American 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)