Tag Archives: Australia

Luke Beck: Scottish Independence and Australia

LukeWhat effect might Scottish independence might have on Australia’s constitutional arrangements? This might seem like an odd question but there has been a suggestion in Australia that there might be a profound effect.

Macquarie University’s Iain Stewart is reported by the Australian Broadcasting Corporation as recently saying that Scottish independence ‘could remove [Australia’s] head of state, the monarch, and thus, at least legally, make government in Australia impossible.’ Stewart wrote a piece on The Conversation to similar effect in 2011. A similar suggestion was made by a senior member of the Victorian Bar, David Denton SC, in 2012.

The Australian Constitution relies heavily on the role of the Queen. Among the most important references to the Queen in the Australian Constitution are section 1 establishing the Queen as formally a part of the Australian Parliament and section 61 vesting the executive power of Australia in the Queen. Of course, in practice, the conventions of responsible government operate. Stewart’s concern relates to how we identify who the Australia monarch is.

The starting point for identifying the Australian monarch is covering clause 2 of Australian Constitution. Covering clause 2 provides: ‘The provisions of this Act referring to the Queen shall extend to Her Majesty’s heirs and successors in the sovereignty of the United Kingdom.’ The Act referred to in covering clause 2 is the Commonwealth of Australia Constitution Act 1900 (Imp), s 9 of which contains the Australian Constitution. The sections of that Act are usually referred to in Australia as ‘covering clauses’ to emphasise they are not actually part of the Australian Constitution.

Stewart’s essential concern is that should Scottish independence occur as a result of the 18 September referendum there would no longer be any United Kingdom by reference to which Australia determines who its monarch is.

I say that Stewart’s concern is unfounded.

In the first place, we’ve been here before. Covering clause 2 simply refers to ‘the United Kingdom’. That is in fact a short hand reference to ‘the United Kingdom of Great Britain and Ireland’. That was the entity existing in 1900. That is the entity referred to in the oaths schedule to the Australian Constitution. The schedule says regarding the oath of office that ‘The name of the King or Queen of the United Kingdom of Great Britain and Ireland for the time being is to be substituted from time to time’. The constitutional preamble likewise refers to the Australian people agreeing to unite in a federal Commonwealth under the Crown of ‘the United Kingdom of Great Britain and Ireland’.

But, of course, the United Kingdom of Great Britain and Ireland no longer exists. With the independence of the Republic of Ireland, the country became the United Kingdom of Great Britain and Northern Ireland. Scottish independence would, from the point of view of Australia’s constitutional situation, be no different to Irish independence. A chunk of the UK has broken away and become its own independent nation.

The reference to the United Kingdom in covering clause 2 must be read as a reference to the United Kingdom of Great Britain and Ireland and it successor state/s, to adopt the international law terminology. Following Irish independence the successor state was the United Kingdom of Great Britain and Northern Ireland. Australia experienced no constitutional problems as a result of Irish independence and there was no doubt about who Australia’s monarch was. If Scotland becomes independent, the successor state will be what is left of the United Kingdom by whatever name it chooses to go by.

There is another reason why Stewart’s concern is unfounded. That reason is that it is based on an assumption that the legal effect of covering clause 2 is to mandate that whoever is the UK monarch is also by virtue of that fact the Australian monarch. This is certainly one view of the effect of covering clause 2 (which for the reasons given above poses no problems for Australia should Scotland become an independent country). But there are other views of the legal effect of covering clause 2.

As Anne Twomey explained in ‘Changing the Rules of Succession to the Throne’ [2011] Public Law 378, 391 and on the Constitutional Critique Blog in 2012 there are two other possible interpretations:

  • “covering clause 2 is merely an interpretative provision which simply assumes, but does not enact, the existence of a succession law that is operative in Australia. According to this view, covering clause 2 operates to ensure that references to the sovereign are not taken to be confined to the sovereign at the time of the enactment, but extend to whoever happens to be the sovereign from time to time in accordance with the applicable law. As the United Kingdom can no longer legislate for Australia, the applicable law would be the pre-existing law of succession as altered by Australian law.”
  • “covering clause 2 incorporated by reference into the Commonwealth of Australia Constitution Act the British laws of succession to the throne. Under s 4 of the Statute of Westminster, those laws could be amended or repealed by United Kingdom legislation to which Australia had given its request and consent. That is no longer the case. Section 1 of the Australia Acts 1986 provides that no Act of the United Kingdom Parliament may now extend to Australia as part of Australian law. In Sue v Hill [(1999) 199 CLR 462, [93]] three Justices of the High Court of Australia noted that covering clause 2 identifies the Queen ‘as the person occupying the hereditary office of Sovereign of the United Kingdom under rules of succession established in the United Kingdom.’ Their Honours went on to state:

The law of the United Kingdom in that respect might be changed by statute. But without Australian legislation, the effect of s 1 of the Australia Act would be to deny the extension of the United Kingdom law to the Commonwealth, the States and the Territories.

The argument here is that the rules of succession have been effectively patriated with the Australian Crown and while they continue to exist in their current British form, they may only be amended or repealed by Australian action.”

On both of these alternative views of covering clause 2, no change in British law can affect the way in which Australia’s monarch is identified. This is why Australia needed to pass legislation to give effect to the Succession to the Crown Act 2013 in Australia. On the same basis, any changes brought about to the British laws of royal succession as a consequence of Scottish independence would be of no effect regarding the Australian monarch.

In conclusion, it seems pretty clear that Scottish independence will have no direct impact on Australia’s constitutional arrangements.

 

Luke Beck is a PhD Candidate, Postgraduate Fellow (Research and Teaching) and Associate, Constitutional Reform Unit at Sydney Law School, The University of Sydney.

Suggested citation: L. Beck, ‘Scottish Independence and Australia’ UK Const. L. Blog (12th September 2014) (available at http://ukconstitutionallaw.org)

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Greg Weeks: Comment on Australia: A Disappointing Backward Step in Information Policy

Gregory WeeksAustralia’s Coalition government handed down its first Budget on 13 May 2014, which has since proved controversial in several respects. The Budget’s impact on groups such as the elderly, the unemployed, the disabled and University students, as well as on indigenous programs and the environment has occupied much of the commentary and has additionally generated significant opposition. This post will look at a significant casualty of the Budget’s cuts to public expenditure which has attracted very little attention but which will nonetheless be keenly felt.

The Office of the Australian Information Commissioner (OAIC) was created by statute in 2010, as part of the Government’s long-awaited reforms to the Freedom of Information Act 1982 (FOI Act) and commitment to Open Government, and commenced its operations on 1 November 2010. The advent of the OAIC was particularly welcome to those who had become discouraged with the operation of the FOI Act over the course of its existence. In particular, FOI was still steeped in a culture of official secrecy, typified by the capacity of Ministers to provide conclusive certificates that could exempt documents from an FOI claim (although these were abolished in 2009). The creation of the OAIC signalled a policy preference in favour of government agencies initiating the publication of information, even if it had not been requested under the FOI Act.

In his Budget speech, the Treasurer (the Hon Joe Hockey) announced the Government’s decision to disband the OAIC with effect from 1 January 2015. Although, at the time of writing, the Budget has not yet passed both Houses of Parliament (due mainly to a highly fragmented Senate since several new Senators took office on 1 July 2014), the abolition of the OAIC has been treated as a practical reality since the Treasurer’s Budget speech and the OAIC has plans in place to finalise its workload by 31 December 2014. The important work which has hitherto been performed by the OAIC under the FOI Act and Privacy Act 1988 will continue elsewhere but the significant achievements of the OAIC over the last four years in the area of information policy will cease.

In an immediate and dignified response to the Budget announcement, the Australian Information Commissioner (John McMillan), Freedom of Information Commissioner (James Popple) and Privacy Commissioner (Timothy Pilgrim) acknowledged that the OAIC would be disbanded and set out some of the OAIC’s most significant achievements since it commenced operations, in the areas of Information Policy, FOI, Privacy and external engagement. The productivity of the OAIC in these areas will need to be matched from 1 January 2015 by a range of agencies. While the Privacy Commissioner will continue to administer the Privacy Act from Sydney in 2015, the administration of the FOI Act will be absorbed into the Attorney-General’s Department and the OAIC’s merits review and complaints functions with respect to the FOI Act will again be performed by the Administrative Appeals Tribunal (AAT) and Commonwealth Ombudsman respectively, as they were prior to 2010.

While the OAIC’s role in developing information policy is the most obvious area which will cease altogether after the end of 2014, the external engagement and consulting practices of the OAIC are also unlikely to be replicated elsewhere. The OAIC has, since its inception, been active at working both with government and with private organisations and individuals in order to improve information policy. At a time when government has so much information and has a greater than ever capacity to obtain and retain information from its citizens, the work of an independent agency with the remit to look into issues of information, privacy and FOI policy would add a great deal to the public debate. Its loss may be more significant than has yet been realised.

Further, in reversing several of the reforms to the FOI Act passed in 2010, there is scope to return to the inefficiency that preceded the creation of the OAIC. In particular, I doubt that the AAT will be able to match the OAIC’s record with regard to dealing efficiently with requests for merits review from decisions made under the FOI Act. There are already significant delays in obtaining hearings in the AAT and, with many AAT members unsure at the time of writing whether or when they will have their contracts renewed, it is hard to see this situation improving in the short term. We may be returning to an era in which obtaining information from government is beset with great practical difficulties.

Finally, the closure of the OAIC also marks the loss to the Australian public of the great service of Professor John McMillan AO. It is hard to nominate anybody who has done more to give Australians access to government information over the course of the last forty years. His role as Australian Information Commissioner is, in many ways, the pinnacle of Professor McMillan’s outstanding career, in which he has also served as a Professor at the Australian National University and as Commonwealth Ombudsman. Australians owe him a debt of gratitude for this great service.

The closure of the OAIC was not the headline issue on the morning after the 2014-15 Budget was delivered. It is unlikely to rate a mention in the news even on the day that it ceases to operate for good. Australians may never know what they are missing but it is clear that they will in fact be missing a great deal indeed.

 

Some of the material in this comment was previously published by LexisNexis as an editorial in the Australian Administrative Law Bulletin, of which Greg Weeks is the General Editor. He is also a Lecturer in the Faculty of Law, University of New South Wales and the United Kingdom Constitutional Law Blog’s Australia Correspondent.

Suggested citation: G. Weeks, ‘Comment on Australia: A Disappointing Backward Step in Information Policy’ U.K. Const. L. Blog (6th September 2014) (available at http://ukconstitutionallaw.org).

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J. R. Nethercote: Forgotten centenary: Joseph Cook and the 1914 Double Dissolution of the Australian Parliament

JN1The assassination and obsequies of Archduke Franz Ferdinand and his Duchess did not occupy the front pages of newspapers for long. Various European capitals were preoccupied by the crisis, with varying degrees of intensity, but behind closed doors.

Australia quickly returned to its own political crisis, a parliamentary crisis pitting the Labor-dominated Senate against the House of Representatives where the first Liberal Government held office with a slender majority. It came to head almost at the same time as Princip fired the fatal shots at Sarajevo.

Australia’s federal democracy, little more than a decade old, had many innovatory features. Foremost among these was a bicameral parliament in which both Houses, with comparable if not quite identical powers, were elected on the same democratic franchise.

A conflict between the Houses could not, in a rhetorical sense, be fought in terms of the People versus the Peers as was Britain’s parliamentary crisis of 1909-11; and it was not beyond resolution as was the case in Canada, where Robert Borden’s Conservative Government was repeatedly frustrated by the Liberal-dominated Senate.

The Australian Constitution itself provided a means of addressing the conflict, if not necessarily of resolving it.

According to section 57, if the Senate twice rejected, amended unacceptably or failed to pass a bill, with an interval of three months between the first and second parliamentary deliberations, the Governor-General could dissolve both the Senate and the House and call fresh elections for each.

If the legislation still fell foul of the Senate, a joint sitting of the two houses could be convened to vote on it. (This has only occurred once, in 1974.)

Section 57 in its refined form was a consequence of George Reid’s famous ‘Yes-No’ speech during the referendum campaigns leading to adoption of the Constitution.

Inter-house disputes in the early parliaments were handled by negotiation. The 1910 election, however, provided Labor, led by Andrew Fisher, with majorities in both Houses.

But, in the 1913 election, Labor lost its majority. The Liberal Party led by Joseph Cook took office with 38 seats in a 75-seat chamber. It survived with the vote of the Speaker.

Labor was down but by no means out. It won 11 of the 18 Senate seats contested in the election. Together with 18 sitting senators, it had a commanding majority, 29 to 7.

Cook knew his hold on government was tenuous. He immediately sought to remedy the situation utilising the distinctive, indeed unique, avenue offered by section 57.

He presented two short bills which he knew Labor would reject. The first proposed a ban on union preference; the second provided for postal voting at elections. In Dr Evatt’s words, ‘a disagreement was specially manufactured.’

Labor rejected the first without hesitation; it proposed amendments to the postal voting proposal which the Liberal Government found unacceptable.

Labor, moreover, used its Senate numbers to revive proposed amendments to the Constitution seeking extension of Commonwealth powers in a range of industrial and business matters, including monopolies and trusts. The Government refused to put them to the people because they had already twice failed at referendum.

As the crisis approached its climax a new Governor-General arrived, Sir Ronald Munro-Ferguson, a Scotsman.

He was a veteran on the Liberal side in the recent battles in Britain between the Commons and the Lords. This was something of a disadvantage – it took some weeks before he understood that the matter could not be settled according to Westminster practice.

This is the central significance of the 1914 double dissolution, the centenary of which, even if otherwise unnoticed, falls at this time. The framework for settling the dispute was to be found, not in the doctrine and practice of Westminster, but in the Constitution of Australia.

Unlike its counterpart in Canada, it did not contain any affirmation that an explicit intention was to have ‘a Constitution similar in Principles to that of the United Kingdom.’

In an early conversation with Munro-Ferguson, Cook expressly objected to what he described as ‘home precedents.’

Munro-Ferguson’s first (Westminster) instinct was to suggest a fresh election for the House. But such a course would advantage the Opposition, whose Senate strength would not be tested. He soon recognised that a double dissolution was the only course available.

A host of ancillary matters arose. The first concerned the bills upon which the double dissolution was to be based (in the event, only the union preference bill was activated for the double dissolution).

Labor contended that to have a double dissolution the legislation had to be ‘a measure embodying a principle of vital importance necessary in the public interest’; in this, the Chief Justice, Sir Samuel Griffith, sympathised – it was an ‘extraordinary’, not an ‘ordinary,’ power.

It has since been accepted, by authorities as diverse as Dr Evatt and Sir Paul Hasluck, that what counts is conformity with the requirements of section 57, not the significance of the legislation; the latter is a political judgment.

Another consideration was who could the Governor-General consult in reaching his decision, partly in the context of contending (in the face of Cook’s disagreement) that he could exercise a discretion in deciding whether to grant a double dissolution.

In anticipation of the Balfour Report (1926) and the Statute of Westminster (1931), Cook insisted that the Governor-General should take advice only from his ministers (not a view with which Labor, in the circumstances, agreed). Cook acquiesced in consultation with the Chief Justice, who provided advice, but not with the Leader of the Opposition.

(Before leaving London he had had conversation with the constitutional guru of the empire, Arthur Berriedale Keith, as well as the Australian High Commissioner in London, none other than Sir George Reid, who knew something about section 57.)

The Opposition wanted to see the exchange of correspondence between the Prime Minister and the Governor-General. Cook refused and Munro-Ferguson concurred, observing that ‘at home undoubtedly such documents would not be published.’ A statement in the House by the Prime Minister was considered sufficient.

Fisher pressed the matter after winning the election and the papers were almost immediately tabled, as is now usually the case.

The Governor-General granted Cook a double dissolution on 4 June 1914. The Parliament was prorogued on 27 June 1914; and the double dissolution effected on 30 July, just as the European powers were exchanging ultimatums about war.

Cook had underlined that were his advice not accepted, the Government would resign. Fisher, if he agreed to form a government, would not be able to meet the House without suffering immediate defeat.

Munro-Ferguson would then be in the invidious position of having to give his [Cook’s] opponents what [Cook] had been refused.

Just such a course of events was witnessed little more than a decade later in the so-called King-Byng affair in Canada.

Joseph Cook does not stand high among Australia’s political leaders. He had been a very loyal deputy to an often absent Reid for nearly a decade; he surrendered the leadership to Deakin upon formation of the Fusion, forerunner of the first Liberal Party; he surrendered it again in 1917 when the Liberal Party and Hughes Labor combined to form the Nationalist Party.

According to Munro-Ferguson, ‘Mr Cook has plenty of adroitness and courage, and though high-strung so as sometime to “see red,” he has self-control.’

But this centenary reminds the nation of its debt to Cook. In his insistence that our governance is a matter of our own Constitution, not a deference to Westminster, he was a powerful and original spokesman for self-government and for responsible government in Australia.

Cook and Fisher started their campaigns just as hostilities commenced in Europe.

They fulsomely declared their loyalties to the Crown and the Empire. Fisher memorably revived the commitment of the Boer war years to fight to the last man and the last shilling.

He carried the day (5 September): in the House, with nearly 51 percent of the vote, he returned with 42 seats, a majority of nine over all others; and in the Senate, a resounding win, 31 seats to five on the basis of 52.15 per cent share of the vote.

Within little more than two years, Labor would split on the conscription issue; fifteen years would elapse before Labor again won a Federal election.

 R. Nethercote is Adjunct Professor, Canberra Campus, Australian Catholic University

A shorter version of this post originally appeared in the Canberra Times.

(Suggested citation: J. R. Nethercote, ‘Forgotten centenary: Joseph Cook and the 1914 Double Dissolution of the Australian Parliament’ U. K. Const. L. Blog (28th July 2014)  (available at: http://ukconstitutionallaw.org/)

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Gabrielle Appleby and Joanna Howe: The High Court ends backdoor law making (for now)

gabrielle-applebyjoanna-howeCentral to the Australia’s conservative Coalition Government’s successful 2013 electoral campaign was its promise to ‘stop the boats’. By this, it was intended that the Coalition would do all it could to deter asylum seekers from arriving in Australia by boat. The measures it intended to implement included the reintroduction of Temporary Protection Visas (TPVs). The problem for the Government was that it did not have a majority in the Senate and both the Greens and the Australian Labor Party were opposed to the reinstatement of TPVs.

This blog post interrogates the attempts of the Australian Government through its delegated legislative powers to circumvent the Parliament – and more specifically the Senate –in its reintroduction of the TPVs. It has made repeated attempts to bring TPVs (or their equivalent) into law in the face of express parliamentary disapproval. In the latest instalment of the conflict last week, the High Court in two cases – Plaintiff M150/2003 v Minister for Immigration and Border Protectionand Plaintiff S297/2013 v Minister for Immigration and Border Protection– struck down the Minister’s decision to limit the availability of permanent protection visas. With a change in the composition of the Senate due in July, there will undoubtedly be further attempts to introduce the policy.

In our view, these efforts greatly undermine the place of Parliament as the institution in which the Constitution vests legislative power, and the role of the Senate as a house of review and scrutiny in which delegated legislation is held to account.

Constraints on the making of delegated legislation

We all accept that to enable the great wheels of government to turn, it is necessary in some cases for Parliament to delegate legislative power to the government. The question however remains what constraints and checks exist on delegations via parliamentary scrutiny and oversight.

The Australian High Court has been heavily influenced by English parliamentary practice and principle (particularly parliamentary sovereignty) and pragmatic considerations of administration in its approach to the constitutionality of delegation of legislative power. In contrast to the American position, where the separation of powers and vesting of legislative power in the Congress has been used as a basis for a requirement that the Congress must set ‘intelligible principles’ to guide delegated power, there is no such restriction in Australia. The High Court has accepted the constitutionality of delegated legislative power, with almost no restriction. (The only restriction that was accepted was based on federal principles, that a delegating provision must retain a connection to federal power, the limitation has never been used to strike down a delegating provision. However, the most recent National School Chaplains decision – Williams v Commonwealth (No 2) – raised the possibility of the Court striking down the broad delegation of authority to approve executive expenditures in the future: see further discussion in a recent blog post by Graeme Hill.) Supervision of delegation has been left as a matter for Parliament to police.

At the federal level in Australia there is a comprehensive statutory regime for parliamentary scrutiny provided in the Legislative Instruments Act 2003 (Cth). ‘Legislative instruments’ are defined expansively under the Act. The Act provides for a number of accountability measures including the requirement that instruments be publicly registered, tabled before both Houses of Parliament, subject to possible parliamentary disallowance by any one of the houses, and subject to a 10-year sunset clause.

There are, however, problems with the current system of parliamentary scrutiny, for example the disallowance process. It was this loophole that was exploited in the government’s introduction of TPVs.

Challenging parliament’s role – the case of Temporary Protection Visas

Before delving into the minutiae of the Government’s recent attempts to introduce TPVs, it is important to sketch their chequered role in Australian refugee policy.

TPVs (or Subclass 785 visas) were introduced in 1999 by the conservative Howard Coalition Government. The visas were introduced through regulation as a new class of visas under the Migration Act 1958 (Cth). Section 31 of the Migration Act provides that there is to be ‘prescribed classes of visas’ – that is, visas prescribed by Regulations. Section 504 of the Act gives the Governor-General the power to make ‘make regulations, not inconsistent with this Act, prescribing all matters which by this Act are required or permitted to be prescribed’. It is a wide delegation of legislative power, with the classes and conditions of visas being a highly contentious political issue in Australia.

TPVs created two classes of asylum seekers, those that had arrived by boat and were eligible only for temporary protection (‘illegal’ refugees) and those that had come by authorised methods (such as by plane) and were offered permanent protection (‘legal’ refugees). TPVs greatly reduced the rights of ‘illegal’ refugees, providing only limited rights to work and government welfare and no rights for travel or family reunion. Upon expiration of the visa after three years, visa holders had to apply for another TPV. TPVs were intended to deter asylum seekers from making the journey to Australia by boat and were heavily criticised on the basis of their ‘human cost’. They provided little certainty and hope to those claiming asylum, leaving them in ‘ongoing limbo’. They were also criticised as amounting to a breach of international law, particularly the obligations not to return asylum seekers to a country where they will be persecuted, and not to penalise persons for seeking asylum (see for example the criticism by Esmaeili and Wells).

In 2008, TPVs were repealed by the Rudd Labor government – again through regulation – as part of its wider roll back of the Howard Government’s refugee policies.

This brings us to the present day where the Abbott Coalition Government has attempted to reintroduce TPVs without parliamentary approval. Indeed, in spite of strong and explicit parliamentary opposition, the Government has managed to implement TPVs, at least for short periods, through Parliament’s delegation of legislative power.

The Migration Amendment (Temporary Protection Visas) Regulation 2013 (Cth), which came into effect on 18 October 2013, purported to deny permanent protection visas to unauthorised maritime arrivals through the reintroduction of TPVs.

The Senate disallowed this regulation on 2 December 2013. At the time of its disallowance it had been the subject of an investigation by the Senate’s Regulation and Ordinances Committee. This Committee noted three concerns with the Regulation. First was its retrospective operation, in that it invalidated all existing applications for permanent protection visas. Second was its undue trespass onto individual rights, particularly family considerations and the rights of children. Finally, the Committee raised concerns with lack of consultation prior to the making of the Regulation. The Government’s Explanatory Statement had claimed that the Regulation was introduced ‘as a matter of urgency’, and therefore no consultation was undertaken.

Under the Legislative Instruments Act, while the Senate can disallow regulations, if disallowed, regulations cease to have effect upon their disallowance rather than being void ab initio. This meant that the TPV Regulation continued in its operation between 18 October 2013 and 2 December 2013.

Thus, despite the disallowance, the Committee noted that its concerns and inquiries remained relevant for the period of the Regulation’s operation, and demanded a response from the government. The Minister didrespond to the Committee’s concerns. However, these responses, and the Committee’s subsequent inaction, demonstrate little rigorous parliamentary scrutiny even in this controversial policy area. In relation to the first concern, the retrospective application of the Regulation, the Minister explained:

Applying TPVs to persons having arrived prior to 13 August 2013 was important for consistency and fairness, with all relevant applications being assessed against the new criteria for the permanent protection visa.

In relation to the undue trespass on human rights, the Minister explained that ‘there is no right to family reunification under international law’. Further, the removal of the possibility of family reunification was vital to the policy aim of dissuading asylum seekers from journeying to Australia by boat. In relation to the Regulation’s effect on the rights of the child, the Minister said:

The extension of this approach to unaccompanied minors was to discourage them from undertaking such voyages to achieve resettlement for their families in Australia. It was the government’s view that the need to discourage minors from undertaking dangerous voyages and to maintain the integrity of Australia’s borders outweighs the best interests of the child to have the right to family reunification.

This response does not assert that the Regulation did not trespass on the rights of the child, but that the best interests of the child had been outweighed by the Government’s policy objectives.

Finally, in relation to the lack of consultation, the Minister reaffirmed the Explanatory Statement’s assertion that the Regulation was required ‘as a matter of urgency’, ‘to implement TPVs as a key element of the Government’s policies underpinning its border protection strategy to combat people smuggling and discourage people from making dangerous voyages to Australia.’ The Committee ‘thanked the Minister’ for his responses, and concluded its interest in all of the matters.

During the parliamentary recess over Christmas of 2013, in spite of the disallowance motion, the Government made the Migration Amendment (Unauthorised Maritime Arrival) Regulation 2013 on 12 December 2013, to take effect on 14 December 2013. This Regulation did not formally reinstate TPVs but its object was to deny permanent protection visas to unauthorised maritime arrivals. It did so by making a person who did not hold enter Australia on a valid visa ineligible for a protection visa. Instead, Temporary Humanitarian Concern Visas (a pre-existing visa class, Subclass 786) were offered to those persons. This visa cannot be applied for; an individual must be invited to accept the visa. The conditions mirror those that attach to TPVs. Government defiance of Parliament in the exercise of delegated legislative power was exemplified by the following exchange between Government and Opposition spokeswomen. An Opposition spokeswoman said the regulation was ‘clearly an attempt to steamroll the parliament’. A spokeswoman for Scott Morrison, the Immigration Minister, said ‘The Senate’s actions in disallowing TPV regulations has meant that the government has had to look at existing temporary visa options to achieve the same outcome.’

Section 48 of the Legislative Instruments Act prevents the making of a regulation by government within six months that is ‘the same in substance’ as a regulation that has been disallowed. The government claimed that the December Regulation was not ‘the same in substance’ as the October Regulation, despite the two laws clearly being directed at the same ends.

In addition to the December 2013 Regulation, the Minister also made a determination on 4 March 2014, to limit the number of protection visas that could be granted during that financial year to 2,773. This limit was reached just weeks later on 24 March 2014. This determination was made under section 85 of the Migration Act 1958 (Cth).

The December 2013 Regulation was disallowed by the Senate on 27 March 2014. However, in the time between their making and their disallowance, because of their retrospective operation, they had been applied to a number of asylum seekers. Some of these had been denied permanent protection visas and instead issued with Temporary Humanitarian Concern Visas. Others remained in detention, issued with no alternative visa in lieu of a protection visa for which they had applied. The period of the Regulation’s operation had been substantially extended because it had been made at the start of a long parliamentary recess and applied to any pending applications, not just those made after the Regulation came into effect. Because disallowance does not operate retrospectively the Government had achieved its policy objectives in the face of parliamentary opposition, at least for a short time.

The High Court weighs in

Two affected asylum seekers brought challenges to the December 2013 Regulation in the High Court of Australia. The plaintiffs’ claim was initially based on the argument that the Regulation was made in breach of s 48 of the Legislative Instruments Act. However, by the time the challenge was heard in May this year, the Regulation had been disallowed. The plaintiffs’ counsel argued in an early directions hearing that the argument should nonetheless be determined. He said:

[A]lthough while I accept that there would be a utility question, we were going to argue that the matter should proceed … in any event because the Minister obviously takes the view that he can remake regulations with relatively minor differences and that is okay and we would be concerned that he would just do it again if it was disallowed. So we would say that there is a line of authority in the US Supreme Court and the Irish High Court to the effect that where there is an area where there is a difficulty to review, the matter can be considered to be not moot even though the person affected is not necessarily directly affected.

However, by the time of the hearing, the plaintiffs had changed their challenge to focus on the validity of the Minister’s purported determination to limit the number of protection visas available during the 2013-14 financial year. The High Court held that the March determination was invalid as it went beyond the substantive scope of the power conferred by s 85 of the Migration Act 1958 (Cth). This is because this section is to be read in conjunction with s 65A of the Act that the Minister make a decision granting or refusing to grant a protection visa within a specified period of 90 days. The High Court found that in light of this, s 85 is not to be construed as empowering the Minister to determine the maximum number of visas that may be granted in a financial year. The rules of statutory construction required s 85 to be interpreted according to the Act as a whole by ‘adjusting the meaning of the competing provisions to achieve that result which will best give effect to the purpose and language of those provisions while maintaining the unity of all the statutory provisions’ (quoting the principle from Project Blue Sky Inc v Australian Broadcasting Authority). The decisions are fairly orthodox, providing good examples of the application of the principles of statutory construction that require a harmonious, contextual construction.

The future of TPVs in a changed Senate

The current Senate remains opposed to the introduction of TPVs. On 1 July the composition of the Senate changes, with those Senators elected in 2013 taking their seats. The balance of power will shift from the Greens to mining magnate Clive Palmer’s newly formed ‘Palmer United Party’, together with a number of smaller party and independent Senators, one of whom has a loose alliance with the Palmer United Party. Their views on TPVs have not yet been tested, although the Palmer United Party’s policy on asylum seekers leading up to the 2013 election was far more moderate that that advocated by the Coalition.

There is a strong possibility that the Abbott Government will remake the regulations after July, probably before the expiration of six months from when the December Regulations were disallowed (on 27 March 2014). Indeed, it will need to do so quickly if it wishes to avoid having to make decisions about protection visas for a number of asylum seekers.

Given its track record in this area, there is a strong possibility these any new regulation would operate retrospectively, to catch all of those asylum seekers with pending protection visa applications.

Is there another way? Making delegated legislation more accountable

The Government’s use of delegated legislative provisions to defy the Parliament in its attempt to reinstate TPVs forces us to question whether the current mechanisms for ensuring the accountability of the Executive to the Parliament suffice in this area.

Although beyond the scope of this blog post, we believe that the Constitution requires the High Court to develop a set of judicially enforceable standards for the delegation of legislative power to the Executive in both a substantive and procedural sense. We look to the High Court because the current constitutional position – leaving the scrutiny of delegated legislation to the Parliament – has proven ineffective, characterised by overly broad delegations, exercise of delegations in a way that implements controversial policy issues that have often affect human rights, at times retrospectively. The scheme established by Parliament provides insufficient scrutiny and allows government exploitation of accountability loopholes. The time is ripe for the High Court to produce a set of constitutional requirements for delegations that ‘prod’ the Parliament to take responsibility for the delegation of power that is constitutionally entrusted to it.

Dr Gabrielle Appleby, Senior Lecturer, and Dr Joanna Howe, Lecturer

Adelaide Law School, University of Adelaide.

Drs Appleby and Howe will present their paper, ‘Scrutinising Parliament’s Scrutiny of Delegated Legislative Power’, which develops these arguments, at the Cambridge Public Law Conference in September 2014.

(Suggested citation: G. Appleby and J. Howe, ‘The High Court ends backdoor law making (for now)’  U.K. Const. L. Blog (26th June 2014) (available at http://ukconstitutionallaw.org/)).

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Andrew Lynch: Judicial Appointments in Australia – Reform in Retreat

AndrewThe creation of formal processes governing the appointment of judges has been a notable element in the broader project of constitutional reform in the United Kingdom over the last 16 years. As is frequently acknowledged, the changes introduced by the Constitutional Reform Act 2005 were that rare thing – an instance of the executive relinquishing power. But the legislation also appeared to stimulate much more debate about the selection and composition of the judiciary than it resolved. Enactment is more typically seen as the culmination of public discussion about the desirability and design of a reform. What has been fascinating – at least from the perspective of external observers – is the way the significant measures implemented in 2005 have remained under the microscope, being the subject of sustained academic commentary, government and parliamentary review and then fine-tuning through passage of the Crime and Courts Act 2013. The announcement in April that, even after all this, the Labour opposition was open to the use of quotas to hasten the diversification of the United Kingdom judiciary signaled that the whole matter of appointments remains extremely contentious.

Participating in unremitting constitutional debates can undoubtedly prove rather fatiguing, but spare a thought for those of us in jurisdictions where reform is not just both slower and more modest, but is then later reversed. Australia’s recent experience in judicial appointments reform has followed this disappointing trajectory. This is despite political rhetoric in this country consistently echoing the United Kingdom’s fidelity to ‘merit alone’ as the basis for selection albeit accompanied by recognition of the need to enhance judicial diversity. In this post I describe these developments before identifying some features of the short-lived reforms which offer an interesting contrast with the United Kingdom approach. Specifically, the provision of a shortlist of suitable candidates to the Commonwealth Attorney-General was seen as entirely uncontroversial. It arguably affirmed a more inclusive understanding of ‘merit’ in this jurisdiction, under which the preservation of ultimate executive discretion was appreciated as a legitimate means for the achievement of greater diversity.

The traditional approach of the Commonwealth of Australia to judicial appointment was one purely of executive discretion lacking any stipulated criteria and any formal or open process. Beyond an eligibility threshold of judicial service or enrolment as a legal practitioner for not less than 5 years (and in the case of appointment to the Family Court of Australia, a requirement that a person shall not be appointed unless ‘by reason of training, experience and personality, the person is a suitable person to deal with matters of family law’), there is no statutory guidance offered as to the necessary attributes of a candidate. The only procedural requirement applies exclusively to vacancies on nation’s final court – the High Court of Australia. This is merely an obligation that the Commonwealth Attorney-General will ‘consult’ with his or her State counterparts before filling a vacancy on that Court.

Shortly after coming to office in late 2007, the Attorney-General in the Labor government, Robert McClelland, announced that he would be introducing more formal processes for appointing individuals to the ranks of the federal judiciary. The catalyst for his doing so undoubtedly included, but was not limited to, developments in the United Kingdom. But additionally, there had been reform in some of the states in the Australian federation, as well as attention to the issue in both New Zealand and Canada.

McClelland’s objectives in unveiling the reforms were later repeated in the government’s 2010 publication Judicial Appointments – Ensuring a strong, independent and diverse judiciary through a transparent process. Their purpose was to ensure:

  • greater transparency, so that the public can have confidence that the Government is making the best possible judicial appointments
  • that all appointments are based on merit, and
  • that everyone who has the qualities for appointment as a judge or magistrate is fairly and properly considered

That document also stated:

The Government is pursuing the evolution of the federal judiciary into one that better reflects the rich diversity of the Australian community. To this end, the Government seeks to increase the diversity of the federal judiciary in relation to:

• gender

• residential location

• professional background and experience, and

• cultural background.

The three pillars of McClelland’s reforms may be succinctly identified as: (1) the articulation of publically available criteria; (2) the advertisement of vacancies and call for nominations; and (3) the use of an Advisory Panel (comprising the head of the relevant court or their nominee, a retired judge or senior member of the Federal or State judiciary, and a senior member of the Attorney-General’s Department) to assess potential candidates, possibly through interviewing them, before making a report to the Attorney-General listing those found to be ‘highly suitable for appointment’.

While the stated criteria had much in common with those used in the United Kingdom, the similarities between the two jurisdictional approaches do not extend much further. First, and most fundamentally, the changes were not legislated. Second, no Judicial Appointments Commission was created. Although McClelland initially professed an open mind on the need for such a body, at the same time he expressed concern that the United Kingdom’s JAC was ‘overly bureaucratic and the whole appointments process is unreasonably intrusive as well as taking too long’. This led to suspicions that ‘the best candidates have not put themselves forward’. McClelland’s negative assessment of the JAC was probably unfair given the size of the task that lay before the organisation upon its establishment and how little time had yet passed. More recent assessments from United Kingdom commentators portray the factors raised by the Commonwealth Attorney-General as teething problems since resolved.

Third, the Advisory Panel was, at just three members, small and contained no lay representatives. Fourth, the Panel was able to recommend a number of names to the Attorney-General for consideration, leaving him or her to make the final selection. This stands in stark contrast to the requirement in the United Kingdom that the JAC or, in the case of appointments to the Supreme Court, a specially-convened commission, furnish only one name recommended for appointment. Fifth, whereas the United Kingdom acknowledged the special status of its final court through adoption of a distinct process, the High Court of Australia (along with the appointment of heads of the other three federal courts) was simply exempt from the McClelland reforms on the basis of its ‘different status’. Nominations were not called for and nor was an Advisory Panel of any sort convened, although the Attorney-General undertook to consult with a number of stakeholders beyond the mandated State Attorneys. It was unclear what weight, if any, was accorded to the explicit criteria in respect of such appointments.

The basic features of the new system received the bipartisan endorsement of the Senate Legal and Constitutional Affairs Committee in its 2009 inquiry into the Australian Judiciary. McClelland’s two Labor successors as Attorney-General made judicial appointments in accordance with the reforms. However, the Attorney-General in the new Coalition government, Senator George Brandis QC, appears to have entirely discontinued those measures and reverted to the traditional approach of unfettered executive discretion. With neither fanfare nor warning, all trace of the processes initiated by McClelland slipped from the departmental website. On the topic of court appointments, the Attorney-General’s Department now simply advises that, ‘As the nation’s first law officer, the Attorney-General is responsible for recommending judicial appointments to the Australian Government.’ On 14 April 2014, the Attorney-General issued a media release announcing his first appointment to the federal judiciary. The vacancy on the bench of the Federal Court of Australia had not been advertised on the website, nor was there anything in the media release suggesting that the appointment was the outcome of any particular process.

The revival of smog-like opacity around federal judicial appointment processes has not gone unremarked, with concerns voiced about the consequences for efforts to improve judicial diversity. Justice Ruth McColl of the New South Wales Court of Appeal has said of the reversion that ‘any move that strips away progress towards greater equality of judicial appointment is, at the very least, highly problematic’.

The McClelland reforms were obviously relatively modest when compared to those of the United Kingdom. But they were certainly an advance on the customary practice. Brandis’ rejection of them is curious not only because the new process hardly constrained his power of selection to an intolerable degree, but also because he had participated in the 2009 Senate inquiry which gave its approval to the reforms. Indeed, that committee urged greater transparency upon the Attorney-General at the time – including ‘making public the number of nominations and applications received for each vacancy and, if a short-list of candidates is part of the process, to make public the number of people on the short-list’ (Recommendation 3).

While readers in the United Kingdom might sympathise with the view that this retreat from transparency and process is to be lamented, some may, nevertheless, be doubtful about the capacity of the measures introduced by McClelland to promote judicial diversity. After all, in 2012, the House of Lords Select Committee on the Constitution was emphatic in rejecting the view of a number of witnesses who appeared before it to submit that shortlists would facilitate a swifter diversification of the judiciary. The Committee did so because, as it said, ‘unless a Lord Chancellor is committed to the promotion of diversity, the use of shortlists could have the reverse effect of reducing the diversity of the judiciary.’ That outcome is obviously possible but perhaps questionable, given broad political acknowledgment of the need for the judiciary to be more representative. Certainly it seems just as likely that diversity might be thwarted by giving serving judges too much influence over appointments, risking the self-perpetuation of the judicial class in its own image, as highlighted by Professor Alan Paterson and Chris Paterson in their report Guarding the guardians?.

Professor Kate Malleson wrote on this blog in 2012, the use of a shortlist ‘would allow for an appropriate degree of political input in the process and would open space for the Lord Chancellor to promote greater diversity though his choice of candidates while maintaining selection on merit’. That appears to have been exactly how the use of shortlists worked in Australia for appointments to the federal courts other than the High Court. The government described the Attorney-General’s role in the process as ‘identifying a preferred candidate’ from the names forwarded to him or her by the Advisory Panel. While the Senate Committee agreed that the final decision was appropriately left with the executive, it was searching in respect of how that determination was made:

If the Attorney-General identifies the most suitable person based on their assessment against the selection criteria then it is desirable for this to be articulated. On the other hand, if the Attorney-General is not willing to state that selection is directly based on the selection criteria then this should also be articulated.

While the government was apparently not prepared to risk the political danger of divorcing itself from the rhetoric of making appointments ‘solely on merit’, if everyone on the shortlist has been judged sufficiently meritorious by the Advisory Panel then clearly some other factor is the ultimate determinant. In light of the government’s stated commitment to enhancing the diversity of the federal judiciary it is not hard to imagine that the candidates’ other attributes entered the equation. Some explicit support for this conclusion is discernible from an examination of some of the announcements of new appointments made under the reformed system – with the individual’s contribution to the diversification of the bench being occasionally acknowledged by the Attorney-General.

While judicial appointments reform in Australia has gone backwards, perhaps some aspects of it offer a useful perspective on live questions in the United Kingdom debate. In particular, the way in which ‘merit’ is generally conceived is startlingly different. The House of Lords declared that shortlists were basically antithetical to the principle of appointment on merit – a view not taken by members of the Australian upper house nor voiced in a single submission from the judiciary, legal professional associations or academics to that chamber’s inquiry.

The recent amendment to the Constitutional Reform Act providing that diversity considerations may be used to determine which name goes forward ‘where two persons are of equal merit’ has been welcomed but there are concerns as to the difference it will make in practice. To Australian eyes that scepticism appears well-founded since the ‘equal merit’ provision still reflects an insistence not only that the quality of potential candidates may be objectively measured, but that this enables persons to be ranked with some exactitude. Accordingly, a dead-heat must be anticipated as unlikely – and the statute simply does not countenance merit as something that might relevantly be possessed more widely than just two individuals.

Contrast this with the candid remarks in 2008 of Stephen Gageler SC, then Solicitor-General of the Commonwealth and since appointed to the High Court of Australia:

… [A]t any time there would be fifty people in Australia quite capable of performing the role of a High Court justice. My perception is that the pool gets proportionately wider the further down the judicial hierarchy you go… The notion that appointment can only validly be based on ‘merit’ is naïve.

McClelland’s reform of judicial appointments in Australia did not reject the rhetoric of ‘merit’ as the ultimate justification for selection of individuals to serve in the federal courts. But the design of those processes effectively signalled that while merit was essential, it was not the exclusive consideration. Although those reforms have now been undone, it is to be hoped that as a result of their five years’ operation, the government cannot completely retreat behind ‘naïve’ explanations as to why one individual is chosen for judicial appointment from amongst others possessing equivalent qualifications, expertise, and professional skills.

 

Andrew Lynch is a professor and Director of the Judiciary Project at the Gilbert + Tobin Centre of Public Law at the University of New South Wales, Australia.

(Suggested citation: A. Lynch, ‘Judicial Appointments in Australia – Reform in Retreat’ U.K. Const. L. Blog (26th May 2014) (available at http://ukconstitutionallaw.org/).

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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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