PUBLIC LAW (LAWS1021)

1A: INTRODUCTION AND CONSTITUTION EXERCISE

1B: OVERVIEW OF THE AUSTRALIAN SYSTEM OF PUBLIC LAW

2A: CONSTITUTIONALISM AND THE RULE OF LAW

1. What are some common dichotomies that are used to describe different types of constitutions? Drawing on these dichotomies, how would you classify the Australian Constitution and the constitutions of the States?

'flexible' versus 'rigid' constitutions: a flexible constitution is when the law can be legally changed with "the same ease and in the same manner by one and the same body"; a rigid constitution is when fundamental laws can't be changed in an easy manner. Thus, I would classify the Australian Constitution as being a rigid constitution as in order to bring about a constitutional change, a referendum needs to be carried out. It needs to satisfy the requirements of s 128 in the Australian Constitution, i.e. there needs to be a majority of votes in a majority of states. On the other hand, the constitution of the States would be a flexible constitution.

'written' versus 'unwritten' constitutions: a written constitution is where there is a single 'written' document outlining the laws to be followed by political institutions; The Constitution of the United States would be a written constitution. An unwritten constitution is where certain laws are accepted as a matter of fact and not 'written' down in a single document. The constitution of the United Kingdom would be an example of an unwritten constitution. I would therefore classify the Australian Constitution and the constitution of the States as being both written and unwritten as it is a combination of both the systems of the United States and United Kingdom.

2. What is the difference between political and legal constitutionalism? What does each require to function effectively?

Political and legal constitutionalism both involve holding a government accountable for their actions - the former achieved through political means while the latter is achieved through legal means. In other words, the parliament will have the last say in a political constitution while the judiciary will have the last say in a legal constitution. Political constitutions require active politics with participatory and independent critics (in the form of opposition parties, independent institutions or the general electorate) that can scrutinise and debate decisions made by the executive power. Legal constitutions also require independence however the addition of monetary costs and abundant resources are needed for legal actions such as a judiciary review.

3. Has the ubiquity of the ‘rule of law’ robbed it of any real meaning?

The ubiquity of the rule of law doesn't diminish its true meaning in any way, but its commonplace application in areas from conversation to legal arguments can misconstrue its technical definition. Like the often misused and misinterpreted argument of "constitutional/unconstitutional", the "rule of law" argument is, as Tamanaha asserts, sometimes used as "an empty phrase" lacking substantial meaning. Where this is the case, it would be false to assume that a cultural misunderstanding of a concept changes the real meaning - the definition of the rule of law stays the same regardless of the majority's mistake. It is also valid to assume that as a result of the overuse and over-application of the rule of law in argument, the present-day notion of the rule of law differs from the meaning implied in the Magna Carta and by Dicey. However, while one could suggest that this ubiquity "robs" the rule of law from its real definition (that is, the coexisting notions of no one being above the law, thereby protecting against the abuse of power, and everyone being subject to the law, thereby controlling the actions of citizens), one could equally suggest that the rule of law itself has changed to accommodate the changes in society: its culture and its laws.

4. What is the difference between formal and substantive conceptions of the rule of law?

A formal conception of the rule of law focuses on proper sources and forms of legality. This theoretical conception is comprised of three elements. First, laws must be promulgated in the proper manner. Second, laws must be clear so individuals can rely on it to guide their conduct. Third, enacted laws must satisfy certain temporal dimensions (i.e. laws apply prospectively). Since this formal conception does not evaluate the actual content of laws, it is deemed the thin account to the rule of law.

A substantive conception of the rule of law consists not only of the aforementioned formal attributes, but also considers the content of laws. Under this conception, “good” laws are those that are in accord with substantive rights derived from the rule of law or other moral principles. Since the substantive conception accounts for these additional complex factors, it is regarded as the thick account to the rule of law.

5. What is the purpose of having a separation of powers? In simple terms, what powers are ascribed to the three arms of government in Australia?

The purpose of having a separation of powers is to limit the power and to prevent abuse of power (by a single authority). There are three main kinds of government power: legislative power; executive power and judicial power. Firstly, the power of legislature is the making of new law, and the alteration or repeal of existing law. Secondly, executive carries on the government according to law, including the framing of policy and the choice of the manner in which the law may be made to render that policy possible. Lastly, the judiciary power includes interpretation and application of the law or discretion to the facts of particular cases which involves the ascertainment of facts in dispute according to the law of evidence.

Adding to the points above, a contrast can be made between the idea of a “representative” and “responsible” government with concepts of "federalism" and "separation of powers". A representative and responsible government embody the idea that the parliament (democratically elected by citizens) is a central consolidated chain of command giving power to the people, for instance the British Constitution. In contrast, the separation of powers into the legislature, executive and judiciary is more concerned with protecting its citizens from arbitrary abuse of power. Australia is a constitutional hybrid that borrows elements from both systems, whilst the States is more adherent to the separation of powers and federalism. B&W notes however, that every system must have both of these functions

2B: A ‘WASHMINSTER’ HYBRID

1. What elements of American constitutionalism did the drafters of the Australian Constitution embrace? What elements did they steer away from?

Of the three key elements of American Constitutionalism discussed by Gageler, the concepts of separation of governmental powers as well as judicial review were embraced by the drafters of the Australian Constitution. While these elements are not a direct copy of the American model, they are very similar in that no single agency has complete authority, providing checks and balances on each other. On the other hand, Australia steered away from the element of representative government, preferring instead the Westminster’s approach of responsible government. A potential reason for this, as suggested by Irving, is the belief by the drafters that representative government would make Australia “too American.”

2. What elements of British constitutionalism did the drafters draw on?

The elements of British constitutionalism that the drafters drew on include responsible government, a hereditary Head of State, the Australian Parliament's acquisition of the privileges of the House of Commons, the prohibition on money bills originating in or being amended by the Senate, the absence of a bill of rights, unstated convention like the existence of a Prime Minister in the Lower House, and a Cabinet and unwritten details (e.g. the Governor-General's practice of taking advice from his ministers) were assumed.

3. The British and American constitutional systems take very different approaches to the division of governmental power (ie, the separation of powers). What are some key differences?

Comparing the British and American systems, the division of power is more evident in the American system. The executive in the American system does not contain any members from Congress and the United States Supreme Court is an independent arm of the government. Hence, the governmental power is split into these three arms without any direct influence on each other and as how Irving expresses it as being limited. However in the British system the arms of government are not completely independent of each other. The executive are members of Parliament and appeals that are normally heard by a supreme court is heard in the Parliament. In the British case, there is no distinct separation of power as the Parliament is at the centre of both the executive and the judiciary.

Consisting of two contrasting constitutions, Australia’s constitution has various elements that reflect the American and English constitution. The British part of the constitution is the responsible government, the Australia Parliaments acquisition of the privileges of the House of Commons, a hereditary, the prohibition of money bills originating in or being amended by the Senate, the unstated constitution and the absence of the bill of rights. The American constitution influenced the Australian constitution In terms of the distribution of powers where the Commonwealth specifies and limits power. Also, with the existence of the High Court and constitutional review, the senate has similar powers to the lower house where representation of each state is in equivalent numbers. Differentiating, Australia is a constitutional monarchy and the US is a republic. A defining feature of the American constitution in the Australian constitution is the separation of powers of the executive, legislative and judiciary. The British political system has no such separation of power where up until recently the Lord Chancellor was a member of all three arms of government.

4. Why is Parliament supreme in the British constitutional system? Why not, say, the Executive?

In Britain, the doctrine of parliamentary sovereignty is a cornerstone of its Constitution. In essence, this means that it has the right to make any laws and cannot be overridden. Hence, it is supreme & the executive cannot overrule it. In fact, under the principle of ministerial responsibility, the executive is responsible to the legislature.

AV Dicey (p63) " There is no persons...who can, under the English constitution, make rules which override or derogate from an Act of Parliament"

From my understanding, this developed out of the Bloodless Revolution which lead to the enactment of the Bill or RIghts 1688 and Act of Settlement 1701 which signaled that "Parliament, and not the monarch, was the supreme law making body of England."

5. The combination of UK-US traditions gave rise to some tensions in Australia’s constitutional arrangements. What are they?

3A: CONTESTED TRADITIONS: POLITICAL AND LEGAL CONSTITUTIONALISM

1. What does Dicey mean by ‘parliamentary sovereignty’? According to Dicey, what limits exist upon the powers of a sovereign Parliament?

According to Dicey, ‘parliamentary sovereignty’ refers to the right of Parliament, under the constitution, to make or unmake any law. This notion suggests that no individual has authority to override or set aside the law of Parliament. The application of authority by parliamentarian forces is ultimately restricted by external and internal limitations. The external limit to the powers exercised by a sovereign consists in the possibility that individuals may challenge or resist the laws of Parliament. The internal limitation arises from the moral feelings of those who sit in Parliament. In this sense, Parliament may be restricted by current social conditions and standards.

2. What does TRS Allan mean when he says that the notion of parliamentary sovereignty is limited by a ‘deeper constitutional morality’?

In my opinion, Allan is expanding on Dicey’s point of an internal limit on Parliamentary sovereignty, where morality would ultimately set the boundaries to a Parliaments decisions. The basic meaning of 'constitutional morality’ is given by Allan with regards to the UK Parliament upholding democratic principles and being a representative government, which means commitment to the best interests of the electors. Stepping beyond those limits would lead to the disintegration of a democratic and respected system. It would lead to doubts on whether acts enacted by a constitutionally immoral Parliament would hold as law. It would create tension between the Parliament and the Judiciary, where the judiciary’s role of obedience and interpreting the law expands to questioning the grounds of its existence. Finally, it would undermine the pillars of the Rule of Law, one being that the law is a result of the ordinary law of the land.

3. Is parliamentary sovereignty compatible with the rule of law?

Parliamentary sovereignty is compatible with the rule of law to a certain extent. Parliamentary sovereignty is primarily concerned with the supremacy of law, whereas the rule of law places an emphasis on equality before the law such as to preserve human rights with no arbitrary abuse of power. They are in this sense incompatible with one another, especially when Parliament can pass new legislative amendments to override any existing jurisdiction of courts. However, parliamentary sovereignty is compatible with the rule of law through the process of statutory interpretation. Statutes established by the sovereign Parliament are presumed not to be intended "to impair civil liberties or fundamental human rights". The reconciliation of the supremacy of law and the rule of law is evident in Potter v Minahan where the statutory interpretation of the Immigration Restriction Act 1901 (Cth) has verified an Australian-born remaining, departing or re-entering Australia as not being an 'immigrant', which upholds the protection of rights. Also, as there are internal and external limits on Parliamentary sovereignty, the arbitrary abuse of power is thought to be much more limited.

4. What is judicial review? What is the difference between rights-based and structural judicial review (give some examples)?

Judicial review refers to the power of judges to overturn laws made by Parliament. A rights-based judicial review is based on assessing whether a proposed law interferes with rights that are so fundamental that they are said to be beyond legislative interference. An example of this would be Dicey’s hypothetical law that would provide that “all blue-eyed babes should be murdered”. A “structural” judicial review is based on assessing a proposed law with respect to Constitutional provisions about how, where and when institutions of government operate. An example of this would be the High Court’s ruling on the constitutional validity of “bikie laws”.

5. What justifications are there for giving the courts the power to review the constitutional validity of legislation? Why not give it to another body?

6. Is the power of judicial review consistent with a democratic system of government?

3B: INDIGENOUS SOVEREIGNTY AND CROWN SOVEREIGNTY

1. The readings for this class highlight some of the different ways in which the word ‘sovereignty’ is understood within the Aboriginal and Torres Strait Islander community. What are they?

Firstly, the Aboriginal and Torres Strait Islanders community argue that they were sovereign before Australia was colonised, that their sovereignty was never extinguished and still remain intact today. In general, sovereignty is about the power and authority to govern. Irene Watson argues that sovereignty was understood to law and responsibly maintain the country for the benefit of future carers of law and country. A different understanding was

the capacity to make decisions across their political, social and economic lives, where Aborigines did things as Aboriginal people and controlled the aspects of their existence which were Aboriginal. The Aboriginal Provision Government (1992) interpreted sovereignty to exercising total jurisdiction over its communities to the exclusion of others, whose land base being at least the Crown’s lands and being able to raise its own economy and provide for its people. Another understanding is sovereignty lying inherent with the people, as basic power in the hands of Indigenous people, as individuals and as groups to determine their futures and does not require recognition by a government or court to activate it.

2. What are the main elements of the UN Declaration on the Rights of Indigenous Peoples? Given that it is not legally binding within Australia, what function does it serve?

One of the main elements in the declaration is the Indigenous people’s right to self-determination. As shown in Article 3 and 4, self-determination involves the right to freely determine their political status and freely pursue their economic, social and cultural developments. In exercising self-determination, Indigenous peoples have the right to autonomy in terms of self-government. Another important element involves the importance of the right to participate. Article 18 outlines the right to participate in decision making that may affect their rights through representatives chosen by themselves. Articles 19, 23, 32(2) further outlines the Indigenous people’s right to be actively involved in the development of areas such as housing, health, land or legislation that may affect them. Whilst the declaration is not legally enforceable in Australia, Davis argues that it is an instrument that could help frame policies and laws that impact upon Indigenous peoples. One example is the 1948 United Nations Declaration of Human Rights, which shows that such statements, though non-binding, are able to influence the drafting of binding treaties and domestic legislations and policies.

3. How would you characterise the High Court’s position on Indigenous sovereignty?

When confronted with the issue of Aboriginal Sovereignty, the High Court has been particularly cautious with its position. Whilst the Mabo [v Queensland] judgment was important in overturning the doctrine of terra nullius and recognising native title of the Indigenous, the High Court has since been reluctant in extending its acknowledgement any further. Questions challenging the British Crown’s sovereignty would, in the view of the Court, “fracture the skeleton of principle which gives the body of our law its shape and internal consistency” (Brennan J in Mabo). The High Court’s position can also be evidenced in the decision of Yorta Yorta, whereby the Court has reasserted the principle that native title does not in itself give recognition to Aboriginal sovereignty. Moreover, by placing this issue beyond the reach of review in municipal courts, the High Court is effectively conceding on the sensitivity of such an issue and possibly suggesting that it is not up to the Courts to decide.

The High Court's position on Indigenous sovereignty can be ascertained through looking at the decisions in Mabo v Queensland. Although it may seem that the High Court recognized native title, it relied on a specific feature; indigenous rights existed only until extinguished or modified through a form of legislative action. This suggests that the High Court's position can be characterized as being detached. However, it must be noted that the decision of Mabo introduced the ability for the Indigenous Australian community to vocalise their interests in land. To some extent this gave them the ability to govern their own affairs; a characteristic of sovereignty.

The High Court has been unequivocal in saying that Indigenous sovereignty does not exist: Coe (No 2) 1993. With respect to Darwin, the court in fact has been very clear in stating that Indigenous sovereignty does not exist and has not left much to chance in this area.

Moreover, to the extent that native title could be considered a form of sovereignty, that recognition would have to be restricted to a very limited form of sovereignty for two reasons. Firstly, Yorta Yorta explains the courts view that native title only exists because it is recognised by the legal system. This undermines the whole principle of sovereignty, but moreover the test of not having new law making since 1788 makes the claim of native title difficult

to prove. Secondly, as explained in the Native Title Report, "native title" only grants inferior land rights with no recognition of Indigenous legal, political or economic systems.

Thus in my opinion, the High Court of Australia has been clear in saying that Indigenous sovereignty does not exist.

4. Does the issue of sovereignty pose a legal roadblock to a treaty process? In thinking about this question, consider what Australia might learn from the experience of other countries (eg. USA, Canada and NZ)

The issue of sovereignty, to some extent, poses a legal roadblock to a treaty process. The Australian government, unlike Canada, has not explicitly recognised the inherent right for Indigenous self-government. Instead, the dominant federal government position, especially under Prime Minister John Howard, was one that emphasised “practical reconciliation”. Rather than making binding forms of agreement with Indigenous communities, this approach focused on improving specific outcomes in areas (e.g. health, education etc.) of indignous disadvantage. In essence, on the grounds that Indigenous people were not sovereign, Howard declared it irrational for a “country to negotiate a treaty with itself”. Nevertheless, Dame Sian Elias points out that since treaty making is about political arrangements that have legal consequences, it can proceed even if sovereignty is contested. Canada, as an example, highlights this possibility. Prior to receiving constitutional protection or federal government recognition (aforementioned), Indigenous people had engaged in a long history of treaty making stretching back to the 1664 Treaty of Albany. From the experiences of contemporary Canada, Australia might be able to learn a few things. First, if we are unable to achieve a treaty “big bang”, we could consider treaty-making in its incremental form by agreeing on interim measures that can deliver tangible short-term benefits. Additionally, we can also consider developing a fixed process, like the 6 step “made in BC treaty”, that encourage both sides to negotiate and forge relationships based on mutuality.

4A: INDIGENOUS PEOPLE, VOTING AND THE CONSTITUTION

1. In what ways were Aboriginal and Torres Strait Islander peoples acknowledged in the Constitution prior to 1967? What role did they play in the drafting of the Constitution?

The Constitution prior to 1967 explicitly acknowledged Aboriginal peoples in s 127 and s 51(xxvi). Section 127 stated that the population count of the Commonwealth or States was not to include Aboriginal natives. This section prevented States with a higher Aboriginal population from gaining a disproportionate amount of revenue and more seats in Parliament. Section 51(xxvi) allowed Parliament to make laws with respect to the people of any race other than aboriginal race in any state, which essentially allowed them to enact special laws for racial denominations, except for Aboriginal people. In effect, constitutional acknowledgement of Aboriginal peoples prior to 1967 was racially discriminatory.

The Indigenous played a minimal role in drafting the Constitution. Aboriginal peoples outside of SA were unable to vote and elect delegates to represent them, much less participate in the constitutional conventions. Davis argues that this exclusion from the drafting process has entrenched the marginalisation of Aboriginal peoples by the Constitution.

2. To what extent has section 41 of the Constitution provided Aboriginal and Torres Strait Islander peoples with a basis for achieving voting rights?

Section 41 of the Constitution provides that ‘no adult person’ entitled to vote at State elections should be prevented from voting at federal elections ‘by any law of the Commonwealth.’ During the first federal election in 1901, this operated to ensure that Aboriginal women in South Australia could vote, as well as Aboriginal men in all States except Queensland and Western Australia. Thus, under Section 41, the Aboriginal people who acquired a constitutional right to vote at the 1901 election retained those voting rights forever. However, a narrower interpretation emerged that treated Section 41 as merely a transitional provision that only regulated the franchise of the first federal election in 1901. Using this interpretation, the Electoral Commission consistently denied federal

enrolment to any Aboriginal person not entitled to vote in a State election before 1902. Thus, even Aboriginal people who were clearly able to vote under Section 41 (Aboriginal people in SA and Aboriginal men in NSW, TAS, and VIC enrolled before 1902) could have their voting rights taken away from them.

Thus, it seems that in theory, Section 41 did provide the basis for the consolidation of Aboriginal voting rights but in some cases, voting rights were taken away under a narrow interpretation of Section 41.

3. What constitutional amendments were made as a result of the 1967 referendum? Why is that referendum sometimes said to have an ambiguous legacy?

Following the 1967 Australian referendum, two provisions within the Constitution were annulled. Provision 127 which had previously discounted Aboriginal people from being included within the nation’s census data was repealed. The removal of section 51 (xxvi) also occurred wherein the constitution’s specific reference to “people of the aboriginal race in any state” in regards to the commonwealth’s power to create law was now left vacant. Although direct reference to Aboriginal people in the Constitution was now officially no more following these amendments; ambiguity arises as to whether the referendum’s results did in fact render it successful in achieving justice for Aboriginal people.

While the repeal of Provision 127 was undeniably an important and essential step towards achieving justice and equality for Aboriginal people in Australia, the effectiveness of eliminating Section 51 (xxvi) in this regard is questionable. While Noel Pearson observes how the referendum's reforms encouraged “neutral citizenship” for Aboriginal peoples, it should be noted (and some may still argue today as the then Prime Minster Robert Menzies did), that this section was actually intended to act as a safeguard against potentially unfair legislation which may have negatively impacted Australia’s original inhabitants; this section may have in effect benefited this marginalised people too…Just as Noel Pearson explains, what is still needed is a positive recognition of Aboriginal peoples status; this recognition however simultaneously harmonized with a common Australian citizenship.

The 1967 referendum deleted the words in italics in s 51(xxvi) and also repealed s 127 of the Constitution. However, the amendments did not insert anything in the place where the texts were deleted from the Constitution. As a result, they left the Constitution silent with respect to Aboriginal people. While the objectives of the 1967 referendum was to remove discriminatory references and to allow the Commonwealth to take national responsibility for indigenous welfare, the failure to reflect this benevolent intention of the Constitution imposed disadvantage on Aboriginal people. This is because the open words of s 51(xxvi), and the racially discriminatory intentions behind it, were extended to Aboriginal people without any indication that the power can be applied only for their benefit. In addition, the 1967 referendum left s 25 of the Constitution untouched. Section 25 lowers the population count of a State if that State disqualifies people of a particular race from voting, and thus penalises it by restricting its parliamentary representation. This provision tacitly acknowledges that Aboriginal and other racial groups can be so disqualified by the Australian States

4. In what ways have the recommendations of the Expert Panel sought to remove the potential for the Constitution to discriminate on the basis of race?

The Expert Panel recommended a two pronged approach to removing the potential for racial discrimination in the Australian Constitution. The first is to repeal the existing 'race provisions' (section 25 and 51 (xxvi)). Section 25 allows for State laws which disqualify people from voting on the basis of race. Section 51 (xxvi) allows the Parliament to make special laws for specific racial groups. These two existing provisions allow the Parliament to make laws with potentially discriminatory outcomes. The second tier to the recommendations of the Expert Panel is to replace these 'race provisions' with racial non-discrimination provisions. These would be sections 51A, 116A and 127A of the Constitution. Some outcomes of these provisions include:

- Recognising that the Indigenous people were the first occupants of Australia and have a continued relationship with the land.

- Giving Parliament the power to make laws which advance Indigenous people.

- Ensuring that no level of government can discriminate on the grounds of race.

These provisions can be seen to rectify the "neutral citizenship for the original Australians" that occurred after the 1967 referendum, as identified by Noel Pearson.

The Expert panel recognised the strong push for an additional preamble to be inserted in the Federal Constitution, but found that having two preambles would cause uncertainty and affect the interpretation of various other clauses within the Constitution. The Expert Panel then sought to remove any potential for discrimination in the Constitution, whilst being ‘legally sound’ by firstly, repealing ss 25 and 51(xxvi); which contemplated disqualification of voting power at state elections on the basis of race, as well as legislating discriminatory laws against the wellbeing, peace and rights of the Indigenous people. Secondly, inserting new provisions including: ss 51A and s 116A to recognise the Indigenous people as original inhabitants, acknowledge that their cultures, languages and heritage continue to be a part of Australia’s sense of nationhood, and prohibit racial discriminatory legislation from being passed unless for the overcoming of disadvantage and/or protection of any racial group’s heritage . The panel suggested that the insertion of these new provisions along with s 127A (recognising the Aboriginal and Torres Strait languages as the original language of our nation), will annul the need for an additional preamble as the recommendations show both retrospective recognition and prospective ‘advancement’ towards securing Aboriginal reconciliation and nullification of potential racial discrimination.

4B: THE PATH TO FEDERATION: THE ACQUISITION OF LEGAL INDEPENDENCE AND POPULAR SOVEREIGNTY

1. Prior to 1865, could the colonial legislatures pass laws that were inconsistent with British statutes or common law? What was the position after the passage of the Colonial Laws Validity Act 1865 (Imp)?

Prior to 1965, colonial legislatures could not pass laws that were inconsistent with British statutes or common law. This was because the legislatures were considered subordinate legislatures and were the result of the operation of a higher law (Act of the British Parliament). This meant that local laws that were considered to be even minutely inconsistent with the Statutes and unenacted laws were able to be struck down. This changed after the passage of the Colonial Laws Validity Act 1865. Colonial legislatures were given power to amend or repeal British laws, as long as such laws were still valid under their own constitutions. This power was conferred in sections 2 and 3 of the legislation. Despite this, Australia remained unable to reject or alter British legislation that applied by paramount force. After 1965: could pass law inconsistent with British common law and legislature (except those applying by ‘paramount forces’: by necessary intention applied locally to Australia eg. Merchant Shipping Act & Australia Act)

2. What were the main reasons that the Australian colonies decided to join together in a federation? What were some of the main obstacles to federation?

The main factors that led Australian colonies to federation included the mutual fear against mutual enemies and a rise of nationalism. During the 1880s, these enemies were notably the German and French activities in the South Pacific region, threatening Australian land. The Premier of NSW Henry Parkes led the rise in nationalism among the colonies in the 1990s. He instigated discussion at the National Australasian Convention where the structure and process to federation was deliberated. This led to consideration of international models such as Canada or the US, further conventions, drafts and eventually federation.

However, federation came with many obstacles including trade, finance and power of colonies. Customs tariffs and trade policies proved to be a road block to federation. For example, NSW wanted free trade between colonies while Victoria preferred protectionist policies for their local industries. Another area was the representation of states in

the houses of parliament. Smaller states wanted enough power to control the larger states which would have a higher number in parliament, representing their larger populations. In addition, smaller states felt that federation was a threat to their sense of identity, while the larger states felt the burden of carrying the smaller struggling economies

Furthermore, issues that were prompted lengthy discussion was the question of Privy Council as there was some tension between which court should be the final court of appeal. There was concern that the Federal Parliament would restrict the right of appeal from the High Court to the Privy Council and there had been indications from London that they preferred to keep their right to hear appeals by the Privy Council. Consequently compromises had to be made and eventually it was decided that the High Court would be the final court of appeal for issues concerning the interpretation of the constitution unless the High Court determined that the matter should be heard and determined in the Privy Council.

In addition to what Annie said, another area of concern which is slightly related to representation of states in the Houses of Parliament is how deadlocks would be resolved in Parliament. As Anni mentioned that smaller states wanted enough power to control the larger states, on the other hand larger states were concerned that by resolving deadlocks through a three fifths majority, this would allocate a disproportionate amount of power to the smaller states.

3. What were the doctrines of repugnancy and extraterritoriality, and when did they cease having effect at Commonwealth and State level? Is Australia now a legally independent nation?

The meaning and application of the doctrine of repugnancy was most clearly articulated in the Colonial Laws Validity Act (CLVA) 1865. Sections 2 and 3 of the CLVA stated that colonial enactments were repugnant (i.e. invalid) if they were inconsistent with English statute applied by paramount force (i.e. by express words and necessary intention). A moderate reading of the doctrine of extraterritoriality : revealed that the colonial Commonwealth and state governments could only validly exercise legislative power within, or in relation to activities with sufficient connection, to its geographical boundaries (eg. regulating criminal laws on navy ships). This in essence meant that the colonial legislatures may have had to rely on the UK to make laws regarding external affairs or trade with other countries.

These two doctrines technically ceased having effect at the Commonwealth level after the UK parliament enacted the Statute of Westminster (SoW) 1931 (Imp). However, since the SoW was not automatically adopted in Australia, the Australian Commonwealth only gained full legal independence after the SoW Adoption Act 1941 (Cth), backdated to 1939. On the state level, the two doctrines were only repealed after the Australia Acts of 1986 . From this point, neither state nor federal governments were able to appeal to the Privy Council. Thus 1986 marked the year where Australia completely became a legally and constitutionally independent nation.

In Union Steamship Co of New Zealand v Commonwealth, provisions in the Navigation Act 1912 (Cth) were found to be inconsistent with the Merchant Shipping Act 1894 (Imp), in spite of s 98 of the Constitution (powers of Parliament in respect to trade and commerce extending to navigation and shipping). It was later found in Commonwealth v Kreglinger & Fernau Ltd (Skin Wool Case) that the doctrine of repugnancy did in fact cease to apply to Australia as seen in s 39(2)(a) of the Judiciary Act 1903, excluding appeals to the Privy Council. It was noted that the decision in Union involved the distinction of Australian to non-Australian ships whereby s 39(2)(a) dealt specifically with those defined as Australian. The s 39(2)(a) provision and the Judiciary Act maintains its validity as granted by the Constitution in Chapter III, and serves to a similar purpose as seen in s 11 of the Australia Act 1986 (Cth).

The invalidity of the doctrine of extraterritoriality through the Australia Act was applied in the High Court judgement of Sue v Hill. The UK was determined as a 'foreign power', which disqualified Hill under s 44(i) of the Constitution. It was also found that the UK had no legislative, executive or judicial power in Australia as provided by the Australia Act (ss 1, 11) in addition to the removal of the doctrine of repugnancy and extraterritoriality (ss 2, 3).

1901 – Cth 1901 - States 1939/42 - Cth

1939/42 – States

1986 – Cth 1986 – States

Repugnancy doctrine Yes Yes No No No NoExtraterritoriality doctrine

Yes Yes No Yes No No

Ability of UK to legislate for Australia

Yes Yes Yes – by request + consent

Yes No No

Eg. Copyright Act 1911 (UK)

- ‘paramount force’ in 1911 and 1928

4. In what ways might Australians be said to exercise popular sovereignty? Is popular sovereignty an adequate explanation of the underpinnings of the Constitution?

According to Geoffrey Lindell, he speaks of two main aspects to explain the constitutions character of the 1900s. Its legal status was given by the British imperial parliament, and its political legitimacy stems from the preamble, which states ‘ the Australian colonies having agreed to unite in a federal commonwealth’. This shows that the power of the constitution has stemmed from a majority vote of the Australian people in conjunction with the fact that due to s 128 of the constitution they have the power to amend the constitution in accordance with proposals initiated by the federal parliament. This coincides with the popular belief that ultimate sovereignty resides with the authority or body that according to the constitution may change the constitution. There are concerns that popular sovereignty does not adequately explain the foundation of the constitution due to the fact, that the referendum vote in 1901 did not entirely reflect the view of the majority. This is associated with the fact that only 52% of the persons eligible to vote in the referenda did so, as well as most aboriginal people and women being excluded from the vote

1986 ; Popular sovereignty Constitutional authority

1901; Act of British Parliament Constitutional authority

In my view, Australians exercise popular sovereignty in a very limited sense. Apart from voting, the people have limited power to exercise any form of authority. As Lindell states: ‘We treat our organs of government simply as institutions established by law, and we interpret their powers simply as authorities belonging to them by law.’ This contrasts with the American conception that the arms of government are just agents for the people, who are the source of power.

In 1901, our Constitution’s authority was derived from its status as an Act of the UK Parliament, binding by paramount force. However, I would argue that since the Statute of Westminster and the Australia Act of 1986, our Constitution’s underpinnings can be explained by popular sovereignty. I agree with Mason CJ’s comment in the ACTV case (1992) that the Australia Act ‘marked the end of the legal sovereignty of the Imperial Parliament and recognised that ultimate sovereignty resided in the Australian people’ (see also Deane J in Theophanous v Herald and Weekly Times Ltd (1994)). I disagree with George Williams’ argument that ignorance cannot provide a foundation for the popular legitimacy of the Australian Constitution. By refuting notions of ‘acquiescence’ and ‘complaisance’, Williams places unreasonable expectations on the everyday individual to comprehend what is, in Anthony Mason’s words, a ‘prosaic document expressed in lawyer’s language’. It seems improper to suggest that everyday Australians should be familiar with our rather dry and pragmatic Constitution.

5A: STATUTORY INTERPRETATION (I)

1. What does a literal approach to statutory interpretation involve? What are its strengths and weaknesses?

A literal approach to statutory interpretation involves giving the words their ordinary meaning and thus, taking the statute at face value. As asserted by Higgins J in Amalgamated Society of Engineers v Adelaide Steamship Co Ltd,

the legislation must be interpreted “according to the intent of the parliament,” which can only be found by an analysis of the exact language used. The main strength to this method is that it is most “reliable” (Justice Learned Hand), limiting the use of excessive discretion by the judges that could otherwise be influenced by external factors. Therefore, it can be argued that this approach provides consistency with what Parliament intended to draft and what is subsequently interpreted within the courts. However, some weaknesses also exist. For instance, Justice Kirby notably argued that the literal interpretation of legislation was narrow and that this did not allow for the drawing of more meaning if the text was ambiguous. Also, this approach fails to take into account the wider object and purpose that the act is trying to pursue.

The literal approach to statutory interpretation involves applying the exact words of a statute, limiting the interpretation of a statute to the language of the statute only. This approach is contrasted by the golden rule, which allows courts to modify the meaning of a word if such a meaning is absurd or inconsistent with the rest of the statute. The literal approach can however create awkward precedents, and does somewhat fail to recognise the nuances within the English language. In his article, Spigelman argues that if an individual were told to “drop everything and run”, the literal approach would allow them to drop a baby over a bath tub of water. However, an approach like this has the capacity to undermine people’s confidence in the law, and as LL Fuller claims – “surely we have a right to expect some modicum of intelligence from the judiciary”. Regardless, the literal approach does restrict the role of unelected judges, and ensures the words enacted by the Parliament, who have been popularly elected, are implemented by the judiciary. This guarantees the separation of powers and upholds parliament as the ultimate law making body. Regardless of these weaknesses, Spigelman believes there has been a slow move away from the literal approach, with the judiciary increasingly appreciating the importance of context when interpreting statues.

A further advantage of the application of the literal interpretation of an Act is that the language within the Act which the meaning is derived from, was agreed by the majority of the Parliament at the time it was passed and not just the mere personal views of individual members of Parliament. Furthermore, the exegesis of an Act allows the text to speak for itself through the critical analysis of definitions and clauses to construe the meaning and legal application of the Act, thus limiting the ability of Judges to interpret the text where they could apply their own bias and ideas to have a meaning which they desire.

2. What constitutes the ‘context’ of a statutory provision? What difficulties might a judge face in seeking to use context in interpreting a particular provision?

In CIC Insurance Ltd v Bankstown Football Club Ltd, it was determined that context should be an initial consideration and used in its ‘widest’ sense, to include the current state of law and the mischief Parliament intended to remedy by enacting the statue. In effect, consideration of the overarching context will naturally encompass the mischief rule (Spigelman at 824).

However, difficulties arise when judicial officers use context to interpret statutes. As Spigelman states, judges’ understanding of the concept of ‘context’ can vary significantly. He raises questions (at 826) that highlight the difficulty of determining the scope of context, the extent to which it extends beyond the words of the statute, and the degree to which it should influence statutory interpretation. Until these issues are reconciled, considerations of context are likely to give rise to inconsistencies in judicial decision-making. Justice Kirby asserts the importance of consistency when considering context, in order to avoid ambiguity and arbitrary considerations that undermine judicial legitimacy.

The literal approach to statutory interpretation involves applying the exact words of a statute, limiting the interpretation of a statute to the language of the statute only. This approach is contrasted by the golden rule, which allows courts to modify the meaning of a word if such a meaning is absurd or inconsistent with the rest of the statute. The literal approach can however create awkward precedents, and does somewhat fail to recognise the

nuances within the English language. In his article, Spigelman argues that if an individual were told to “drop everything and run”, the literal approach would allow them to drop a baby over a bath tub of water. However, an approach like this has the capacity to undermine people’s confidence in the law, and as LL Fuller claims – “surely we have a right to expect some modicum of intelligence from the judiciary”. Regardless, the literal approach does restrict the role of unelected judges, and ensures the words enacted by the Parliament, who have been popularly elected, are implemented by the judiciary. This guarantees the separation of powers and upholds parliament as the ultimate law making body. Regardless of these weaknesses, Spigelman believes there has been a slow move away from the literal approach, with the judiciary increasingly appreciating the importance of context when interpreting statues.

Due to the "orgy of legislation" as Justice Gleeson discusses, the need for understanding context surrounding formation of legislation is central to dictating what Parliament may have meant when they enacted a certain piece of legislation. Context in the form of legislation as Glesson alludes to, not only is concerned with the raw text of the legislation, but the circumstances surrounding this formation of the legislation. This can range from the historical background surrounding legislation, the constitution or any other helpful matter that can help unpack the rational behind the implementation of legislation.

In terms of difficulties surrounding a judge’s ability to use context to interpret legislation, we need only to look at the ambiguity that exists in some cases when Parliament may use vague and unclear language in the formation of legislation. The use of context may help understand the reasoning for enacting such a piece of legislation, but the mere understanding of what is contextually relevant differs from each judicial individual to the next. Whilst context is helpful to understand legislation, it is not to be solely relied upon.

3. What does section 15AA of the Acts Interpretation Act (Cth) say about the use of ‘purpose’ in statutory interpretation? What difficulties might a judge face in seeking to draw upon ‘purpose’ in interpreting a particular provision?

Section 15AA of the Acts Interpretation Act 1901 (Cth) implies that given a set of interpretations of a given legislation, the interpretation closest to the Act's purpose or object is preferred. While Kirby criticises Courts' tendency to rely on a literal interpretation, where it may be clear the purpose of the Act is contrary to this literal interpretation, several majority High Court rulings as well as Spigelman argue that "the courts must determine what Parliament meant by the words it used. The courts do not determine what Parliament intended to say". Therefore, the purpose or object of the Act is used where the literal reading of the Act leads to several interpretations.

Gleeson identifies two key issues that Judges face in identifying the purpose of an Act. First, he argues that Parliament usually has several "purposes" to creating legislation, many of them conflicting, and that the Act is created as a result of compromising between different policies. Second, he argues that for some issues arising in courts, "Parliament has deliberately refrained from forming or expressing a purpose", allowing the courts to complete this interpretation.

4. What are extrinsic materials, and when can a judge make use of them in the course of statutory interpretation? What are some of the criticisms of the use of extrinsic materials?

Extrinsic materials are sources that are not included in the statute itself, but can assist in clarifying the meaning intended by Parliament. These include explanatory memoranda, parliamentary speeches (e.g. the second reading speeches that introduce the bill into Parliament) and law reform commission reports that can provide insight into the true intention of the legislative change. Section 15AB of the Acts Interpretation Act provides for the use of extrinsic materials in statutory interpretation by judges. Here, recourse to extrinsic material is only appropriate if (a) the provision is ‘ambiguous’ or ‘obscure’ or (b) the ordinary meaning as conveyed by the text leads to a ‘manifestly absurd or unreasonable’ interpretation of the statute. In Catlow, Brennan and Gaudron JJ’s judgement reinforced the

notion that it is only when the meaning of the text is in doubt that extrinsic material may be helpful. If the meaning of the statute is plain, extrinsic material plays no role in its alteration.

There are however some criticism of judicial use of extrinsic materials, the most significant being that Parliamentary speeches tend to only express personal views of specific members and may not in fact represent the collective view. Consequently, some speeches may not be helpful to judges trying to ascertain the crux of Parliament’s purpose and reasoning behind the statute. Furthermore, references to extrinsic materials in cases has been said to prolong the length of hearings. The High Court has in fact adopted a cautious approach to the use of Hansard and similar materials, for these reasons, and restricted the use of extrinsic material to Section 15AB. Lastly, Hansard and other extrinsic materials like committee reports may not be readily available, particularly for the lower courts.

5B: STATUTORY INTERPRETATION (II)

1. What is the principle of legality? Is it consistent with an approach to statutory interpretation that respects parliamentary intention?

The principle of legality is the notion that legislation is construed consistently with fundamental rights. This arises from the assumption that parliament does not legislate in a vacuum but rather, for a democracy and therefore, cannot override fundamental rights with general or ambiguous words. As Spigelman J asserts, the principle of legality is therefore a unifying concept covering the overall purpose of a number of interpretive principles which have in the past been called presumptions or maxims.

In the absence of express language or necessary implication to the contrary, the principle of legality means that courts presume that even the most general words were intended to be subject to the basic rights of the individual. Effectively, this means that the principle of legality appears to have the opportunity to change the natural meaning of a legislative provision. However, as O’Connor J suggests in Potter v Minaham (1908) 7 CLR 277, “it is in the last degree improbable that the legislature would overthrow fundamental principles, infringe rights or depart from the general system of law, without expressing its intention with irresistible clearness.” Furthermore, Gleeson CJ asserts that parliament and courts are both aware that the principle of legality is a working hypothesis that will be the basis upon which statutory language will be interpreted. Therefore, the principle of legality is still consistent with an approach to statutory interpretation that respects parliamentary intention – courts will protect rights as intended by parliament unless specified and made squarely clear.

As identified by French CJ in Momcilovic v The Queen, statutory interpretation serves a role in entrenching rights considered constitutional in nature. However, it leaves the door open for such rights to be infringed if the parliament unambiguously expresses its intention to do so. In essence, this means that such an approach to statutory interpretation clearly respects parliamentary intention.

In fact, the bounds limiting judicial exercise of the principle of legality rests in the separation of powers and principle of parliamentary sovereignty. Ultimately, the principle of legality cannot extend beyond its rationale – i.e. protecting people from “inadvertent & collateral alteration of rights… inadvertent & collateral alteration of rights… important within a system of representative & responsible government under the rule of law” (Lee v NSW Crime Commission). Thus, the common law practices of statutory interpretation plays a key role in defining the boundaries between judicial and legislative functions, deferring ultimate power to the parliament.

2. Drawing on a case mentioned in the readings, give an example of the courts applying the principle of legality in practice.

The principle of legality was applied in Evans v New South Wales (2008) by the Federal Court, regarding Clause 7(1)(b) of the World Youth Day Regulation (NSW). Protestors argued against Clause 7(1)(b), which authorised persons to intervene if their conduct ‘… causes annoyance or inconvenience to participants in a World Youth Day event’. Judges read that this regulation could be applied irrespective of how many people were ‘annoyed’ and subsequently used to

infringe the rights of people deemed annoying. In applying the principle of legality to the World Youth Day Act 2006 (NSW), the court considered the fundamental right in question to freedom of expression. Through a narrow reading, they found that the subjectivity of ‘annoyance’ and the regulation of ‘annoying’ behaviour effectively ‘affected the freedom of speech in a way … not supported by the statutory power’. Consequently, the regulation was found to be invalid as far as it applied to conduct that may annoy participants.

3. When is legislation said to operate retrospectively? What is the presumption against retrospectivity?

Legislation is said to operate retrospectively when parliament makes a clear statement of it within the Act. However, this is not the case if it deprives a person of existing common law rights such in Georgiadis v Australian and Overseas Telecommunications Corp. If the legislation was taken to operate retrospectively it would remove the property rights of the person and as a result found the provision invalid. Furthermore, limitations are set by different jurisdictions in regards to the retrospective operation of legislation. In most cases, backdating is prohibited unless it is beneficial to a person or have no liability imposed on them.

The presumption against retrospectivity assumes that, unless stated in the Act, the Act is to not have retrospective operation. This only arises when the legislation would have a negative impact on a person’s accrued rights or duties. The weight of the presumption is determined by the nature and degree of the injustice which would be the result of legislation acting retrospectively. However, the whole context of the legislature needs to be considered as it may be unjust for one person but perfectly just for all that are affected when a broad view is considered.

4. Drawing on a case mentioned in the readings, give an example of the courts applying the presumption against retrospectivity in practice.

The famous case of Maxwell v Murphy (1957) 96 CLR 261 showcases the presumption against retrospectivity. In this case, the court applied legislation which had been in force when the facts of the case occurred. It refused to apply amended legislation retrospectively as the legislation did not appear, with 'reasonable certainty'. to be intended to apply retrospectively. The facts of the case were that new legislation extended the right of a widow to bring action for damages arising out of the death of her husband from one year to six years. This new legislation came into effect after her right had expired. Had the court held the legislation as apply retrospectively, it would have conferred liability on the defendant and revived an extinguished right.

Another case where the court may be seen upholding the presumption against retrospectivity is Bakker v Stewart [1980] VR 17. This case involved an amendment to eliminate the power of the Court to release those convicted of particular drink-driving offences on bonds. It was held that to have this limitation operating on persons who had offended prior to the amendment would raise the penalty for the offence retrospectively. Essentially this would result in an unjust outcome for previous offenders and resultantly, it was held that the legislative change did not restrict the Court's power to release on bonds, those who had committed offences before the amendment. This does however appear to contradict the findings in Re a Solicitor's Clerk [1957] 1 WLR 1219 and La Macchia v Minister for Primary Industry (1986) 72 ALR 23, where convictions prior to legislative change formed the basis for the future operation of laws. I have attributed this difference to the fact that retrospective operation of the law in Bakker would have unjustly raised the penalty for offences as opposed to the consequences, but am unsure. Does anyone have any ideas?

To add, there is also alternate authority as to when the presumption should apply. For instance, in Attorney General of New South Wales v World Best Holdings 2005, Spigelman CJ wrote that construing legislation as acting retrospectively needs to be done after considering the rights of the parties and the unfairness in doing so. Obviously this raises a question of what is "fair." In response to this Maxwell states that it is necessary to look to the intention of the legislation, because whilst curtailing a party's rights might be unfair to them, it might be in the community's interest to do so.

The view propounded in this case is not necessarily in direct tension with the presumption; it merely argues that the presumption should not be applied blindly and should only be done after careful considerations of the circumstances.

6A: THE LEGISLATURE (I)

1. What is the difference between a single-member preferential voting system (such as that used for House of Representatives elections) and a proportional voting system (such as that used for Senate elections)?

s 240 required voter to fill ballot paper by allocating preferences among candidates for whom the voter does not wish to vote

2. Why might party discipline be considered a threat to responsible government? What does Thompson mean by the term ‘responsible party government’?

Overtime society’s view on what ‘democratic representation’ actually encompasses has altered; a number of key social deviations altering the public’s perception on what the role of parliament is. Elaine Thompson observes how it was largely the 'optimistic post-war generation' responsible for these changes; American influences encouraging new perspectives. Some of these deviations are explained below:

Following 1967, the belief in ‘Majoritarianism’; that is the idea that the majority should have a degree of primacy in the decision making process, became challenged by outspoken minorities wanting equal representation; this political philosophy creating friction with the democratic ideals of ‘responsible governance’. Party line voting also declined; this process wherein members of a party would all vote in one way in opposition to another political party who would do the same resulting in no true assessment of issues; party policy overriding any true contemplation and representation of individual members beliefs disregarded. Minor parties and Independents also began to emerge. While a stable two party dominated system exists in Australia today, these smaller political entities have enabled greater choice for voters. Rodney Smith (University of Sydney Professor on Politics) highlights how although these parties have had limited success in winning seats in state elections, he observes how this ‘third force in politics defining itself against both the major parties proves remarkably resilient’. The representation of women in Parliament has also increased, Australia’s first female Prime Minister Julia Gillard elected in 2010’s election; the 27th elected PM in Australia.

Other changes include:

- Senate’s power and role in acting as a check on Government improved.

- 1975 Constitutional Crisis; Then PM Gough Whitlam was dismissed from his post by the Governor General

3. What are some of the post-1967 developments (eg, social changes; electoral reforms) that have altered the nature of ‘democratic representation’?

Overtime society’s view on what ‘democratic representation’ actually encompasses has altered; a number of key social deviations altering the public’s perception on what the role of parliament is. Elaine Thompson observes how it was largely the 'optimistic post-war generation' responsible for these changes; American influences encouraging new perspectives. Some of these deviations are explained below:

Following 1967, the belief in ‘Majoritarianism’; that is the idea that the majority should have a degree of primacy in the decision making process, became challenged by outspoken minorities wanting equal representation; this political philosophy creating friction with the democratic ideals of ‘responsible governance’. Party line voting also declined; this process wherein members of a party would all vote in one way in opposition to another political party who would do the same resulting in no true assessment of issues; party policy overriding any true contemplation and representation of individual members beliefs disregarded. Minor parties and Independents also began to emerge.

While a stable two party dominated system exists in Australia today, these smaller political entities have enabled greater choice for voters. Rodney Smith (University of Sydney Professor on Politics) highlights how although these parties have had limited success in winning seats in state elections, he observes how this ‘third force in politics defining itself against both the major parties proves remarkably resilient’. The representation of women in Parliament has also increased, Australia’s first female Prime Minister Julia Gillard elected in 2010’s election; the 27th elected PM in Australia.

Other changes include:

Senate’s power and role in acting as a check on Government improved.

1975 Constitutional Crisis; Then PM Gough Whitlam was dismissed from his post by the Governor General

4. What does ‘office of profit under the Crown’ mean in s 44(iv)? What is the rationale behind s 44(iv)?

An officer for profit under the crown, in simple terms, is someone who is employed in the public sector. Under s 44(iv) disqualification occurs for any person who:

“Holds any office of profit under the Crown, or any pension payable during the pleasure of the Crown out of any of the revenues of the Commonwealth”

There are 3 crucial reasons for s 44(iv) (as discussed in Sykes v Cleary (1992)). Firstly, the performance of public duties will detract from the ability to attend to the requirements of being a member of the House. Conversely, being a member of the House will harm the performance of the person’s public service duty. These two reasons are grounded upon time constraints. Finally, there is a significant risk that the Minister (of the department in which the public servant works) will be able to influence the political opinions of a member of the House – Parliament. This would enable the executive to have disproportionate influence over Parliament. Further, under the principle of responsible government, a minister is responsible to the Parliament for the activities of his/her department. It is nonsensical for members of Parliament, who are public servants, to hold ‘their’ minister to account.

5. What is the rationale behind s 44(i)? What must dual citizens do in order to become eligible to sit in the Commonwealth Parliament?

Section 44 (i) of the Constitution states:

Any person who: (i) is under any acknowledgment of allegiance, obedience, or adherence to a foreign power, or is a subject or a citizen or entitled to the rights or privileges of a subject or a citizen of a foreign power;shall be incapable of being chosen or of sitting as a senator or a member of the House of Representatives.

The rationale behind this section is to prevent people sitting in Parliament who may have a conflict of interest or loyalty if they were to act as a Member of Parliament. The case of Sykes v Cleary (1992) clarifies this interpretation of s44 (i) in relation to Mr Delacratz who was a dual citizen of both Switzerland and Australia. The Court held that Mr Delacratz was not able to sit in the House of Representatives as he had not taken reasonable steps to renounce his Swiss citizenship and therefore could enjoy "the rights and privileges" of being a citizen of Switzerland. Based on the findings in this case, dual citizens must remove the risk of a conflict of interest by renouncing their citizenship to any nation that is not Australia in order to become a Member of Parliament.

6. How does the Constitution distribute legislative power between the Commonwealth and the States? What impact has High Court interpretation had on the scope of Commonwealth legislative power?

7. Why are courts generally reluctant to scrutinise the internal processes of Parliament

Courts generally are reluctant to scrutinise the internal processes of Parliament because the legislature and executive are presumed to act in accordance with the powers conferred to them by Ch 1 & 2 of the Constitution. Although Parliament is viewed to act with Constitutional legitimacy, there are a minute amount of matters whereby a non-justiciable matter such as internal affairs and processes of Parliament do fall within the scope of the Judiciary's scope of determination. For example, in the case of Egan v Willis (1996) the majority in the High Court agreed that even though the matter of Governmental Power was a non-justiciable one, a justiciable claim of trespass had been submitted in relation to it; empowering the Judiciary constituent to examine Parliament's internal affairs. Furthermore, courts generally respect Parliamentary Sovereignty in that they presume internal parliamentary processes will be subject to both internal and external controls of Parliamentary power as unconstitutional internal processes will face public scrutiny and pressure for remediation. Underlying this however, is the inheritance of Britain's Parliamentary convention of 'inter-institutional comity' between the three principal organs of the State, as bringing a traditionally non-justiciable matter of internal Parliamentary process within the scope of the Judiciary's power is not only contrary to the convention but also against one of the Constitution's primary goals of separating the powers of each arm of government to ensure undue influence and excessive power.

6B: THE LEGISLATURE (II)

1. In R v Pearson; Ex parte Sipka (1983) the High Court endorsed the 'transitional' interpretation of section 41. What was the legal basis for the decision? What were the fears underlying the decision?

In R v Pearson; Ex parte Sipka (1983) the High Court had to address the central question of whether the States are able to also extend the Commonwealth franchise (which is protected under s 41 of the Constitution) to persons to whom they extend the right to vote in State elections. The applicants, who were entitled to vote in NSW elections, effectively sought to use s 41 as a means of asserting their right to vote in federal elections (whilst they had been excluded under s 45 of the Commonwealth Electoral Act 1918 (Cth)).

The majority appeared to favour the idea that s 41 did not so much confer the right to vote at federal elections as it represented a "prohibition against preventing a person from voting at a federal election".

Brennan, Deane and Dawson JJ at [276] expressed concerns that if s 41 were given the operation sought by the applications, the States would be empowered to grant the right to vote in federal elections to persons who had been disqualified from voting by the Commonwealth itself. It was also feared that such an operation would shatter the Parliament's power to "legislate for a uniform franchise."

The High Court's decision to regard s41 as "transient" in nature is based on the historical context in which this provision was made. Before the statutory franchise (Commonwealth Franchise Act 1902) came into play, the qualification of electors were defined by the laws of the respective States '[u]ntil the Parliament otherwise provides' (ss 30,8). This meant the respective States could decide for themselves who has the right to vote. For instance, only SA and WA extended rights to women aged 21 or above. The qualification '[u]ntil the Parliament otherwise provides' anticipates the possibility that the Parliament would, by way of s51(xxxvi), define new (uniform) qualifications of electors. Therefore, s41 only preserved the rights in existence before the statutory franchise (i.e. under ss 30, 8). The main concern of extending the operation of s41 is that a Parliament of a State would be empowered to give the federal franchise to those whom the Commonwealth Parliament has excluded or disqualified.

The court endorsed the “transitional” interpretation of section 41 based on its “constitutional context”. Brennan, Deane and Dawson JJ held that subsequent to the enactment of the Commonwealth Franchise Act 1902, no person could acquire the right to vote at federal elections other than under the terms of the Act. The fear was that a Parliament of a State would be able to bestow the federal franchise upon those whom the Commonwealth Parliament had already excluded or disqualified. Murphy J in dissent held that s 41 “is presumed to prospective, ambulatory and constantly speaking” and that the words were “not transitional”.

2. According to the majority judgments in Roach, what was the purpose or rationale behind the blanket ban on prisoners voting? What factors did the majority judges take into account in concluding that the blanket ban was arbitrary and/or disproportionate?

According to the High Court, “the rationale must be that serious offending represents such form of civic irresponsibility that it is appropriate for Parliament to mark such behaviour as anti-social and to direct that physical separation from the community will be accompanied by symbolic separation in the form of loss of a fundamental political right.” However, the criteria of serving a sentence of imprisonment fails to identify serious criminal misconduct when looking at short-term sentences. An example is homelessness, which is not related to the seriousness of the offence. At this level, the method of discriminating between offenses becomes arbitrary.

The blanket ban was both arbitrary and disproportionate as its net was “too wide”. It was not “reasonably appropriate and adapted” in a way that would ensure the tenets of representative government (e.g. the franchise) and civic rights could be upheld. It would be inconsistent with McKinlay, which noted that universal adult suffrage is a long established fact, and retreating from this standard would not reflect “a choice by the people”. This is not to say disenfranchisement is always invalid. This particular blanket ban was invalid because it was arbitrarily applied to an entire sector of society without regard for the gradations within it, as Ferdinand mentioned above. It would also be disproportionate and incongruous because it would apply stricter standards that s 44 of the Constitution. Furthermore, Gleeson CJ noted more potential constitutional issues if a federal law such as this was applied as an additional punishment on state offenders.

The rationale for a blanket ban might lie in assessing the conduct of certain community members whom demonstrate a ‘rejection of civic responsibilities (criminal conduct) as to warrant temporary withdrawal of a civic right (the right to vote). Effectively prisoners, through their own doing, are withdrawing themselves from a community and therefore cease to be apart of “the people” who are given the constitutional right to political participation (voting). We then ask, if Parliament is chosen by the people, can Parliament then impose a restriction on the constitutional right for ‘the people’ to vote? Further, the methods of discriminating between offences, for the purpose of deciding what conduct is so serious as to warrant disenfranchisement, and that conduct which is not - can become arbitrary. A blanket ban does not take into account differences between ‘levels of culpability’ necessary to impose disenfranchisement –(e.g. short-term sentences). A further point is the inconsistency when comparing the banning of voting to short-term sentences and section 44(ii) of the Constitution that provides, 'an MP or candidate is disbarred whilst under a sentence for an offence punishable by one year or more.’

As mentioned by Ferdinand and Penelope the rationale for the exclusion of prisoners from voting was articulated in Roach v Electoral Commissioner (2007) as a further severance from participating in the community together with the physical separation of a custodial sentence. In this case the High Court pointed to the questions of degree that must be considered. Gleeson CJ pointed to the wide variances in prisoner representation from those serving time before being convicted, prison sentences for crimes that would not be considered to indicate serious criminal conduct and short-term prison sentences which occur as solutions to varying issues in the administration of the criminal justice system in Australia. It is at this level that Gleeson CJ sees discrimination between offences to determine what warrants disenfranchisement as arbitrary. This becomes disproportionate and interferes with the constitutional imperative of 'choice by the people' beyond the rational for exclusion. Gummow, Kirby and Crennan JJ furthered Gleeson CJ's concerns for the need for a 'substantial' reason for disenfranchisement and the 2006 Act's disregard for mitigating factors in short term imprisonment and the necessary qualification of different severities of criminal conduct in resolving the tension between exclusion from the right to vote and representative government 'chosen by the people'.

3. What is your understanding of the relationship between TRS Allan's conception of the limits of parliamentary sovereignty, and the High Court's decision in Roach?

The High Court’s decision in Roach was an example of the Court protecting what Allan refers to as the “deeper constitutional morality”. Allan says, “An enactment which threatened the essential elements of any plausible conception of democratic government…would forfeit…any claim to be recognized as law”. The Court held that disabling voting rights for all prisoners was not appropriate and adapted because it did not take into account culpability. A person could potentially be stripped of the right to vote for an offence as benign as not paying a fine. s 93(8AA) exceeded the bounds of parliamentary sovereignty and was therefore declared as invalid.

4. According to French CJ in Rowe, how has the meaning of the words 'directly chosen by the people' (ss 7 & 24) changed over time? What will judges draw upon to help them determine the contemporary meaning of those words?

The meaning of the words 'directly chosen by the people' now strongly regards the universal adult-citizen franchise prescribed by the Commonwealth law. Ss 7 and 24 didn't require universal adult suffrage in 1901, and yet now that fact is long established. In fact due to legislative history, ss 7 and 24 have become a 'constitutional protection of the right to vote.'

5. What were the two main rationales for the 2006 amendments to the CEA that altered the statutory grace periods for enrolments and transfers? Why did the majority judges in Rowe consider the early closure of the rolls to be disproportionate to the achievement of these ends?

6. What does Orr mean when he describes the majority's reasoning in Rowe as a form of 'ratcheting'? Is it a prudent approach to reasoning in voting rights cases or (as Twomey argues) a threat to the principle of parliamentary sovereignty?

8A: STATE CONSTITUTIONS AND STATE LEGISLATIVE POWERS

1. According to Street CJ in the BLF Case (1986), what is the appeal of permitting courts to exercise judicial review over State laws that offend so-called ‘deeply rooted’ rights? On what basis does Kirby P reject this idea?

In the BLF case, an argument emerges regarding the necessity of judicial review over state laws that do not comply with Section 5 of the Constitution Act 1902 (NSW). According to Street CJ, courts should have the authority to declare laws that appear to violate the peace, welfare, and good government of our parliamentary democracy as unconstitutional. In doing so, the courts have the ability to protect certain fundamental rights against legislative encroachment and ultimately limit the power given to Parliament.

Kirby P rejects the notion of ‘deeply rooted’ rights, proclaiming it to be an idea incompatible with historical and constitutional facts. Kirby emphasises the ‘years of unbroken constitutional law and tradition in Australia’, which evidently respects the democratic will of the people as expressed in Parliament. If the legislature were to enact a repugnant statue, it is unlikely to be restrained by Section 5 of the Constitution Ac t or the courts. Protection against such scenarios is best left to the power of political and democratic forces. Furthermore, even if judges consider legislation to be unjust or even oppressive, it is not their role to substitute the opinions of elected representatives in Parliament. They are merely expected to interpret legislation and ensure its consistency under the constitution. Overall, Kirby believes that individuals are protected under Section 5 of the Constitutional Act, not by judicial review, but rather through the democratic nature of our Parliamentary institutions.

2. On what basis does Goldsworthy reject the idea that courts have power to strike down laws that offend ‘deeply rooted’ rights?

Goldsworthy argues that striking down laws that offend deeply rooted rights is impractical, in that some institutions like Parliament need to have full ultimate authority without interjection or question of their powers of legislative enactment. This primarily is because if it were the case that institutions were held to a standard of limited authority, legal institutions much like our courts would not be able to render resolutions for parties of opposing views but instead provide only recommendations that have no authoritative or binding power. Further, it is proposed that judges and legislators are indifferent in that they are both morally fallible and hence capable of inadvertently imputing injustice; and thus a degree of "trust" forwarded by Dudley and Diggies needs to be placed on the Parliament to not offend deeply rooted rights. More importantly, Goldworthy explains that this "trust" in Parliament is the only practical way of protecting entrenched rights as the notion of Quis Custodiet Ipsos Cusodes or who will

guard the guards themselves? highlights the need to limit the scope of judicial overruling as uncertainty is inevitable. French CJ in Cooper v Comissioner of Income Tax (Qld) (1907) alludes to this "trust" through His Honour's interpretation of the privative clause of s 5 of the CVLA as analogous to the operation of the Principle of Legality in that it presumes deeply entrenched common law rights and freedoms will not be impeded upon; and thus judicial safeguarding is unnecessary.

I would just add, building on Goldsworthy's view of the impracticality of courts being able to strike down rights-offending laws, that in stating 'even if they [the ultimate authority] are disobeyed because they are unjust', Goldsworthy implies that laws would not be accepted by the people if they were broadly considered unjust anyway.

Goldsworthy attacks Allan's argument as it treats 'moral and legal authority and moral and legal obligation, as equivalents'. I think, however, something that Goldsworthy overlooks is the fact that the judiciary, via the separation of powers should ideally be non-partisan and independent. In the absence of political motives, and without the powers of the legislature and especially the executive, the courts are in the best possible position to protect rights, and whilst they may have an equal propensity to be morally infallible, they considerably lack the incentives to enforce laws that offend 'deeply rooted rights', in comparison.

I'd also argue that whilst various doctrines serve to protect deeply entrenched CL rights, such as the principle of legality (in presuming the legislature would not abrogate or curtail fundamental human rights unless explicitly stated otherwise), such doctrines are powerless without the judiciary enforcing them. Legal principles by their very nature require application by the courts to be of any real use, and contrary Goldsworthy's argument, the courts will always have an important role in providing a safeguard for deeply rooted rights. I would argue that in simply occupying the position that French CJ did, in finding s 5 of the CVLA comparable to the principle of legality, his Honour ultimately exemplified the role of the judiciary in importing, or at least providing a forum for the discussion of, rights-protecting principles in regards to legislation.

3. Can State Parliaments pass laws that bind future Parliaments? How?

With certain limitations, it is indeed possible for State Parliaments to bind future Parliaments by having suitable ‘manner and form’ requirements that essentially limit the power of future parliaments. This ability is supported in s 5 of the CLVA 1865 (Imp) and s 6 of the Australia Act 1986 (Cth). The Australia Act also establishes consequences of non-compliance with manner and form requirements and states that law made without following the appropriate manner and form requirements are of ‘no force or effect.’ This denies the effectiveness of infringing laws but does not deny the power of a State Parliament to enact them, thereby allowing States to bind future parliaments through manner and form requirements. An example of legislation passed by State Parliaments binding future parliaments through this particular mechanism is the Constitution Act 1902 (NSW) in which s 7 has been double entrenched through sub-s (6). This legislation requires that any attempt to abolish the Upper House has to be achieved with a referendum. This meant that sub-s (6) could not be repealed by an ordinary Act of Parliament and only through a referendum, largely limiting future parliamentary power in this respect.

8B: THE EXECUTIVE (I)

1. What is Saunders referring to when she talks about the ‘depth’ and ‘breadth’ of executive power?

Broadly speaking, depth refers to the powers of the executive without Parliamentary authority whilst breadth refers to the matters with which the Commonwealth can deal with, as opposed to the States. There is considerable ambiguity as to where the lines are drawn. With regards to depth, s 61 of the Constitution vests power in the executive regarding the "execution and maintenance" of the Constitution. Whilst it is clear that powers like negotiating treaties are in the hands of the executive, it is on the margins where the line is most blurry. In terms of breadth, the logical starting point is the legislative power of ss 51 and 52, which subsequently dictate the powers given to the executive. A key issue that arises is to what extent the executive's power can move beyond the

Commonwealth legislative power; the dominant view is that functions uniquely tied to the Commonwealth government, such as making deals with the states, are powers within their scope.

2. What are the prerogative powers of the Crown? What difficulties are posed by having a common law basis for some of the executive’s powers?

The prerogative powers of the Crown are a collection of special powers and privileges afforded to the Crown by the common law. They are powers possessed by the Crown that have not formally been codified into legislation.

Blackstone offers a narrow definition of prerogative power in stating that the prerogative 'is singular and eccentrical'. For Blackstone, the prerogative is a closed list of identifiable powers like the ability to issue passports which is the domain of the crown and is the responsibility of ministers acting under the prerogative. Dicey adopts a broader perspective, that prerogative powers are the 'residue of discretionary or arbitrary powers that the crown enjoys' which have not yet been absorbed into statute law. Pollock echoes Dicey's remarks, asserting that prerogative is the residue of the crowns powers which have not yet been taken away via legislation.

Having prerogative powers buried in the common law gives rise to some noteworthy issues from the readings and some I considered myself:

1. Ambiguity: According to Saunders it becomes difficult to determine as a matter of interpretation whether legislation overrides common law executive power. In Barton Mason J referred to the need for a 'clearly expressed intention' in legislation to override the common law prerogative however this gives rise to ambiguity. This ambiguity is further exemplified in Cadia Holdings v NSW in relation to whether copper infused with gold was indeed a royal metal under the prerogative or whether it was a type of metal able to be privately owned under the mining act.

2. It places excessive faith in the doctrine of responsible government.

3. Arguably the existing common law scope of executive prerogative is too broad. E.g. Declaration of war should arguably have to be voted on in parliament rather than be a decision of government ministers.

3. In Cadia Holdings v NSW (2010), what was prerogative power in question? What impact did the relevant statute have on this prerogative power?

In Cadia Holdings, the prerogative power in question was the power of NSW over royalties of publicly owned minerals extended to mixed ores containing both public and private minerals. The prerogative exists which makes holders of a mining lease liable to pay royalties to the Crown for public minerals such as Gold and Silver. Cadia Holdings operated in a way that their copper and gold ores could not be mined separately. Since copper was considered a private mineral and gold a public mineral, the question on how mixed ores were to be treated was raised.

Section 3 of the Royal Mines Act 1688 altered the prerogative so that no copper, tin, etc. can be regarded as a royal mine, even if gold or silver could be extracted from it. The court held that s 3 of the Act was specifically targeting the Crown prerogative power and rejected the State submission that a mine of copper and a mine of gold had to be mutually exclusive. The court held that the Cadia mines were mines of copper (even with the presence of gold), by s 3, so that the copper extracted was a private mineral, over which the Crown did not have prerogative power.

4. Do you agree with the majority or the minority in the Tampa case with respect to (a) the existence of the executive power to exclude aliens during peace time, and (b) the question of whether this power had been displaced by the Migration Act 1958 (Cth)?

The Tampa case considers whether the Government’s detention and expulsion of the asylum seekers was an exercise of prerogative power.

Both French CJ and Black CJ make valid points however I find Black CJ's comments more substantial. Firstly, French CJ notes that the power to determine who can enter Australian territory is closely linked to Australia's sovereignty. The existence of such a power is supported by examples such as [Re Adam (1837) 1 Moo PC 460; 12 ER 889] and Attorney-General (Can) v Cain (1906) AC 542. French CJ also concedes that this power can be extinguished by statute which the Migration Act 1958 (Cth) did not expressly state an intention to remove this prerogative power. This shows sovereign power to expel non-citizens exists in English law.

However prerogative powers are out of date and Black CJ identified that the last time the power was used was in 1771. For a political issue such as the detention of 433 Afghans seeking asylum in Australia to be decided on an outdated idea seems objectionable. Furthermore, the idea that statutory legislation is supreme over the royal prerogative and the comment that French CJ made about how the power can be regulated and modified by Commonwealth laws give strength to Black CJ's argument.

5. According to French CJ in Williams v Commonwealth (2012), why is mere legislative capacity (eg, under s 51) insufficient to support executive spending and contracting? On what basis does Heydon J disagree?

In the School Chaplains Case, French CJ states that mere legislative capacity is not enough to support the executive power of the Commonwealth to enter into contracts and spend money. It can only be supported by actual legislation enacted by the Parliament. In other words, the Commonwealth’s executive power is not ‘coextensive’ with the mere potential scope of its legislative power. The reason for this lies in the fact that this would undermine the importance of federalism and the separation of powers embedded in the Constitution. French CJ argues that granting the executive the power to act without statutory authority undermines the accountability of the executive to Parliament and the role of the Senate. This means the executive could simply bypass the Senate when proceeding with spending and contractual decisions and this upsets the very notion of responsible government.

Heydon J disagreed, on the basis that there is a ‘common assumption’ that as long as the Commonwealth possesses the legislative power (e.g. s 51 ‘provision of benefits to students’), it is able to act without authority from actual legislation. Heydon J argues that the Senate is still able to play an active role in the scrutiny of government proposals. He lists various ways in which the Senate can do so, such as through the Senate Estimate Committee, the questioning of ministers in the Senate and debate on Appropriation Bills. Furthermore, he highlights the fact that the Constitution does nothing to prevent the Senate from initiating legislation that controls the executive’s use of the money it has been granted. Thus, the Senate is still able to keep a check on government actions.

6. What legal limits are there on the ability of Parliament to delegate its legislative power to the Executive? Outside the courts, what other mechanisms are there for scrutiny of delegated legislation?

In Dignan, Evatt suggested that the power delegated to the executive must not be so broad so as to constitute an ‘abdication’ of power by the legislature. Outside the courts, there are Commonwealth parliamentary procedures for the control of delegated legislation. The three principal elements are: compulsory registration on the Legislative Instruments Register, tabling in both Houses of Parliament with disallowance permitted by either house, and scrutiny by the Senate Standing Committee on Regulations and Ordinances.

9A: THE EXECUTIVE (II)

1. What are constitutional conventions, and how do you know if one exists? Why do we need them?

According to Dicey, constitution derived law can be divided into two elements; the law of the constitution and the conventions of the constitution. He goes on to describe these constitutional conventions as the principles and rules of responsible government. Barber elaborates on this, describing conventions as 'a rule of behaviour accepted as obligatory by those concerned in the working of the constitution'. He also explains that these non-legal rules are unwritten, though still an aspect of every functioning constitution. These conventions operate when

1) people generally act in accordance to the rule; 2) in consequence the rule becomes part of their ordinary behaviour; and 3) the rule is accepted as a standard for contact but a large margin of the political community

If these 3 conditions are met, it is known that a convention exists. To qualify as a constitutional convention, the convention must be constitutional in nature. Although they are not directly enforceable by courts, constitutional conventions can be considered and thus influence statutory interpretation by assuming Parliament would not intentional breach a convention (as concluded in Copyright Owners Reproduction Society ltd v EMI (Australia) Pty Ltd). They are needed because, although non-legal, the reason behind them is well founded (Marshall and Jennings), and they reflect customs and precedent. These conventions also regulate executive powers in the nature of responsible government. Finally, they ensure the that the legal framework of the constitution will be operated in accordance with the prevailing contemporary constitutional values or principles

Constitutional conventions refer to often unwritten and informal traditions, customs and practices that are nearly always followed by state institutions without enforcement. Dicey was one of the first academics to explore the importance of constitutional conventions to the doctrine of responsible government, and claimed that constitutional law consisted of both the law of the constitution and the conventions of the constitution – the later of which could be broadly defined as ‘maxims or practices which, though they regulate the ordinary conduct of the Crown… are not in strictness laws at all”. Wheare and Phillips argue that a traditional or procedure becomes a convention when political actors conform to a certain rule without enforcement. As Barber points out, Constitutional conventions are required as they limit the power of the institutions which often define our political landscape – such as the Prime Minister. It is now non-legal conventions, rather than the law of the constitution, he says which limits the “power of the monarch, define the office of Prime Minister and have shaped the relationship between Westminster and devolved institutions” (Barber).

Constitutional conventions are maxims and non-legal rules that regulate the conduct of the Executive. They are unwritten and flexible that adapt to the social context and allow proper governing of the nation. According to Barber, a convention exists when the people accept it as the norm, a significant portion of the political community accepts it as valid and it is constitutional in nature. They exist because the Constitution does not legislate on all behaviour of the Executive and to account for the changing societal values, it can change to reflect contemporary context where the Constitution cannot be altered easily. An example of a constitutional convention is the power to define the office of the Prime Minister.

AV Dicey in Introduction to the Study of the Law of the Constitution defines constitutional conventions (also called constitutional morality) as the second type of 'constitutional law', following the first type which are strict laws called 'the law of the constitution'. Dicey argues that conventions are not real laws because they are not enforced by the courts. Expanding from Jessica's definition, conventions would specifically consist of the principles and rules of responsible government, and the practices which regulate the conduct of the Crown, the Prime Minister, the cabinet and the two Houses of Parliament. Wheare and Phillips also explain that a convention exists when political actors conduct themselves in conformity to a certain rule, this rule is a reason for their conduct and at least a part of the political community acknowledge the rule. It is noted rather logically by Jaconelli, and pointed out by Jessica, that only a rule which reflects the nature of the constitution would be a constitutional convention.

Now, conventions are necessary because they ensure that the legal framework of the constitution operate in line with the constitutional values of the period (judges in Re Resolution to Amend the Constitution [1981]). An example given is the democratic principle related to responsible government where the powers of the state are exercised in accordance to the interests of the electorate. Although this convention is not written in hard copy, its importance stems from current public consensus that government should be implementing policies which benefit the Australian people.

2. Why aren't constitutional conventions legally enforceable? If they are unenforceable, why are they obeyed?

From Re Resolution to Amend the Constitution, there are two reasons why the courts do not enforce constitutional conventions. As opposed to being based on judicial precedents, conventions are established by the institutions of government. They often do not take the form of statutory commands. Moreover, there are no direct legal sanctions that can ensue from the breach of any convention. These are all characteristics that, according to Dicey, definitively distinguish ‘the conventions of the constitution’ from ‘the law of the constitution’. Secondly, there is the assertion that conventional rules are generally in conflict with the legal rules which they postulate and so for the reason that the courts are obliged to enforce the legal rules, they cannot concurrently enforce the conventional ones.

This distinction should not however undermine the importance of constitutional conventions. As an integral part of the constitution and the constitutional structure, the rationale for upholding a convention is the assumption that each convention is so designed to safeguard a constitutional principle and thus preserve the day-to-day operation of the Constitution. For instance, the doctrine of responsible government would be severely hindered if the convention that the Governor-General abide by, and exercise his or her powers on, the advice of the parliamentary leader of the majority party in the Lower House were to be broken. Thus, constitutional conventions are generally obeyed.

3. What is responsible government? What are its core characteristics?

Responsible government is a system of government where parliamentary accountability, i.e. Executive accountability and Ministerial responsibility, formulates it democratic foundation. The Executive Ministers are responsible and answerable to the Parliament, which in turn, is accountable to the people. This is a key feature of the Westminster system as the Government is formed from the Lower House, where the Executive would be accountable and responsible to the Lower House, facing the people at elections. If Ministers are found to be blameworthy of dishonest administration, they would be forced to resignate. This shows that Parliament may hold the whole Executive as accountable or individual Ministers as being responsible.

Responsible government is an important system which contributes to maintaining control of the Executive’s power. While former Prime Minister Robert Menzies deemed it an ‘ultimate guarantee of justice and individual rights’ this becomes questionable to an extent wherein “party politics in Australian Legislatures” (Lindel 1995) prevails. With a system of responsible government characterised by an Executive which is answerable to the Parliament, (and through this the public who elected these members of Parliament), it is hoped the accountability of the Government is maintained. Where however this system embraces collective ministerial responsibility and individual ministerial responsibility, when the lower house of Federal Parliament is dominated by the party who forms the Government, the notion that Parliament is a ‘check’ on Government becomes less convincing. Fortunately however, strength may still be derived from collective ministerial responsibility which ensures Cabinet decisions are supported by the Ministers, thus upholding to an extent the integrity of public policies produced. Furthermore where the Federal Parliament is concerned, the development of the Senate Committee’s role has aided in developing a stronger system of responsible government. Through the Committee’s ability to question, investigate and report on ministerial decisions, legislative and policy issues twice a year, it can safely be said that the Parliament is never left unscrutinised.

4. What specific mechanisms are available to the Parliament to hold the Executive to account? How effective are they in practice?

A specific mechanism used by the Federal Parliament to keep the executive in check is through the the six Standing Committees of the Senate. The Committees scrutinize and challenge the actions of the executive through conducting inquiries and reports on matters such as proposed legislation and major policy issues, which are referred to them by the Senate. Furthermore, the Senate also appoints select committees to investigate particular instances of executive action, which is effective in holding the executive to greater account of their activities. The upper Houses of state Parliament also play an active role in scrutinizing the Executive and holding individual ministers accountable. In

practice, the mechanisms of control are effective in holding ministers accountable as illustrated Egan v Willis. Here the High Court held that it is within the power of the Legislative Council to charge the executive with contempt and suspend them.

5. In Egan v Willis, on what basis did the High Court find that the NSW Legislative Council had the power to suspend Michael Egan for failure to produce requested documents?

A brief summary of the facts: Egan was treasurer in the Carr government and leader of the government in the NSW Legislative Council. On May 1 1996, the House requested him to table some documents. He refused as Cabinet agreed not to comply. In response to this, Parliament passed resolutions finding him guilty of contempt, suspending him for the rest of the day and requiring him to explain his actions on the next sitting day.

In determining whether the suspension was permitted, the HCA drew upon the principle in Kiely v Carson which held that in determining the power of the legislature, it is necessary to consider its function and whether that power is necessary to its existence. One of the key aspects of the legislature is that of responsible government, that is, to hold the executive to account. That is a principle that is accepted today, even though Imperial legislation does not explicitly state it. Barten v Taylor also held that if a Minister failed to produce documents, the Parliament could suspend them until the papers were submitted or an explanation was given. Therefore given that the documents requested were not subject to privilege, and their existence was required for the Legislature to properly scrutinise the Executive, it was held that it was in the Executive's power to suspend Egan

9B: THE EXECUTIVE (III)

1. What are the main differences between judicial review of administration action and merits review?

Judicial review of administrative action involves a thorough investigation by the federal courts into the legalities of executive decisions, ensuring that they comply with the fundamental notion of procedural fairness. This idea reflects the judgment in Marbury v Madison, where it was determined that courts are purely expected to examine the legal principles on which a decision is made, not the facts or the factual correctness of the decision itself. Comparatively, merits review is the process by which an administrative tribunal reconsiders the facts, law and policy aspects of an original decision in the hope of reaching a conclusion that is more accurate or preferable. Unlike the strict courtroom procedures associated with judicial review, tribunals are encouraged to solve disputes without the formalities embedded within the legal system. Consequently, merits review is more efficient and less costly than its counterpart. Furthermore, tribunals generally steer away from the adversarial format exhibited in court proceedings. Instead, they employ an inquisitorial style, which gives tribunal members a greater level of discretion in seeking out issues and evidence. Finally, the decisions made by tribunals are not binding and are not constructed in accordance with previous ratios, directly contrasting to the laws produced in court.

Merits review is the process undertaken by administrative tribunals to examine whether the decision of the original decision maker was correct or (in discretionary decisions) preferable. Judicial review of administration action (JRAA) on the other hand, whilst also concerned with administrative or executive action (differentiating it also from general judicial review), is limited in that the court can only determine in review whether the decision was legally permissible. This distinguishes JRAA from merits review, as the courts are not concerned with the merits of the decision, only the legalities. Although there are similarities, such as the expectation of procedural fairness and both acting as a mechanism to enhance the accountability of public decision-making, other differences include the greater simplicity and less timely and expensive nature of merits review compared to JRAA by going through tribunals instead of courts.

2. Why is there such a strict distinction drawn between merits and legality? In your answer give consideration to issues of legitimacy and competence.

The strict distinction drawn between merits and legality are because the powers conferred upon judicial review limit it to questions of legality only. Stemming from the separation of powers doctrine and concepts of representative government, courts have neither the power nor competence to decide whether or not a decision is 'correct', merely whether or not it is legal.

Sir Anthony Mason suggests that the limited content of judicial power in Australia, specifically the High Court's jurisdiction conferred by s 75(v) of the Australian Constitution, is underpinned by the separation of powers doctrine. Courts should be and are insulated from controversial issues involving policy by merely dealing with the law. Brennan asserts that the principle of Marbury v Madison barred courts from assuming power over the merits of administrative action.

Brennan further says that the 'authority of the judicature is not derived from a superior capacity to balance the interests of the community against the interests of the individual'. The courts are not the competent institution to decide matters of policy.

3. What sorts of matters does the Ombudsman inquire into? Is the fact that it has only recommendatory powers a disadvantage?

The main issue that the Ombudsman deals with is the impact of the 'government on the rights of individuals’. This encompasses remedying complaints made about the government by an individual and to improve public administration. They inquire into “action that relates to a matter of administration”. This limits its jurisdiction to government service providers (e.g. Centrelink), some government business enterprises and private contractors under a government contract. However, As it is difficult to distinguish between policy and administrative decisions, there is some debate as to the power to review policy decisions as it does not fall under the scope of “matter of administration”. While the standing taken in cases is that policy decisions do not fall within the scope of the Ombudsman’s power, in practice, reviews and recommendations have been made on policy.

While only having recommendatory powers can be a disadvantage as there is no requirement to comply with them, there is an inherent advantage. Agencies are more willing to comply with requests of the Ombudsman than they would with other reviewing bodies as they are given the chance to improve their processes before sanctions can be taken against them

The ombudsman takes on both a reactive and proactive role, through investigating complaints from individuals about the government, as well as conducting systematic reviews and audits. This is in relation to investigations about actions that relates to a matter of administration taken by a department or by a prescribed authority. The lack of determinative powers that the ombudsman possesses is a disadvantage in regards to the considerable time and resources used which may not lead to a satisfactory outcome for the complainant. However, it is important that the ombudsmen remains only a recommendatory body as it would limit the degree of separation of powers, as it is fully funded by the executive. The grant of determinative powers also has the potential to lead to other issues such as: encouraging parties to adopt an adversarial approach, their status as disinterested observers could be undermined, their ability to influence administrative practices may be undermined as well as the potential for the ombudsmen to potentially function as quasi-small claim courts. It is for these reasons that I believe it is imperative that the ombudsmen remains purely recommendatory.

4. According to Saunders, what is the role of the 'integrity system', and what mechanisms form part of it? Given that these mechanisms are located in the Executive, are they capable of exercising real independence when scrutinising government conduct?

The role of ‘integrity systems’ (integrity branches) is to supplement traditional government institutions to more effectively; manage individual grievances, investigate maladministration, enhance transparency, combat corruption,

protect electoral democracy and regulate key services in the public’s interest. The values of an integrity system lie within the application of public interest, going beyond concepts of legality. Saunders describes 3 main mechanisms:

1. System of review of Administrative Action

2. Freedom of Information (FOI)

3. Anti-corruption bodies (at State level)

Whilst these institutions are located in the executive, minor steps have been made to create independence from the Executive to scrutinise government conduct; however, this is described to be continually difficult. In the example of the Independent Commission Against Corruption (ICAC) of NSW; the Commission must be a former judge (independent with the Executive), encompassing the role of scrutinising government conduct through Commission Reports and through a dedicated joint parliamentary committee; which examines the Reports and may veto proposals for appointment by the Governor. However, the ability of the institutions to exercise real independence is limited; in that the Executive still holds a firm grasp over the institution’s functions; whereby the majority of committee members are still from the governing party, the government initiates appointments and budget allocations are still dependent on the executive branch.

10A: THE JUDICIARY (I)

1. What is the current process for appointing judges to the High Court? On what basis does Williams criticise the process for High Court appointments?

The current process for appointing judges to the High Court is conferred to the Governor-General in Council under s 72 (i) of the Constitution of Australia. However in practice, the Attorney-General undertakes the role of appointment by consulting with the Attorney-Generals of the States pursuant of s 6 of the Higher Court of Australia Act 1979 (Cth) and other selected groups including State governments, professional associations like the Law Council of Australia, and other judges. After this “entrenched process” of public consultation, the Attorney-General then forwards the recommendation to the Cabinet for consideration (without details of the Attorney General’s rationale), and on approval, he/she formally presents this to the Governor General. William’s criticises this rather vague and opaque procedure, questioning whether it is sufficient to maintain public confidence in judicial appointments and whether this notion of ‘merit’ is effectively representing the multicultural and diverse nature of Australia’s wider-society. Evidently, s 72 (i) is the only provision relating to appointment, and there is no real criteria or constitutional convention outlining the qualifications or requirements for a selection under ‘merit’ – except for assurances provided by former Attorney-Generals and those required under s 7 of the Higher Court of Australia Act. Thus, the Attorney-General has full discretion to assign various weights to the opinions received from consulting judges, various government and professional groups; as well as peripheral factors including political affiliation, gender and ethnicity. Ultimately this highlights that the integrity of the appointment process may be infringed by the “cables” of politics, merely a “gift” rather than an appointment of merit, similar to what was already seen with Albert Piddington’s resignation in 1929.

2. What reforms did Attorney-General Robert McClelland introduce with respect to appointments to the Federal Court, Family Court and Federal Magistrates Court? What selection criteria were specified (some internet research will be required to answer this)?

The reforms AG McClelland introduced included explicit appointment criteria, advertisements for expressions of interest and use of advisory panels to develop a shortlist of suitable candidates. Below is the selection criteria taken from the Attorney General's website but it does not mention anything substantial enough and has been criticised because the appointments since the changes have been mostly politically influenced rather than reflecting the independence of the judiciary. To be eligible to be appointed as a Federal Court judge, a person must:

- have been enrolled as a legal practitioner of the High Court or a Supreme Court of a State or Territory for at least 5 years

- have the personal and professional qualities to the highest degree such as legal expertise, conceptional, analytical and organisation skills

- decision making skills

- ability to deliver clear and concise judgments

- work effectively under pressure

- capacity to inspire respect and confidence

3. What is the process for judicial appointments in (a) Canada, or (b) the United Kingdom? Do you prefer their approach to the one taken in Australia? [Note: not included in the readings but easily found on the internet.]

(a) Canada: Federal judicial appointments are made by the Governor-General acting on the advice of the federal Cabinet. A recommendation for appointment is made to the Cabinet by the Minister of Justice (for appointment of puisne judges) and the Prime Minister (for appointment of Chief Justices and Associate Chief Justices); based off a set of names reported by committees to the Minister. The Minister when making recommendations may consult with members of the judiciary, the bar as well as members of the public. [http://www.fja-cmf.gc.ca/appointments-nominations/process-regime-eng.html]

(b) United Kingdom: Judicial appointments are made by an independent body; the Judicial Appointments Commission (JAC); who has their authority delegated by the Constitutional Reform Act 2005. The Commission selects candidates for judicial office based on merit (a set of Qualities and Abilities), good character and encourages diversity in the range of persons that are available for selection. This process was aimed to strengthen and maintain judicial independence (impartial to selection by the Lord Chancellor); making the appointments more clear and accountable. Whilst the Commission has the power to select and recommend the candidate to the Appropriate Authority (Lord Chancellor, Lord Chief Justice or Senior President of Tribunals), that Authority still bears the final decision in accepting, rejecting or asking for the recommendation to be reconsidered (although required to provide reasoning in writing to the Commission for this purpose). [http://jac.judiciary.gov.uk/about-jac/9.htm]

The approach taken in Canada integrates notions of democratic government; as the people have a say in the appointment of judges, through recommendations given by Ministers they have elected. However, this sacrifices the independence of the Judiciary with the Executive and Legislative bodies; interfering with the separation of powers. The approach taken in the UK is preferable, as an independent body completes the recommendations, whilst another body selects the candidate, maintaining impartiality between the separation of powers; whilst providing a mechanism for judicial accountability in the selection process

CanadaSimilar to Australia, judicial appointments to the Supreme Court of Canada (Canada's equivalent of the High Court of Australia) are made by the Governor General on the advice of the federal cabinet. However, unlike Australia, there have been recent changes to the appointment process which better provide for a selection based on merit. An ad hoc advisory panel reviews a list of 7 nominees submitted by the Minister for Justice, and shortlists three from the Prime Minister, or Minister for Justice chooses one. After this, a parliamentary committee is allowed to interview the selected candidate prior to his appointment.

United KingdomIn the UK, candidates are selected by an independent body: the Judicial Appointments Commission (JUC) established in the Constitutional Reform Act 2005 (UK). It selects candidates based on their merit measured against a set of Qualities and Abilities (including intellectual capacity, personal qualities, an ability to understand and deal fairly,

authority and communication skills, and efficiency), and recommend them to the appropriate authority for appointment. They are legally bound to select candidates of good character, based solely on merit, and with regard to the need to encourage diversity within the range of candidates. However, while the appropriate authority cannot select a candidate outside of the ones recommended, they can reject a recommendation or ask that it be reconsidered once for each candidate if they provide their reasons in writing to the JUC.

Comparison to AustraliaBoth Canada and the UK limit the choices given to the authority tasked with judicial appointment (that authority being the Prime Minister for each countries equivalent of the High Court of Australia), while still allowing that authority the final decision. This enforces a focus on merit in judicial appointments. Furthermore, both countries also promote a level of diversity in those selected for appointment. In Australia, the decision is left solely to the appointment authority, and there is no protection against an arbitrary appointment. While Canada's and the UK's approaches do not force the appointment authority to make their decision based on merit or diversity, they do very strongly promote it. I believe these approaches promote a judiciary which is better suited to making decisions which affects the entire country, as they will ideally have the expertise and differing perspectives needed to consider all possible alternatives, and choose the most appropriate

I agree that the UK approach is preferable as it ensures a much more transparent process as candidates are selected by an independent commission based on set criteria* including merit, as opposed to a sole executive decision in Canada/Australia. Accountability is also ensured by requiring the Lord Chancellor/Appropriate Authority to provide written reasons in the event that they reject a recommendation, which means that issues such as political leaning or personal views that contradict government are not valid grounds for rejection.

There are contrasting approaches to judicial appointments in Canada and the United Kingdom. Canada as a federated country appoints judicial officers which are made by the Governor General on the advice of the federal cabinet. Judicial appointment in the higher courts, are made by the Governor General on the advice of the federal cabinet whereas appointments to the lower courts in each state, are made by the Lieutenant Governor of the province in accordance with the advice of the provincial government. United Kingdom, on the other hand, relies on the advice of an independent public body called, ‘the Judicial Appointments Commission’ for judicial appointment under the Constitutional Reform Act 2005. The Commission determines the candidates’ capacities based on merits of five core qualities which are intellectual capacity, personal qualities and ability to understand and deal fairly, authority and communication skills and efficiency. This mechanism was introduced to reflect fairness and transparency in the recruitment process that strengthens judicial independence and impartiality in the judiciary. Although both mechanisms provide some advantages, each system fails to deliver judicial accountability as the immunity against human weakness is not addressed in each process. Furthermore Canada, is subject to public criticism due to its likely political association.United Kingdom, also heavily relies on the attributes of a meritorious candidate which can give rise to biased and materially prejudiced determination of judicial appointments due to the nature of self-assessment by the Commission. Australia could take advantage of these mechanisms by integrating the interests of political institutions (governments) with an independent body and a number of highly mediased bodies to ensure effective public scrutiny affords full transparency

4. What elements of diversity might be considered relevant to the judicial appointments process? To what extent should the federal Attorney-General consider ‘diversity’ when making appointments to the High Court?

There are many areas in which elements of diversity are not represented amongst the 50 appointments so far to the High Court of Australia. Perhaps the most relevant element, given the federal representative nature of the High Court, is the dominance of representation by Victoria and New South Wales, most notably New South Wales. Currently (to update the data from the readings), 26 Justices are from NSW, 13 from Victoria, 8 from Queensland, 3 from WA (including Chief Justice French) and still none from Tasmania or SA. Another area not representing diversity

is ethnicity, as all Justices are of European background, almost all from UK ancestry. The appointments do not reflect the large periods of migration since WW2, to the extent that currently 27.7% of living Australians were born overseas (2011 Census). Another notable area showing a lack of diversity amongst judicial appointments is the fact that only four Justices are women. However, the fact the current Court comprises three women might suggest the Court is improving representation in this regard. While the Court does not represent different religions and political ideologies, the apolitical and secular nature of the Court means that these factors are unlikely to be considered factors in aiming to represent diversity.

It has been argued that the Attorney-General should consider 'criteria' rather than 'merit' in appointment; Gageler argues that "geography, gender and ethnicity" should be relevant criteria in order to represent diversity amongst these appointments. A solution might be to mirror the changes to appointments in the Federal Courts, such as advertising positions, using explicit selection criteria and using advisory panels. The counter-argument to this, however, is that unlike Parliament, Justices are appointed without representation as the primary factor, and appointments based on criteria may mean a person with superior merit is not appointed. As such, aspects of criteria and merit may result in a trade-off, and the choice between the two may be a decision of policy by the Attorney-General

There are a range of elements that should be considered with a greater weight when determining judicial appointments. Some of these include social class, religion, family history and arguably most important, gender, ethnicity, geography and age. The current homogeneity of the Justices of the High Court reveals the lack of emphasis on diversity in the selection process in the past. This narrow selection is evidenced through the overwhelming majority being Roman Catholic or Protestant and the predominance of male Justices, with only 4 out of 50 being women. Additionally, the skewed selection is amplified through not only the lack of multicultural diversity, with the ancestry of the vast majority from the British-Isles, but also their geographical origins, with over half from NSW (27), 12 from Victoria, 8 from Queensland and none from Tasmania and South Australia. Also, it is worth noting that most Justices when appointed have been over 50, with an average age of 53. Thus, it is essential to a great extent for more elements of diversity, namely “geography, gender and ethnicity” (Gageler), to be considered in the selection process so that the consistent appointment of stereotypical conservative ‘elderly white males’ can be altered and be more reflective of not only the members of our society but its values.

As Anais has mentioned, Dominello and Neumann highlight that relevant elements include age, ethnicity, gender, prior judicial experience, prior occupation (notably, various Justices were part of the government service or the military prior to being appointed), state of origin and religious and family background.

Reading Dominello’s and Neumann’s article may lead one to argue that historically, appointments to the High Court have been inordinately homogenous, as the Justices are largely conservative due to their age, and that this results in a lack of adequate representation of the diverse views that Australia has today. However, reading the article also highlights that the perceived need for the Attorney-General to intervene, by actively considering ‘diversity’ when making appointments, is slightly exaggerated. The authors may note that “Thirteen (Justices) have been Roman Catholics or of Catholic background”, but they also concede that “it does not seem that religion is, or has ever been, a factor in High Court appointments.” Furthermore, they may note that certain Justices “had fathers or fathers-in-law who were leading businessmen”, but they also note that “Other Justices came from more diverse and often humbler origins”, with examples such as how “Barwick’s father was a printer” and “Gaudron’s father was a railway worker”. The authors do highlight some form of 'diversity' in appointments.

Even if the authors had not acknowledged this, one could still argue that the need for the Attorney-General to actively consider ‘diversity’ when appointing HCA Justices is slightly exaggerated. Presumably, ‘diversity’ is needed to ensure that the decisions of the HCA encompass the wide range of views in society. However, whether or not appointments are ‘diverse’, HCA Justices would ultimately still adhere to precedent as set out in the Common Law, and the outcomes of HCA decisions would not be radically different. If HCA decisions reflect unwarranted and

continued converservatism, that is arguably an issue with the Common Law doctrine of precedent, which would require more than a somewhat more ‘diverse’ appointment of HCA Justices to be rectified. However, one may also argue that a more 'diverse' range of HCA Justices would result in more progressive HCA decisions. (e.g. Mabo?)

10B: THE JUDICIARY (II)

1. What are the two fundamental principles that govern the exercise of judicial power in Australia? Why was the conferral of judicial functions on the Arbitration Court ruled to be invalid in Alexander (1918)?

The first principle that govern the exercise of judicial power in Australia is the differentiation of three arms of government (legislative, executive and judicial) and the separation of powers between them. The other principle is the strict insulation of judicial power.

It was ruled in Alexander that the conferral of arbitral function (making of awards) on the Arbitration Court is valid, but the conferral of judicial function (enforcement of awards) is invalid, because they are different powers. Issacs and Rich JJ clarified the difference between those powers, saying that the judicial power is to ascertain, declare and enforce the rights and liabilities of the parties, whereas the arbitral power is to ascertain and declare but not enforce the rights and liabilities of the parties. Arbitral functions are thought to be not the ordinary work of a Court of law since there is no fixed code of law which it interprets and its decision is only declaratory statement as to what it thinks just and expedient. Also, the powers spring from different sources in the Constitution. The arbitral power arises under s51 (xxxv) and the judicial power under s71. Further, two powers are distinct in nature and origin. The arbitral function ends once the dispute is settled whereas the judicial function provides enforcement if a certain right is violated. Arbitral functions are said to be ancillary to the legislative function, therefore the Court cannot have both functions since the judicial functions need to be separated.

2. What are some of the elements or ‘indicia’ of judicial power? Here you should draw on statements in the case law extracted in the textbook (pp 502ff), and the Blackshield reading.

There is no precise definition of what constitutes judicial power, however one classical definition given by Griffith CJ (in Huddart, Parker & Co Pty Ltd v Moorehead) describes judicial power as the power needed by sovereign authorities to decide controversies between its subjects, or itself and its subjects, ‘whether the rights relate to life, liberty of property’, and highlights its binding and authoritative quality. As definitions of the elements of judicial power are imprecise, tribunals may appear to have functions overlapping with judicial power, and subsequently are a regular source of litigation. This was the case in R v Trade Practices Tribunal; Ex Parte Tasmanian Breweries Pty Ltd, where Kitto J identified that judicial power generally involves reaching a decision as to the existence of rights or obligations between persons or classes of persons that is binding for future cases, and if a power does not fit into this process, then it must have some “special compelling feature” for it to be a judicial power. Blackshield argues that judicial power is controlled power, as its exercise is based on existing law, and that judicial power must somehow be subjectively circumscribed and controlled. Blackshield also presents three aspects: judicial independence (Jacobs J in R v Quinn; Ex parte Consolidated Food Corporation), that facts limit the laws which apply (Talga v MBC Internationa Ltd), and that when personal predilections enter judgment, judges are swayed by what they think the court should deliver rather than what they think they should deliver (Brennan J).

3. Drawing on Stellios, explain the rationale behind having such a strict separation of judicial power in Australia.

Stellios promulgates three key rationales for the necessity of a strictly independent judiciary. Firstly, the separation of powers between three branches of government entails a system of checks and balances. Power is used as a check against power to ensure that no branch exercises power outside of its defined boundary. Without independence, the judiciary is less competent in keeping the executive and/or legislature in check. The judicature has the ultimate responsibility for the maintenance of the boundaries of power (Boilermakers). Thus independence of the judiciary is critical to the Australian system. Secondly, by dispersing the powers of government and having an independent

judiciary, there is strong protection against arbitrary abuse of power. This provides protection for basic rights i.e. life, liberty and property (Montesquieu). Thirdly, an independent judiciary protects Australia’s federal compact.

On these bases, a strictly independent judiciary is a vital constitutional safeguard” (AG v The Queen 1957).

Stellios puts forward three rationales for the strict separation of judicial power in Australia: protection of the federal compact, protection of rights and liberty, and to provide a check on the legislative and executive arms of government. First, due to the High Court's role as interpreter of the Constitution, they hold the ultimate responsibility for the enforcement of the division of powers between the Commonwealth and the States. If the courts were not separate from the legislature and executive, a vital protection for the rights of states would be lost. Second, the separation of judicial power allows for judicial rights protection. It has been argued to disperse the power of the government and therefore protect against concentrated arbitrary use. It is also been noted in England that judicial power has historically protected life, liberty and property. While coming from different perspectives, both clearly reason that independence and impartiality are vital for judicial rights protection. Finally, the judiciary clearly could not provide an effective check on the powers of the legislative and executive arms of government if it were not separate from them.

4. Why is security of tenure and salary (s 72) important to judicial independence? Aside from s 72, what other protections exists for judicial independence (see Stephen extract)?

Security of tenure and salary is essential in ensuring that judicial officers are protected from any influences that may affect the impartiality and independence of their decisions. Once appointed, Judges remain on the High Court until retirement at the age of 70, subject to misbehaviour and incapacity. The judgment of Isaacs and Rich JJ in Alexander’s case supports this idea: “It is plain that the independence of the tribunal would be seriously weakened if the Commonwealth Parliament could fix any less permanent tenure than for life” (Stellios).

The doctrine of separation of powers ensures judicial independence from the executive and legislative arms of government by ensuring that judicial power can only be exercised by the courts.Further protection of judicial independence is afforded by the Judiciary’s immunity from civil liability. (Note this does not apply to criminal conduct). Stephen argues that this prevents fears of negative consequences that may arise from the exercise of a judicial officer’s duty. Judicial independence is protected when judges are allowed to focus solely on decision making without regards to any other influences. Judicial independence is further protected through standing orders that prevent the parliament from criticising judicial action. Stephen argues that this prevents the weakening of the judiciary's authority. Note that on the other hand, judicial officers are expected to not be involved in political controversies

Judicial tenure has prevailed in England for the past 300 years, and it is this English origin that influenced s72 of Australia's constitution. Security of tenure and salary is vital in injecting confidence amongst the judiciary that their positions and income are secure. Without this, justices would be much more easily swayed to manipulate their decisions and findings of law to remain in favour of current political parties in an attempt to further maintain their position. This would usurp the notion of the democracy and erode judicial officer's position as the keepers of the rule of law.

Other than the protection enshrined in the Constitution (which is further solidified by the requirement of a referendum to alter it), judicial independence is also promoted through the doctrine of the separation of powers. This doctrine strictly separates the judiciary from the other two arms, making them 'immune to their influences'. Similarly, there is a requirement for justices too to not become involved in politically controversial matters. The removal of any association, and thereby ability to apply pressure, between the courts and the other two branches is key to both the perception and maintenance of judicial independence. Furthermore, the immunity of the judiciary from civil liability for any act done by them in the exercise of the court's jurisdiction, also increases protection. Although this does not apply criminal acts, such as corruption, it does include the application of gross error, thereby,

as Stephens puts it, allowing them to not only do their job independently but also free from fear of adverse consequences. Finally, standing orders require that no offensive words be used against any member of the judiciary, protecting individual justices from scrutiny in parliament.

5. Do you agree with the majority or McHugh J in Grollo v Palmer? Why?

I agree with McHugh J in Grolio v Palmer that to assign 'eligible Judges' the function of issuing warrants for telephone tapping which is an exercise of non- judicial functions is not compatible with their judiciary duties.

The public confidence for the average reasonable person is granted in the knowledge that judges would perform their judicial functions in an independent and impartial manner. This concept of open justice is essential which has a reputation that should be protected from any reasonable doubt as pointed out in Mistretta v United States as a Judicial Branch known for its 'impartiality and nonpartisanship'.

Persons who hold office as judges which are called to approve the investigative ploy of telephone tapping are done so in a secret, ex parte administrative procedure which is in contrast to the requirement that justice in federal courts should be open which impairs the perception that the federal courts are independent from the lack of transparency.

More importantly, the point alluded by McHugh J that is extremely convincing to the incompatibility of Judges in being ascribed non Judicial functions are situations which would give rise to a conflict of interest. These circumstances occur when there is a proceeding in Court that either directly or indirectly involve the subjects of the telephone tapping which was authorised by the same Judge. As the Judge made the decision to grant the warrant to telephone tap the named suspect, important information which is highly prejudicial was secretly provided to the Judge. As this was done in secret to protect the identity of the Judge and both parties are unaware that the Judge has knowledge which is biased against either one of their sides, they are unable to request that the judge be disqualified from this proceeding. In a Catch 22 situation, the Judge is unable to reveal any information that they were involved in authorising the telephone interception as it would breach statutory obligation of the secrecy that was imposed [on the Judge] when they were assigned to approve the issue of the warrant.

Consequently, I find these two main concerns pointed out by McHugh J as more persuasive resulting in my view that Judges, although they may be well equipped to carry out these non Judicial roles, the integrity and importance of protecting the reputation of the Judiciary is far more important and we should therefore be protecting our confidence in them. Thus as stated by McHugh J, there are other persons and tribunals, as well as law officers of the Commonwealth and retired Judges who are able to carry out the function of an 'eligible Judge'.

I agree with the majority in Grollo v Palmer upon analysis on four arguments: a) extent to which judicial integrity is compromised, b) extent to which public confidence is diminished, c) constitutional validity, and d) alternatives.

The first and second argument arise from the notion of ‘incompatible condition’. Incompatible condition applies when a conferred function is incompatible with either the judge’s capacity and performance of judicial functions, or the proper discharge by the judiciary of its responsibilities. This raises three concerns including i) the impediment of substantial judicial functions, ii) integrity being compromised and iii) public confidence being diminished.

Regarding the first argument, the applicant questions judicial integrity where the obligation not to disclose information compromises the judicial duty to exercise jurisdiction of a Federal court. This is a concern as a judge could potentially issue a warrant and then act in the judgement of such a warrant. This submission was addressed by the majority judgement by reference to existing judicial practices that encourages accountability. These practices encourage judges not to sit in cases where information, received extra-curially, might prove embarrasing to an impartial hearing and determination of the case. With the wording of ‘might’, this is a low threshold which could improve accountability, however there is no strict enforcement of such practices. Given the security of tenure and

salary of judges, as well as other practices to ensure impartiality, I would argue that these current practices and measures would be sufficient to address this concern and for that reason, judicial integrity is not heavily compromised with this conferral of power.

The second argument addresses the extent to which public confidence is diminished. The applicant raises the concern to the Boilermakers principle of separation of power where decisions by Federal court judges are unreviewable. This refers to the fact that the reasons behind these warrants don’t need to be stated, undermining any ability for review. In response, the majority raises the argument of necessity. This involves the fact that such criminal matters require a dispassionate assessment of evidence and a sensitive common law approach to the protection of privacy and property rights. The majority argued that both are best addressed by a Federal court judge with their values of impartiality and independence, and would mitigate the potential diminishment of public confidence. By reference to the nature of these warrants and to the impartiality of judges, I would argue that the majority sufficiently addresses this concern.

The third argument is raised by McHugh J in dissent regarding the constitutional validity of this conferral of power in contravention of the separation of powers principle. This concerns the separation of executive and judicial powers and how such a conferral challenges this constitutional stance. While the extract argues this principle in general and not in reference to specific provisions in the Constitution, the majority did not meet the reasonableness burden to prove the compatibility between executive and judicial powers. For this reason, I would support McHugh J’s submission on this issue.

Regarding the fourth argument of alternatives, McHugh J raises the argument that aside from Federal court judges, others are also well fitted to serve this role, like retired judges or other law officers of the Commonwealth. While this may be the case, there was no mention as to whether these alternative officers would necessarily exercise the impartiality and independence that current Federal court judges are bound to ensure accountability. For this reason, I would agree with the majority.

11A: THE JUDICIARY (III)

1. According to Coper, what are the three broad ways in which the High Court is held accountable for its work?

The first of the three broad ways in which the High Court can be held accountable for its work is through legislative and electorate correction. In regards to the Court's decisions on the common law and on statutory interpretation, if Parliament were to perceive these decisions as wrong or inappropriate they can override the decisions by creating new legislation (often in the form of amendments). This contrasts with decisions on the Constitution, which can only be overriden by electorate voting at a referendum to amend the Constitution. Given the difficulty associated with such a correction however, it is generally acknowledged that the Court has final say on matters of constitutional interpretation.

The open court principle is another way in which the Court can be held accountable for its work. More often than not, courts are left open to the public. Furthermore, their decisions and reasons for decisions are published. In this way, their work is constantly open to public scrutiny and criticism.

The third way in which the Court can be held accountable is through itself. According to Coper, there is a belief that through the diligent processes of selection and appointment, it is likely that the successful candidates will be able to demonstrate the required responsibility for their own decisions and actions.

1. The decisions of the High Court on matters of common law and statute can be over-ridden by Parliament through legislation. However, this would operate in a prospective manner and does not affect the parties in the High Court decision. With regard to Constitutional decisions, the High Court can be held accountable by the electorate through a referendum.

2. The High Court's 'open court' operations means that it is open to public scrutiny. Detailed reasoning is provided to the public although there are questions of accessibility and intelligibility. However, it is fairly easy to find critiques and commentary of High Court decisions in the media, academia and within the legal profession.

3. The Justices themselves and their appointers carry a sense of responsibility and integrity from many years of experience in the public service. Although this cannot be guaranteed, we need to trust that the process is diligent and responsible, and that the Justices will be responsible and impartial.

Cooper presents three broad ways in which the High Court can be held accountable for its work. The first approach that Cooper suggests is that the High Court’s decisions can be overruled. This can occur in matters regarding common law and statutory interpretation through parliamentary powers which creates new legislation that can deem the High Court’s decisions as wrong. The High Court’s decisions regarding the Constitution can also be overruled through a referendum. The second approach that Cooper states for holding the High Court accountable is that the decisions made are open to public scrutiny as the decisions made must be open and legal reasoning must be published. The third approach that Cooper presents is that the High Court itself holds itself accountable due to its own sense of responsibility of striving to provide justice. The High Court does this through a having a thorough process when appointing people to become a High Court judge so that those who make decisions have a professional ethos and are very experienced.

2. Under section 72 of the Constitution, on what grounds can a federal judge be removed from office? According to Blackshield, what are the shortcomings of this removal process?

Section 72(ii) of the Constitution states that the Justices of the High Court and of the other courts created by Parliament (including federal judges) can only be removed by the Governor-General in Council, on an address from both Houses of Parliament in the same session, praying for such removal on the ground of proved misbehaviour or incapacity.

Blackshield notes that this provision ensures that no one but Parliament can remove a judge from office, but also to ensure that Parliament can remove a judge from office. However, he highlights various shortcomings of this process. He argues that the ‘Murphy affair” “served only to demonstrate the absence of any workable procedure for dealing with such an issue”, for various reasons.

Firstly, he argues that since there is no relevant ‘technical’ meaning of misbehaviour, Parliament’s power of removal cannot legally be defined at all. This is noticeable from the lack of a legal definition of ‘misbehaviour’ in s72 of the Constitution. In contrast, in other legislation, where terms are unclear in themselves, there will normally be subsections that provide a definition to clarify the meaning of those unclear terms. Blackshield then argues, however, that to give ‘misbehaviour’ a legal meaning would invite unnecessary judicial review, for any Justice removed from office could appeal to the HCA on the basis that Parliament had misunderstood or misappropriated legally circumscribed powers. The Judge could also appeal to the HCA, and Blackshield argues that adjudication on such an issue is “quite unthinkable”. He further cites a procedural difficulty from the Murphy Affair, where Murphy simply refused to submit to questioning and therefore hampered the ability of two successive Senate Committees to resolve the issues at hand.

Secondly, Blackshield asserts that a parliamentary finding that ‘misbehaviour’ was proved beyond a reasonable doubt would so obviously be prejudicial to subsequent criminal proceedings, and that Parliament would therefore avoid such a finding. He also argues that conversely, a prior acquittal on criminal charges would inhibit a parliamentary finding of misbehaviour even where that was appropriate. Here, Blackshield is raising how the doctrine of precedent either indirectly or directly inhibits future removal of federal judges. However, one may argue that this finding would be specific to the facts of each case, and that it would therefore set only limited precedent in the application of the term “misbehaviour”.

Lastly, Blackshield also cites institutional concerns raised by Murphy himself. In refusing to submit to questioning, Murphy argued that natural justice requires that a person accused of misbehaviour be allowed to cross-examine witnesses, whereas Senate standing orders excluded cross-examination. Furthermore, he argued that in upholding the separation of powers, a member of the judicial branch ought not to submit to interrogation by the legislative branch. Lastly, he argued that the question of whether grounds exist for a Justice’s removal from office should be entrusted exclusively to Parliament, whereas in practice, the fact-finding task has been given to external bodies, such as the 1986 ‘Parliamentary Commission of Inquiry’ in the Murphy affair.

Under s72 of the Australian Constitution a federal judge can be removed on the grounds of proved misbehaviour or incapacity in conjunction with an address from both Houses of Parliament. However, according to Blackshield there is a main shortcoming of the removal process. This shortcoming is that there is no definition for 'misbehaviour' and there must not be one. This is because once the word as a legal meaning, the removed judge has the right to appeal to the High Court on the argument Parliament has not properly understood or exercised their powers. S72, in assuring only Parliament can remove a judge, would become redundant if their decisions are subject to appeal to the very authority s72 is trying to put a check on. Therefore, the meaning of 'proved misbehaviour' rests solely on Parliament's judgement. Furthermore, instructions from aiding committees are limited to political advice only. Again for maintaining a clear separation of powers, such advice can not be legal instructions.

3. How does the Judicial Misbehaviour and Incapacity (Parliamentary Commissions) Act 2012 (Cth) seek to address the shortcomings of the removal process outlined in section 72 of the Constitution?

The “Murphy Affair” exemplified the shortcomings of the removal process outlined in the Constitution. The inherent ambiguity of the concept of “misbehaviour” created a multitude of categories which could be considered unacceptable. The “Murphy Affair” showed that section 72 did not provide a clear process by which to examine potential misbehaviour. A number of methods were used in an attempt to resolve the “Murphy Affair” including jury trial and senate committees with no clear outcome. Murphy himself outlined shortcomings of the process as it stood at the time. Importantly, he noted that the power to remove a Justice lies firmly in the hands of the Parliament and any external guidance, from a senate committee for example, should remain as guidance alone. The Judicial Misbehaviour and Incapacity (Parliamentary Commissions) Act 2012 (Cth) respects the constitutional requirement that only the Parliament may remove a Justice while providing a process for removal. Under section 10 the role of the Commission is to investigate an allegation of misbehaviour and then “report to the Houses of the Parliament the Commission’s opinion of whether or not there is evidence that would lead the House’s of Parliament to conclude that the alleged misbehaviour or incapacity is proved”. The wording of this provision highlights that the Parliament maintains the "final say". The Commission’s role provides a clear process by which a Justice may be removed while respecting the adjudicative function of the Parliament.

As per my colleagues’ posts, s 72 of the Constitution provides judicial removal on the grounds of proved misbehaviour or incapacity. There are however two main shortcomings of the removal process:

1) Ambiguity in the meaning of ‘misbehaviour’, and

2) Ambiguity in the procedure of removal

Regarding the first shortcoming of the removal process, Quick and Garran initially proposed the meaning of ‘misbehaviour’, in reliance of Todd’s Parliamentary Government in England (1867) text, as:

a) Improper exercise of judicial functions

b) Wilful neglect of duty, or non attendance

c) Conviction for any infamous offence

by which, regardless whether it was in connection with the duties of his/her office, the offender is rendered unfit to exercise any office or public franchise.

This was ultimately rejected by Pincus’ wider view that there is no ‘technical’ relevant meaning. In addition, it was later found by the Parliamentary Commission of Inquiry that Todd’s enumeration wasn’t accurate of the traditional British position in the first place. As such, Commission held that the Australian provision should not be regarded as perpetuating the British position, and accepted the wider view.

Given the paradox of an open-ended view of ‘misbehaviour’ that could not legally define Parliament’s power of removal, and the ‘unworkable’ proposition to subject this power to an appeal to the very authority in question, it was determined that the limits of this power were political, not legal, in nature.

This first shortcoming is addressed by s 10 of the Judicial Misbehaviour and Incapacity (Parliamentary Commissions) Act 2012 (Cth). This defines the role of the Commission to ‘report to the Houses of the Parliament the Commission’s opinion of whether or not there is evidence that would let the Houses of the Parliament conclude that the alleged misbehaviour of incapacity is proved’. With the phrasing to ‘let the Houses of the Parliament to conclude’, this in essence gives rise to the political determination of the meaning of ‘misbehaviour’.

The second shortcoming is the ambiguity in the procedure of removal. In the ‘Murphy Affair’, attempts of criminal prosecution and two Senate Committees were procedurally ineffective and raised questions of parliamentary privilege in the use of evidence from Senate inquiries (R v Murphy (1986)). In addition, the Parliamentary Commission of Inquiry was also ineffective and incomplete in its inquiry into ‘all aspects of his private and public life’.

Instead, the 2012 Act serves to narrow the scope of inquiry with a focus on the factual basis upon ‘a specific allegation of misbehaviour or incapacity’. Without the umbrella approach of covering all aspects of his life, this would improve the procedural efficiency and effectiveness in finding satisfactory evidence for the Houses of Parliament. In addition, other measures like the mandate to have at least one member of the Commission as a retired federal judge or a retired judge of the Supreme Court of a State/Territory, as well as respecting the constitutional requirement to have similar requirements for the removal for State judges, this Act serves to address this procedural shortcoming of the removal process.

11B: RIGHTS PROTECTION (I)

1. What is the difference between, say, rights to property (eg, the exclusive possession that a freeholder has over their land) or the copyright that an author has in a book, and human rights? What marks off this category known as human rights?

Human right are basic rights that are universal and inherent. They belong to every human irrespective of nationality, legal status or economic background. Human rights are fundamental protections that are afforded to all people by virtue of their humanity. According to Henkin, human rights are 'those benefits deemed essential for individual well-being, dignity and fulfillment and they reflect common sense notions of justice, fairness and decency'. Williams and Burton add that the protection of human rights is especially dependent on international co-operation and parliamentary responsibility to its people.

Human rights differ from other rights for example a copyright or right to intellectual property because this copyright is a private right granted to a single individual by a copyright authority as opposed to a public right granted simply by virtue of our humanity. The 'universal and inherent nature' of human rights is the fundamental point of distinction with private rights to particular things like copyrights or access to land. Human rights are base element of society and rest at the foundation of a moral and decent society. In this way, they are distinguished from other, more specific private rights that are exclusive to a particular person, corporation or government body.

One may argue that human rights are distinct from other rights as they are more internationally accepted as universal and “fundamental”. All 193 member states of the United Nations have committed to the protection of human rights by ratifying the United Nations Charter (which is binding upon all member states). The UN Charter, in turn, states in the preamble that “We the peoples of the United Nations (are) determined) to reaffirm faith in fundamental human rights, in the dignity and worth of the human person”. Since the Universal Declaration of Human Rights (UDHR) clarifies the meaning of “fundamental human rights”, the rights as stipulated in the UDHR are clearly distinct from other private rights, which are more subject to international contestation.

On the other hand, one may argue that the distinction between human rights and other private rights such as copyright is becoming increasingly blurred due to the presence of international instruments that aim to guarantee these rights in a similar universal way. For example, the Berne Convention, an international agreement governing copyright, sets minimum standards for copyright law, and states that ratify the treaty are to follow these standards. This is not dissimilar to the way the UDHR sets universal minimum standards for the treatment of humans across all states in order to maintain their “inherent dignity”.

Furthermore, with specific reference to rights to property in particular, it may be argued further that the distinction with human rights is slightly blurred. Article 17(1) of the Universal Declaration of Human Rights (UDHR) states that everyone has the right to own property alone as well as in association with others, and Article 17(2) states that no one shall be arbitrarily deprived of his property. Hence, the UDHR has established that once one has attained exclusive possession over property in accordance with domestic law, his or her right to possession is to protected from arbitrary abuse of state power (amongst other potential causes of arbitrary deprivation). The UDHR thus establishes that the right to property is to be protected in the same way as more commonly identified human rights, such as the right to be free from torture (Article 5 of the UDHR), and the right to a fair and public hearing by an independent and impartial tribunal in the determination of any criminal charge against him/her (Article 10 of the UDHR). As such, one may argue that the right to property is not dissimilar to other human rights as laid out in the UDHR.

It is no wonder, then, that Blackshield et al note that “The full list of what are and are not human rights remains contentious”.

Human rights can be defined as entitlements every human being has due to their existence. This “category” of human rights is distinguished from others due to its universal, indivisible, inherent and inalienable nature - meaning they are for all, each right is equally important to the rest, intrinsic to our nature and cannot be taken away. Henkin states human rights are ‘benefits deemed essential for individual well-being… that reflect a common sense of justice, fairness and decency.’ They are not subject to race, gender, age, occupation, wealth, talents, religion, legal status, etc. Some examples, as outlined in the Universal Declaration of Human Rights, include everyone has the right to freedom of opinion and expression, no one shall be held in slavery or servitude and no one shall be subjected to torture. Therefore, it is clearly evident how rights to property and copyrights differ from basic human rights, as they are not fundamental to human life or dignity and are more individualistic in nature, serving the interests of only specific individuals, rather the needs of human beings as a whole.

2. In what ways can Parliament be a protector of rights?

Parliament can indirectly protect rights through its structure and conventions, as well as through the legislative and executive limits placed by the Constitution. The doctrines of responsible and representative government help highlight and criticise laws that may possibly be unfair. The bicameral system of federal parliament ensures that the party that holds majority in the House of Representatives (which thus forms government), is unlikely to also have a majority in the Senate, which allows Senate to act as a check and balance on the lower house and prevents executive domination of Parliament. Parliament holds an inevitable role in rights protection, as parliament and the executive are at the forefront of legislative development, during which they may consider the question of human rights, and

this system recognises this, where the development of appropriate laws and policies works to stop violations of human rights occurring in the first place, instead of merely providing remedies after a violation has already occurred. Furthermore, human rights protection needs democratic and political support, and cannot be upheld only through the courts, as seen through Australia’s experience with native title. Parliamentary committees can also work to ensure that human rights issues are given attention and assessment by those with appropriate expertise. Standing committees such as the Senate Standing Committee on Legal and Constitutional Affairs often review legislation that have potential human rights implications, and the Senate Scrutiny of Bills Committee is directed to report on bills which ‘trespass unduly on personal rights and liberties’ or ‘make rights, liberties or obligations unduly dependent upon non-reviewable decisions’. Through these committees, further attention is drawn to human rights.

Parliament can be a protector of rights through the development, introduction and assessment of new legislation that may related to Human Rights. This means that although Australian may have an absence of a national Bill of Rights, any rights that may need to be protected - bar those implicitly found in the constitution - can be legislated by Parliament. The most notable examples are the Racial Discrimination Act 1975 (Cth) and the Sex Discrimination Act 1984 (Cth).

However, Parliament may also be a protector of rights through the embedded safeguards in how Parliament operates, especially as our system recognises the necessity and inevitability of Parliament in playing a predominant role in the protection of Human Rights - which makes it democratically sound. The fact that parliament is bicameral ensures that no political party is likely to hold a majority in both houses and the possibility of executive domination that may encroach Human Rights.

Finally, Parliamentary committees can ensure that particular issues receive assessment and due attention by those with appropriate expertise. However, there is a problem in the level of impact it may have on improving legislation considering they cannot compel a government to alter legislation. Moreover, often these committees take a cautious and narrow view of their role, and thus have done little to lend clarity to rights debate.

Parliament has a crucial role in the protection of human rights. Firstly, Parliament can enact important legislation, that protects against the infringement of the rights of various groups, such as the Disability Discrimination Act 1922, Racial Discrimination Act 1975, Sex Discrimination Act 1984, and the Age Discrimination Act 2004. In order to ensure compliance with these laws, the federal Parliament created the Australian Human Rights Commission – an independent body that promotes the rights that are established under these laws.

Secondly, the protection of rights is facilitated by the bicameral nature of Parliament. Since the upper house of Parliament is elected through a system of proportional voting, it is often the case that the party that holds majority in the House of Representatives (i.e. the government) is unlikely to hold majority in the Senate. Therefore, the Senate acts as a check and balance on the government (engaging the notion of responsible government), to ensure that outrageous laws that infringe on human rights are criticised/blocked.

Thirdly, various Parliamentary committees, such as the Senate Standing Committee for the Scrutiny of Bills, determine whether bills trespass unduly on personal rights and liberties. Thus, this allows human rights violations to be identified and subsequently prevented by the formulation of the relevant laws and policies, before any breaches are allowed to occur.

The Parliament is a key protector of rights in Australia, with a specific emphasis place on the institution to ensure the rights and freedoms of Australians (Williams and Burton, 2013). The most prominent way in which the Parliament protects human rights is through the passage of statute law through both the House of Representatives and the Senate. The Racial Discrimination Act, the Sex Discrimination Act and the Age Discrimination Act are all examples of statutes that have been enacted by the parliament and now form the basis of Australia’s understanding of Human

Rights. The Federal Parliament also passed legislation which created a federal commission, known as the Australian Human Rights Commission, to ensure adherence to these laws.

The Parliament is a particularly effective institution in dealing with human rights protection due the notion of parliamentary sovereignty. This ensures that the laws that are based by the Parliament are usually binding of the other two arms of government, the executive and the judiciary. However, Parliamentary Sovereignty can at times impede the Parliament as a body that protects human rights. For example, if it chooses, the parliament can legislate contrary to fundamental principles of human rights with constraints ultimately political, not legal.

Furthermore, the Parliament is also continually evolving to become a more effective protector of Human Rights. In 2011, the Parliamentary Scrutiny Act 2011 was passed – which outlines that a member must provide a Statement of Compatibility at the introduction of a new Bill to ensure Members are aware that a certain Act complies with Human Rights principles.

The Parliament can be a protector of rights through its creation of statutes such as the Sex Discrimination Act (1984) which can deal with specific human rights issues. This can be done despite the absence of a Bill of Rights because of the parliament’s ability to change the Constitution through a referendum and developing common law through statutory interpretation. The Parliament is able to use statutory interpretation to approach human rights via two ways. The first is through the principle of legality and the other is that courts can read laws with the assumption that the law is consistent and just.

In addition to the courts, Parliament too is a large protector of rights. Through its legislative power it can make binding rights protecting statutes as seen by the Racial Discrimination Act 1975 (Cth), Sex Discrimination Act 1984 (Cth), Disability Discrimination Act 1992 (Cth) and Age Discrimination Act 1986 (Cth). It can also establish committee and commissions to ensure compliance with these laws as seen by the creation of the Human Rights Commission through the Australian Human Rights Commission Act 1986 (Cth). The general doctrines of responsible and representative government also call for Parliament to act in a way that protects human rights. Furthermore, the voting system (proportional representative) of the Senate, the upper house of Australia's bicameral Parliament, ensures a better representation of minority parties meaning the political party holding majority in the house of representatives forming government is unlikely to have a majority in the senate too. This acts as a check and balance on the lower house and thus executive too. Finally, the establishment of Parliamentary committees can also ensure human rights get appropriate attention and review legislation particularly Senate Standing Committees. Although these mechanisms also come with rather extensive flaws too, they have ensured, even in the absence of a Bill of Rights, that human rights in Australia are protected and upheld.

3. What limits are there on Parliament's capacity to ensure that rights will be protected – and can you think of any specific examples of where these limits have been exposed?

As mentioned in the above response, Parliament plays a substantial role in the protection of rights through the enactment of legislation that is specifically related to rights based issues. Furthermore, Parliamentary Committees are influential in the process of scrutinizing legislation and ensuring its compliance with personal rights and liberties. Despite these strengths, limits do exist in the ability of Parliamentary Committees to protect the rights of individuals. According to Evans, committees, specifically the Senate Scrutiny Committee, tend to adopt narrow views in defining what constitutes an infringement upon personal rights. In addition to this, the Senate Scrutiny Committee has failed to acknowledge the ‘full scope of human rights’ recognised within international treaties that Australia is associated with, consequently limiting their capacity to protect a diverse range of rights. Finally, the ability of Parliament to prioritise ‘policy concerns over rights based protection’ when introducing new legislation, further inhibits their ability to safeguard the fundamental freedoms awarded to each individual.

This idea was illustrated in the Northern Territory Intervention of 2007, which provided a mechanism of responding to the widespread sexual abuse of aboriginal children. Through the implementation of five new acts, including the

Northern Territory National Emergency Response Act 2007, drastic changes were made in the areas of ‘aboriginal land ownership, mandatory health checks for aboriginal children, bans on the supply of alcohol and pornography in aboriginal areas, and limitations on the payment of welfare benefits’. The Bill was enacted with minimal debate and scrutiny, where little consideration was made towards the impact of the Act on human rights. The fact that these restrictive laws were justified as being necessary to ensure the sustained welfare of indigenous children emphasises the prioritisation of policy concerns over rights protection.

In addition, there are two practical limits to Parliament's ability to protects. The first is the sheer volume of legislation which makes it impossible for Parliament to fully assess the impact on rights of many legislative provisions. For instance, in 2011 there were 238 bills introduced into the House of Representatives and 286 instruments that needed scrutinising. Given this workload, it is an insurmountable task for Parliament to consider every single piece of legislation and whether it breaches human rights. But most perversely, the huge amount of legislation passed makes it difficult for the legislature to be held to account because knowing what laws Parliament has actually passed is difficult in itself. Second of all, debates about human rights often shift towards what rights are as opposed to whether they are adequately protected. This is because Australia has not adopted a Bill of Rights which comprehensively outlines what rights are or ought to be protected. As a consequence, debates about rights protection often "fizzle out." In the rare case they do occur, rights often become marginalised by relatively weak countervailing policy concerns.

Some of the issues which Chris has raised may be mitigated by the work of committees. Committees have the ability to "refocus" the attention of Parliament on rights-based issues. The problems of the volume of bills brought before Parliament and debates about what constitutes human rights are lessened as the committees are staffed by professionals whose full attention is given to the rights-based issue. Some interesting committee work I recently found was the same-sex marriage inquiry undertaken by the House Standing Committee on Social Policy and Legal Affairs which recently ran a survey to gauge public opinion on the issues of marriage rights for same sex couples.

Despite the potential success of committees in lessening the limits of parliamentary protection of rights, it is difficult for them to enact any strong change as they cannot deviate the legislative path of the Parliament.

12A: RIGHTS PROTECTION (II)

1. What is the difference between weak-form and strong-form judicial review?

Strong form judicial review is mostly exercised in the United States whereas Canadian law reflect weak form judicial review. The difference between strong form and weak form judicial review is when a court overturns legislation on the basis of an interpretation of a constitutional clause where the interpretation is disputed by the legislature. In a system of strong judicial review, to overturn a court's interpretation of the Constitution, the court can reverse its decision, change its interpretation through informal common law development or the legislature can amend the constitution. For weak judicial review, there is another response which is the legislature can simply pass the law again “notwithstanding” the constitutional clause or the court’s interpretation of the constitutional clause. This weak form judicial review is seen as less of a threat to parliamentary sovereignty because the final say is with Parliament rather than the judiciary.

Within the constitutional context of rights protection, strong-form judicial review is one in which the courts are essentially given the final say on constitutional interpretation matters regarding rights. That is, the court’s decisions on these matters are final and binding, and these decisions can only be overturned by the legislature upon appropriate and successful constitutional amendments. This contrasts to weak-form judicial review, which stops short of giving courts the final say on such issues. Under s 4 of the Human Rights Act 1998 (UK) for example, the courts’ authority to make a declaration of incompatibility does not extend to a complete invalidation of the law. As a result, weak-form judicial review, unlike strong-form, creates minimal tension with the notion of parliamentary supremacy.

In strong form judicial review, which is mostly employed in the United States, the court’s interpretation of constitutional questions is final and binding on the political branches. There are, however, a number of ways remaining to change these interpretations, for example the legislature may amend the constitution, the court may reverse itself, or new justices may be appointed who overturn earlier interpretations. Weak form judicial review on the other hand, which is reflected in Canadian law, offers a further method to overturn the court’s interpretations, where the legislature is able to effectively override judicial decisions by allowing legislation inconsistent with court’s interpretation of the constitution to remain effective (for example the ‘notwithstanding’ clause in the Canadian Charter of Rights and Freedoms). Weak form judicial review is more closely aligned with parliamentary sovereignty, as Parliament gets the final say rather than the judiciary.

The difference between the forms of judicial review is determined by the extent of the court’s ability to change legislation in which it does not align with the rules and regulations set by the Constitution. So, a weak-form judicial review aims to follow the concepts of parliamentary sovereignty which places the courts in a position in which they interpret constitutional rights on the presumption that statutes are just and are consistent with the court’s interpretation of the Constitution. On the other side of the spectrum is a strong form of judicial review, where courts have the ability to overrule decisions in situations where the court deems legislation to be inconsistent with the court’s constitutional interpretation. This gives rise to judicial supremacy as it relies on the development of common law and/or constitutional amendment and places significance on the court’s interpretations of the Constitution over the Parliament’s interpretations.

2. In what ways does the Human Rights (Parliamentary Scrutiny) Act 2011 (Cth) seek to strengthen rights protection in Australia?

The Human Rights (Parliamentary Scrutiny) Act 2011 (Cth) creates two measures to strengthen rights protection: establishing a Parliamentary Joint Committee of Human Rights (PJCHR) and a requirement that new Bills of Parliament have a Statement of Compatibility (SOC) outlining whether the consequences of the Bill have an effect on human rights. The PJCHR is a six member committee (3 from the House of Representatives and 3 from the Senate) whose purpose is to examine new Bills and legislative instruments and existing Bills on their compatibility with human rights, as well as any other functions conferred by the Attorney General (s 7 Human Rights (Parliamentary Scrutiny) Act). However, since partisanship has not been specified in the Act, a majority Government-party Committee which acts entirely in favour of government proposals is possible. Furthermore, as there is no requirement that the PJCHR be given time to examine the Bills prior to assent, the PJCHR has mainly an advisory role in Parliament.

An SOC must be included in all new Bills (s 8(1)) and Legislative Instruments (s 9(1)). It is necessary to assess whether the Bill/Legislative Instrument is compatible with human rights (ss 8(3), 9(2)); however, how this assessment should be phrased is not specified in the Act: both a yes/no statement and a lengthy discussion of compatibility are acceptable SOC's. There is no requirement that the SOC be provided prior to the Second Reading Speech, and there are no legal consequences for a false SOC or even an absence of one; and the literal meaning of the text cannot be altered by the SOC due to rules of statutory interpretation. As a result, the main purpose of a Statement of Compatibility is that drafters consider the impact of a Bill when creating new legislation.

Also, the Human Rights (Parliamentary Scrutiny) Act 2011 (Cth) defines "human rights", drawing from seven international instruments to give "human rights" a broad definition. A definitive list of human rights recognised in law can promote prudent parliamentary debate and draws attention to the importance of human right considerations in passing legislation.

However, under the Act "over 100 rights and freedoms" are recognised (Kinley & Earnst), with economic, social and cultural rights seen as broad and aspirational standards which may face challenges in being adapted to a domestic

Australian context. In conjunction with what Nicholas has explained, it is really up to parliamentarians to consider human rights in legislation, if they do at all.

I’ll describe two areas that the Act strengthens rights protection in Australia. These include a) Parliamentary discretion and b) rights profile and legitimacy. It should be noted that whilst the Act on its own regard encounters some considerable criticism, this Act must be seen in light of its alternatives and the likelihood of their adoption in a modern Australian context.

Regarding the first area, the Act gives discretion to Parliament in regards to the level of protection. While the protection of certain rights in international instruments may be absolute, the silence on protection gives Parliament the discretion to determine this extent. This can strengthen rights protection where it is justified on the basis of a standard proportionality analysis. While placing rights as absolute, or in line with international instruments would likely increase rights protection, it could come at a disproportionate cost of prolonged Parliamentary processes, constraints on popular sovereignty or even the neglect or post-enactment drafting of a SOC. As such, this discretion is important in allowing Parliament the freedom (in line with the proportionality guideline) and incentive to protect rights.

The second area involves profile and legitimacy, how the Act can benefit rights protection indirectly by raising awareness to Parliamentarians and the public. This is likely to increase political pressure for legislation to protect rights, and supports more dialogue between the Executive, Parliament and the Judiciary. The relatively small quantity of bills that were not accompanied by SOCs (5 out of 134) in its first six months post-enactment can be a testament to its value in strengthening rights protection when viewed in light of its absence.

3. Given the choice between a Human Rights Act (such as that which exists in Victoria and the UK) and a constitutionally-entrenched Bill of Rights (such as that which exists in the USA and South Africa), which would you prefer for Australia? Why?

If given the choice, Australia should have a constitutionally entrenched bill of rights as it cannot be repealed or modified by legislative action from Parliament. This would mean that if any part of the Bill of Rights were to be changed, it can only be done by a referendum as set out in Section 128 of the Constitution. I prefer this model as it ensures that the Bill of Rights which would contain a list of legal protection to the rights and freedoms of the citizens in Australia would not be subject to change because of the Parliamentary decision. Instead it would represent a collective decision by the population of Australia if we were to decide we would like to modify this important document pertaining to our rights and freedoms. In a situation where the government holds a majority in both houses of Federal Parliament, the rights of the minority may be overruled leading to circumstances where the government may modify the Bill or Rights unfavourably. This would lead to the potential removal of rights of an unpopular minority where the Parliament would be dominated by party politics and powerful majority interests groups. Furthermore, in times of a sudden emergency driven by fear or political pressure, the legislature may rush the enactment of a disproportionate new measure in a response which is overreacting without careful thought or discussion to ensure good decision making. Thus a constitutionally entrenched Bill of Rights would have protected the legal rights and freedoms by providing consistency for the citizens to rely upon knowing that these rights cannot be overridden or amended by the government on a whim decision but by a decision of the people themselves.

The first issue is that rights definition becomes problematic. In particular, it becomes difficult to amend rights because of the rigidness of our constitution. It is widely accepted right now that it is difficult to define what rights deserve legal protection. As a consequence, any choice about what rights are included in the constitution will be controversial. Extending this further, if the definition of what rights deserve protection changes in the future it becomes very difficult to change our definition to reflect with contemporary values. As an example, the US 2nd Amendment and its relation to gun control is often debated, however because constitutional alterations are difficult a change of the rights at the source is unlikely.

The second problem is with how these rights are protected themselves. Gardbaum briefly mentions a problem with judicial supremacy being that rights decisions are put in the hands of an unelected and unaccountable body. Whilst he does counter this by proposing a "new Constitutional model" that ultimately gives Parliament the final say, this is hardly like to provide the strict rights protection that supports of judicial supremacy advocate for.

Though the benefits of a constitutionally-entrenched Bill of Rights holds ‘merit’ as expressed by the Standing Committee on Law and Justice, it ultimately undermines the founding principles of Australia as a constitutional hybrid, including representative government, parliamentary sovereignty and the separation of powers. Foremost, a referendum albeit its ideological purpose of representing the views of the people, still holds many problematic issues which exist under legislative enactment, as party politics and the hastened nature of implementation as seen in 1942 and 1988 essentially “spoiled” effective redress of the lack of human rights protection. Therefore, if a referendum cannot even guarantee human rights, how can it be entrusted to protect it? Moreover, parliamentarians as opposed to Judges are direct representatives of the people, carrying out duties under the mechanisms of political constitutionalism including constitutional morality, collective community wisdom and bicameralism which works hand-in-hand with the POL in ensuring the legislature contemplate that an abrogation or impediment of fundamental rights needs to be explicit and thus open to public scrutiny. Indirect effects of constitutional entrenchment will also arise from the shift in public interest to an unelected Judiciary who although are able to make non-partisan decisions, will face public scrutiny which may potentially impede against the integrity of independent judicial decision-making, parliamentary sovereignty and the executive ‘merit’ appointment process – all of which are protected under the separation of powers doctrine. Henceforth, statutory-based human rights protection like that of VIC/UK is much more effective in that it encourages public and legislative dialogue, overcomes the rigidity of constitutional entrenchment, and checks statutory compatibility from the executive and democratically elected members who specifically address substantive rule of law matters; whilst respecting the founding principles of the ordinary law of the land.

A Human Rights Act (such as that which exists in the UK), would promote greater accountability for the Australian population rather than a constitutionally-entrenched Bill of Rights. This is largely based on the role that the judiciary would hold as a result of a constitutionally entrenched Bill of Rights. The power of judicial review falls upon the judiciary and would allow the High Court to invalidate large pieces of legislation based on an infringement with the Bill of Rights. Therefore, giving an unelected judiciary an overwhelming amount of power. This evokes issues, based upon the merits and dangers associated with judicial activism, as well as issues arising from an executive government, which may appoint judges according to their political views rather than their legal skills. As a result we can see the power being shifted away from parliamentary sovereignty. A Human Rights Act would still be effective in the way that the judiciary would be able to decide upon rights transgressions as well as pointing out rights violations. However, ultimately the violations will be dealt with by other political institutions.

I would prefer a constitutionally entrenched Bill of Rights as it creates a much stronger protection of human rights. The only current protections outside of a few constitutionally protected human rights are token protections held within judicial principles, which can be overridden at any time by Parliament. Presently, as long as Parliament shows clear intention and use unambiguous words in the legislation, it is has the power to legislate against any human right, apart from those few protected explicitly or impliedly in the constitution. While there is an argument that human rights need to be updated regularly to ensure they reflect the values of society, I contend that they are not in need of regular adaptation as human rights reflect fundamental societal values which do not change overnight. A constitutionally entrenched Bill of Rights would require changes to be made by referendum. This would ensure that changes to human rights are not subject to the latest moral panic or media shock campaign, but reflect only fundamental shifts in Australia-wide morals and values. Human rights are too important to be subject to quick changes; they must be protected mechanisms which force careful consideration and national involvement in any modifications of them.

I feel as though a statutory rights protection is beneficial over a constitutionally enshrined bill of rights. My fundamental problem with constitutional rights protection models is that by defining rights in the constitution they are very hard to amend. Since 1945, our definition of what is actually a human right has broadened considerably and this trend should be expected to continue. To define rights is to limit rights. Furthermore, should certain rights become outdated like the right to bare arms in the US they become extremely difficult to change. Secondly, constitutionally enshrined rights impede on Australia's history of parliamentary sovereignty. Rights are already adequately protected in Australia through Dicey's internal and external constraints of morality, principle of legality and the doctrine of responsible government. The process of deciding which rights would be included would require commissions, reports and consultation, all of which comes at a considerable economic cost.

A human rights act allows flexibility as well as it codifies the existence of the principle of legality. It would serve as a great human rights promotion tool for educating the public about their human rights. The human rights act could amalgamate several other existing pieces of legislation like the RDA and the Sexual Discrimination Act, thereby cutting red tape and streamlining rights protection in NSW.

12B: CONSTITUTIONAL CHANGE

1. Who is responsible for the initiation of amendments to the Australian Constitution? What other models might exist in this respect? Are they preferable?

The Commonwealth Parliament has a monopolistic power in initiating amendments to the text of the Australian Constitution; prescribed by s 128 of the Constitution. This is initiated by passing a Constitutional Alteration Bill by absolute majority through each House of Parliament; or passing the Bill through one House twice (once and again after 3 month intervals) in accordance to the ‘deadlock procedure’; whereby the Governor-General may still submit the proposed change to the electors. The electorate has no say in initiating amendments to the Constitution; in 1985 the Advisory Committee on Individual and Democratic Rights proposal to allow referendums to be initiated by a petition of 500 000 electors was rejected; confirming that all proposals for constitutional amendment must be initiated through parliamentary action.

Although other models exist in respect to responsibility for initiating constitutional amendments; the US model: requires a 2/3 majority in both Houses of Congress or when 2/3 of State Legislatures request for Congress to call a national constitutional convention to initiate a proposal for an amendment; and the Canadian model: whereby an amendment may be initiated either the Senate or House of Commons at the federal level or by provincial legislatures.

I believe the Australian model is preferable; as without support from the Government in power, even if the referendum is passed through the Houses; the Government may advise the Governor-General to not issue the writ (Royal Assent) for a referendum (consistent with constitutional conventions, in that the Governor-General may only act on advice of the Ministry); whereby the proposed amendment would not be put to electorates. Additionally, without support from the government in adequate financial resource in education and awareness programs to inform Australians about the intention of the amendment; proposals for change will unlikely succeed anyway.

2. Who is responsible for the ratification of amendments to the Australian Constitution? What other models might exist in this respect? Are they preferable?

Within Chapter IV, procedures for making alterations to the Constitution are outlined in s 128; any amendment sought beginning in the form of a Bill which then will be required to be approved via a referendum. It is the responsibility of the Governor- General once the referendum Bill has passed through Parliament to ensure it is on display to the public for a period of between two to six months. Once this transpires; the amendment will only be successful if approved by the majority of the Australian electorate and the majority in a majority of the states. When the proposed amendment has been successful in these initial phases it will be subject to Royal Assent.

While there is this requirement for a double majority to be achieved, there are those would argue for a model which is not so difficult. In the US for example amendments needing approval are sent straight to the states for ratification; the President’s approval is not necessary. If ¾ of the state legislatures approve the alteration it may proceed, or alternatively 3/4 of the ratifying conventions of the states may see it approved. This alternative to Australia’s model however lacks the same direct participation of the people as it is redirected to the state legislature’s power. Some academics such a Peter Russel praise the federalism based approach of s 128 which requires the majority of the states in addition to a national majority, whereas others including Gough Whitlam deemed it more akin to an obstruction to necessary change. Although I would argue alongside Quick and Garren who deemed our current model essential in ensuring no decisions were made in a rash way without due consideration given, the proposals of Constitutional Commission are highly appealing. While it steered away from the models embraced by Canada and the United States, the commission highlighted that through enabling the Commonwealth PM to make legislation normally when it came to obsolete constitutional provisions, (with due protections/checks accompanying this) a more practical model of change could be achieved.

It should be noted that the Governor-General has no obligation to issue the referendum writ, as it so happened in the past. This allows for time for reflection for the government of the day to reconsider the passed Bill to ensure it is in line with the current beliefs. There is also no obligation if the deadlock provision, under s 128, has been invoked. The requirement can be ‘nullified by the principle that he or she must act on the advice of the Ministry.’(from Bennett and Brennan)

While I agree that the double majority requirement model is restrictive in the ability to change the constitution, and in turn time consuming, it has a direct input by the people as opposed to models adopted by USA and Canada. The requirement of a double majority would also help to ensure that the amendment would be in the interest of smaller population states as well as the larger states due to the requirement of a majority from the states.

The Constitutional Commission’s recommendation does outline an interesting model to allow for provisions that are seemingly unnecessary or out-dated, to be amended through an ordinary act of Parliament. The two checks that were proposed would seem to ensure that amendments are proper and would not impact too adversely on the people. Removing the requirement that the people go to a referendum would allow for greater flexibility in modifying the Constitution to fit to the current views of the time, as noted by other posts that it is difficult for a referendum to be passed.

3. How comfortable are you with the idea that the High Court can 'second guess' the people, as when it makes decisions that effectively reverse the effect of failed referendums?

Since even beneficial referendums may fail for many reasons, as I will explain below, I believe that Judges’ reversals are - for the most part - appropriate.

Many conditions need to be met for a referendum to succeed, which explains why only 8 out of 44 referendums have obtained the requisite double majority. Even for a referendum on Constitutional Recognition of Indigenous Australians (something that is arguably fundamental to a progressive, inclusive Australia), many different conditions will have to be met for it to be feasible. These conditions were identified by the Expert Panel on Constitutional Recognition of Indigenous Australians, and some of them seem quite ambitious, such as support from all major political parties and all state governments. Others seem highly onerous, such as the need for substantial public campaigning. This is emphasised by the fact that 10 years of public campaigning was needed for the 1967 referendum to succeed. Substantive education and awareness campaigns are required as well. And many other conditions exist.

As such, even where there is a concerted effort to justifiably advance a certain goal, the referendum may fail if one or more of these conditions are – quite understandably - not met. Furthermore, the failure of the referendum may happen because of farcical reasons such as people voting ‘No’ simply because they do not understand the proposal

or do not have an opinion on it. If this is the case, then “second guessing” uninformed people is by no means a bad thing.

Furthermore, one must analyse if the desired outcomes of these referendums are beneficial. With specific reference to the examples provided by Coper, one can quite rationally argue that the desired outcomes would have been beneficial. For example, the failed referendums to give the Commonwealth power to control monopolies (as reversed in the 1971 Concrete Pipes case) can rationally be said to be beneficial, as there are legitimate economic arguments for preventing monopolies from attaining too much power. Another example is the failed referendum for an explicit guarantee of freedom of speech, which was effectively reversed when the High Court found an implied guarantee of freedom of speech in the Political Advertising Case in 1992. Freedom of speech, too, is an outcome that can be rationally defended in a democracy like Australia. In such cases, it is reasonable for judges to reverse failed referendums.

Alternatively, if the desired outcomes of the failed referendum were objectively harmful (e.g. multiple large states ganging up on a smaller one), then it is highly unlikely that Judges will reverse the outcome anyway.

In opposition to Clarence, I would argue that we have good reason to be uncomfortable with the ability of the courts to second-guess the people by means of interpreting legislation in a way that conflicts with the majority vote in previous referenda. Essentially the question hinges on whether, in a democratic society, legislation should be able to be read (by an unelected body of individuals) in a way that goes against the desires of the majority of the Australian people. There are not only democratic arguments against this 'second-guessing' by the courts, but also the fact that judges often come from similar socio-economic, cultural and educational backgrounds in itself means that judges form a minority who are able to determine the powers underpinning our system of government. What is even more concerning is that the courts have 'unreviewable power' (Gardbaum), in the sense that, should the High Court interpret the Constitution in a way that is not consistent with the expressed desire of the Australian people, such a decision cannot be appealed. The only way to rectify this would be to hold a successful referendum, which, in Australia has proven to be notoriously difficult.

4. Why do referendums fail in Australia? What are the preconditions of a successful referendum?

As Coper notes, there are so many reasons as to why a referendum fails that it is practically impossible to provide a single reason as to why a particular referendum failed. However Saunders provides several reasons to why they may fail. The first is a lack of understanding of the proposal, because voters tend to vote no if they do not understand the amendment. This was exemplified in the 1999 republic referendum campaign where the no case used the slogan "don't know, vote no." Saunders also asserts that disapproval with the government in other areas and disagreement with other parts of the package also lead to no votes.

The expert panel for Indigenous constitutional recognition provided three factors for consideration that lead to successful referenda. Whilst their analysis was framed in terms of a specific amendment, the analysis can be generalised to other types of amendments. The first factor is simplicity in the question, ideally with a single straightforward question. This is a corollary to the factor outlined by Saunders above. The second is the timing of the education. The panel asserted that there are pros and cons to holding a referendum mid term, such as politicising the question or its perception as a by-election. However, Williams submitted to the panel that the timing of the referendum has had no impact on its chances of success, though this is a very general analysis over the 100 years of federation and did not account for differences in the contemporary era, nor the proposal being voted on. The last pre requisite is a strong education campaign that engages all potential voters. This links to the issue raised by Saunders, where people need to understand the question to consider voting for it. However education also refers to a strong and cohesive yes campaign and a thorough presentation of an imperative for change.

To add to Tyler’s points, another reason why referendums tend to fail is that the Commonwealth Parliament alone is able to initiate referendums. Thus referendums are commonly a reflection of their interests. 24 out of 44

referendums concerned the granting of extra powers to the Commonwealth Parliament in which Australians rejected all but three. This could be a reflection of what William and Humes noted was a “national distrust of politics and politicians”.

Furthermore, Saunders refers to the adversarial nature of referendum campaigns, i.e. the vigorous contest between political parties. William and Humes argues that such political, short-term motivations are inappropriate for entrenchment within the Constitution. This could be a reason why the Australian people rejected Whitlam’s 1974 referendum for Simultaneous Elections (which was a strategic move to resolve the tension between the Labour controlled House of Representatives and the Liberal controlled Senate.

Only 8 out of 44 referendums have been successful in Australian history. One of the biggest reasons for this low success rate is the fact any successful referendum must achieve both a majority of the national vote and a majority of votes in a majority of states. This ensures that there must be nearly overwhelming support for a referendum if it is likely to succeed. Another reason for this low success rate is also the political process. Often referendums occur at the same time as a General Election, leading to the vote becoming caught up in ultra-partisan political debates. One of the preconditions for a successful referendum is usually the bipartisan support of both sides of politics. Before a referendum occurs, a bill must pass through both houses of parliament and achieve a double majority. Given Government’s very rarely have a majority in both chambers of the Parliament; a bill for a referendum can have difficulty passing both chambers. Furthermore, contentious referendums that do not have bipartisan support are also likely to fail when they are put to the people given the likely intensity of political debate.

Notwithstanding the high requirement of a double majority, there are a number of reasons why referendums have failed in the past. Firstly, 24/44 of the proposals have sought to increase the legislative power of the commonwealth. Understandably, this would not be well received by the State Governments and would not receive their full support. Secondly, Australians, in general, are unaware of the constitution (so was I before Public Law!) and thus have poor understanding of proposals and their effects (Williams & Hume). This in conjunction with media campaigns such as “Don’t Know, Vote No” and “If It Ain’t Broke Don’t Fix It” push citizens towards a “No” vote.

The status quo bias may explain the “No” vote. People tend to overweight costs relative to desired gains (loss aversion). Further, people tend not to weight future gains too heavily. There is a focus on the present where the advantages of the current situation are clear to see.

The preconditions for a successful referendum are a strong education campaign, wide political support including the state governments (with no significant opposing groups) and broad participation / popular ownership. Moreover, the proposal must be simple with only one question.

Referendums in Australia are, by design, difficult to achieve. They require a both a majority of votes in the majority of states, as well as an overall majority of votes. However, there are other important factors as well. Australian voters, similarly to American voters, have a record of being considerably conservative in relation to changing the constitution. The majority of Australian voters also have little or misguided knowledge of the Australian Constitution and what it means to change it, and are therefore reluctant to support a referendum. Furthermore, election campaigning and referendum campaigning require very different approaches. It seems that while election campaigning is well developed and understood by governments, referendum campaigning is not. While adversarial, demographically targeted, simplistic, personality-selling campaigns work for elections, they cannot do so for referendums, which require clear explanation of the proposal in such a way that the majority of voters understand it, and a persuasive argument for the "yes" vote as well as strong leadership of the government advocating it. Through examining past referendums, a number of elements appear to be required in order for a referendum to be successful. There needs to be a clear, unconfused message with minimal changes rather than multiple or broad changes. There must also be strong support across political parties on both commonwealth (upper and lower houses) and state levels, as well as strong leadership by the government advocating the change. Furthermore, consensus

across a well-informed electorate, active in the deliberation process through public forums, universities, and the media, with community driven "yes" campaigns is essential. For these reasons, Australian referendums have, and will likely continue to be, difficult to achieve.

There are a range of reasons as to why referendums tend to fail in Australia. The last referendum was passed in 1977 and only 8 out of 44 have been accepted in Australian history. Saunders states that the main reasons why Australians vote negatively in referendums are because of disapproval in other aspects of the government’s policies, disagreement with larger constitutional notions and an overall lack of understanding of the referendum proposals. Some other reasons are a general lack of public engagement and consultation of policies and a high level of opposition by political parties or State governments. Furthermore, the 2012 Report on the Expert Panel on Constitutional Recognition of Indigenous Australians claimed that the timing of the referendum is extremely important and holds significant consequences for the referendum’s outcomes. Holding the referendum at the same time as a federal election could politicize the questions and make bipartisan consensus difficult. Hence, there are clearly many reasons as to why the majority of our referendums have not been passed. A clear message together with strong government leadership, community driven campaign, state government support and extensive deliberation that addresses public concern, may in turn lead to a successful referendum in the future.

Referendums are difficult to pass in Australia for a variety of reasons relating to both the procedural requirements and other less tangible factors. s128 of the Constitution requires that a Constitution Alteration Bill to be passed by both houses of the federal parliament, or by one house twice if there is a deadlock; and that a referendum be passed by a majority of people in a majority of states and by a majority of the nation. The highly bipartisan nature of Australian politics can make it difficult to fulfill these requirements as a referendum could be seen as an extension of party politics which makes the public distrustful (particularly if they do not fully understand the Constitution and the proposed changes). A major factor is the lack of education about the Constitution, resulting in the majority of Australians being ignorant of the Constitution and how it relates to the way Australia is governed. This means that many people are unwilling to vote in favour of a proposed change due to lack of knowledge because of the status quo bias. Furthermore, many proposals and campaigns are over-complicated, causing confusion. Additionally, the timing of referendums limits the ability for comprehensive education campaigns and voters are often left to rely on the short cases provided by each side. All of these factors ultimately contribute to the existing trend of unsuccessful referendums.