The Vibe - No 2 - December 2016

DECEMBER 2016 THE VIBE 1

The Vibe Public Law and Government Committee Bulletin

DECEMBER EDITION

Editor

Angus Abadee

Contributors

Ammy Singh Patrick Shumack Aaron Moss

Isolde Daniell Martin Hill Sara Constance

All views expressed in this publication are the views of the author, and do not represent the views or opinions of NSW Young Lawyers or the author’s employer.

Contents

ON THE TIP OF MY TONGUE – TRIVIA 2

SIR ANTHONY MASON CONSTITUTIONAL LAW

ESSAY COMPETITION WINNER 3

ISSUES IN PUBLIC LAW 12

Terror Justice – Procedural Fairness and Counter-Terrorism

All Aboard! Why Public Lawyers Should Consider Admiralty

and Maritime Law

Legal professional privilege in the Senate: the Brandis-

Gleeson inquiry

CASE LAW UPDATES 21

TRIVIA – ANSWERS 23

Upcoming Events

8 December 2016 - Young Professionals

Christmas Event


On the tip of my tongue - Trivia

1. What does the term “federalism”

mean?

a. A system of government

with only one House in the

Parliament

b. A system of government

with a national government

and state governments

c. A system of government

based only on regional

governments

d. A system of government

based only on a federal

government.

2. Australian Courts were once bound

by decisions of the Privy Council of

England. From what year was this

no longer the case?

3. What stopped the appeals to the

Privy Council?

4. Which Prime Minister oversaw the

introduction of the Immigration

Restriction Act 1902, the start of

the White Australia Policy?

5. New South Wales v

Commonwealth (2006) 229 CLR 1

dealt primarily with which provision

of the Constitution?

6. Who was the first woman to be

elected to the Australian House of

Representatives?

7. Which Prime Ministers have died in

office?

8. Which High Court judge has a

black belt in taekwondo?

9. What powers in the Constitution

have been described as the ‘last

remnants of the absolute power of

the British Monarch’ and the

‘autocratic powers of the medieval

Crown’.

10. Our youngest Prime Minister was

born in Chile. Who was he?

Answers on page 23

I'm not sure whether I'm gonna

participate in any High Court

jurisdiction and if I do I'll simply

go down, shear a sheep and

take the belly fleece and stick it

over my head and represent

myself, because I'm a true

Australian standing up for the

Australian people.

Rod Culleton

“

”


SIR ANTHONY MASON CONSTITUTIONAL LAW ESSAY

COMPETITION WINNER

Arrested development: advancing implied rights jurisprudence in a

post-McCloy world

Ammy Singh

I INTRODUCTION

Since the advent of the implied freedom of political communication in the early 1990s,

this constitutional protection has encountered both critics and supporters galore.1 In

its early formulation, the implied right was said to be derived from the Australian

Constitution’s creation of a system of ‘representative government’ and ‘representative

democracy’, of which the free-standing principle of freedom of speech was ‘an

indispensable element’.2

Critics of this reasoning found voice in McHugh J’s judgments in Theophanous v The

Herald & Weekly Times Limited3 and McGinty v Western Australia,4 which asserted

that it was illegitimate for the High Court to rely upon an extra-constitutional notion of

representative democracy as the basis for implying rights and freedoms into the

Constitution. Justice McHugh emphasised that the Constitution should nevertheless

be read in light of the concept of representative government, but only in respect of

the form envisaged by the Constitution.5

Following a period of sharp criticism and a routine reconstitution of the bench, McHugh J’s line of reasoning proved victorious and was adopted by a unanimous Court in Lange v Australian Broadcasting Corporation.6 Lange adhered to the notion that constitutional implication must be derived solely from the text and structure of the Constitution, without reference to extra-constitutional ideas or doctrines.7

This led to the development of a two-limbed test governing the circumstances in which the implied right could be invoked to defensively strike down legislation, questioning whether the law imposes a burden on the freedom, and subsequently, whether the law is reasonably appropriate and adapted to achieving a legitimate end.8

1 Australian Capital Television Pty Ltd v Commonwealth (1992) 177 CLR 106 (hereafter ACTV) and

Nationwide News Pty Ltd v Wills (1992) 177 CLR 1 (hereafter Nationwide News). 2 ACTV, 137-8 (Mason CJ).

3 Theophanous v The Herald & Weekly Times Limited (1994) 182 CLR 108 (hereafter Theophanous),

195 4 McGinty v Western Australia (1996) 186 CLR 140 (hereafter McGinty), 232.

5 Ibid.

6 Lange v Australian Broadcasting Corporation (1997) 189 CLR 520 (hereafter Lange).

7 Ibid, 566-567.

8 Ibid.


Justice McHugh reformulated this test further in Coleman v Power9 to stymie

complaints that asserted a value judgment was inherent in the second limb of the

Lange test, now specifying that burdensome legislation will be valid only in the event

that it is reasonably appropriate and adapted to serving a legitimate end in a manner

which is compatible with the maintenance of the constitutionally prescribed system of

representative and responsible government.10

This strict adherence to an interpretation of the Constitution that is wholly grounded

in its text and structure has been alternately regarded as either an appropriately

restrained reformulation of the implied right, or a circular, sparse justification for an

extra-constitutionally derived right.11

Taking this conception of the implied right as its starting point, this essay will assess

the extent to which the recent case of McCloy v NSW12has been successful in

assisting the jurisprudential application of the implied right beyond the analytically

indeterminate approach of Lange and Coleman.

It will find that, although McCloy has succeeded in laying bare the value judgments

inherent in the second limb of the Lange test by importing a European-style test of

proportionality into this limb, this approach nevertheless cannot ensure the required

uniformity across applications of this test.13 This is due to the imprecise nature and

scope of the implied freedom of political communication, leaving unresolved the

question of what types of communication, and the degree of freedom in relation to

each, are necessary for the constitutionally prescribed system of government.14

Part II of this essay will begin by analysing how the majority decision in McCloy has

addressed concerns with the implied right and its stated operation in Lange, arguing

that the importation of a structured proportionality test into Australian law has

advanced the development of implied rights jurisprudence by requiring the Court to

clearly identify the value judgments being made in its reasoning. The positive effects

of this reformulation will be briefly explored by reference to the rule of law and

confidence in the Australian legal system.

In turn, Part III will explore the difficulties that continue to arise under McCloy in

respect of developing a broadly uniform line of authorities across disparate fact

scenarios in the realm of the implied freedom. Although McCloy requires the Court to

recognise when a value judgment is being made, this cannot reasonably be

expected to lead to the requisite degree of uniformity across decisions without a

more substantive articulation of the scope and precise nature of the implied freedom.

9 Coleman v Power (2004) 220 CLR 1 (hereafter Coleman).

10 Ibid, 15, 22-23.

11 See, eg. Nicholas Aroney, Freedom of Speech in the Constitution (1998); Adrienne

Stone, ‘The

Limits of Constitutional Text and Structure: Standards of Review and the Freedom of Political

Communication’ (1999) 23 Melbourne University Law Review 668; Adrienne Stone, ‘The Limits of

Constitutional Text and Structure Revisited’(2005) 28 University of New South Wales Law Journal 842

12 McCloy v New South Wales [2015] HCA 34 (hereafter McCloy).

13 Ibid, 35.

14 Stone, above n 11, ‘The Limits of Constitutional Text and Structure Revisited’, 849.


It is argued that different judges and courts can only properly perform the ‘balancing’

step of the proportionality analysis in a loosely uniform manner when the parameters

of the implied freedom are as clearly outlined as the opposing purpose of the

legislation against which it is being compared. Without such clarity at the outset of

the balancing process, its exact operation remains a nebulous affair in which judges

cannot escape imposing extra-constitutional values in likely contrasting ways.

II PROPORTIONALITY IN MCCLOY

The 2015 decision of McCloy is significant for its role in advancing the implied

freedom doctrine beyond its Coleman iteration in 2004. McCloy concerned the

question of whether election campaign finance law in New South Wales had unduly

burdened the implied freedom of political communication by imposing a constraint on

the amount of funds available for making political communications.15

The legislation in question included provisions to prevent political donations by

property developers, including the plaintiff, and placed a cap on political donations

per election cycle.16 A majority of the Court upheld the legislation and concluded that

these provisions did not impermissibly burden the implied freedom of political

communication.17 In coming to this decision, the majority adopted a European-style

concept of proportionality as a tool with which to execute the second limb of the

Lange test.

The structured style of proportionality embraced by the High Court in McCloy has the

effect of introducing greater transparency, and to a certain extent certainty, into the

application of the Lange test. A proportionality analysis is significant due to the fact

that it acknowledges a balancing process between two competing ideals is occurring,

and furthermore, that a value judgment is inherently involved in making this

judgment.18

By clarifying the conceptual steps taken in a balancing exercise, proportionality

analysis allows for these underlying value judgements to be brought to the fore in

judicial decision-making. Traditionally, the second limb of the Lange test has called

for two considerations:

1) that the object of the law is compatible with the maintenance of the

constitutionally prescribed system of representative and responsible

government; and

2) that the law is reasonably appropriate and adapted to achieving that

legitimate end.19

15

Election Funding, Expenditure and Disclosures Act 1981 (NSW) 16

McCloy, [7] 17

Ibid. 18

Anne Twomey, ‘McCloy and the revised test of proportionality’ (Speech delivered at ALRC Freedoms Symposium, Federal Court, Queens Square, Sydney, 8 October 2015. 19

Lange, 564.


In considering whether a law is reasonable appropriate and adapted to achieving a

legitimate end, the Court has heretofore delved into a proportionality analysis,

oftentimes without direct acknowledgement of this fact.

However, with the importation of proportionality into Australian jurisprudence in

McCloy, the implied freedom doctrine benefits from the transparent acknowledgment

of the value judgments underlying an assessment of two competing interests. As per

McCloy’s reformulation, the second limb of Lange test will now involve the following

steps:

1) is the purpose of the law and the means adopted to achieve that purpose

legitimate, in the sense that they are compatible with the maintenance of

the constitutionally prescribed system of representative government? This

is known as ‘compatibility testing’;

2) proportionality analysis involving consideration of the extent of the burden

effected on the freedom by the impugned provision:

a) suitability: is the law justified as having a rational connection to the

purpose of the provision?;

b) necessity: is the law justified in the sense that there is no obvious

and compelling alternative, reasonably practicable means of

achieving the same purpose which has a less restrictive effect on

the freedom; and

c) adequate in its balance: a criterion requiring a value judgment,

consistently with the limits of the judicial function, describing the

balance between the importance of the purpose served by the

restrictive measure and the extent of the restriction it imposes on

the freedom.20

If a measure does not meet these proportionality-testing criteria, the impugned

legislation will exceed the implied limitation on legislative power.21

Immediately, the use of proportionality addresses concerns raised by the traditional

Lange test. In particular, it requires all judges to clearly articulate their reasoning at

each step of the proportionality analysis process, compelling the consideration of

less restrictive impositions on the implied freedom and insisting on an explicit

balancing of the competing interests.

This is significant for reasons both practical and otherwise. By clearly delineating a

series of steps that must be followed in order for the implied freedom to be

adequately considered, McCloy is likely to provide greater certainty to future Courts

20

McCloy, [2] 21

Ibid.


in their interpretation of the implied freedom doctrine. In doing so, the likelihood of

greater consistency in judicial decision-making increases, complementing the

operation of the rule of law.

Furthermore, the majority judgment in McCloy explicitly grants the Australian Court

licence to consult comparative jurisprudence from Europe and Canada in order to

inform their understanding of proportionality analysis.22 By stipulating that such

comparative research must be tempered by local knowledge and legal traditions, the

majority has allowed for future judges and Courts to reasonably draw from a far more

developed canon of proportionality-style decision-making in other jurisdictions,

allowing for compelling legal concepts to be considered in the Australian Courts in a

manner that may enrich local jurisprudence.23

III PROPORTIONALITY AND ITS DISCONTENTS

While the inclusion of a structured proportionality analysis in Australian law has thus

assisted in clarifying the logical inconsistencies of the traditional Lange approach, it

remains an incomplete cure for the structural problems burdening the implied

freedom’s very roots in Australian jurisprudence.

In particular, although McCloy represents a significant step forward in the Australian

implied rights doctrine by explicitly assessing the importance of the purpose served

by the legislation as compared to the extent of the restriction it imposes on the

implied freedom, this cannot be expected to lead to a consistent line of authority in

judgments.24 Indeed, it falls in danger of merely making more evident the disparate

kinds of value judgments that have been made, and will likely continue to be made,

in future implied freedom cases.

Although McCloy provides that this value judgment must be made ‘consistently with

the limits of the judicial function’, and without entitling the courts to ‘substitute their

own assessment for that of the legislative decision-maker’, this is effectively what the

striking down of legislation under the implied freedom will now transparently

involve.25

To date, the singular focus on the text and structure of the Constitution has resulted

in an implied freedom doctrine that fails to make clear the real reasons for decision.26

By moving towards a model which states the policy considerations that had been

involved in the decision-making process, McCloy resolves one of the fundamental

untruths of the traditional conception of the implied freedom: namely, that it is a

constitutionally-derived, objectively-applied doctrine that does not draw on extra-

constitutional values.

22

Ibid, [15]. 23

Ibid. 24

Ibid. 25

Ibid, [89]. 26

Jeremy Kirk, ‘Constitutional Guarantees, Characterisation and the Concept of Proportionality’ (1997) 21 Melbourne University Law Review 1, 5


Outlining the public policy grounds that have had a bearing on implied freedom

decisions will allow for future courts to more easily accept or reject these values as

the corresponding values in Australian society simultaneously change, allowing for a

more responsive legal system that is reflective of changing eras.27

However, due to the subjective nature of the value judgments being made by

judges, it is equally likely that McCloy will lead to differing strains of judgments

dependent on the relative importance that individual judges accord to the freedom

of political communication. This could continue the dichotomy of reasoning seen in

Coleman regarding the place of insulting language in political debate, although it

would have the benefit of exposing this clash of values for what it actually is.28

Without a more consistently articulated conception of the scope and nature of the

implied freedom as it applies across Australian law, the balancing process in

McCloy’s proportionality test is thus likely to remain relatively idiosyncratic, although

in a more transparent way that allows for the interrogation and contestation of ideas

across courts. In order to resolve this tension, this essay proposes that it is

necessary to articulate a more express statement of the values underpinning the

Australian implied freedom.

This would allow judges to more accurately quantify and qualify the extent of a

burden on the implied freedom, and thus more consistently balance this against the

importance of the impugned legislation’s purpose. While McCloy has assisted the

development of the implied freedom doctrine in a manner that may eventually lead to

such an outcome, this development needs to occur sooner so as to ensure the

legitimacy of the Australian legal system and its constitutional guarantees.

IV CONCLUSION

The High Court’s decision to imply from the text and structure of the Constitution a

guarantee against unjust legislative encroachment on political communication is one

of the most significant developments in Australian constitutional law in recent

decades. Criticisms of the implied freedom abound; at their harshest, arguing that

the Court was primarily interested in promoting a new rights discourse for Australia

at the expense of encroaching upon parliament’s traditional role in the separation of

powers.

This argument is persuasive when taking a cautious approach to the interpretation of

the Constitution. Indeed, as McHugh J noted in Al-Kateb v Godwin,29 the doctrine of

separation of powers “prohibits the Ch III courts from amending the Constitution

under the guise of interpretation.”30

27

David Solomon, The Political High Court: How the High Court Shapes Politics (Allen and Unwin, 1999), 244.

28 Stone, above 32, 850.

29 Al-Kateb v Godwin (2004) 208 ALR 124.

30 Ibid, 145.


However, while this essay posits that the Court has failed to fully articulate the basis

of the implied freedom in Australian law by outlining the degree of freedom that is

necessary for the constitutionally prescribed system of government, it does not find

the Court to have been intentionally deceptive in this regard. Indeed, the method of

deriving constitutional implications from its text and structure is an established,

relatively conservative interpretative tradition that has found wide support along High

Court Justices across generations.

Instead, it is this essay’s assertion that the location of the implied freedom in the text

and structure of the Constitution is too sparse to adequately flesh out the scope of

the implied freedom in differing circumstances, requiring this text and structure basis

to be complemented by a more substantive notion of what a uniquely Australian

implied freedom of political communication entails.

Implied rights jurisprudence has stagnated in recent years, advanced only by the

self-reflexive decision in McCloy to reformulate the Lange test by adopting a

proportionality test in explicit acknowledgement of the fact that value judgments are

inherent in implied freedom cases.31

Despite this improvement upon the Lange status quo, the majority judgment in

McCloy has proven unable to clearly articulate the rationale for the implied freedom

in a manner that will allow it to be balanced against a more explicit, qualified

legislative purpose. As a result, implied rights cases continue to have the potential to

be decided in vastly different ways that depend upon the value-laden inclinations of

individual judges, as opposed to established legal principles.

To give full effect to McCloy and the proportionality test contained therein, it is

necessary to understand the full scope of the implied freedom, and in doing so, to

confront the sparsity of its basis in the Australian Constitution. Until the High Court

can arrive at a substantive Australian conception of the implied freedom of political

communication, its development in Australian jurisprudence will remain

fundamentally arrested.

[Editor: Sir Anthony Mason made the following comments with respect to Ammy’s

submission:

Ms Ammy Singh’s prize-winning essay “Arrested development: advancing implied rights jurisprudence in a post-McCloy world” is the best essay in the Constitutional Law Essay competition since it was established in [insert year]. The essay assesses the impact on the implied freedom of political communication jurisprudence of the adoption of the European-style proportionality analysis in McCloy. While supporting the adoption of the test, because it leads to greater transparency in judicial reasoning, the author notes that the test exposes the value judgments to be made by the High Court, thereby leading to the risk of idiosyncratic judgments.

31

McCloy, [3].


Indeed, this risk, according to the author, is likely to persist, until the Court articulates a conception of the scope and nature of the implied freedom across Australian law. The risk arises by reason of balancing a process which calls for a consideration of the importance of the legislative aim on the one hand and the importance of the freedom on the other hand. The competition is attracting increasing participation by undergraduate law students and it is to be hoped that the competition will attract more high quality entries, as was the case this year.]


PUBLIC LAW IN THE PARK

A group of young lawyers gathered together in the idllyic Observatory Hill Rotunda to

hear Peter King, barrister, provide his shrewd insights into the state (and, sometimes

failings) of the public law.

Through various examples, Mr King illustrated the breadth and far-reach of public

law and invigorated those lawyers and students in attendance to make a difference

in this sphere. The event was a good opportunity for Committee members to learn

about public law issues, while enjoying a picnic and harbour views.

The Committee will have further Public Law in the Park sessions in 2017.


ISSUES IN PUBLIC LAW

Terror Justice – Procedural

Fairness and Counter-Terrorism

Patrick Shumack

Australia is a nation infatuated with

terror.

Barely a day passes without word of

an act of terror hitting front pages; our

politicians give bipartisan support to

worryingly powerful measures

designed to prevent these acts; and

the greater public seems to be mostly

unaware of the scope and effect of

these measures, or at least indifferent

to their implications.

There is something ironic about the

zeal with which successive

governments have legislated to secure

us from terrorism. The very rules that

operate to ensure our freedom are

quite capable, too, of compromising it.

Is this dichotomy truly a necessary or

appropriate way to guarantee

community safety?

Although one could embark on a

philosophical study of this

phenomenon, I am far more interested

in the legal and procedural effects of

these laws. Rules surrounding

procedural fairness are designed to

ensure probity in the delivery of justice,

regardless of the final result. To

borrow a phrase from the acting NSW

Ombudsman, John McMillan,

procedural fairness can be likened to

the “last meal before the hanging.”

My questions are thus – what is

procedural fairness, and why is it

important? Is procedural fairness

afforded to those who are subject to

our harshest counter-terrorism laws?

Procedural Fairness – Scope and

Purpose

Procedural fairness, as an ideal, is not

confined to law. Although it can be

couched in strictly legal terms, its

importance and use can be easily

expressed in common tongue.

Procedural fairness ensures that

decisions are made with due process.

In the judicial sense, it ensures that,

despite whatever substantive

conclusion a decision-maker reaches,

it is reached in a manner that is

transparent, and as devoid of

idiosyncratic reasoning as possible.

This is with the aim of providing an

even and consistent distribution of

justice.

The legal ambit of procedural fairness

can be expressed in fairly simple

terms. It is the requirement that those

individuals who are subject to

decisions affecting their rights retain

the right to have their case heard fairly,

before an unbiased decision-maker,

with the decision being based upon

probative evidence. The High Court

has repeatedly emphasised that these

rules can be “clearly displaced by [a]

particular statutory scheme.”32

Control Orders and PDOs

Australia's suite of counter-terrorism

laws are vast, and in the years

between 9/11 and the ousting of the 32

See, for example, Minister for Immigration and Border Protection v SZSSSJ [2016] HCA 29 [74]


Howard Government in 2007, these

laws were introduced at an alarmingly

speedy rate.

The two 'nuclear weapons' of the

counter-terrorism scheme are

administrative orders, sought initially

by a senior investigative bureaucrat.

The control order (see Criminal Code

Act 1995 (Cth) Div 104) is an order

imposing strict limitations on a

person's liberty. This can include

location restrictions, curfews, police

station check-ins, and the like.

Although this is an administrative

order, its breach can lead to criminal

penalties. The Preventative Detention

Order, or PDO33, allows for the

detention of a person to prevent an

imminent terrorist attack, or to

preserve evidence of a terrorist attack

that has recently occurred.

These schemes have faced consistent

criticism. The Independent National

Security Legislation Monitor (INSLM)

has raised concerns regarding the

scheme's harsh effect on civil liberties,

and many eminent commentators have

identified deficiencies in the legal and

philosophical logic of controlling and

detaining individuals without a fair

hearing.

Despite continued critique, these

powers are now being used more

frequently, and there are calls to

extend their reach. State Governments

are far less encumbered by

constitutional rights than the

Commonwealth, and it has been

suggested that their own counter- 33

See Criminal Code (Commonwealth), Div. 105.

terrorism schemes (which, in most

respects, mirror the Commonwealth

scheme) should go further.

Also worthy of note is the operation of

the National Security Information

(Criminal and Civil Proceedings) Act

2004 (Cth), which regulates the

conduct of federal criminal procedure.

This Act allows the Attorney-General

to intervene in respect of sensitive

information used in federal criminal

proceedings, to effectively control how

evidence is used against an accused

person.

Beyond these evidentiary difficulties,

former Supreme Court Justice Anthony

Whealy has noted the difficulties in

securing a fair jury trial for a person

accused of terrorism offences,

especially in circumstances where

investigative intelligence has been

used as evidence.34

Safety – at a price?

Given the core tenets of procedural

integrity, can it be said that the

Australian counter-terrorism scheme is

procedurally fair? In my opinion, this is

something of a stretch.

In the case of control orders and

PDOs, such a severe restriction of a

target person's liberties without a

proper criminal trial is anathema to

procedural fairness. It represents the

fear-induced erosion of legal and

human rights, earned over centuries.

34

See Whealy's chapter in Comparative Counter-Terrorism Law, Cambridge University Press, 2014


The restrictions surrounding the use of

evidence in national security trials, as

well as the difficulties in obtaining a

hearing before a fair-minded jury,

mean that even when an accused

person has their case properly heard,

it may be difficult to argue that this

hearing is conducted in a fair manner.

The logical question that follows must

be – is procedural fairness, at least in

respect of terrorism, absolutely

necessary? The Government has

clearly decided that it is not. Whether

this is a correct judgment is arguable.

What this does establish, in my

opinion, is the supreme necessity of

independent overseers, like the

INSLM. If we choose to fight fire with

fire, and abandon the rights of some in

the name of combating terrorism, then

there must be appropriate checks and

balances installed.

The office of the INSLM is currently

empty; the Hon Roger Gyles QC

stepped down from the role at the end

of October. Before Gyles' appointment,

the office had been empty for some

time, and during this period, the

Federal Government had attempted to

abolish it altogether.

If we are to continue our infatuation

with the War on Terror, then it is clear

that this will come at some cost to

procedural fairness. In this light, it is

absolutely necessary that offices such

as the INSLM stay operational,

independent, and fearless.

All Aboard! Why Public Lawyers

Should Consider Admiralty and

Maritime Law

Aaron Moss

On 1 September 2016, the Seoul

Central District Court (Bankruptcy

Division 6) issued a decision,

commencing “rehabilitation”

proceedings pursuant to the Debtor

Rehabilitation Bankruptcy Act (2009,

Korea) – akin to a court supervised

corporate restructuring - against Hanjin

Shipping Co. Hanjin Shipping Co is

“one of the world's top ten container

carriers, operating some 70 liner and

tramper services, transporting more

than 100 million tons of cargo annually

… [and] some 150 container ships and

bulk carriers”.35

This triggered worldwide “confusion”,

with many container ships, their cargo

and crew either stranded at sea (due

to fears of non-payment of port fees),

or arrested by creditors seeking

security for outstanding debts,

explaining the Hanjin California’s

recent berth at Glebe Island.36

35

Michael Murray, “Explainer: Why Hanjin’s Ships are Stranded Around the Globe”, ABC News (online), 15 September 2016 <http://www.abc.net.au/news/2016-09-15/explainer-why-hanjin-ships-are-stranded-around-the-globe/7847626>; 36

Jim Wilson, “HANJIN CRISIS: case of arrested ship Hanjin California now at key turning point”, Lloyd’s List Australia, 29 September 2016, <https://www.lloydslistaustralia.com.au/lla/market-sectors/containers-and-container-shipping/HANJIN-CRISIS-case-of-arrested-ship-Hanjin-California-now-at-key-turning-point-538190.html>;

http://www.abc.net.au/news/2016-09-15/explainer-why-hanjin-ships-are-stranded-around-the-globe/7847626



https://www.lloydslistaustralia.com.au/lla/market-sectors/containers-and-container-shipping/HANJIN-CRISIS-case-of-arrested-ship-Hanjin-California-now-at-key-turning-point-538190.html






In light of these dramatic events,

admiralty and maritime law – long

thought to be the exclusive domain of

our insurance, insolvency and contract

lawyer friends in the civil litigation

committee – has seen a resurgence in

prominence. This article seeks to

provide a brief taster of some of the

issues raised in this area which make

it of significant interest and importance

for public lawyers.37

History and Jurisdiction

Like all good areas of public law,

admiralty law shares a rich and

complex history which can trace its

roots back to the codification of

mercantile trade principles by the early

Roman Empire, before being

eventually entrenched in the English

common law. Australia’s foundations

of admiralty law can be traced to the

Commission issued to Governor

Phillip, which enabled the Governor to

establish a “Court of Vice-Admiralty”,

which he proceeded to do.

Following a tumultuous history of

attempted colonial “regularisation”

leading up to, and in light of Australia’s

Federation, admiralty jurisdiction in

Australia – like so many other areas of

public law – was regulated by a

combination of common law, inherent

jurisdiction of superior courts and

imperial legislation. Chief amongst

these was the Colonial Courts of

Admiralty Act 1890 (Imp), which made

37

For a more comprehensive primer, see Michael White, Australian Maritime Law (3

rd

ed, Federation, 2008), Damien J Cremean, Admiralty Jurisdiction: Law and Practice in Australia, New Zealand, Singapore and Hong Kong (3

rd ed, Federation, 2014.

every colonial court with unlimited civil

jurisdiction (including the High Court of

Australia) a “Colonial Court of

Admiralty”.38

After Federation, questions of

admiralty and maritime law were

raised in a number of places in the

Constitution. Firstly, section 98

confirmed that the Commonwealth

Parliament’s legislative power with

respect to “trade and commerce” in

s 51(i) “extends to navigation and

shipping”.

This legislative power is further

extended by s 51(x), in respect of

fisheries, and s 51(vii) regarding

lighthouses, beacons and buoys.

Given the relatively expansive

interpretation applied to the trade and

commerce power,39 and when read

alongside the defence and external

affairs powers in ss 51(vi) and 51(xxix)

respectively, the potential significance

of admiralty and maritime law for

public lawyers is clear.

Additionally, s 76(iii) enables the

Commonwealth Parliament to make

laws conferring original jurisdiction on

the High Court with respect to matters

in the admiralty and maritime

jurisdiction.40 This provision, and the

subject of admiralty jurisdiction in

Australia, has been frequently litigated

38

McIlwraith McEacharn Ltd v Shell Co of Australia Ltd (1945) 70 CLR 175. 39

See Airlines of NSW Pty Ltd v New South Wales [No 2] (1965) 113 CLR 54, 77-79 (Barwick CJ). 40

In this regard, see John Sharpe & Sons Ltd v The Ship Katerhine Mackall (1924) 34 CLR 420.


in the High Court.41 In light of these

complexities, and following the

Australian Law Reform Commission’s

1986 Civil Admiralty Jurisdiction

report,42 the Commonwealth

Parliament passed the Admiralty Act

1988 (Cth). This Act substantively

codified the scope and exercise of

admiralty jurisdiction in Australia, and

conferred federal jurisdiction on the

Federal Court of Australia and the

Supreme Courts of the States in

respect of in rem actions under that

Act.43

Aspects of Modern Maritime Law of

Public Importance

Although predominantly directed at

procedural questions, and designed to

obviate the continuing reliance upon

colonial legislation, the Admiralty Act

1988 (Cth) modernised and simplified

the law of admiralty in Australia.

Although much of its content is of

limited interest for present purposes, it

should be understood that the

Admiralty Act 1988 is one of a complex

suite of legislative acts which regulate

maritime and admiralty law, and the

litigation arising from it. Much of this is

of continuing relevance to public

lawyers, for example:

The Navigation Act 2012 (Cth),

which implements a range of

41

See, eg, Owners of SS Kalibia v Wilson (1910) 11 CLR 689; China Ocean Shipping Co v South Australia (1979) 145 CLR 172; Owners of the Ship Shin Kobe Maru v Empire Shipping Co Inc (1994) 181 CLR 404. 42

Australian Law Reform Commission, Civil Admiralty Jurisdiction, Report No 33 (1986). 43

Admiralty Act 1988 (Cth) s 10.

international conventions, and

provides a wide range of minimum

standards for ships, inspection

powers, minimum requirements of

work conditions, and work

conditions for both watchkeeping

and sea-keeping staff, as well as

principles of salvage.

The Shipping Registration Act 1981

(Cth) which provides for the

registration of ownership of ships in

Australia and interests therein,

which closely relates to Australia’s

requirements as a “flag state” under

international law;

The Maritime Powers Act 2013

(Cth) which consolidated the powers

of regulatory authorities (including

customs, fisheries, migration, and

police authorities) at sea – and

came under scrutiny in the High

Court in CPCF v Minister for

Immigration and Border

Protection.44

The Biosecurity Act 2015 (Cth)

which gives effect to a range of

international conventions, sets out

various provisions relating to

biosecurity risks (including ballast

water risks), the control and

management of those risks, and

their prevention.

The Maritime Transport and

Offshore Facilities Security Act 2003

(Cth) and the Defence Act 1903

(Cth), each of which relate to

protection from the threat of

terrorism.

The Customs Act 1901 (Cth), which

provides a regime for the limitation

44

(2015) 225 CLR 514.


of the import and export of goods at

sea;

The Native Title Act 1993 (Cth)

which permits the recognition of

native title rights and interests in

offshore places.45

The Foreign State Immunities Act

1985 (Cth) which deals with the

scope of sovereign immunity – a

question which arose in before the

Full Court of the Federal Court in

the admiralty context in Walker v

Republic of Vanuatu.46

Criminal law, including the Crimes

At Sea Act 2000 (Cth) which

provides for extraterritorial

application of the criminal laws of

the states and the Commonwealth;

and the Crimes (Hostages) Act

1989 (Cth).

Conclusion

Traditionally thought of as the

exclusive domain of commercial

arbitration, insolvency and shipping

lawyers – admiralty and maritime law

is diverse, complex and presents a

variety of issues of both academic and

practical interest to public lawyers. In

this regard, an awareness and basic

understanding of admiralty and

maritime law is likely to greatly assist

any public lawyer in their practice.

45

Yarmirr v Northern Territory (2001) 208 CLR 1; Akiba on behalf of the Torres Strait Regional Seas Claim Group v Commonwealth of Australia (2013) 250 CLR 209. 46

[2011] FCAFC 138.

Legal professional privilege in

the Senate: the Brandis-Gleeson

inquiry

Isolde Daniell

The Brandis-Gleeson inquiry provides

an interesting occasion to assess the

significance of the confidential quality

of evidence given before Senate

committees.

Mr Justin Gleeson SC, then

Solicitor-General to the

Commonwealth, gave evidence in

October 2016 to the Senate Legal and

Constitutional Affairs Committee

inquiry into the adequacy of

consultation regarding the Legal

Services Amendment

(Solicitor-General Opinions) Direction

2016.

It should be noted that the very

decision to call the Solicitor-General to

give evidence was unusual and slightly

controversial. However, both the

Solicitor-General and the

Attorney-General appeared voluntarily

and supplied lengthy written

submissions.

During a well-publicised hearing,

several members of the Committee

took a line of questioning that

suggested that Mr Gleeson had

breached legal professional privilege in

his evidence. Senator Macdonald

(LNP, Qld) and Senator Reynolds (LP,

WA) confirmed this view in their


dissenting section of the Committee’s

report, tabled in November 2016.47

The dissenting Senators identified

three disclosures of confidential

information by Mr Gleeson which they

said “[f]rom any ordinary legal

practitioner… might well constitute

professional misconduct.”48

First, in his written submission, Mr

Gleeson provided a copy of a letter to

the Attorney-General in which the

former referred to not having been

consulted by the Government on a

citizenship Bill and a marriage equality

Bill.49

Secondly, in oral evidence, Mr

Gleeson made reference to a request

“by the Prime Minister in January of

this year to provide advice on a

matter.”50

Thirdly, when asked to explain how the

Direction had affected his practice, Mr

Gleeson said that “[a] senior lawyer

from the Australian Government

Solicitor came to my office yesterday

seeking my urgent advice on a High

Court proceeding which has questions

47

Report, 32-33. Access at: http://www.aph.gov.au/Parliamentary_Business/Committees/Senate/Legal_and_Constitutional_Affairs/SolicitorGeneralOpinion. 48

Report, 33. 49

Access at: http://www.aph.gov.au/Parliamentary_Business/Committees/Senate/Legal_and_Constitutional_Affairs/SolicitorGeneralOpinion/Submissions (Submission 3, at 18-21). 50

Hansard, 14 October 2016, 5. Access at: http://parlinfo.aph.gov.au/parlInfo/search/display/display.w3p;query=Id%3A%22committees%2Fcommsen%2F65445157-84a3-4618-ac9f-718be462646f%2F0000%22.

of law attached to it which relate to the

composition of this Senate.”51

In his evidence later that day, Mr

Brandis said, “Mr Gleeson did not seek

my consent or authority to disclose

that fact.”52 The dissenting Senators

emphasised the absence of the

Government’s consent and the fact

that Mr Gleeson was not responding to

questions under compulsion.

Privilege before Senate inquiries

The Senate’s power to hold inquiries,

particularly its extensive power to

compel evidence, is integral to its

legislative function and to its

democratic supervisory role. Section

49 of the Australian Constitution

provides, “the powers, privileges and

immunities of the Senate and of the

House of Representatives, and of the

members and the committees of each

House, shall be such as are declared

by Parliament, and until declared shall

be those of the Commons House of

Parliament of the United Kingdom.”

In a resolution of 16 July 1975, in

accordance with s 49, the Senate

asserted for itself a power “to summon

persons to answer questions and

produce documents, files and papers.”

The resolution also provided that

“subject to the determination of all just

and proper claims of privilege which

may be made by persons summoned,

it is the obligation of all such persons

to answer questions and produce

documents.”

51

Hansard, above, 5. 52

Hansard, above, 36.

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Although the Senate’s powers to

demand information are very wide,

they are not unrestricted.

Witnesses, often members of the

Executive Government, may assert

‘public interest immunity’ in response

to a request for information. Speaking

broadly, this privilege arises where the

public interest in maintaining the

confidentiality of the information

outweighs the public interest in its

disclosure. Odgers observes that there

is no consistent practice regarding

public interest immunity claims before

Senate Committees, rather “a common

thread emerging from the

deliberations… is that the question is a

political, not a legal or procedural

one.”53

However, there is substantial reason to

think that a claim of legal professional

privilege will not normally succeed in

response to a Committee’s questions:

1) A Senate Standing Order of

13 May 2009 on the topic of public

interest immunity states:

“A statement that information or a

document … consists of advice to,

or internal deliberations of,

government, in the absence of

specification of the harm that could

result from the disclosure”54 is not

sufficient to find an immunity claim

(emphasis added). This is

manifestly a strict view of the

immunity;

53

Odgers’ Australian Senate Practice, 597. 54

Access at: http://www.aph.gov.au/Parliamentary_Business/Senate_Estimates/eetctte/estimates/add0910/report/e03.

2) In Egan v Chadwick (1999) 46

NSWLR 563, the New South

Wales Court of Appeal held that

legal professional privilege does

not apply where the Executive is

compelled to produce information

to the Parliament. The public

interest was not served by the

maintenance of the privilege in

those circumstances.

The premise of the Senators’ view

The dissenting Senators’ view appears

to rest on the premise that evidence

disclosed voluntarily, rather than in

response to questioning, is subject to

the ordinary range of common law

limitations arising out of a confidential

relationship, in spite of the

parliamentary setting.

On this view, because Mr Gleeson had

not been asked to give the evidence in

question, the Senate’s unique

parliamentary ‘override’ powers to

demand evidence had not been

engaged.

This view, even if correct, is open to

criticism

One is that it seems inappropriate to

restrict the Senate override powers in

a narrow or technical way. As

Mr Gleeson was giving the evidence in

the course of attempting to assist the

inquiry, it ought not to matter that he

was not directly asked for the

information. The rationale underlying

the strict scope of public interest

immunity in response to questioning is

to ensure a full and adequate set of

evidence is presented to the Senate.

This rationale is not served by treating

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spontaneous disclosure differently to

disclosure in response to questioning.

Secondly, insofar as it focusses on the

fact that Mr Gleeson was not attending

under compulsion (particularly at

[1.20]: “he was not compelled to give

evidence, nor was he compelled to

produce any documents”), suggesting

that this made it inappropriate for him

to make the disclosures, this argument

has strange consequences.

As Odgers notes, witnesses almost

always attend committee hearings

voluntarily.55 The distinction here

appears to sanction the odd result that

those who attend voluntarily are

obliged to disclose less than those

who are compelled to do so.

Some further observations about

disclosure

Odgers cites an example from 1991

where a Senator sought to introduce

documents which were material to

existing legal proceedings, and over

which a client (Westpac) asserted

legal professional privilege, into the

Senate for debate. Because legal

proceedings were actually on foot, the

President had to determine whether

the public interest favoured disclosure.

Importantly, Odgers takes the view

that, once those proceedings were

resolved, there could be no objection

to the disclosure of the documents:

“[A] document which is the subject of

legal professional privilege… may be

disclosed in parliamentary proceedings

with complete impunity because

55

Odgers’ Australian Senate Practice, 530.

neither the law nor any parliamentary

rule prevents such disclosure.”56

It is noteworthy that the Government

Guidelines for Official Witnesses

before Parliamentary Committees

(Department of Prime Minister and

Cabinet, February 2015) take quite a

different view to the Senate Standing

Order.57 It reads, “it would … be

inappropriate for any official who has

provided legal advice to government…

to disclose that advice. All decisions

about disclosure of legal advice reside

with the minister or agency who sought

or received that advice.” 58

The very need to make this guideline

may be an acknowledgment that the

normal rules of confidentiality and

privilege do not apply in Parliament.

Conclusion

The dissenting Senators’ view about

disclosure of confidential information

before a Senate inquiry appears

unduly restrictive.

It is undesirable to make a distinction

between responding to a question and

making a spontaneous disclosure.

Such a distinction can only destabilise

a witness’s position, with an overall

reduction in the effectiveness of the

inquiry. The parliamentary exception to

ordinary common law privileges,

subject to the rational operation of

public interest immunity, is

56

Odgers’ Australian Senate Practice, 255. 57

See above n 54. 58

Access at: http://www.aph.gov.au/Parliamentary_Business/Senate_Estimates/Guidelines_for_official_witness.

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fundamental to the functioning of the

inquiry system.

CASE LAW UPDATES

Façade Treatment Engineering

Pty Ltd (In Liq) v Brookfield

Multiplex Constructions Pty Ltd

[2016] VSCA 247

Sara Constance

A subcontractor in liquidation was

appealing a decision of Victorian

Supreme Court to the Court of Appeal,

seeking payment under a construction

contract from the respondent head

contractor before Warren CJ, Tate and

McLeish JJA. Several questions were

raised regarding entitlement to the

outstanding payments, and

constitutional inconsistency between

the Building and Construction Industry

Security of Payment Act 2002

(Victoria) (BCSIP Act) and the

Corporations Act 2001

(Commonwealth).

Section 109 of the Australian

Constitution provides

When a law of a State is inconsistent

with a law of the Commonwealth, the

latter shall prevail, and the former

shall, to the extent of the

inconsistency, be invalid.

The constitutional argument in these

proceedings turned on the

interpretation of the BCISP Act. In

settling this issue, the Court

considered the second reading

speeches of the BCSIP Act, and its

NSW counterpart, to determine

whether there was inconsistency

between the set off provision in the

Corporations Act and s 16(4) of the

BCISP Act.

Held (per curiam) the court granted

leave to appeal on certain limited

grounds, and otherwise refused leave

and dismissed the appeal. There were

two main areas of relevance to public

law the first being statutory

interpretation as detailed above, and

the second being the application of s

109 of the Australian Constitution.

Section 109 of the Constitution

(1) The appeal raised questions about

the interaction of the BCISP Act

and the Corporations Act. The

question of constitutional

inconsistency was raised between

s 553C of the Corporations Act and

s 16(2)(a)(i), s 16(4)(b)(i) and

4(b)(ii) of the BCISP Act: [2],[56].

(2) Telstra Corporation Ltd v Worthing

was relied on for the application of

s 109 Australian Constitution: [48].

(3) Section 109 inconsistency

according to the Australian

Constitution was differentiated as a

different test from that in s 79 in the

Judiciary Act 1903

(Commonwealth), which allows a

State Law to be applied in a

Commonwealth jurisdiction if no

other Commonwealth Law

‘otherwise provides’: [93].

(4) Gleeson CJ and Gummow J further

explored the relationship between

s 109 of the Australian Constitution

and s 79 of the Judiciary Act in

Northern Territory v GPAO : [96].


(5) To this end, s 79 in the Judiciary

Act cannot be used to ‘sidestep’ the

question of constitutional invalidity

or inconsistency: [97]. Thus the

Constitutional question would take

priority to any question arising from

s 79 of the Judiciary Act: [98].

(6) Dixon J in Victoria v

Commonwealth set out two

propositions regarding the

principles of s 109 inconsistency:

[109]. These were,

When a State law, if valid, would alter,

impair or detract from the operation of a

law of the Commonwealth Parliament,

then to that extent it is invalid ….

Moreover, if it appears from the terms, the

nature or the subject matter of a Federal

enactment that it was intended as a

complete statement of the law governing

a particular matter or set of rights and

duties, then for a State law to regulate or

apply to the same matter or relation is

regarded as a detraction from the full

operation of the Commonwealth law and

so as inconsistent.

The trial judge was correct in

identifying the inconsistency between

the Corporations Act and the BCISP

Act. If a company is in liquidation, and

if mutual dealings exist according to

s 553C, then a payment claim cannot

be made: [56].

The Tim Carmody Affair and the

Problem of Judicial

Independence

Martin Roland Hill

Rebecca Ananian-Welsh, Gabrielle Appleby, and Andrew Lynch, The Tim Carmody Affair (NewSouth Publishing, 2016) On 2 July 2015, Tim Carmody QC resigned his commission as Chief Justice of the Supreme Court of Queensland. He had occupied that office for less than one year. Rebecca Ananian-Welsh, Gabrielle Appleby, and Andrew Lynch’s The Tim Carmody Affair surveys the course of events leading to that resignation. While the key events - Carmody’s tenure as Chief Magistrate of the Queensland Magistrates Court, the opposition to his appointment to the Supreme Court, the voir dire swearing in, Justice Alan Wilson’s valedictory remarks, the Cowan appeal (R v Cowan [2015] QCA 87), and Justice Carmody’s illness - were widely reported, Ananian-Welsh et al provide a detailed account of these events and situate them in their broader context. This account discusses many contributions - statements issued by individual members of the legal profession and by professional bodies, opinion pieces and editorials from local newspapers - that distant observers may have missed. Central to Ananian-Welsh et al’s account is the contested principle of judicial independence. As Ananian-


Welsh et al cover, Carmody’s appointment as Chief Justice was initially challenged because he was seen as lacking the requisite independence from the Government led by Premier Campbell Newman. That appearance arose from the then Chief Judge’s endorsement of the Newman Government’s suite of anti-organised crime laws (including the Vicious Lawless Association Disestablishment Act 2013 (Qld)) and from his connections with members of that Government. However, Ananian-Welsh et al show that Carmody relied on the principle of judicial independence in his response to the public calls for him not to accept appointment as Chief Justice and for his resignation. They observe that Chief Justice Carmody repeatedly noted that judicial independence was not only independence from non-judicial influences (such as the other branches of government) but also from the influence of other judges. A resignation in satisfaction of calls made by other judges, and the legal profession more broadly, would amount to a surrender of that significant form of independence. Carmody CJ would, eventually, weigh the cost of that surrender against the damage being suffered by the Court that he was appointed to steward. Ananian-Welsh et al find several lessons can be drawn from the Carmody affair. These include the need to reform the processes for judicial appointments and for handling allegations of judicial misconduct. These are suggestions directed toward external procedures. The Carmody affair also highlights the need for courts themselves to have mechanisms for addressing issues with judges, between judges, and the

importance of balancing these procedures and mechanisms against insuring judicial independence. Whether governments and the courts learn from these lessons remains to be seen. Ultimately, however, the merit of The

Tim Carmody Affair lies in its account

of a period when judicial appointment,

judicial conduct, and judicial

resignation all attracted sustained

public attention. There have been few

such periods in Australia. And few that

played out over such a short

timeframe. This makes it a valuable

subject for study.

Trivia - Answers

1. B

2. 1986

3. Australia Acts

4. Edmund Barton

5. Section 51(xx)

6. Enid Lyons

7. Joseph Lyons, John Curtin,

Harold Holt

8. Stephen Gageler

9. Reserve Powers

10. Chris Watson

Documents

The Vibe - No 2 - December 2016