commission at [24], but it has resonated in Australia, eg: Real Estate and Business Agents Supervisory Board v Carey at [58]). The court had been comfortable with the “process” grounds of judicial review, but distinctly uncomfortable with anything verging on a substantive, or qualitative, review ground.

Li now tells us that a decision need not be totally mad to be reviewable for unreasonableness, and without deciding whether “disproportionality” might become an acceptable review ground in its own right, it added that disproportionality is a good indicator of unreasonableness (at [30] and [72]-[74]). Just how unreasonable or irrational a decision must be before it will be reviewable for Wednesbury unreasonableness will vary between statutory contexts (at [67]), but it need not be mad:

The legal standard of unreasonableness should not be considered as limited to what is in effect an irrational, if not bizarre, decision – which is to say one that is so unreasonable that no reasonable person could have arrived at it … (at [68])

The paradox is that this latest round of tightening the migration legislation’s procedural requirements has pushed the High Court into frankly substantive review. This might be only at the margins, but it was something the court had previously denied doing. Even Kirby J had once claimed (at [132]) that a court reviewing for serious irrationality or illogicality was looking only at process (namely, a reasoning process), rather than assessing the quality of the impugned decision.

Less than a month after the Li decision, Hayne J hinted at even further difficulties for governments seeking to limit judicial review of migration decisions (at [85]-[88]).  His Honour revived an opaque warning that the court had delivered more than a decade before (at [101]), in response to a government argument that the Act could be amended to grant the Minister plenary power over all non-citizens. The argument was that the parliament could stipulate that no breach of its requirements, nor any breach of common law requirements, would result in invalidity – in effect, that the entire Act was comprised of merely “directory” provisions. The odds of parliament actually doing that must be fairly remote, because governments themselves sometimes apply for judicial review, seeking to bring tribunals or agencies back into line. But the court’s warning is to the effect that this might not even be a “law”, because laws need to have some determinate content.

How things have changed. One can well understand a judicial distaste for the idea of an Act granting the Minister plenary discretionary power over aliens, but it is quite remarkable to threaten to strike down such an Act on the basis that it would not really be a law. Canberra’s first immigration Act ran for a mere 7 pages, which gave the Minister sufficient discretionary power to sustain the administration of a racist White Australia Policy. Almost 60 years later, and the replacement Act was still only 36 pages long, and its core was still a small group of sections granting virtually plenary power to the Minister. The Act’s first massive expansion did not occur until 1989 (when it grew by slightly more than 100 pages). It is now in two volumes totalling nearly 850 pages, and there is no sign of it getting any shorter. Is the court really suggesting that an Act without this level of detail is not a real law?

Mark Aronson is Emeritus Professor at the Law Faculty, University of New South Wales.

Suggested citation: M. Aronson, ‘Statutory Interpretation or Judicial Disobedience?’  UK Const. L. Blog (1st June 2013) (available at http://ukconstitutionallaw.org).

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Greg Weeks: Can you stop the Revenue from acting on a change of mind?

gregA recent judgment in an interlocutory hearing in the Federal Court of Australia has raised the fascinating question of what redress might be available against a revenue authority for changing its mind.  In Macquarie Bank Limited v Commissioner of Taxation, the applicant sought to restrain the Commissioner of Taxation from acting on his changed view on the law relating to Overseas Banking Unit (‘OBU’) expense allocations.  The applicant has commenced judicial review proceedings against the Commissioner which are yet to be heard.  The interlocutory application was for urgent injunctive relief to prevent the Commissioner acting on his stated intention for the Australian Taxation Office (ATO) to “apply retrospectively the Commissioner’s new view on the law concerning the allocation of OBU expenses”.  Griffiths J rejected the interlocutory application.

Assuming that Macquarie Bank pursues the substantive proceedings in this matter, it will need to overcome some significant hurdles in order to succeed.  There is, at present, little scope for preventing a public authority from changing its mind in Australia.  There is no doctrine of public law estoppel; public authorities are not bound to their promises in Australia if this would cause them to act ultra vires or would fetter their discretion.  The Australian High Court has also consistently rejected substantive enforcement of legitimate expectations and, more recently, has stated that the phrase should be “disregarded” even in reference to the obligation to provide procedural fairness.  The extent of the problem facing Macquarie Bank is neatly summarised by the grounds of judicial review on which they propose to rely:

There are several grounds of judicial review challenge. They include a primary claim that the decision [to act on a revised view of the law relating to OBU expenses] is Wednesbury unreasonable.  Further grounds are also raised of illogicality or irrationality, no evidence to support the decision, failure to take into account a relevant consideration or taking into account of an irrelevant consideration, failure to observe the requirements of natural justice, excess of authority resulting in the decision being ultra vires, and a failure to comply with procedures which the decision-maker, it is said, was required to observe.

There are few modern examples of Wednesbury unreasonableness being argued successfully in Australian courts.  Like the related ground of illogical or irrational fact finding, it demands nothing short of absurdity on the part of a decision maker.  This would be difficult to prove particularly where Macquarie Bank has deliberately avoided making any allegation of bad faith against the Commissioner or the ATO (although the two grounds are not coextensive, they share substantial overlap which has been noted in regard to Warrington LJ’s famous example in Short v Poole Corporation [1926] Ch 66).  As a “primary claim”, an argument that the Commissioner has acted in a Wednesbury unreasonable manner does not inspire great confidence, given that it is a ground which has never had better than a remote chance of success.

A secondary problem is that the Australian High Court has interpreted the legislative scheme contained in the Income Tax Assessment Act 1936 as limiting the opportunities to challenge decisions of the ATO through judicial review where statutory review or appeal procedures are provided.  The rare exceptions to this approach relate to “allegations of bad faith or fraud or abuse of power”, which have not at this stage been articulated in the proceedings commenced by Macquarie Bank.

The fact that Macquarie Bank’s case will be hard to make out does not, however, mean that it lacks merit.  Specifically, the applicant’s claim that “the indication given by the Commissioner as to his change of view is in breach of the ATO practice statement PSLA 2011/27” demands consideration.  The Practice Statement in question is a soft law instrument entitled “Matters the Commissioner considers when determining whether the Australian Taxation Office (ATO) view of the law should only be applied prospectively”.  If the Commissioner acts on his stated intention to apply his altered view of the law concerning OBU expenses retrospectively, and to do so falls outside the terms of the Practice Statement, one might justifiably conclude that those (including Macquarie Bank) who have arranged their affairs in reliance on the ATO’s previously stated legal view as to OBU expenses, along with the terms of the Practice Statement, have been penalised without any fault.

The facts are reminiscent to some extent of those in R (Davies) v The Commissioners for Her Majesty’s Revenue and Customs, in which the Supreme Court considered a vaguely expressed soft law guidance note which purported to indicate when a person ceased to be resident in the UK for tax purposes.  The Supreme Court held by majority that the guidance note had not been complied with by the applicants in any case but the case was troubling (and members of the Court of Appeal gave voice to their concerns in this regard) given that the soft law guidance note was on every account very poorly drafted but was nonetheless sufficiently convincing to guide the commercially sophisticated applicants to arrange their affairs on the faith of it.

There can be no doubt that soft law issued by revenue authorities is treated seriously by those looking to arrange their affairs in accordance with the law.  It is frequently the case that the view of the law taken by the revenue authority is incorrect, a circumstance which may be pointed out by a court or which the revenue authority may come to realise unaided.  In such cases, the revenue authority must of course revise its stated view of the law on a given subject.  I doubt that Macquarie Bank would contest this statement in its proceedings.  However, this need not oblige a revenue authority to apply its changed view retrospectively.  The discretion invested in revenue authorities with regard to the collection of revenue has been recognised at least since the Fleet Street Casuals Case and the Commissioner’s powers to secure an optimal (rather than the maximum) collection of revenue is recognised in Australia both by the ATO and the legislature.

While it is to be hoped, however, that the court which hears the substantive application brought by Macquarie Bank will bear in mind the immense practical power of soft law, it will be confined by the legal framework of judicial review in Australia.  There is, on the current state of the law, little hope that Macquarie Bank will be able to constrain the broad discretion invested in the Commissioner with regard to the collection of taxation revenue.

Greg Weeks is a Lecturer in Law at the University of New South Wales

Suggested citation: G. Weeks, ‘Can you stop the Revenue from acting on a change of mind?’ UK Const. L. Blog (25th February 2013) (available at http://ukconstitutionallaw.org)

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Paul Kildea: Reforming Australia’s federation: The People Lead the Way

As another fractious year in politics comes to an end, Griffith University has released the results of its third biennial survey on how Australians view their federal system. It reveals a public that is losing faith in both the current structure of the federation and the ability of different tiers of government to work together to solve national problems. But the poll also reveals a public appetite for reform to which political leaders should pay close attention.

The survey finds that 38 per cent of Australians believe that the current three-tiered federal system – made up of federal (national), state and local government – does not work well. This is up from 30 per cent of respondents when the poll was first taken in 2008.

State governments are seen to be the worst performers. While their rating has improved slightly since 2010, it is apparent that the recent move to conservative rule in Victoria, New South Wales and Queensland has not altered many people’s dim view of state government. Indeed, a mere 14 per cent of Queensland residents view state government as the most effective level – just months after the Liberal National Party’s landslide victory in the March election.

Local government is now rated as the most effective level. This is in large part due to a massive collapse of faith in the national level of government, which until this year had been rated as the most effective level by a handsome margin. Four years ago it was viewed as the best performer by half of Australians, but fewer than a third of people (29 per cent) now hold this view. The deep unpopularity of both federal leaders – Prime Minister Julia Gillard and Opposition Leader Tony Abbott – and the fierce partisanship of the hung parliament (elected in August 2010) have no doubt played a part here.

But if many Australians are unhappy with individual levels of government, they also feel that the federal system is suffering due to a lack of cooperation between the federal, state and local tiers. Australians overwhelmingly see intergovernmental collaboration as a desirable feature of a federal system – more than 90 per cent have said as much in successive surveys. But fewer and fewer people think that the system actually delivers on this – only a third feel that it does collaboration well, down eight points since 2008. Perhaps more worryingly, two-thirds of Australians feel that the federal and state governments are not working well together. On this measure, Australians are less satisfied with their federal system than their counterparts in the United States, Canada and Germany.

This last finding is concerning because intergovernmental cooperation is arguably more important in the Australian federal system than in these other federations. This is because the division of legislative and financial powers, while favouring the central government, gives rise to a high degree of overlap between the federal and state governments. As a result, some of Australia’s most pressing problems – whether in health, education, water management, disability or Indigenous wellbeing – cannot be addressed in the absence of effective collaboration across different tiers of government.

The last year has seen a number of public spats between Canberra and the states that have no doubt shaped people’s views about the amount of cooperation taking place in the federation. Disagreements about the collection of state mining royalties, the distribution of consumption tax (GST) revenue and the funding of major disability and education initiatives have all escalated over the last several months. These conflicts have been sharpened by partisan divisions – while government at the national level is held by Labor, Australia’s four largest states are now governed by conservative Coalition parties.

But it would be a mistake to dismiss the public’s dissatisfaction with federal-state collaboration as a superficial response to passing quarrels. The better view is that public opinion is responding to very real problems in Australia’s federal system that prevent effective cooperation occurring – and that the time has come to address them.

For some years now there has been a steady stream of reports and commentary pointing to the need to strengthen intergovernmental institutions so that they better foster federal-state collaboration. In particular, there is an emerging consensus on the need to reform the Council of Australian Governments (COAG). Despite being the hub of intergovernmental relations in Australia for over 20 years, COAG still has no formal legal status and remains in the grip of the Prime Minister – meaning that is vulnerable to being ignored when it does not suit the federal government.

Building institutional structures through which different levels of government can cooperate is not only an Australian problem. Similar challenges arise in Canada where its First Ministers’ Conference also lacks a permanent institutional base. Reform ideas floated in both Canada and Australia range from forging political agreements on improved processes, through to constitutional recognition of key intergovernmental bodies. The South African constitution goes some way towards the latter by recognising several principles of ‘cooperative government and intergovernmental relations’. The need for constitutional change along similar lines has been discussed in Australia, particularly in light of a view expressed in the High Court that ‘cooperative federalism’ is no more than a ‘political slogan’ with no part to play in constitutional interpretation.

Giving COAG formal legal status, with improved processes, would go a long way to improving federal-state cooperation. But for many members of the public, the Australian federation needs to undergo more fundamental reform. Indeed, a full two-thirds of Australians would like to see the federal system being structurally different in 20 years’ time, with the strongest preference being for a stronger system of regional government.

With their stomach for major federal reform, Australians are way out of ahead of their political representatives. In recent years governments have shown themselves reluctant to consider minor changes to cooperative arrangements, let alone the much larger task of structural reform.

It is time for the political elites to start taking seriously the views of Australians on the shape of their federation. As the lead researcher on the federalism survey, AJ Brown, wrote last week, national and state leaders need ‘to show more tangible commitment to charting the future of the federal system’. And with a federal election looming next year, there is no better time for them to start.

Dr Paul Kildea is a Lecturer in the Faculty of Law at the University of New South Wales, and Referendums Project Director at the Gilbert + Tobin Centre of Public Law

Suggested citation: P. Kildea, ‘Reforming Australia’s federation: The People Lead the Way’ UK Const. L. Blog (29th November 2012) (available at http://ukconstitutionallaw.org).


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Event: Human rights protection in Australia and the UK / Thursday 5th July, 6.15 pm

Members of the UKCLG are invited to the following event on Thursday, co-hosted by the Anglo-Australian Lawyers Society (UK Chapter) and ALBA. Please note that advance registration is essential.

Human rights protection in Australia and the UK: Contrasts and Comparisons

The Hon Justice Robert French AC

Chief Justice, High Court of Australia

A lecture to be chaired by

Lord Judge, the Lord Chief Justice of England and Wales

Thursday 5 July 2012

Australia House, Strand WC2B 4LA

6.15pm to 7.15pm

Accredited for 1 hour Bar CPD

Admission is free, however for this event we must have in advance the names of those attending, so if you wish to attend it is essential to RSVP to aidan.douglas@minterellison.com by no later than 12.30pm, Thursday 5th July 2012. There is no entry without an RSVP.

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Emily Burke: Same-Sex Marriage Legislation in Australia

There is a global trend towards the recognition of same-sex unions, with recent expressions of support from Prime Minister David Cameron, President Obama and the new French President Hollande. In the Australian Federal Parliament there are currently two bills in the House of Representatives and one in the Senate that would legalise same-sex marriage. When the Labor Party government last year amended its official policy platform to advocate for same-sex marriage, its members were ensured a conscience vote on the issue. However the Liberal-National Party coalition in opposition has rejected same-sex marriage reform, and a recent motion to allow a conscience vote for its National party members failed. The minor Greens Party and backbenchers from all sides continue to call for the leader of the opposition to allow coalition members the freedom of a conscience vote.

A committee of the House of Representatives completed its inquiry into the same-sex marriage bills in early June, but declined to support or reject the legislation as a committee. More recently, the Senate Legal and Constitutional Affairs Committee released the report of its separate inquiry. In the latter case, of the six voting members, four were in support of the bill (one Liberal-National, two Labor, and one Greens Senator). However the remaining two voting Senators, one Labor and another Liberal-National, each issued a strong dissent. There were 10 additional participating Senators on the committee, eight of which opposed the legislation.

The public debate over these issues has been intense, with the Senate Committee alone receiving an unprecedented 79,200 submissions – 46,000 of which were in support of same-sex marriage. The House of Representatives Committee received over 250,000 responses to their online poll, with a strong majority of 64% in favour of marriage equality.

Alongside the political debate as to whether same-sex marriage should be enacted, lies a legal one concerning whether such legislation is capable of being enacted by the Commonwealth Parliament. The bills would change the statutory definition of marriage, which is currently the ‘union of a man and a woman’, to be the ‘union of two people … voluntarily entered into for life.’

The dissenting Senators relied on the submissions of several lawyers to conclude that the constitutional foundation for such legislation is weak, and a referendum is ‘worthy of serious consideration’ to allow the public to decide whether or not same-sex marriage should be legalized.

This comment aims to examine the constitutional foundation upon which the Australian Parliament could legislate for same-sex marriage, and assess its strength. Is there a case for proceeding with a referendum before legislating on such an important question?

(1)  The Constitutional Validity of Same-Sex Marriage Legislation

Under section 51(xxi) of the Australian Constitution the Commonwealth Parliament has power to makes laws with respect to ‘marriage’ – a term that is not further defined in that document. The Commonwealth Parliament cannot determine the ambit of its own power by defining the constitutional meaning of the word ‘marriage’ through legislation. It is exclusively the role of the High Court to determine the constitutional limits of Parliament’s powers. However there have only been sparse indications from the High Court on whether the ‘marriage power’ can support legislation for same-sex marriage.

In the cases of Singh (2004) and Re Wakim (1999), Justice McHugh commented that at 1900, the time of the Constitution’s foundation, ‘marriage’ was seen as meaning a voluntary union for life between one man and one woman to the exclusion of all others. However, his Honour noted that ‘by reason of changing circumstances’, ‘marriage’ now means, or in the future may mean, a voluntary and permanent union between two people’.

This demonstrates the two different views that the High Court could take on the scope of Parliament’s power to legislate with respect to ‘marriage’. On one view, the permissible meanings of the constitutional provision are limited by the framers’ intentions – confining ‘marriage’ to only different-sex unions.

Alternatively, as Justice McHugh’s comments indicate, the High Court could conclude that the essential concept of marriage is a commitment of two people to a voluntary and permanent union – and in contemporary society, includes both heterosexual and homosexual conceptions of marriage. In this sense, the constitutional meaning of marriage may be said to have ‘evolved’ beyond the 1900 conception of marriage as exclusively heterosexual.

The ‘evolution’ of constitutional meanings using a distinction between its ‘essential’ and non-essential features is not uncommon. For example, section 80 of the Constitution guarantees the right to trial by jury for Commonwealth offences on indictment. In Cheatle (1993) the High Court recognized that criminal juries in 1900 were constituted exclusively by males who satisfied some minimum property qualification. However, it was held that the ‘relevant essential feature or requirement of the institution was, and is, that the jury be a body of persons representative of the wider community’. As such, they held it would be ‘absurd’ to suggest that women and unpropertied persons would be excluded from juries, ‘in the more enlightened climate of 1993’. By analogy then, if the ‘essential concept’ of ‘marriage’ is the voluntary and permanent union between two people, it is not necessary or essential that they be of opposite sex.

Another important example is the evolving power of Parliament to legislate with respect to ‘intellectual property’ under section 51(xvii) of the Constitution. The High Court has held that the ‘essence’ of the intellectual property power is that it ‘authorizes the making of laws which create, confer and provide for the enforcement of intellectual property rights’. Thus Parliament is able to create ‘fresh rights’, and the boundaries of the intellectual property power are not to be ‘ascertained solely by identifying what in 1900 would have been treated as a copyright, patent, design or trademark’. (The High Court in Grain Pool (2000) cited with approval the analogy that the meaning of trademarks in 1900 provided a ‘centre’, around which to seek the full ‘circumference of the power’.)

Comparing the intellectual property power and marriage power highlights how the High Court must have regard to the development of the common law and legislation when determining the constitutional meanings of legal terms of art. Several submissions to the Senate Committee described the same-sex marriage bill as equivalent to Parliament expanding its power to legislate with respect to lighthouses (s 51(vii) of the Constitution) by statutorily defining ‘lighthouses’ to include schools. But this comparison overlooks the ‘vital distinction’ identified by Higgins J in the Trade Marks case between subject matters that are ‘concrete, physical objects [where] the boundaries of the class are fixed by external nature’, and those that are ‘artificial products of society, and dependent upon the will of society’. By way of example, his Honour explained that while ‘[t]he class ‘cattle’ cannot well be extended by man; the class ‘trade marks’ can be extended. Power to make laws as to any class of rights involves a power… to extend the class of those who may enjoy those rights.’ Thus it is a mistake to overlook the fact that marriage, not being a concrete object fixed by ‘external nature’, is an artificial legal construct inherently capable of expansion.

An additional consideration supporting the likelihood that the High Court would uphold a law providing for same-sex marriage is that Commonwealth legislation has a presumption of validity. As Dan Meagher and Margaret Brock have argued, this presumption should be at its strongest when the legislation considered raises ‘complex and intractable moral issues of this kind’.[i]

One concern raised by opponents of the bills is the possible conflict between the legalization of same-sex marriage and freedom of religion. Section 116 of the Constitution provides that the Federal Parliament cannot make any law ‘prohibiting the free exercise of any religion’. Currently section 47 of the Marriage Act 1961 (Cth) provides that there is no obligation imposed on an authorized celebrant, being a minister of religion, to solemnize any marriage. If bills legalizing same-sex marriage were passed, this exemption would be broad enough to ensure that no ministers would be obliged to solemnize same-sex marriage. Even so, to address the anxieties of religious groups, the Senate committee has recommended the insertion of ‘for avoidance of doubt’ provisions that expressly provide that such legislation does not limit the freedom for religious ministers to decline to solemnize same-sex marriages.

On balance therefore, it appears more likely than not that the High Court would find that same-sex marriage legislation was constitutional. However, the resolution of these issues may depend on when the issue goes to the High Court. There will be four new appointments over the coming years, including two within the next six months; and it is impossible to know for certain what methods of constitutional interpretation these justices will take.

(2)  A Referendum On Same-Sex Marriage?

Given the uncertainty over whether a bill legalizing same-sex marriage would be struck down by the High Court, should a referendum be called instead? The dissenting Senators in the Senate Committee stated that they

 believe it is profoundly unsatisfactory to erect such major law reform on so weak a constitutional foundation. In particular, the possibility that people might undertake marriage pursuant to such a law, only to have their ‘marriages’ struck down by the High Court, is a highly unsatisfactory way for the Parliament to proceed. The committee majority shows contumelious disregard for the interests of homosexual Australians by advancing such a risky and ill-advised course of action.

[The] Coalition senators are of the view that, given that a number of the submissions to the committee acknowledged that same-sex marriage raises significant social, religious and cultural issues and that section 128 of the Constitution provides a mechanism to enable the people to expand the specified powers set out in the Constitution, a referendum to enable the people to pronounce on the issue of same-sex marriage is worthy of serious consideration.

This position assumes that the legislation is indeed on very weak constitutional grounds, but also appears to misunderstand the relationship between the High Court, Parliament and the people. As the majority Senate report noted, the Parliament is elected to pass legislation, and acts within its constitutional right when it passes legislation ‘which it believes to be valid, and ultimately in our system it [is] left to the High Court to determine otherwise’ (quoting from the evidence of Professor John Williams). Australia has a long history of Parliament passing legislation where there is some doubt as to its constitutional validity. Parliament does not seek separate constitutional endorsement via referendum on each occasion such an enactment is passed.

The ‘risk’ that many people may enter same-sex marriages that will then be declared void can be addressed in other ways. As a test case is likely to be brought immediately after a same-sex marriage bill passes, Parliament could suspend the same-sex marriage provisions until the High Court decides the validity of that marriage, preventing any further persons from entering into same-sex marriages that might be subsequently voided should the Court confirm a want of power.

This appears to be the better course of action than a referendum considering: the likelihood that the legislation is indeed valid; the huge cost and time involved in holding referendums; and the actual interests and desires of Australians in the LGBTI community who wish to see the legislation passed in preference to a referendum being held. Other commentators and the majority report of the Senate Committee also noted that Australian proposals to amend the constitution are far more likely to fail than to succeed – for a variety of reasons that extend well beyond the merit of the proposals in question. To date, 44 referendums have been held, of which only 8 have been carried to effect change to the Australian Constitution.


Although there remain constitutional uncertainties over the scope of the marriage power, there are strong arguments in favour of the constitutionality of the same-sex marriage bills currently before the Australian Parliament. As marriage is governed by our civil and not religious laws, it is for Parliament to determine who can and cannot marry. Australian law can better balance freedom of religion with the separation of church and state, by providing that every person is entitled to marry the person of their choice, whilst ensuring that religious officials are not required to solemnise any particular marriage.

Emily Burke is an intern at the Gilbert + Tobin Centre of Public Law at the University of New South Wales

[i] Margaret Brock and Dan Meagher, ‘The Legal Recognition of Same-Sex Unions in Australia: A Constitutional Analysis’ (2011) 22 Public Law Review 266, 278.

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