Although the Court of Disputed Returns has not yet formally declared that the WA half-Senate election was void, Justice Hayne’s judgment has made it clear that this is the necessary outcome. Below is a discussion of the facts, the case and the outcome.

The Background

On 7 September 2013, a half-Senate election was held in Western Australia (and other States) to fill six Senate seats that will become vacant on 1 July 2014. Three Liberals and one Labor candidate were elected to the fist four spots. The fifth and sixth spots were initially announced being won by Zhenya Wang (Palmer United Party) and Louise Pratt (ALP). The election was so close, however, that a re-count was requested and granted before any result was officially declared.

During the re-count, it was discovered that 1370 of the ballots had gone missing. Without these ballots, the result was different, with Wayne Dropulich (Australian Sports Party) and Scott Ludlam (Greens) declared as winning the fifth and sixth spots.

The Electoral Commissioner concluded that the result of the election could not be known and there was a real chance that the declared result would have been different if the missing ballots had been able to be included in the count. The Electoral Commissioner therefore petitioned the Court of Disputed Returns to declare that the half-Senate election in Western Australia was void and that a new election should be held.

The various political parties presented tortured arguments to the Court in an attempt to secure the outcome that best suited their candidates, being either that the earlier counts should be restored, or the re-count outcome should prevail. No one seemed to want a fresh election, except the Electoral Commission.

The facts

The facts in relation to the polling and scrutiny were as follows. When the election was held, a first count took place at polling places on the evening of the poll. A second count, known as the ‘fresh scrutiny’ was then held in each electoral division. It assessed the total number of first preference votes for each candidate and the number of informal votes. The above-the-line votes were recorded and entered into the computer system. Those votes, plus the informal votes, were then bundled up and sent to a warehouse for storage. The below-the-line votes, which are more complex, were all sent to the central office for manual entry into the computer system.

The Electoral Commission’s computer then conducted a number of ‘counts’ that allocate preferences. These involve the exclusion, at different stages, of the candidate with the lowest number of votes and the redistribution of his or her preferences to the next preferred candidate remaining in the count. The crucial point in the WA Senate election was on count 141 at the point of the exclusion of the 50th candidate. The two candidates at that stage with the lowest votes were Mr van Burgel (Australian Christians) and Mr Bow (Shooters and Fishers). If van Burgel had the higher number of votes, the rest of the preference distribution would have given a decisive victory to Dropulich and Ludlam. If Bow had the higher number, it would have given a decisive victory to Wang and Pratt.

According to the ‘fresh scrutiny’ Van Burgel was beaten by Bow by 14 votes, leading to the election of Wang and Pratt. However, when the re-count took place, two factors changed. First, due to the more experienced officials and scrutineers, the assessment of the formality of some of the votes changed. The total number of informal votes increased by 324. There were 3,913 ballots that were treated differently from the fresh scrutiny. Secondly, the missing votes, comprising 120 informal votes and 1250 above-the-line votes, were excluded from the count. The result was that van Burgel had 12 votes more than Bow. This meant that Dropulich and Ludlum were declared to have won the fifth and sixth Senate seats.

However, if the information known about the missing votes from the ‘fresh scrutiny’ was factored into the computer, along with the changes in the assessments of re-scrutinised votes and the resulting changes in preference distribution in the re-count, the result would have been that Bow would have had one more vote than van Burgel, causing Wang and Pratt to be elected.

Given that the reconstructed count turned upon one vote and that no one could guarantee that every single one of the 1370 missing votes had been accurately assessed as formal or informal and correctly recorded, no one could say with confidence whether that one vote margin would be sustained. If, for example, the votes cast for van Burgel and Bow were even, then on a back-count, van Burgel would have remained in the count, and Dropulich and Ludlam would have been elected.

The Law

The Court of Disputed Returns has very limited powers in relation to elections. Where an ‘illegal practice’ has occurred (including failure to comply with provisions of the Act), it can declare that candidates who were returned as elected were not elected. It can declare that other candidates were duly elected. It can also declare an election to be absolutely void. There are two conditions for doing so. The Court must be satisfied that it was likely that the outcome of the election was affected by the illegal practice and that it is just to make such a declaration.

In dealing with a challenge, the Court usually has the benefit of being able to assess the ballot papers. The problem in this case was that some of them were missing. The question then was whether the Court could consider the earlier counts, which had taken into account those ballots, in order to reconstruct an outcome.

The Commonwealth Electoral Act provides that if anyone was ‘prevented from voting’, the Court cannot admit evidence of their voting intentions. This was an important element of the case, because it affected what evidence the Court could rely upon in reaching its decision.

The Court of Disputed Returns

Section 354 of the Commonwealth Electoral Act provides that the High Court shall be the Court of Disputed Returns and shall have jurisdiction either to try a petition or refer it, or part of it, for trial to the Federal Court of Australia. Its jurisdiction may be exercised by a single judge.

Section 368 states that all decisions are final and cannot be appealed. While a previous challenge to the constitutional validity of this provision has failed in relation to the determination of a challenge by the Federal Court (Smith v AEC [2009] FCAFC 43), there is still the possibility that it could be challenged as unconstitutional in relation to appeals from a single Justice of the High Court to the Full Bench.

Given the political importance of this case, one might have expected the Full Bench of the High Court to have sat as the Court of Disputed Returns. Surprisingly, it provided only a single judge bench comprised by Justice Hayne. This had ramifications for the case, as a single judge is bound by decision of the Full Court and therefore has less flexibility in dealing with precedents.

The Court of Disputed Returns’ judgment

There was no difficulty for the Court in identifying an illegal practice. The loss of the ballot papers gave rise to a number of contraventions of the Act. This was accepted by all the parties. The issues were then whether the illegal practices were likely to have affected the outcome of the election and whether it was just to make an order declaring the election void, or declaring candidates duly elected or not duly elected.

Much of the argument in the case concerned whether voters had been prevented from voting, as this was critical to the admission of evidence upon which the Court could rely. The provision that prohibits the admission of evidence of voters who have been prevented from voting was really intended to prevent people from taking the witness stand and being asked in court how they had intended to vote, as this would undermine the secrecy of the ballot. In this case, however, that prohibition was also regarded as capturing evidence of voting intention from earlier counts, even though it did not violate the secrecy of the ballot and identify the voting intentions of particular voters.

Some parties argued that the act of voting is complete when the voter places the ballot in the box. Others said that a voter could be prevented from voting if his or her vote wasn’t counted. Justice Hayne considered at [79] that ‘to vote’ means ‘to express or signify a choice’, but that the phrase ‘prevented from voting’ ‘extends to taking account of the expression or signification of the choice.’ He held that people were prevented from voting because their votes were lost and not counted. In reaching this conclusion, he drew on ss 7 and 24 of the Constitution and their requirement that the Houses of Parliament be directly chosen by the people. This, he concluded at [81], requires that ‘the lawful expression of every voter’s choice is taken into account in determining who has been chosen’.

The consequence was that he could not go back to the evidence of the earlier counts to determine the intention of these voters. It was not possible to mix and match from the various election counts to come up with a composite result. The Act required that the election outcome be ascertained by scrutiny of the ballot paper and once a re-count was directed, it required that the scrutiny begin afresh. That scrutiny could not be completed because of the absence of some of the ballot papers. Justice Hayne noted at [111] that the Act did not permit the making of ‘patchwork’ results.

As to whether the election outcome was likely to have been affected by the loss of the ballot papers, Justice Hayne concluded at [11] that without admissible evidence of voting intentions in the lost ballot papers, ‘the conclusion that the result which was declared was likely affected by the loss of the ballot papers is inevitable.’ This was because the critical margin of votes involved was 14, 12 or even just 1, depending upon which counts were used. Even though the evidence of earlier counts could not be admitted, Justice Hayne concluded that the margin was so small that it was ‘more probable than not that the loss of the ballot papers affected the result of the election which was declared.’

One of the parties made a rather ambitious argument that in the absence of evidence of voting intention, the Court had no evidence at all about likely outcomes and could therefore not find that any result was more likely than any other. It was therefore impossible to find that the result was likely to have been affected. This argument was summarily dismissed at [106].

Justice Hayne clearly stated at both [18] and [122] of his judgment that the Court must find that Mr Dropulich (Australian Sports Party) and Senator Ludlum (Greens) ‘were not duly elected’. He also stated that the Court ‘cannot declare who was duly elected.’ He concluded by stating that the ‘only relief appropriate is for the election to be declared void’.

The outcome

Despite making these findings on the questions of law, Justice Hayne did not actually declare the election void. Instead, he required the parties to come back before the Court for ‘argument about any remaining issue’ on Thursday, 20 February. This was probably a consequence of how the case was structured. Some of the parties had also asked the Court to review and determine the validity of certain challenged ballot papers. This would have involved taking evidence and making findings of facts. Justice Hayne was asked first to address certain legal questions. In addressing those questions, he found that there was no need to consider the validity of the reserved ballots. He then answered the legal questions asked of him. They did not deal with the making of orders to resolve the petition.

Hence, Justice Hayne decided to recall the parties on 20 February 2014. He will presumably then make any necessary orders to resolve the petition once the parties have been heard on the point. Given his findings on the legal questions, the only possible order would seem to be a declaration that the election was absolutely void.

The Act requires that in such a case a fresh election be held. It would then be a matter for the Commonwealth to nominate the polling date and the Governor of Western Australia to issue the writs for the half-Senate election. This is likely to happen in late April, after Easter, in order to ensure that a full Senate is available when it first sits after 1 July.

SUGGESTED CITATION: A Twomey, 'The case of the missing votes', Constitutional Critique, 19 February 2014, (Constitutional Reform Unit Blog, University of Sydney, http://blogs.usyd.edu.au/cru/).

[A shorter version of this post was published by The Conversation on 18 February.]

The following blog post has been contributed by CRU intern, STEPHEN SHARPE:

When the Expert Panel on the Constitutional Recognition of Aboriginal and Torres Strait Islander Peoples proposed the insertion of an anti-racial discrimination provision in the Constitution, it had to struggle with the vexed problem of how to prohibit racial discrimination while still permitting measures intended to reverse or ameliorate the practical effects of past discrimination. Should it adopt the ‘special measures’ approach used in the International Convention on the Elimination of All Forms of Racial Discrimination (‘ICERD’), which was adopted by the Racial Discrimination Act 1975 (Cth) (‘RDA’), or should it use different terminology to fulfill its intention?

One of the difficulties is that we have had very little indication from the High Court of the meaning of ‘special measures’ and how far it extends in Australian law. Until recently, the only substantive authority on the issue was the High Court’s 1985 judgment in Gerhardy v Brown, and in particular the judgment of Brennan J. Given the recent controversies concerning the Northern Territory intervention and the use of alcohol restriction laws in Aboriginal communities, greater clarity upon what amounts to a ‘special measure’ has been desperately needed.

The position has now changed with the High Court handing down a recent judgment dealing with special measures – Maloney v The Queen [2013]. The High Court largely endorsed Brennan J’s four indicia of what amounts to a special measure, as set out in Gerhardy v Brown:

A special measure (1) confers a benefit on some or all members of a class, (2) the membership of which is based on race, colour, descent, or national or ethnic origin, (3) for the sole purpose of securing adequate advancement of the beneficiaries in order that they may enjoy and exercise equally with others human rights and fundamental freedoms, (4) in circumstances where the protection given to the beneficiaries by the special measure is necessary in order that they may enjoy and exercise equally with others human rights and fundamental freedoms. (1985) 159 CLR 70, 133.

The Court in Maloney revealed a strong deference to Parliament’s assessment that criminal sanctions may constitute ‘special measures’ under the RDA, providing governments with a wide capacity to implement and enforce restrictive alcohol laws in Indigenous communities. The judgment suggests that the Court will interpret the Parliament’s powers broadly under any prospective non-discrimination clauses included as a part of Aboriginal and Torres Strait Islander recognition within the Australian Constitution.

Maloney v The Queen

In Maloney, a majority of Justices found the regulations restricting the possession of alcohol in the Aboriginal community of Palm Island to be an infringement of either one or a number of rights protected by s 10 of the RDA, which operates to ensure equality before the law, by conferring rights upon those discriminated against in legislation. However, the Court unanimously held that the laws implementing the alcohol restrictions were valid special measures under s 8 of the RDA, and therefore exempt from being considered discriminatory. The necessity and relevance of consultation or consensus was found to be largely a matter of political judgment, to be determined by Parliament, outside the jurisdiction of the Court.

Although the judgments emphasized the role of the RDA in giving effect to Australia’s obligations under the ICERD, none of the Justices were willing to accept the current international consensus of the United Nations ICERD Committee as having any bearing on the classification of laws as special measures. The Court found that the prior informed consent or consultation of an affected community, a requirement adopted by the ICERD Committee, was unnecessary for a law to be a special measure. While the majority referred to Brennan J’s remark in Gerhardy, that the wishes of the beneficiaries of special measures ‘are of great importance (perhaps essential)’, the Justices considered this not to be an essential feature in determining a special measure’s legitimacy. The effect is to vest greater power and discretion in the Parliament and the Government through the making of regulations that affect Aboriginal and Torres Strait Islander peoples.

The Court also largely deferred to Parliament in determining whether a special measure was for an affected community’s benefit and of ongoing necessity. The judiciary’s role was essentially defined as determining whether it was reasonably open for a legislative finding that a special measure was required, and that such a measure’s sole purpose was the adequate advancement of the affected community. Various standards of proportionality, reasonable necessity, and what is reasonably appropriate and adapted, were found to be in some way applicable to the legislation. However, the Court’s emphasis was on the initial legislative finding, supported primarily by the Cape York Justice Study, that some action was required to ensure the equal enjoyment of human rights and fundamental freedoms on Palm Island through the restriction of alcohol possession. This emphasis leaves little room for domestic challenges to restrictive criminal measures that have purportedly been enacted for the advancement of a racial group made under the RDA. The refusal to build upon the obiter of Brennan J and strengthen the community consultation requirement developed by international law, suggests a Court and a country out of step with contemporary notions of discrimination, and further emphasizes the need for both the constitutional recognition of Indigenous Australians and the review of the RDA.

Maloney and Stronger Futures

The Maloney decision’s inconsistency with international law was highlighted by the compatibility review undertaken by the Parliamentary Joint Committee on Human Rights. The Committee agreed with the UN Special Rapporteur on Indigenous Peoples that a measure criminalizing the conduct of members of the community for the benefit of the community as a whole should not be considered a special measure. This line of argument was led by the appellant in Maloney, but received little attention in the judgments. This again demonstrates the broad purview given by the High Court to Parliament under s 8 special measures.

The Committee suggested that the RDA be reviewed so that infringements of s 10, occasioned by laws like those in Maloney, do not have to be justified as special measures under s 8. The Committee suggested that such actions should be considered under a broader justification in international law of a reasonable and proportionate measure in pursuit of a legitimate goal. Whether or not this broader exception would place a greater emphasis on consultation with the affected community, or allow for equally restrictive laws as those held valid by Maloney, is yet to be tested. However, the use of proportionality, and the legal history it imports, may assist in refining an approach to such legislation. The High Court’s willingness to stretch, in terms of current international law, the domestic understanding of special measures in Maloney to encompass all forms of discriminatory laws for the benefit of a racial group, emphasizes the need for reform of racial discrimination law.

Non-Discrimination as a part of Constitutional Recognition

Section 116A, proposed by the Expert Panel on Indigenous Constitutional Recognition and designed to enshrine non-discrimination in the Constitution, avoids the language of special measures and opts for excepting ‘laws or measures for the purpose of overcoming disadvantage, ameliorating the effects of past discrimination, or protecting the cultures, languages or heritage of any group.’ The suggested provision accommodates a broader range of exceptions than the RDA and draws upon similar international constitutional and bill of rights provisions, such as those in New Zealand and Canada, in emphasizing the historic disadvantage of the relevant racial group. Significantly, the ‘sole purpose’ requirement of s 8 special measures is absent, preserving the operation of laws with multiple purposes and aims.

The Panel’s recommended s 51A, gives the Parliament the power to make laws for the peace, order and good government of the Commonwealth with respect to Aboriginal and Torres Strait Islander peoples, and contains an acknowledgement of ‘the need to secure the advancement of Aboriginal and Torres Strait Islander peoples’ in its preamble. Such wording accommodates the language of s 8 special measures by making it potentially relevant to the interpretation of the proposed power’s scope, but avoids adopting it as substantive law by placing it in the preamble. The associated jurisprudence concerning the need for such laws to be for the benefit of a community may therefore be drawn upon, if the High Court chooses to use the preamble in this way, without being imposed as a legal requirement.

Like the Report of the Human Rights Committee discussed above, the Expert Panel’s Report suggests a wariness of special measures that criminalize community conduct or erode principles of self-determination. The Maloney case, however, shows that the current High Court is prepared to defer to the judgment of the Parliament in upholding as special measures restrictive alcohol laws, such as those in place on Palm Island, which criminalize the conduct of a racial group in the pursuit of substantive equality, with or without the consultation of the affected community. Those reviewing the Expert Panel’s recommendations should now take into account the High Court’s Maloney decision in assessing how the notion of special measures should be dealt with in any anti-discrimination measure to be inserted in the Constitution and whether deference to Parliament should be replaced by judicial assessments of proportionality to legitimate ends.


SUGGESTED CITATION: Stephen Sharpe, 'Finding the balance between special measures and the prohibition of discrimination', Constitutional Critique, 9 February 2014, (Constitutional Reform Unit Blog, University of Sydney, http://blogs.usyd.edu.au/cru/).

This week the High Court will hear the Commonwealth’s challenge to the ACT’s Marriage Equality (Same Sex) Act 2013. Contrary to public expectations, the case is really about the inconsistency of laws, not human rights. The parties to the proceedings are the Commonwealth and the Australian Capital Territory. Australian Marriage Equality Inc (AME) has also applied to be heard in the proceedings as amicus curiae. Interestingly, none of the States have decided to intervene. Despite the potential for their interests to be affected, it would appear that the issue is too politically contentious.

The Commonwealth’s submissions show that it will argue that the Commonwealth Parliament has the power to legislate in relation to all forms of marriage. While it recognises that the full scope of the marriage power in the Constitution has not yet been determined, it argues that ‘the better view is that the constitutional concept of “marriage” includes a marriage between members of the same sex’. It would appear that the Commonwealth's interests in maintaining as broad a view as possible as to the scope of its powers has won out over the interests of the Abbott Government in advocating an originalist interpretation of the constitutional term 'marriage'.

The Commonwealth argues, however, that its Marriage Act 1961 was intended to cover the entire field of marriage in Australia to the exclusion of any State or Territory laws on the subject and that the ACT law is therefore invalid for trespassing into this field. The Commonwealth contends that ‘it is not open under the law of Australia for any other legislature to purport to clothe with the legal status of marriage (or a form of marriage) a union of persons, whether mimicking or modifying any of [the] essential requirements of marriage’.

The Commonwealth’s submissions also assert that the Marriage Act prevents a State or Territory from conferring the legal status of marriage or a form of marriage on a union of people that would not be valid under the Commonwealth law (eg because one of the parties is under age, or lacks capacity, or is already married, or the marriage is to expire after a fixed period, or the parties are closely related or of the same sex). While it accepts that a State or Territory can confer rights on couples, including same-sex couples, ‘as if they were married’, it contends that this still amounts to recognition that they are not legally ‘married’.

The ACT, on the other hand, contends that the Commonwealth’s Marriage Act deals only with the legal status of opposite-sex couples and that it does not prohibit or exclude laws conferring the status of marriage on others, including same-sex couples, or a status that is intended to equate to marriage.

In 2004 the Commonwealth passed the Marriage Amendment Act 2004 which defined marriage as the union of a man and a woman to the exclusion of all others, voluntarily entered into for life. One of the arguments is that this Act narrowed the field of the Commonwealth’s Marriage Act, opening up the field of same-sex marriage for the States and Territories to legislate within. The issue is one of intention. If one looks to the extrinsic materials, the Explanatory Memorandum stated that the intention was ‘to protect the institution of marriage by ensuring that marriage means a union of a man and a woman and that same sex relationships cannot be equated with marriage.’ The ACT argues, however, that this intention was not made out in the provisions of the Act. While it may have prohibited recognition of overseas same-sex marriages as ‘marriages’ in Australia, it did not expressly prohibit same-sex marriages under the law of other jurisdictions in Australia.

The AME’s submissions argue that the status conferred by the ACT Act is different from marriage. They contend that the mere use of the word ‘marriage’ does not indicate that the status is the same. They point to the terms ‘de facto marriage’ and ‘common law marriage’, which really mean that the relationship is not a marriage. They argue that the preceding words, ‘de facto’, ‘common law’ or ‘same-sex’ ‘serve to distinguish the status from marriage’. They conclude that as the ACT is legislating about something different from marriage, it is not inconsistent with the Commonwealth’s Act.

The ACT submissions primarily hang on a technicality unique to it. Its laws are subject to a differently worded inconsistency provision than that which applies to the States or other Territories. Section 28 of the ACT (Self-Government) Act 1988 states that a provision of a territory law has no effect to the extent that it is inconsistent with a Commonwealth law, but that the Territory provision shall be taken to be consistent with the Commonwealth law ‘to the extent that it is capable of operating concurrently with that law.’

The ACT claims that this means that Territory laws can operate concurrently with Commonwealth laws as long as there is no direct inconsistency. While State laws will also be invalid if they intrude into a field that the Commonwealth law intends to cover completely and exhaustively, it is argued that this does not apply to ACT laws. The effect, according to the ACT, is that its Marriage Equality (Same Sex) Act can operate fully in parallel with the Commonwealth’s Marriage Act without any direct inconsistency arising, because the institution of same-sex marriage is different from that of marriage under the Marriage Act.

The issue about the application of the ACT’s inconsistency provision is the dark horse in this case. There is very little authority on the subject and surprisingly, given the significance of this distinction, there seems to be no discussion of the intent behind it in either Parliament or the numerous reports that preceded self-government. This leads to interesting speculative conclusions– perhaps it was a drafting error or was intended to be cancelled out by the Commonwealth’s disallowance provision, or perhaps it simply means that ACT laws should be read down to avoid inconsistency with Commonwealth laws so that they can operate concurrently. The drafting history of s 28, the context in which it was enacted and the potentially different ways in which it might be interpreted are all addressed in a detailed paper here.

If the ACT’s Marriage Equality (Same Sex) Act was upheld solely on the basis of this different inconsistency provision, it would mean that same sex marriage in Australia would only be available and valid in the ACT. Equivalent laws could not be enacted in any other State or Territory. It would not give rise to ‘marriage equality’, but rather, as the AME argues, a status that is ‘not marriage’. This may well be a pyrrhic victory, but no doubt it is simply intended to be a battle in a bigger war.

[An edited version of this blog was first published by The Conversation on 2 December 2013. Suggested Citation: Anne Twomey, 'Same-sex marriage - A High Court preview', Constitutional Critique, 2 December 2013, (Constitutional Reform Unit Blog, University of Sydney, http://blogs.usyd.edu.au/cru/).]

CRU intern HANNAH SOLOMONS has prepared the following post about the political and judicial controversy concerning Prince Charles' "black spider letters" (named in honour of his black-ink spidery hand-writing):

In July this year, the English High Court upheld the UK Attorney-General’s decision to maintain the secrecy of the so-called “black-spider letters” between Prince Charles and government Ministers, sparking widespread outrage in some quarters, and relief in others. For decades, controversy has been growing around the Prince’s prominent and assertive role in public life. He has long been active and vocal in promoting his favourite causes and charities, often through written correspondence with Cabinet members.

The High Court decision is but the latest development in an eight-year legal battle under the United Kingdom’s Freedom of Information Act. It all began when Mr Evans, a Guardian reporter, made a request under that legislation for access to the Prince’s letters to Ministers made over a five month period in 2004-5. They included 27 letters described as “advocacy correspondence” that sought to promote certain charitable needs and views on policy matters to Ministers. The letters fell into a FOI category of qualified exemption – the Government could only refuse access if the principle of disclosure was outweighed by the public interest in withholding disclosure. The Government refused access to them and was supported by the Information Commissioner. However, the UK Act gives a court, in this case the UK Upper Tribunal, the rare power to re-evaluate the public interest in disclosure from scratch.

Arguments Before the Tribunal

Both sides’ arguments revolved around Prince Charles’ current and future constitutional roles. The roles of British royal family members are largely governed by “constitutional conventions.” These are unwritten non-legal rules that underpin the core functions of many Commonwealth governments, including Australia. Some of these are relatively well-settled and agreed upon, such as the conventions that the Queen acts on ministerial advice (except in relation to the reserve powers), maintains a level of public neutrality, and has the right and duty to participate in government by “encouraging, advising and warning.” However, these are only agreed upon in their application to the Sovereign. The conventions surrounding the Prince, as heir to the throne, are far more vague and uncertain, allowing both sides to argue for vastly different interpretations, and correspondingly differing needs for secrecy.

One of the few conventions directly relevant to the Prince is his right to be prepared for kingship. However, the Tribunal noted that it had been “little more than a footnote” before this case. In fact, this convention was so amorphous that expert witnesses could not even agree upon what to call it. Professor Brazier argued that it should be called the “apprenticeship convention,” because the heir’s training for kingship involved practical experience and participation in the business of governing. He further argued that this included engagement in debate, relationship-building and lobbying. All of these things, he argued, required secrecy in order to be effective. Alternatively, he suggested the more moderate view that such activities, whilst they might not be part of any convention themselves, were still both permissible and useful. It was therefore said to be in the public interest that fear of embarrassment should not discourage them.

The Tribunal decisively rejected all these arguments. It was far more sympathetic to the views of Professor Tomkins, Mr Evans’ witness. Professor Tomkins argued for a much narrower “education convention”, merely giving the Prince a right to inquire and be informed regarding government matters. Indeed, he even suggested that the convention might include limits on the Prince which would render his “advocacy correspondence” unconstitutional.

The Tribunal based its conclusions on consideration of a widely-accepted list of the factors relevant to determining constitutional conventions, originally propounded by Sir Ivor Jennings. Historical precedents and subjective feelings of obligation are the first two of these. Professor Brazier has long argued that the consistent participation by the Prince and Ministers in confidential written lobbying and debate provide sufficient evidence of precedent and feelings of obligation to justify its inclusion in the Prince’s conventional role. However the revelation of some letters in a biography of Prince Charles undermined that argument. The last of Jennings’ factors is the justification for the convention. In this regard, the Tribunal pointed to the illogicality of arguing for an “apprenticeship convention” where the activities of the apprentice are in direct contrast to the neutrality of the role he is preparing for, and which have the potential to damage his ability to fulfill it. In contrast, Tribunal members felt that a justification could be found in democratic values for concluding that public scrutiny of the Prince's actions is a right not easily dismissed.

The Tribunal therefore concluded that all three factors pointed towards a narrower convention. In fact, although it did not need to go as far as Professor Tomkins and directly question the constitutionality of secret advocacy correspondence, many of the Tribunal’s reasons did imply doubts. It concluded that two advantages of disclosure were the encouragement of public debate about the Prince’s place in the Constitution, and a disincentive to go beyond informative correspondence in the future. It held that the advocacy correspondence was not part of Prince Charles’ preparation for kingship and did not fall within the proper limits of any education convention. All this was enough to find that the statutory requirement for a public interest in non-disclosure had not been fulfilled.

The Attorney-General’s veto.

The Attorney-General, however, returned fire. He used a statutory veto power to prohibit disclosure by certifying his continued belief that disclosure was not in the public interest. In his reasons, he noted that the letters were “particularly frank” and reflected the Prince of Wales’ “most deeply held personal views and beliefs”. He stressed that under the UK constitution it was a matter of the highest importance that the monarch is a “politically neutral figure” and is able “to engage with the government of the day, whatever its political colour”. He concluded that disclosure of the correspondence could undermine Prince Charles’ “position of political neutrality” and that “if he forfeits his position of political neutrality as heir to the Throne he cannot easily recover it when he is King”.

The Attorney-General disagreed with the Upper Tribunal’s assessment that advocacy did not form part of the Prince’s education for kingship. He argued, controversially, that advocacy comes within the tripartite convention that allows the monarch to “advise, encourage and warn” Ministers. He said:

Discussing matters of policy with Ministers, and urging views upon them, falls within the ambit of "advising" or "warning" about the Government's actions. It thus entails actions which would (if done by the Monarch) fall squarely within the tripartite convention. I therefore respectfully disagree with the Tribunal's conclusion that "advocacy correspondence" forms no part of The Prince of Wales' preparations for kingship. I consider that such correspondence enables The Prince of Wales better to understand the business of government; strengthens his relations with Ministers; and enables him to make points which he would have a right (and indeed arguably a duty) to make as Monarch. It is inherent in such exchanges that one person may express views and urge them upon another. I therefore consider that, whether or not it falls within the strict definition of the education convention, "advocacy correspondence" is an important means whereby The Prince of Wales prepares for kingship. It serves the very same underlying and important public interests which the education convention reflects.

The High Court’s judgment

Mr Evans’ response was to go to the High Court seeking judicial review of the Minister’s decision. Their Lordships expressed concern about the constitutionality of Ministers overturning the effect of court decisions. Lord Judge described the constitutional position as follows:

It is fundamental to the constitutional separation of powers, the independence of the judiciary, and the rule of law itself that, although judicial decisions may be reversed by legislation (but very rarely with retrospective effect) ministers are bound by and cannot override judicial decisions: in our constitution that power is vested in Parliament. If ever the Government or any minister in the Cabinet could, without more, but in particular because of dissatisfaction with a judicial decision, not merely ignore it, but nullify it, the elementary entitlement of the citizen to effective recourse to independent courts would be extinguished.

He concluded, however, that the fact that the Minister was required to give reasons and that these could be subject to judicial review by the courts, leaving the ultimate decision in judicial hands, provided the “necessary safeguard for the constitutionality of the process”.

The Court accepted that the Attorney-General had been reasonable in reaching his conclusion, even though it was different from that of the Upper Tribunal. The Attorney-General had given reasons that could be regarded as cogent. It was not impossible for diametrically opposed views both to be reasonable. What was at issue was a value judgment as to where the public interest lay, and this could reasonably be decided in different manners.

The Current State of Play

Having so concluded, the Court was compelled to find in the Attorney-General’s favour. Thus, “the black spider letters” will remain confidential for the time being. The High Court’s reluctance to uphold the refusal is understandable. Whether or not the Prince’s behaviour is itself socially advantageous, it is disturbing that the judiciary has been unable to remove a double shroud of secrecy woven from constitutional arguments. That shroud has since been turned into a wall. In 2011 the law was amended so that the correspondence between the Prince of Wales and Ministers is now subject to an absolute exemption from disclosure under FOI for 20 years or five years from his death, whichever is the later. The Guardian’s litigation commenced before this change, so it continues to be litigated under the old law.

The final battle for the black spider letters still awaits. The Guardian intends to appeal the High Court’s decision. Given the dramatic twists and turns in the story so far, the outcome is anything but certain.

SUGGESTED CITATION: Hannah Solomons, 'Royal Secrets: Signed, Sealed and Delivered', Constitutional Critique, 2 November 2013, (Constitutional Reform Unit Blog, University of Sydney, http://blogs.usyd.edu.au/cru/).

Before the election, Tony Abbott ruled out negotiating with independents or minor parties if he didn’t achieve a majority in the lower House. But the pain Gillard experienced in bargaining for the votes of three independents in the House of Representatives is likely to be magnified for Abbott in getting six or more votes from a motley crew of micro-parties in the Senate. Is there another path? Abbott previously threatened to call a double dissolution if his legislation was blocked in the Senate. How feasible and likely is this?

The composition of the Senate

While the House of Representatives is dissolved at every general election, the Senate is a continuing House with fixed terms. Apart from the four Territory Senators, whose terms are tied to the House of Representatives, the Senators elected by each State have a term of six years with half being elected every three years. The Senate itself is not ordinarily dissolved – it just keeps operating with a change to its membership.

The candidates who were elected to the Senate at the 7 September 2013 election (except for the Territory Senators), will therefore not take up their seats until after the terms of half the current Senators run out on 30 June 2014. That means that the Abbott Government will confront a Senate where the Greens hold the balance of power until 30 June 2014, followed by a Senate where micro parties hold the balance of power for the next three years.

Double dissolution

The only exception is if a double dissolution is held. This means that both the Senate and the House of Representatives are dissolved. The consequence is that all the Senate seats become vacant and are immediately filled in the election. Twelve Senators are elected for each State, rather than six. The Senate then divides the Senators into two groups – those who get a six year term (who are usually those with the highest vote, but this is determined by a resolution of the new Senate) and those who get a three year term. The old Senate is terminated and replaced by a newly elected and constituted Senate.

Double dissolutions are relatively rare. They have taken place in 1914, 1951, 1974, 1975, 1983 and 1987. There is a special constitutional procedure that must be met before a double dissolution can be held. A Bill (or Bills) must be initiated in the House of Representatives and then blocked in the Senate (either by being rejected, failing to pass or passing with amendments that the House will not accept). A period of three months must then pass. Then the House must pass it again and the Senate block it. Only once the Government has such a trigger can a Prime Minister advise the Governor-General to grant a double dissolution. Double dissolution triggers may be ‘stock-piled’, but a double dissolution cannot be held in the six months before the House of Representatives expires.

There is also an issue about the extent to which the Governor-General has a discretion in granting a double dissolution. On previous occasions, such as 1914 and 1951, the view was taken by the Governor-General that he did have a discretion. In 1914 the Governor-General sought advice from the Chief Justice of the High Court on the extent of his powers to help him decide. In 1951, Labor Members of Parliament argued that the Governor-General should take advice from the Chief Justice, Sir John Latham, although it appears that he made his decision without such advice. Certainly in 1983, the Governor-General, Sir Ninian Stephen did not regard the Prime Minister’s advice as sufficient and sent him back to provide further advice about the importance of the blocked bills and the workability of Parliament. He stated in his letter to Prime Minister Fraser on 8 February 1983:

Such precedents as exist, together with the writings on section 57 of the Constitution, suggest that in circumstances such as the present, I should, in considering your advice, pay regard to the importance of the measures in question and to the workability of Parliament.

It might prove difficult to characterise the Parliament as unworkable if there had only been one rejection of a Bill and the Parliament had only been in operation a short time. It could prove even more difficult if the composition of the Senate was about to change.

Could a double dissolution be held before the Senate’s composition changes on 1 July?

Holding a double dissolution before 1 July faces two potential hurdles. First, there is a timing problem. The Senate is perfectly entitled to scrutinise bills, including sending them off to committees for public hearings and the receipt of expert advice. Once this is combined with the three month delay between bills, the process can become quite drawn out.

The Government would run a great risk in simply categorising a bill as having ‘failed to pass’ the Senate, just because the Senate took time to scrutinise it. The Whitlam Government tried this in 1974 but the High Court later held that one of its bills was not a valid double dissolution trigger because the Senate had not been given adequate time to scrutinise it. Fortunately for Whitlam, he had plenty of other triggers to rely upon. If an Abbott Government was relying on a single double dissolution trigger, it would have to be very careful indeed.

Secondly, there is a constitutional question as to whether a double dissolution could be held before the 1 July changeover, given that new Senators have already been elected. It could be argued that a double dissolution is intended to resolve a deadlock between the Houses, but once the Senate’s composition changes on 1 July, such a deadlock might no longer exist. The Governor-General might contend that to decide upon the workability of Parliament, she would need advice from the Prime Minister on the workability of Parliament under the changed composition of the Senate after 1 July 2014. Further, people who had been elected as Senators, to commence office on 1 July 2014, might contend that their election could not be wiped out in this manner.

On the other hand, it could be argued that while s 57 of the Constitution expressly prevents the holding of a double dissolution in the last six months before the House of Representatives expires, it does not expressly prevent the holding of a double dissolution immediately before the Senate's composition is changed on 1 July. It could also be argued that the candidates elected in the half-Senate election in September 2013 were elected to fill future vacancies in a continuing House. However, a double dissolution would completely dissolve that House, rendering their election of no effect. The Senate to which they had been elected would no longer exist and they would therefore have no entitlement to take up that office on 1 July 2014.

Timing problems

A double dissolution held before 1 July 2014 would also give rise to timing problems in relation to subsequent elections. Section 13 of the Constitution provides that after a double dissolution, the terms of Senators are dated back to the previous 1 July (i.e. 1 July 2013). The consequence would be that the next half-Senate election would have to be held some time in the 12 months before 30 June 2016. Assuming that an Abbott Government won a further term in office at a double dissolution held in, say, April 2014, it would need to go to the polls again in two years, if it were to hold the next half-Senate election with a general election. Alternatively, it would have to face a separate half-Senate election after being in office for two years, which like a by-election would probably result in some anti-government expressions of voter discontent. Neither outcome is terribly good for a Coalition Government.

Would a double dissolution improve the Coalition's position in the Senate?

The main reason why it is unlikely that a double dissolution would be held is that it would be likely to make it even harder for the Coalition to negotiate bills through the Senate. Because 12 Senators would be elected in a State, rather than six, the quota for winning a seat would be lower. This makes it much easier for micro parties and independents to win seats. It is also more difficult for a major party to win six out of twelve Senate seats in a State than it is to win three out of six. Given the high vote for micro parties at this half-Senate election, the likely outcome of a double dissolution in the next 6 months would be to increase the number of cross-benchers holding the balance of power in the Senate, which would not be likely to be to the Coalition’s benefit.

The only likelihood of a double dissolution would be if the major parties got together and agreed to change the electoral laws in such a way as to limit the ability of micro parties to be elected to the Senate. This could be done by increasing the threshold quota for election, increasing the deposit paid by candidates and increasing requirements for party membership before a party can get on the ballot. They might also consider the approach that NSW took after the infamous ‘table-cloth ballot paper’ of 1999, which was to move to optional preferential above-the-line voting, so that voters can still vote above the line but can control their preference flows, rather than having the gaming of upper house seats by micro parties.

Finally, there is the issue of sending voters back to the polls so soon after an election. There is likely to be a backlash from the public if they feel that they are being forced to put up with another long election campaign simply because the government feels that they got it wrong. Many will have deliberately voted against the Coalition in the Senate because they didn’t support many of their policies and wanted the Coalition to be forced to negotiate and compromise. They might be none too thrilled to be told to go back and vote again.

[This blog-post is an extended version of an opinion piece published in The Australian on 11 September 2013.]

SUGGESTED CITATION: Anne Twomey, 'From Simple Disillusion to Double Dissolution' Constitutional Critique, 12 September 2013, (Constitutional Reform Unit Blog, University of Sydney, http://blogs.usyd.edu.au/cru/).

Following is a new post by CRU Associate AMANDA SAPIENZA adding to her previous blog post on proposed policies to limit access of asylum seekers to judicial review:

Further to my recent post about the Coalition’s asylum seeker policy, much has been made in other commentary on the policy about the futility of any legislative attempt to restrict the High Court’s jurisdiction to conduct judicial review of immigration decisions. However, little has been said about the constitutionality of restricting or removing the Federal Court’s asylum-seeker judicial review jurisdiction. The assumption is that, with s 77(i) of the Constitution conferring power on the Commonwealth Parliament to make laws defining a federal court’s jurisdiction, what the Parliament giveth the Parliament may take away.

But a follower of this blog, Jim South, has reminded us that the High Court has previously hinted that this assumption may not be correct. He referred us to MZXOT v Minister for Immigration and Citizenship (2008), in which a majority of the High Court suggested that it would look closely at any future attempts to limit the jurisdiction of the Federal Court where the consequences would be such an increase in the trial load of the High Court that its capacity to carry out its appellate and constitutional functions would be severely impaired. Chief Justice Gleeson and Justices Gummow and Hayne said the following at [36]-[37] (references omitted):

The Commonwealth Solicitor-General ... contended that there was no restraint upon the power of the Parliament to enact a repeal of [measures conferring jurisdiction over federal matters on other courts] and thereby burden exclusively the High Court with the full weight of original jurisdiction in federal matters. Such a state of affairs would, among other things, stultify the exercise of the appellate jurisdiction which is entrenched by s 73 of the Constitution. It would undermine the operation of Ch III which places this Court (subject to the obsolete provisions in s 74) at the apex of the judicial structure.
It is well recognised in the decisions of the Court that the powers of the Parliament conferred by the various heads of power conferred by the Constitution are not to be interpreted on the footing that the ends sought to be achieved by their exercise must appear desirable rather than absurd or inconvenient. But a law, apparently based upon s 77(iii), which repealed [measures conferring federal jurisdiction on State courts and other federal courts] would appear to strike at the effective exercise of the judicial power of the Commonwealth which is vested directly in the High Court by s 71 of the Constitution. Nor would it necessarily be decisive in this situation to invoke the principle that the legislative powers conferred by s 51 extend to the repeal of the whole or part of that which has been enacted; the legislative powers conferred within Ch III may require special consideration [emphasis added]. It is sufficient to conclude now that the submission put for the Commonwealth can hardly be said to be self-evidently correct.

These comments were made in the context of a submission that the High Court had an implied power of remittal to other courts based on the need to protect its ability to exercise its constitutional and appellate functions. The Court unanimously decided that the facts of the case did not warrant the implication of such a power. Justices Heydon, Crennan and Kiefel held that there was no such power but, as can be seen from the comments reproduced above, Gleeson CJ, Gummow and Hayne JJ indicated a willingness to explore the need for such an implication in an appropriate case. Justice Kirby was also very sympathetic to the argument. However, the four justices agreed that the legislative scheme in question in MZXOT did not place such a burden on the Court that the Court’s ability to sufficiently discharge its other functions was impaired (see [53] and [59]) and that therefore a remittal power was not a necessary implication.

So we have a majority of the High Court leaving open the possibility that an attempt to remove jurisdiction from a court with federal jurisdiction could be unconstitutional if the effect would be to burden the High Court with that jurisdiction and thereby impair the High Court’s capacity to exercise its appellate and constitutional functions. Put another way, there is a suggestion of an implied limitation on the power of the Parliament to significantly reduce the jurisdiction of federal courts.

A number of issues arise if the High Court intends to go down the road of implying such a limitation. First, who is to say that the appellate and constitutional functions of the High Court are the most important and therefore to be protected at the expense of other federal matters? Justice McHugh, in his tirade against the Parliament in Durairajasingham (2000) (at [8]-[15]), used parliamentary debates and secondary sources to support his conclusion that the intention behind the creation of the Federal Court was to free the High Court to focus on its appellate and constitutional functions. In MZXOT, Gleeson CJ, Gummow and Hayne JJ at [34] cited this passage of Durairajasingham in support of their view that the ‘major functions’ of the High Court are its constitutional and appellate ones. But there is nothing in the Constitution itself to suggest that this is so, at least in relation to the Court’s jurisdiction over matters arising under the Constitution or involving its interpretation. While the Court’s appellate functions are not constitutionally capable of being conferred on another court (giving some textual support for its perceived importance), its constitutional functions are so capable (see s 77(i) read with s 76(i)). Further, the constitutional functions are but one of four matters upon which the Constitution permits jurisdiction to be conferred on the High Court. Indeed, the framers of the Constitution did not even see fit to entrench the High Court’s jurisdiction over constitutional matters by including it in s 75. Rather, they listed it in s 76 and left it to Parliament to confer that jurisdiction on the High Court as it sees fit.

Secondly, where lies the limit of work that is neither constitutional nor appellate that the High Court can undertake and how will the judges decide that the limit has been breached? Obviously a conversation between the justices (or even four of them) around the Parkes Place water-cooler in which they agree that their trial load is too high will not suffice. A more rigorous, evidentiary approach will be required. In Abebe v Commonwealth (1999), Gleeson CJ and McHugh J at [50] predicted that the effect of the restriction of the Federal Court’s jurisdiction on the business of the High Court was certain to be serious. To confirm the accuracy of this prediction, McHugh J at note 2 of Durairajasingham referred to the number of applications pending in the Court for prerogative relief that arose under the Migration Act compared to the total number of pending applications for prerogative relief. In MZXOT, Kirby J noted that the evidence presented and ‘knowledge available by judicial notice’ contradicted the presence of the extreme circumstances that would be required for him to find that an implied constitutional power of remittal existed ([134]-[137]). The High Court will need to consider matters such as the number of applications pending in each kind of proceeding and the time spent sitting and writing on each. Still then there will be the need to undertake the unenviable, and ultimately impressionistic, task of deciding where the line is drawn between trial work consuming much of its resources and trial work preventing the effective discharge of its ‘major functions’.

Taking this volumetric approach to the question means that, to have good prospects of success in arguing that some constitutional limit has been breached, an applicant will have to wait before instituting proceedings to see what was the impact on the High Court’s workload of the removal of the Federal Court’s jurisdiction. Should the constitutionality of a legislative measure depend not on the measure itself but on its consequences? Particularly where those consequences may not be clear for several years?

Of the justices who left open the possibility of a constitutional impediment to restricting the Federal Court’s judicial review jurisdiction in MZXOT, only Hayne J remains on the Court. Justices Crennan and Kiefel also remain on the Court. Their Honours, with Heydon J, made the point at [203] of MZXOT that in Abebe a majority of the High Court upheld provisions that ultimately resulted in a significant increase in the number of proceedings instituted in the High Court pursuant to its original jurisdiction to conduct judicial review in s 75(v). Their Honours noted that the majority did so without seeing anything in ss 75-77 of the Constitution that prevented Parliament from severely restricting the jurisdiction of the Federal Court to review refugee decisions.

So one cannot predict with certainty how the current High Court might decide an argument that the Constitution prohibits stripping the Federal Court of its asylum-seeker judicial review jurisdiction and foisting it on the High Court. But the comments of Gleeson CJ, Gummow and Hayne JJ and Kirby J in MZXOT suggest that the High Court won’t take any increase in its trial load lying down.


SUGGESTED CITATION: Amanda Sapienza, 'Who Needs a Union? A Constitutional Argument for Controlling the High Court's Workload', Constitutional Critique, 2 September 2013, (Constitutional Reform Unit Blog, University of Sydney, http://blogs.usyd.edu.au/cru/).

CRU Associate AMANDA SAPIENZAhas contributed the following post on the Coalition's recently announced asylum seeker policy:

The Coalition has announced that, if elected to form government on 7 September, it will seek to prevent asylum-seekers who attempt to arrive (or have already arrived) in Australia by boat without a visa from being able to access the courts for review if their refugee or protection claims are rejected. The shadow Minister for Immigration also stated that the Coalition would make the process for assessment of such asylum-seekers’ claims “non-statutory”. Although neither the announcement nor the accompanying policy document makes it clear, the implication is that the “non-statutory” nature of the process will render decisions made pursuant to the process unexaminable by the courts. Given the High Court’s recent rhetoric on preventing “islands of power immune from supervision and restraint” (see Kirk v IRC (NSW) (2010) at [99]) this is a brave position to take. Indeed, the shadow Minister for Immigration admitted that the policy exists in a “complicated” legal area and that its details could not be worked through until the Coalition was in government and had access to the government’s full legal resources. He even foreshadowed the inevitable High Court challenge.

The policy raises two key legal issues:

1. Whether the assessment of a person’s claim to engage Australia’s protection obligations under the Refugees Convention can be a “non-statutory process”; that is, carried out not under legislation but pursuant to non-statutory power that the Constitution permits the executive branch of government to exercise; and

2. Whether the simple fact that an assessment process is non-statutory renders the process immune from judicial review.

To date it has not been necessary for the High Court to determine either of these issues, but judicial commentary on the issues suggests that the Coalition would find itself on shaky ground.

As to the first issue, it is to s 61 of the Constitution that attention will be directed. Section 61 authorises the executive branch to exercise both power conferred on it by legislation and some non-statutory power. The High Court has consistently held in recent years that exercises of non-statutory executive power by the Commonwealth pursuant to s 61 must fall into one of three categories of power: either prerogative power, the power that the Commonwealth has in common with other bodies with legal personality status (legal personality power) or the power to “engage in enterprises and activities peculiarly adapted to the government of a nation and which otherwise cannot be carried out for the benefit of the nation” (the AAP case (1975)at 397), known in academic circles as the “nationhood” power.

It is not clear that a non-statutory scheme to determine whether a person engages Australia’s protection obligations falls into any of these categories. While the Full Federal Court in the Tampa case (2001) was willing to hold that there still existed a prerogative power to prevent non-citizens from entering Australia, Black CJ in the minority held that it did not exist during peace time. Justice French (with Beaumont J agreeing) did not expressly limit the power to peace time, but stated repeatedly that it was not necessary to examine the full extent of any such power and limited his findings to the facts at hand: the power to enter a vessel to prevent the entry of non-citizens. These comments have no application to a purported power to assess a person’s claims to protection during peace time.

Indeed, when the Commonwealth sought to argue in the Christmas Island Detainees case (2010) that the Rudd government’s process for assessing the protection claims of offshore applicants was a non-statutory assessment process, it did not seek to argue that the process was an exercise of prerogative power. Rather, the Commonwealth submitted that the scheme was nothing more than an exercise of the Commonwealth’s power to inquire (an example of legal personality power). The Commonwealth relied on a statement by Griffith CJ in Clough v Leahy (1904) that the Commonwealth had the same power as anybody else to make inquiries of another person. His Honour also held that, like any other person, the Commonwealth had no power in the absence of legislation to force anyone to answer its questions. That is, the non-statutory executive power to inquire did not extend to coercive measures to obtain answers to the inquiries. No doubt the Commonwealth would argue that the asylum-seekers are not obliged to answer the government’s inquiries. But query how much of a choice an asylum-seeker really has when the consequence of not answering the government’s inquiries is deportation to a country in which the applicant claims to fear persecution.

As for nationhood power, a crucial limb of the test is the requirement that the enterprise be one that cannot, apart from an exercise of executive power, be carried on for the benefit of the nation. The precise function of the Coalition’s proposed non-statutory process is, of course, already being carried on. It is being carried on pursuant to the provisions of the Migration Act, with all of the judicial review rights that such a statutory process entails. The only aspect of the Coalition’s policy that is not presently being carried on is the ousting of the jurisdiction of the courts. It will be a big ask of the High Court to find that executive power authorises a scheme whose sole purpose is to avoid judicial review.

Even if the High Court is willing to find that the non-statutory process is authorised by the executive power of the Commonwealth, it does not necessarily follow that decisions made pursuant to the process will be immune from judicial review. The High Court was invited to consider these questions in the Christmas Island Detainees case but, having determined in a unanimous joint judgment that the scheme was in fact statutory, it held that it was unnecessary to consider whether an exercise of non-statutory executive power was attended by an obligation to afford procedural fairness (and, by implication, amenable to judicial review). However, other courts have been required to determine the justiciability of non-statutory executive action and the weight of authority suggests that the Coalition’s apparent assumption that a non-statutory assessment process will render decisions immune from judicial review is dubious.

The traditional position, dating from at least 1611, was indeed that, while the court could examine the existence and extent of a prerogative power, the manner of exercise of a prerogative power was unreviewable. This position has been recognised by the High Court since at least 1908 but Mason J started hinting that the position was untenable in modern times in R v Toohey; Ex parte Northern Land Council (1981). The House of Lords paved the way for judicial review of non-statutory action in the United Kingdom in Council for Civil Service Unions v Minister for Civil Service (1984), when a majority of the Lords held that Margaret Thatcher’s banning of trade union membership for employees of the government’s intelligence service could have been subject to judicial review in an appropriate case. The Full Federal Court unanimously held in Minister for Arts, Heritage and Environment v Peko-Wallsend (1987) that this should be the position in Australia. Chief Justice Bowen held that “subject to the exclusion of non-justiciable matters, the courts of this country should now accept responsibility for reviewing the decisions of Ministers or the Governor-General in Council notwithstanding the decision is carried out in pursuance of a power derived not from statute but from the common law or the prerogative” (at 278). The Victorian Court of Appeal was willing to review the action of a non-statutory taskforce in Victoria v Master Builders Association (1995). Justice Eames was scathing of Victoria’s argument that, in effect, “by device of not legislating to authorise the conduct, but relying on its common law powers and capacities, the executive can prevent the courts from reviewing the conduct so authorised by the executive, however intrusive or unreasonable that conduct may be, short of being prohibited by law.” In each of these cases the courts recognised that the traditional position was not appropriate for modern governments.

Even traditional exceptions to justiciability of non-statutory executive action, such as matters of international relations, are not automatically off-limits due to a lack of legislation. In Re Ditfort, Gummow J stated that not every case raising questions of international relations will be non-justiciable. In Hicks v Ruddock, David Hicks sought judicial review of the then Attorney-General Ruddock’s decision not to seek his release from detention in Cuba and his return to Australia. Ruddock applied for summary judgment on the basis of the non-justiciability of such a decision, but Tamberlin J refused Ruddock’s application on the basis that it was premature: whether or not the judicial review application raised justiciable issues would depend on the claims made and evidence adduced, not merely on the link between the facts and Australia-US relations. In Aye v Minister for Immigration and Citizenship, the Federal Court was willing, if presented with a properly framed application, to entertain an application for judicial review that touched upon a decision to impose sanctions on Burmese officials and their family members. An adult daughter of a senior military officer of the Burmese regime was studying in Australia and had her visa cancelled as a result of the policy. A majority of the Full Federal Court would have been willing to examine the decision if the judicial review application had argued grounds in relation to the application of the policy to the applicant, rather than the policy itself. These are but a few of the cases indicating a trend to a more substantive consideration of justiciability of non-statutory executive action: consideration of the specific claims made in each application rather than a decision of non-justiciability based on the source of the power exercised (statutory or non-statutory) or the context in which the decision made (such as international relations).

Decisions made pursuant to any non-statutory scheme for the assessing of protection claims will not ordinarily involve matters of international relations or assessments of the propriety of any government policy. Such decisions will involve the assessment of a particular applicant’s claims against criteria established by the government. Such decisions will directly affect the person making the application and are classic examples of administrative decision-making. Nothing about such a decision suggests that a non-statutory source alone will take it outside the reach of judicial review.

Not even clear attempts by legislation have succeeded in achieving this immunity from judicial review. The High Court held in Plaintiff S157 (2003) that no legislation could strip the High Court of its jurisdiction to conduct judicial review for jurisdictional error as this jurisdiction is constitutionally entrenched by s 75(v) of the Constitution. So even if a Coalition government passed legislation depriving other federal courts of judicial review jurisdiction in protection cases, all this would do is send applicants to the High Court instead, arguing that their decision is tainted by jurisdictional error. This is precisely what happened following each attempt by previous governments to restrict the power of the Federal Court to conduct judicial review of protection visa cases. One of those attempts earned the government of the day this sharp rebuke from Kirby J: “The prospect of this Court’s having to hear and determine, in its original jurisdiction, applications of this kind, in default of the availability of equivalent redress in the Federal Court ... is extremely inconvenient. It is also expensive and time-consuming” (Abebe v Commonwealth (1999) at [207]).

So if the Coalition wins the election and seeks to implement this policy, there are no guarantees that the policy will achieve its aims of restricting access to Australian courts. The only guarantee is a High Court challenge. And while the polls seem to suggest a Coalition election victory, on this policy all the signs seem to point to defeat.