Tag Archives: Australia

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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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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