Almost every history book contains factual errors. These can usually be corrected in later histories or pointed out in reviews. But errors that are repeated over time become difficult to shake. They transform into myths. Myths may be relied upon to support arguments for political or legal reform. Proponents of reform may, unwittingly, expose themselves to scepticism about the soundness of their proposal once the errors are identified. The force of their argument may be diluted. Erstwhile or potential supporters may conclude that there is no need for reform.

The place of Australia’s Indigenous people in the Constitution abounds with myths. Many have been repeated in the current discussion about Indigenous constitutional recognition. It is in everyone’s interest that these should be explained. This has no bearing on whether or not particular proposals for constitutional change are worthy.

Below, I identify the commonly-repeated myths, and explain the relevant facts. First, a few words about what the Constitution does not say:

THE CONSTITUTION
The Australian Constitution makes no mention of Aboriginal and Torres Strait Islanders. Prior to 1967, it referred to the people of the “Aboriginal race” (but not the Torres Strait Islanders) in two separate sections. These sections said nothing about the identity of the Aboriginal people or the definition of “Aboriginal”, or about Aboriginal citizenship or rights. The Constitution has never described or defined Aboriginal people. It has never referred to the doctrine of “terra nullius.”

THE MYTHS
The 1967 referendum

The 1967 referendum has become iconic and inspirational for proponents of indigenous constitutional recognition. It is, however, poorly understood.

The question put to the voters in the 1967 referendum was: Do you approve the proposed law for the alteration of the Constitution entitled: “An Act to alter the Constitution so as to omit certain words relating to the people of the Aboriginal race in any state and so that Aboriginals are to be counted in reckoning the population?

More than 90% of the nation and a majority in all States said Yes. As a result, two changes were made to the Constitution.

1. Certain words were omitted
The “certain words” that were omitted were from section 51 (xxvi). Prior to 1967, this section gave the Commonwealth the power to make laws with respect to “[t]he people of any race, other than the aboriginal race in any State, for whom it is deemed necessary to make special laws”. This meant that the Commonwealth could not make special laws for the Aboriginal people, except in the Territories. Aborigines were a subject for State laws.

In 1967 the words “other than the aboriginal people in any State” were struck out. As a consequence, the Commonwealth gained the power to make special laws for the Aboriginal people (Native Title laws are an example).

The Constitution, it should be noted, refers only to “special laws”. It is neutral regarding the content of such laws. It does not say anything about whether those laws must be beneficial or adverse.

2. Aboriginals are to be counted
Secondly, following the 1967 referendum, section 127 of the Constitution was removed. This section said: In reckoning the numbers of the people of the Commonwealth, or of a State or other part of the Commonwealth, aboriginal natives shall not be counted.

It is a common myth that the section excluded Aboriginal people from being counted in the census, and that the 1967 referendum meant that they would henceforth be counted. It did not. The Aboriginal people have always been counted, from the very first Commonwealth census in 1911. In fact, census statistics specifically recorded the populations of Aboriginal Australians. “Half-blood” Aborigines were considered to be white and were included in the general census.

The purpose of section 127 (admittedly, not obvious from its words) was to guide the calculation of the numbers of parliamentary representatives per State and also to determine certain State financial entitlements and obligations, based on State populations. When these calculations were made, the numbers of Aboriginal people, as counted, were excluded.

The right to vote
Another common myth is that the 1967 referendum gave the Aboriginal people the right to vote. This is incorrect. The 1967 referendum had nothing to do with this right (or “equal rights” or rights at all).

Aboriginal people were able to vote in all States and in the Commonwealth by 1967. From 1949 they could vote in Commonwealth elections if they were enrolled to vote in NSW, Victoria, South Australia or Tasmania. Indigenous people who had been in military service also had the right to vote. In 1962, all other Aboriginal people became entitled to vote in Commonwealth elections.

At the State level, Aboriginal people were able to vote in South Australia, NSW, Tasmania and Victoria throughout the 20th century. In Western Australia and Queensland they gained the State vote, respectively, in 1962 and 1965.

It should also be noted that the official definition of Aboriginal has changed over time, and voting rights of individuals have therefore changed accordingly. Many Aboriginal people today would not have been excluded from the right to vote under the former laws.

In any case (with the exception of a now-spent transitional provision - section 41), neither eligibility to vote nor the franchise is mentioned in the Constitution. The right to vote is a matter for ordinary legislation. The Constitution did not need to be altered for Aboriginal people to gain the right to vote.

Citizenship
A further common myth is that the 1967 referendum gave citizenship to the Aboriginal people. This is incorrect. Between 1788 and 1949, everyone born in Australia (or any other part of the British Empire) acquired the legal status of “British subject” (“subject” was the term used for British nationality at that time). In 1949, under new legislation every person born in Australia, regardless of race or colour, became simultaneously a British subject and Australian citizen. Subsequent changes in legislation meant that Australians are no longer British subjects.

Eligibility for Australian citizenship has changed over the years. Citizenship laws, however, have never differentiated between Aboriginal and non-Aboriginal persons.

Again, citizenship is not defined in the Constitution. A referendum would not be required to amend the citizenship law.

“Flora and fauna”
The myth that the Constitution included a reference to the Aboriginal people under a “flora and fauna” section is entirely erroneous. The words “flora and fauna” do not appear anywhere in the Constitution, nor did they prior to 1967. There was no “Flora and Fauna Act” either. No legislation referred to or classified the Aboriginal people in such terms.

White Australia
It is sometimes thought that the “White Australia” policy was enshrined in the Constitution and/or directed at Aboriginal people. It was not. It is certainly true that Australian attitudes and policy favoured “white” people generally and, in many respects, discriminated against non-whites on the basis of their race or colour.

However, the White Australia policy was specifically about immigration, and not about the Indigenous people. The Commonwealth has power to pass laws with respect to immigration (section 51 (xxvii) ), but immigration policy is not mentioned in the Constitution. It was expressed in legal terms in the Commonwealth Immigration Restriction Act of 1901. Under this Act, an intending immigrant could be denied entry into Australia if he or she failed a “dictation test”. The test involved writing down 50 words that were dictated by an immigration officer, in any European language. If a person could not write as dictated, he or she was refused entry. The test was mostly applied to Asian persons. It did not apply to people living in Australia, whether white or non-white.

It is also frequent asserted that the Immigration Restriction Act was the Commonwealth Parliament’s very first Act. This is incorrect. It was the seventeenth Act of 1901 – the last Act of that year.

Indigenous recognition
None of these myths is essential to the argument for indigenous recognition. Today, Indigenous Australians have equal legal status with non-Indigenous Australians, but no one can claim that they have gained full equality or recognition in other terms. The fact that Australia had a native population prior to the arrival of the British in 1788 is still not recognized in the Constitution.

The Commonwealth’s Aboriginal and Torres Strait Islander Peoples Recognition Act, passed in 2013, recognized that “The Aboriginal and Torres Strait Islander peoples were the first inhabitants of Australia.” The Act was designed to be preparatory to a referendum on Indigenous constitutional recognition and has a two-year “sunset” clause. The referendum date has not yet been set. However, Prime Minister Abbott has indicated that 27 May 2017 – the fiftieth anniversary of the 1967 referendum – may be chosen.

If so, it will be an opportunity for clarifying what really happened in that event, and for arguing for Indigenous recognition in its own right.

For further information on myths about the 1967 referendum, see http://parlinfo.aph.gov.au/parlInfo/download/library/prspub/JTZM6/upload_binary/jtzm62.pdf

The following post is by CRU Intern, SARAH BRADBURY

On 3 February 2015, Geoffrey Nettle was sworn in as the 51st Justice of the High Court of Australia. His Honour is the oldest person to be appointed to the Court. Aged 64 and 2 months, Justice Nettle will be required to retire in December 2020 after serving for only 5 years and 10 months, one of the shortest tenures in the history of the Court. This is owing to section 72 of the Constitution, which provides for the mandatory retirement of High Court Justices at age 70.

This post will address whether this mandatory age is still appropriate almost 40 years after its insertion into the Constitution, and evaluate possible alternatives that would ensure the retention of good judicial minds.

Constitution Alteration (Retirement of Judges) 1977

Prior to 1977, judges elected to the High Court were granted life tenure. This was affirmed by the High Court in Waterside Workers’ Federation of Australia v J W Alexander Ltd (1918) 25 CLR 434, in which the Court interpreted the original text of section 72 as requiring that every Justice of the High Court be appointed for life subject only to the power of removal for proved misbehaviour or incapacity. Even in those circumstances, removal of a High Court judge was only possible after an address from both Houses of Parliament in the same session “praying for such removal”.

This provision was altered by referendum in 1977. Approximately 80 per cent of electors approved an amendment to Chapter III of the Constitution providing for the mandatory retirement of federal judges at age 70. While High Court judges are guaranteed tenure until reaching this age, the Parliament may legislate to lower the age of retirement for other federal judges. This provision was used, for example, to require the retirement of Family Court judges at age 65 in section 4 of the Family Law Amendment Act 1977 (now repealed).

The Bills Digest prepared by the Parliamentary Library stated that the amendment was proposed because “[t]here has been a growing acceptance of the view that federal judges, like their counterparts in the States, should be subject to a maximum retiring age.” Supporters of the referendum argued that a mandatory age of retirement would help maintain vigorous and dynamic courts by bringing fresh ideas to the bench, and that it would prevent the embarrassing situation of removing a judge who is unable to continue performing his or her duties, but who is unwilling to resign. However, while mandatory retirement at age 70 may have been appealing in 1977, it can be seen as arbitrary in contemporary society.

The Need for Change

In the 38 years since the mandatory retirement age was implemented, the demographic makeup of the Australian workforce has changed significantly. According to the Australian Bureau of Statistics, the average life expectancy of males in 1977 (then the only gender appointed to the High Court) was 69.6. In 2013, that had increased to 80.1 for males and 84.3 for females. This longer life expectancy is reflected in how many years people remain in the workforce. While in the 1970s only 8.3 per cent of persons aged over 65 were working, in 2010 this had increased to 13.5 per cent and it is projected that in 2050 22.7 per cent of people will remain in the workforce past that age. Professor George Williams has argued that “as the population ages, and people continue to serve with distinction in a number of fields, there is less reason to force High Court justices into early retirement.”

It is widely recognised that judges are still able to perform legal duties to a high standard beyond age 70. For example, Dyson Heydon following his retirement in 2013 was appointed the sole Royal Commissioner to lead the Royal Commission into trade union governance and corruption. Further, there is a trend of judges serving in other jurisdictions following their retirement. Murray Gleeson and Michael McHugh took up appointments on the Court of Final Appeal in Hong Kong, Sir Gerard Brennan and John Toohey served on the Supreme Court of Fiji, and Ian Callinan was an ad hoc Judge of the International Court of Justice in the East Timor v Australia provisional measures hearing. Indeed, Sir Anthony Mason is still sitting on the Court of Final Appeal in Hong Kong at age 90. Against this background, it is evident that many High Court judges retain the necessary physical and intellectual strength after attaining age 70 to perform judicial duties to a high standard. Requiring retirement at this age, as argued by Professor Andrew Leigh, has the consequence of forcing some judges to retire when they are at their peak.

The strongest argument in favour of keeping the mandatory retirement age is that it ensures judges who are unable to adequately perform their judicial functions are precluded from sitting. Ensuring that judges retain a high mental capacity is important. For example, when Dr H V Evatt served as Chief Justice of the New South Wales Supreme Court this was of particular concern because, as stated by Michael Kirby, “his deteriorating mental powers… were all too evident.” Having judges hearing matters when they are no longer able to handle the complexities of legal work is problematic. Sir Anthony Mason has stated, “[w]hen the judge lacks professional skills of a high order, the costs of a lengthy trial may be wasted.” Accordingly, to maintain public confidence in the judiciary, it is necessary to ensure there are safeguards so that only those fit to hold office continue to do so.

But how is this balance best achieved? To explore this question, this post will now examine possible reforms to section 72.

Acting Judges in the High Court

The position of Reserve or Acting Judge is common in state judiciaries, and allows for persons to be appointed to act as a Judge to assist with the business of the Court as required. While retirement ages are still common in these jurisdictions, age 72 in New South Wales and 75 in Victoria, it allows for greater flexibility in the removal of judges after they have reached the retirement age. An Acting Judge is typically appointed for a short term which may be renewed, and aims to overcome temporary difficulties in the administration of the Court.

It is unlikely that such a position would be a valid appointment under Chapter III of the Constitution as it currently exists. In Capital TV and Appliances Pty Ltd v Falconer (1971) 125 CLR 591, Windeyer J emphasised that it is a requirement of section 72 that judges be granted tenure terminable only for misbehaviour in office or incapacity.

Critically, tenure is entrenched in the Constitution to ensure the minimum requirements of judicial independence and impartiality are satisfied. This arguably could be compromised if a judge’s performance was subject to executive scrutiny. As Chief Justice Gleeson stated, “the duty of a judge is to administer justice according to the law, without fear or favour, and without regard to the wishes or policy of the executive government.” Michael Kirby has argued that the existence of acting judicial offices may give rise to concerns that “a judge has tailored his or her decision to avoid government displeasure.” Further, Sir Anthony Mason has stated that appointing acting judges for reasons other than overcoming temporary difficulties is “extremely difficult to support”.

However, when the validity of acting judicial offices came under challenge in Forge v Australian Securities and Investments Commission (2006) 228 CLR 45, a majority of the High Court considered these appointments insufficient to undermine judicial independence such as to deprive a court of its position as a State Supreme Court invested with federal jurisdiction. In particular, Chief Justice Gleeson emphasised that the standards of judicial independence “are not developed in a vacuum” – they must be considered in light of “history, and of the exigencies of government”. His Honour observed that the position of many permanent judges could raise questions of “at least as much significance”, specifically in circumstances concerning judicial promotion. Those members seeking to advance their judicial rank could similarly be seen as wanting to keep the Executive on-side, however no criticisms concerning lack of impartiality are directed at those members of the judiciary. In comparison, the attraction for a judge over the age of 70 to remain as an acting judge for another year is unlikely to be significant enough to be a real threat to judicial independence and impartiality.

Increasing or Removing the Mandatory Retirement Age

An alternative option would be to hold a referendum to increase the mandatory retirement age. A five year increase to 75 years would be an appropriate option, aligning the retirement age with changes to life expectancy and quality of life in Australian. A similar amendment to the Pennsylvania Constitution raising the retirement age of judges from 70 to 75 was approved by the Pennsylvania House of Representatives in February 2015, and is expected to be put to referendum later this year. However, a key disadvantage with this approach is that it will require reassessment and amendment in another 30 or 40 years to more adequately reflect working patterns in that time.

To avoid multiple referenda, it has been argued that Australia should abolish the retirement age altogether. This would bring Australia in line with the recommendations of the Organisation for Economic Co-operation Development, which encourages the abolition of compulsory retirement ages across all professions.

There is some support for the abolition of mandatory retirement of judges, as demonstrated in various submissions to the Australian Law Reform Commission’s “Grey Areas – Age Barriers to Work in Commonwealth Laws” Report. In particular, National Seniors Australia argue that the section 72 requirement is detrimental symbolically as it creates the perception that people only work competently until they are of a certain age.

However, because judicial decision making carries such important consequences it is necessary that judges be mentally competent and capable of performing those duties. The special nature of judicial work is even reflected in jurisdictions where mandatory retirement ages are illegal, such as New Zealand and Canada; specific exceptions are carved out for persons in the armed services, aviation, judicial and safety industries. It would be undesirable to remove the retirement age altogether, as this would increase the risk of having judges remain on the bench when their mental faculties are deteriorating. While the power to remove judges for “incapacity” may operate to protect against this risk, the extreme and embarrassing measure of requiring both Houses of Parliament to conclude that a judge is mentally incapable of performing his or her duties mean it is unlikely to be utilised.

Fixed Renewable Terms of Appointment

A prudent alternative would be to adopt a system of fixed-term appointments after reaching retirement age that are renewable by an impartial Judicial Commission. As these renewable terms would be inconsistent with the tenure requirement of section 72, this would require an amendment of the Constitution by referendum. This approach, advocated by Carl Ingram, is modelled on practices in Hawaii and Papua New Guinea. In those states, judicial officers are appointed for a 10 year term which can be renewed by a Judicial Commission comprising members of the Senate, the House, the Bar and the Judiciary. This seeks to ensure impartiality when determining whether to renew an appointment.

Ingram suggests this model can be adapted to address short-term appointments for older judicial officers appointed as expatriate judges, however it could similarly be adapted to address the question of judges remaining in office beyond attaining the age of retirement. Ingram proposes the implementation of “evergreen” contracts for 2 to 4 years that automatically renew unless a decision is made to the contrary by the relevant body. This approach gives a measure of security and independence to judicial officers while also addressing legitimate concerns about ageing judges.

The decision to retain or remove judges could be made by a body similar to the Judicial Commission of New South Wales, which, pursuant to the requirements of section 5 of the Judicial Officers Act 1986 (NSW), consists of members of the judiciary, including the Chief Justice, and laypersons with “high standing in the community”. A body so composed has an awareness of the capacity of the judge in question, and an understanding of the skills necessary to competently perform judicial functions. Further, it is well placed to assess the needs of the Court and therefore decide to retain judges with particular areas of expertise until a suitable replacement is available.

Conclusion

As the demographic makeup of the Australian workforce changes, the mandatory age for judicial retirement must change with it. This has been particularly highlighted by the recent appointment of Justice Geoffrey Nettle, who in his swearing-in speech admitted “any damage I may do now is limited”. There are substantive benefits to having a mandatory retirement age, and a complete removal of this provision would be undesirable. An amendment increasing the retirement age to 75 or alternatively the introduction of evergreen contracts are two possible solutions to the problem which deserve consideration.

SUGGESTED CITATION: Sarah Bradbury, 'An Ageing Amendment - Section 72 and the Mandatory Retirement Age of Judges' , Constitutional Critique, 28 May 2015, (Constitutional Reform Unit Blog, University of Sydney, http://blogs.usyd.edu.au/cru/).

The following post is by CRU Intern ELIZABETH JONES:

Since Federation, the method of voting in the Senate has been an area of debate and reform. This demonstrates a willingness of the Parliament to keep improving the Senate electoral system. The most recent reform occurred in 1984 when the current system of group ticket voting “above the line” and full preferential voting “below the line” was introduced to decrease a high informal vote and make the Senate ballot paper more user friendly. Is it time to consider Senate electoral reform again?

In Lange v Australian Broadcasting Corporation (1997) 189 CLR 520, the High Court unanimously held that the principle of representative government could be implied from provisions of the Constitution, including section 7, which requires members of the Senate to be “directly chosen by the people”. Representative government requires electors to be given a free and informed choice. This post considers to what extent the current Senate voting system enables electors to adequately express a genuine choice and examines the constitutional implications of possible options for reform.

How well does the current Senate voting system reflect section 7 of the Constitution?

Under the current Senate voting system of proportional representation by single transferable vote, a candidate is elected after achieving a quota of votes. Preferences play an important part in the fulfillment of quotas. The Senate ballot paper presents electors with two options. Electors can vote above the line by marking “1” against a single party or group. Once a vote above the line is cast, the elector loses control over their preference flow as they automatically accept that party or group’s allocation of preferences. The preference flow is determined by group voting tickets lodged by parties. Alternatively, electors can vote below the line where they are required to express full preferences for all listed candidates.

The current voting system was upheld as constitutionally valid by Gibbs CJ when it came under challenge in McKenzie v Commonwealth (1984) 57 ALR 747. Gibbs CJ stated “while the Constitution requires electors at a Senate election to vote for individual candidates, it does not forbid the use of a system which enables electors to vote for individual candidates by reference to a group or ticket”. However, this case was a decision of a single judge and was decided before 1992, when the High Court first acknowledged the implied freedom of political communication and emphasised that electors in Commonwealth elections should be given a free and informed choice. Consequently, if the issue came before the High Court again it may be decided differently. Notwithstanding this, while the current Senate voting system has been upheld as constitutionally valid, the way this system plays out in practice raises concerns as to whether it is the best system to give effect to section 7 of the Constitution.

According to the Australian Electoral Commission, in the 2013 Federal Election, 96.5 per cent of electors voted above the line while only 3.5 per cent voted below the line, expressing full preferences for all of the candidates. This outcome is likely due to the onerous task electors face if they choose to vote below the line in the Senate, which in NSW required electors to rank 110 candidates. Consequently, the final composition of the Senate largely reflected the allocation of preferences determined by parties.

The automatic distribution of preferences by the party which the elector votes for above the line is not inherently problematic because it allows the elector to express that they approve of that party’s allocation of preferences. Electors generally expect that if the party or group for which they voted “1” above the line is unsuccessful their preferences will go to candidates of other parties which support similar issues.

However, recently there has been a trend of some micro parties “gaming” the system. Gaming occurs when micro parties allocate high preferences to each other, ahead of the larger parties, often when the parties have no similarities to each other. When exclusions of lower polling candidates create an aggregate transfer of preferences, there is a greater chance that a micro party candidate may be elected, based on transferred preferences. This has resulted in some unpredictable electoral outcomes, which greatly differ from the primary vote. The election of Ricky Muir from the Motor Enthusiasts Party to the Senate in the 2013 Federal Election is commonly cited as an unpredictable electoral outcome. The quota in Victoria was calculated at 483 076 of the votes. According to the Australian Electoral Commission, the Motor Enthusiasts Party only received 16 604 above the line ticket votes and Ricky Muir received 479 below the line first preference votes, which was only 0.51 per cent of formal first preference votes. Despite only receiving a small percentage of first preference votes, Muir was elected to the Senate for Victoria in the final vacancy. Muir received preference votes from a diverse group of parties and candidates including the Palmer United Party, the Democratic Labour Party, Family First, the Fishing and Lifestyle Party and the Shooters and Fishers Party. His successful election into the Senate was achieved due to a final transfer of 143 118 votes from the excluded Australian Sex Party. Ultimately, 94.3 per cent of the votes that led to Muir’s election were ticket votes for other parties on the ballot paper and allocated to Muir through preference harvesting.

The potential election of a candidate through an accumulation of votes from a collection of ideologically disparate parties is an unintended consequence of the group voting ticket system. While gaming of the system does not occur on a large scale, the way in which it can lead to electoral outcomes in the Senate, which may greatly differ from the intentions of many electors is significant. Further problems with the current system are evident in the burdensome task electors face if they choose to vote below the line. It is questionable whether electors are able to express an informed choice for the large number of candidates listed below the line.

Consequently, under the current Senate voting system electors may not be able to adequately express a genuine and informed choice irrespective of whether they vote above or below the line vote. Reform is required to bring Senate voting more in line with the notion of representative government inherent in section 7 of the Constitution. Section 9 of the Constitution provides Parliament with power to make laws prescribing the method of choosing Senators. In light of the problems with the current system, electoral reform should aim to improve how electors can better express their choice. This post will evaluate common proposals for Senate electoral reform.

Optional preferential voting above the line

The Joint Standing Committee on Electoral Matters in its report into Senate voting practices has recommended the adoption of optional preferential voting above the line. This would enable electors to mark “1” against a particular party with the option of numbering further boxes in sequential order if they wish. Under this system the order of candidates within the group would still be nominated by the group so that if an elector were to preference three boxes above the line in sequential order then their preferences would be distributed in the order of the candidates in those groups until the last numerical preference was allocated. If an elector only expresses one preference above the line, their preferences only extend to the candidates in that particular group.

This would take the power to control preference flows away from the parties and give it back to the electors, ensuring that electoral outcomes in the Senate better reflect the intentions of electors and reducing the likelihood of parties gaming the system. However, optional preferential voting above the line presents a risk of high rates of vote exhaustion. If an elector only preferences one group but that group has fewer candidates than there are Senate vacancies, the vote stays within that group and is exhausted.

Differing views about the extent to which vote exhaustion has an impact on an elector’s choice were expressed by members of the High Court in Langer v Commonwealth (1996) 134 ALR 400. The Langer case concerned the validity of section 329A of the Commonwealth Electoral Act 1918 (Cth) which provided that a person must not print, publish or distribute any matter or thing with the intention of encouraging persons voting in an election for the House of Representatives to fill in a ballot paper otherwise than in accordance with section 240, which provided full preferential voting for the House of Representatives. The enactment of section 329A was a response to a method of voting publicised by Albert Langer, which encouraged electors to vote 1,2,3,3,3… deliberately avoiding the allocation of preferences to unwanted candidates. The effect of section 270 of the Commonwealth Electoral Act 1918 (Cth) was that if this method of voting was adopted, only the first and second preferences would be counted.

The majority of the High Court upheld the validity of section 329A and rejected the plaintiff’s argument that section 329A was inconsistent with the constitutional requirement that members of the House of Representatives be “directly chosen by the people”. In upholding the validity of section 329A, the majority of the High Court expressed the view that the exclusion of votes inhibits an elector’s choice under section 24 of the Constitution. However, Dawson J in the minority held that section 329A was invalid. His Honour took the view that this method of voting reflected the electors’ choice even though their votes may potentially be excluded. Dawson J stated that:

[t]o prohibit communication of this fact (or at any rate communication in the form of encouragement) is to restrict the access of voters to information essential to the formation of the choice required by s 24 of the Constitution. Thus, s 329A has the intended effect of keeping from voters an alternative method of casting a formal vote which they are entitled to choose under the Act.

These different views provide insight into whether optional preferential voting above the line, with a high risk of vote exhaustion would be susceptible to challenge by the High Court. If this voting method were adopted it would be prudent to also introduce measures to reduce the likelihood of vote exhaustion. For example, ballot paper instructions could encourage electors to express more than one preference above the line, while still counting a single first preference as a formal vote. Alternatively, the risk of exhaustion could be limited by requiring that a party or group must be able to field the number of candidates for which there are vacancies to be listed above the line.

If measures were introduced to minimise the risk of vote exhaustion, optional preferential voting above the line presents a sensible option for Senate electoral reform as it would remove the ability for parties to “game” the system through preference deals ensuring that electoral outcomes reflect the intentions of electors.

Partial optional preferential voting below the line

The Committee also recommended partial optional preferential voting below the line, either in addition to, or independent of optional preferential voting above the line. Under this system rather than having to rank all of the candidates which appear below the line, electors would only have to rank as many candidates as there are Senate vacancies but could express more if desired. This would require electors to rank six in a half Senate election, 12 for a double dissolution and two for territories. Combined with optional preferential voting above the line, this option is useful as it would retain the control electors have when voting below the line while removing the onerous requirement of having to rank all of the candidates in sequential order.

Thresholds

Another proposal for Senate electoral reform is to maintain the current Senate voting system but introduce a minimum threshold of first preference votes, which would need to be polled before a group is eligible for election. Rather than being completely excluded, it is likely that the votes would be distributed to non-excluded candidates.

Thresholds have been included in international proportional representation systems. For example, Sweden has adopted a 4 per cent nationwide threshold under its party list proportional representation system, New Zealand has a 10 per cent nationwide threshold under a closed list proportional representation system and Israel has a 2 per cent threshold under its nationwide proportional representation system. Discussion of a threshold for Senate voting has focused on 4 per cent as this is the current threshold for groups and candidates to receive public funding under section 297 of the Commonwealth Electoral Act 1918 (Cth).

A threshold would remove the possibility of parties obtaining a seat in the Senate while only having received a small percentage of the primary vote and reward parties that have gained support by campaigning for votes. However, a major criticism is that a threshold quota is arbitrary and therefore vulnerable to criticism, particularly because thresholds benefit particular parties at the expense of others.

If introduced, it is likely a threshold quota would apply to groups not individual candidates because of the possibility that even in a major party, the second, third, or fourth candidates may fail to reach the threshold. However, does a threshold, which applies to groups, mean that electors are voting for groups not candidates? If the answer were yes then the system could be susceptible to constitutional challenge due to the statement by Gibbs CJ in McKenzie v Commonwealth that section 7 requires electors to vote for individual candidates.

It is also unclear whether a threshold would prevent parties from entering into strategic preference deals to “game” the system. While a threshold would restrict many micro parties from being eligible for election, many of the submissions to the Joint Standing Committee outlined that a threshold may simply shift the beneficiaries of preference harvesting from micro parties to other parties. Furthermore, while threshold quotas are used overseas, there is little precedent for introducing a threshold quota within a proportional representation system, which relies on a single transferable vote method. Group ticket voting is used outside Australia but mostly in combination with optional preferential voting. These issues illustrate that a threshold is not the most suitable option to resolve the current problems inherent in Senate voting.

Strengthening party registration requirements

Another reform option is to tighten the requirements for party registration to reduce the number of micro parties and the size of the ballot paper. The Joint Standing Committee on Electoral Matters recommended that the party membership should be increased from 500 members to 1500 members and that the Australian Electoral Commission should be required to validate each of these members. It also recommended that a separate membership requirement be established to register a federal party that can only run in a nominated state or territory. This could be based on either a population or electorate basis and would enable a party focused on specific state or territory issues to be established and participate in the election.

This proposal would most likely be constitutionally valid due to previous High Court decisions such as Mulholland v Australian Electoral Commission (2004) 220 CLR 181. However, while this option may deter front parties from being set up prior to an election, it does not directly address the problem of micro parties gaming the system. It’s also important to ensure that electoral reform does not decrease the diversity of candidates and political parties, which is an important feature in a democracy. Tightening party requirements has the potential to decrease the choice of the electorate. Better options for Senate electoral reform focus on improving how electors express their choice.

Conclusion

Ultimately, under the current Senate voting system electors are not able to adequately express a genuine and informed choice irrespective of whether they vote above or below the line vote. To ensure that the Senate voting system better reflects section 7 of the Constitution, electoral reform should focus on how electors can be helped to better express their choice. The most significant way to reduce the complexity of the current Senate voting system and to return the control of preferences to electors is through a system of optional preferential voting above the line in combination with a system of partial optional preferential voting below the line. This would reduce the current gaming of the system by micro parties and importantly ensure that electoral outcomes in the Senate reflect the intentions of electors.

SUGGESTED CITATION: Elizabeth Jones, 'Go with the flow or room for improvement? To what extent does the Senate electoral system reflect s 7 of the Constitution?' , Constitutional Critique, 28 May 2015, (Constitutional Reform Unit Blog, University of Sydney, http://blogs.usyd.edu.au/cru/).

The following post has been contributed by TIMOTHY MAYBURY, CRU Intern:

Since the early days of the Australian federation the High Court has emphasised the importance of electors having sufficient access to information to be able to make informed and genuine choices when casting their votes in elections and referendums. In the judgment in Smith v Oldham (1912) 15 CLR 355, Isaacs J delivered the following statement of general principle:

The vote of every elector is a matter of concern to the whole Commonwealth, and all are interested in endeavouring to secure not merely that the vote shall be formally recorded in accordance with the opinion which the voter actually holds, free from intimidation, coercion and bribery, but that the voter shall not be led by misrepresentation or concealment of any material circumstance into forming and consequently registering a political judgment different from that which he would have formed and registered had he known the real circumstances.

This post examines the legal framework determining the Australian Government’s ability to engage in communication and public education strategies around federal referendums, questions whether the law remains fit for its purpose in the present day, and makes suggestions for how it could be improved.

Yes/No cases in Commonwealth referendums

The traditional Yes/No pamphlet that is printed and delivered to electors prior to a Commonwealth referendum continues to serve as the primary means via which the Government may lawfully educate voters as to the arguments for and against proposed amendments to the Constitution. This method for engaging voters in referendums has been utilised for over one hundred years without substantial modernisation – a fact that is concerning in light of advances in information and communications technology, and the now entrenched presence of social media in everyday lives.

The Yes/No pamphlet was first introduced in 1912 via the insertion of section 6A into the Referendum (Constitution Alteration) Act 1906
(Cth), which remains in force today, virtually unaltered, in the form of section 11 of the Referendum (Machinery Provisions) Act 1984 (Cth) (‘the Act’). The provision enables a majority of Members of Parliament who have voted either in support of or against a proposed constitutional amendment to prepare and authorise a written argument corresponding with their position, limited to 2000 words, to be displayed on the pamphlet.

There are key issues with the Yes/No pamphlet that pertain to both its content and its form. A number of shortcomings in these respects were highlighted in public submissions made to the House of Representatives Standing Committee on Legal and Constitutional Affairs (‘the House of Representatives Committee’) during an inquiry into the machinery of referendums conducted in 2009, and aired in its final report A Time for Change: Yes/No?.

Content

With regard to the pamphlet’s content, the prevailing challenge is how to best facilitate the public interest in ensuring enough factual and objective information is made available to voters so that they are sufficiently informed and able to make a genuine choice at the ballot box. Critics of the Yes/No pamphlet allege that not only does the method fail to achieve the educational purpose of aiding voters’ understandings of the relevant issues, it actually achieves the opposite, serving instead as a site of misrepresentation and confusion. Many put this down to the fact that the arguments for and against are prepared by Parliamentarians, ensuring that the content is often politicised and adversarial. While it is important for democracy that partisan positions are voiced, it is also important that basic facts are not obscured in the process.

To this end lessons may be learned from the California Elections Code, which establishes a process for making alterations to the Constitution of California (and implementing other state measures) that employs a Yes/No mechanism analogous to ours. In a similar manner to the Australian legislation, the Code enables members of the California State Legislature who voted in support of or against a measure to prepare, or to appoint other people to prepare, an argument corresponding with their preferred position. However, a point of difference and strength of the Californian arrangement is that these political perspectives do not form the sole source of educational information provided; they are offset by the inclusion on the Yes/No pamphlet of a statement prepared by the Legislative Analyst, a non-partisan government agency that regularly performs the function of providing fiscal and policy advice to the Legislature. The Legislative Analyst’s contribution offers a concise summary of the general meaning and effect of the ‘yes’ and ‘no’ votes on the existing law and any new legislation that is being put forth (section 9805), as well as a statement outlining any fiscal impact of the proposed measure (section 9807). The legislation requires the Analyst’s statement to employ clear and concise language avoiding use of technical terms where possible, and to “generally set forth in an impartial manner the information the average voter needs to adequately understand the measure” (section 9807(b)) (emphasis added).

A comparable arrangement that incorporates contributions of independent participants from outside of the political process is also used in New South Wales, where arguments for and against proposed amendments to the Constitution Act 1902 (NSW) are prepared by public servants and then vetted externally by experts in constitutional law in order to ensure objectivity.

Taking these and other such considerations into account, in its final report the House of Representatives Committee recommended the Act be amended to provide for the establishment at every referendum of an independent and bipartisan referendum panel with responsibility for determining communication campaign strategies and disseminating appropriate volumes of educational materials regarding proposed amendments. In 2012, the Gillard Government did not adopt this recommendation in its formal response to the Committee’s report. Although it recognised the benefits a referendum panel could provide, the Government’s position was that one could be constituted on an as-needed basis by introducing temporary measures prior to a referendum, such as those enacted for the 1999 Australian republic referendum, and as such there was no need for permanent legislation. In view of the current government’s agenda of cutting red tape and downsizing the number of public service agencies, panels and committees, it is unlikely that the referendum panel recommendation would gain any renewed traction in the present climate.

An alternative suggestion that, if adopted, would make use of current resources and public service infrastructure could be to give the Commonwealth Parliamentary Library the task of preparing additional objective information about referendum proposals which could be included along with the Yes/No cases as approved by Members of Parliament. Situated in the Department of Parliamentary Services, the Commonwealth Parliamentary Library is well placed to perform this function as its Research Branch already provides highly regarded analysis, interpretation and explanation on bills relating to all areas of public policy to senators, MPs, the Governor-General and their staffers, and as such undertakes a role in ways similar to that of the Legislative Analyst in California.

Form

With regard to form, it is important to ensure that the presentation of the Yes/No cases is accessible, logical and concise so that any voter may quickly garner a general understanding of the issues at hand, but that facilities are also provided for people who wish to learn more to easily access detailed information.

Critics of the current arrangement have taken issue with the format of the Yes/No pamphlet, noting the high likelihood that a somewhat cumbersome printed document of up to 4000 words may be overlooked by many voters who are today accustomed to receiving information at a rapid pace via a range of electronic media. Notwithstanding the Committee’s recommendation that the word limit be removed, the previous government did not support this.

In view of the preference to retain a word limit, the California comparison is again useful as the political cases that are prepared there are limited to 500 words. A shorter length has benefits as it compels the writers to be more concise, meaning that the finished product may be more likely to hold readers’ attention. Also, taking into account concerns that the adversarial nature of Australian Yes/No cases leads to the inclusion of inflammatory and misleading statements, a shorter word limit could reduce the extent, sophistication and impact of these.

Even though it is likely that more people would read the shorter version, it would of course be concerning if two 500 word arguments formed the entirety of what is presented to voters, given that the importance and complexity of issues to be considered may not be adequately dealt within such a limited space and that the degree of complexity is likely to vary from referendum to referendum. A solution could be to publish online versions of the Yes/No cases containing embedded links that direct readers who want further information to more detailed arguments. These sources could incorporate both the objective material provided by the Parliamentary Library, as well as independent research commissioned by think tanks and universities. For instance, prior to the proposed local government referendum that did not end up going ahead in 2013, both this Constitutional Reform Unit at Sydney Law School and the Gilbert + Tobin Centre for Public Law at UNSW published objective analyses on their websites. It would be helpful if perspectives such as these could be picked up and used to inform broader public opinion beyond the otherwise niche readership their platforms reach on a regular day-to-day basis.

Conclusion

In light of the Prime Minister’s recent indication that the anticipated referendum to recognise Australia’s Indigenous peoples in the Constitution may be held in 2017, the time is now ripe for ensuring that our referendum machinery legislation is up to date and fit for its purpose. Considering that the result of such a referendum will undoubtedly be of immense historical significance and bear greatly upon the nation’s identity, it is important that the Australian public is educated sufficiently to make an informed and genuine choice when votes are cast.

SUGGESTED CITATION:Timothy Maybury, 'A Time for Change... Still: Yes/No Cases in Commonwealth Referendums', Constitutional Critique, 9 March 2015, (Constitutional Reform Unit Blog, University of Sydney, http://blogs.usyd.edu.au/cru/).

CRU Intern, MICHAEL STARKEY, has contributed the following post:

The delay of the referendum on indigenous recognition until at least after the 2016 federal election has created an important opportunity: to consider including in the final proposal for change an obligation on government known in international law as ‘the duty to consult.’ In legal speak, the idea is that governments should, in good faith, consult with indigenous peoples in order to obtain their free, prior and informed consent before adopting any measure that specially affects them. In the words of Noel Pearson, it is that indigenous peoples ‘get a fair say in laws and policies made about [them].’

While the normative content of the duty to consult is expressed most clearly by international law (particularly by Article 19 of the UN Declaration on the Rights of Indigenous Peoples and Article 6 of ILO Convention 169), in seeking practical guidance on how to implement it, Australia should turn to two foreign jurisdictions. The first, Canada, is a likely comparator. The second, Bolivia, less so. But by drawing on the jurisprudence developed in the former, and appropriating the constitutional provision of the latter, Australia could effectively entrench the duty to consult to the enduring benefit of our nation as a whole.

In 1982, the Canadian Constitution was amended to recognise, inter alia, the rights of indigenous Canadians. Section 35(1) of the newly entrenched Constitution Act provided: ‘The existing aboriginal and treaty rights of the aboriginal peoples of Canada are hereby recognized and affirmed.’ Following this amendment, a comprehensive body of Canadian case law has confirmed that the Crown has a duty to consult indigenous Canadians before taking actions which might affect their ‘aboriginal rights.’ This development cannot be explained by the constitutional amendment alone, however, because, as its wording suggests, section 35(1) conferred no new rights on indigenous Canadians. What it did do, though, was constitutionally protect the common law of Canada’s conception of the relationship between indigenous Canadians and the Crown as fiduciary in certain circumstances. That relationship, when it arises, requires Canadian governments to consult with indigenous peoples to ensure the Crown’s power is exercised in their best interests. In Mabo, the High Court (with the exception of Toohey J) refused to characterise the relationship between the Crown and indigenous Australians as fiduciary. Because of this, simply transplanting section 35(1) of the Canadian Constitution Act into our own would not entrench a duty to consult. However, if we could import the duty by other means, Canadian jurisprudence would provide a rich resource to be drawn on by our courts in fleshing out its local requirements.

Canadian courts have held that both federal and provincial governments must consult with indigenous Canadians and accommodate their established or asserted rights prior to making decisions which might affect them. It is important to note that the Canadian duty is not a duty to agree. Rather, it is about good faith negotiation and the balancing of interests. A breach of the duty becomes relevant when it is alleged that a government measure infringes an ‘aboriginal right’ protected by section 35(1) of the Constitution Act. Such infringement will not pass the required test of ‘justification’ unless the procedural duty to consult has been fulfilled. Where consultation has been inadequate, the purported decision can be suspended or quashed. In numerous cases, administrative decisions have been overturned as a consequence of the duty’s breach (see, e.g., R v Sparrow [1990] 1 SCR 1075; Haida Nation v British Colombia (Minister of Forests) [2004] 3 SCR 511; Tsilhqot’in Nation v British Columbia [2014] SCC 44). While in theory the duty also applies to legislative decision-making, there appear to have been no cases in which legislation has been struck down on the basis of inadequate consultation. However, legislation has been held to have no effect with respect to particular indigenous individuals if it infringes their rights for no good reason (see R v Powley [2003] 2 SCR 207).

If Australia were to adopt a duty to consult, drawing on this jurisprudence would continue the established tradition of our courts referring explicitly to Canadian decisions in indigenous rights cases. The question remains though, how might we effectively frame the duty to consult in the Australian context? The answer, it is proposed, lies in the Bolivian Constitution, Article 30 of which provides: ‘…indigenous peoples enjoy [the right]… to be consulted by appropriate procedures, in particular through their institutions, each time legislative or administrative measures may be foreseen to affect them.’ Since its adoption in 2009, this provision has been used to challenge a major government works project involving the building of a highway through the TIPNIS, a national park home to 12,000 indigenous Bolivians. While the consultations mandated by Bolivia’s Plurinational Constitutional Tribunal as a result of that challenge were criticised as being neither free nor informed, it is clear that the duty to consult is forcing a change in the way the Bolivian Government interacts with the 62 per cent of Bolivia’s population who identify as indigenous.

Appropriating the directness of the Bolivian duty’s wording, an Australian duty to consult might affirm: ‘The Commonwealth, a State or a Territory shall consult indigenous peoples, through their representatives, before taking legislative or executive measures that may be seen to specially affect their interests.’ It would be the familiar role of Australian courts to interpret this provision, and it is here that Canadian jurisprudence on that country’s duty to consult would play an invaluable role.

The merits of this proposal are numerous. Adopting a duty to consult will guarantee that indigenous voices continue to be heard once the current process of constitutional recognition is over. It will help generate the climate of confidence, currently lacking, between Australia’s indigenous peoples and its governments. And importantly, the duty to consult addresses the practical need to resolve the recent, dangerous emergence of partisanship in the recognition debate. While the Australian Labor Party seems intent on including an anti-discrimination provision in the final recognition proposal, the Coalition Government appears to be moving to quell expectations of anything more than symbolic recognition. A duty to consult provision arguably paves a middle road between these two extremes. If there is one thing that the history of referenda in Australia tells us, it is that bipartisanship is essential for success, and not since 1967 has success been as important as it is now.

SUGGESTED CITATION: Michael Starkey, 'Indigenous Constitutional Recognition - A Duty to Consult?', Constitutional Critique, 26 October 2014, (Constitutional Reform Unit Blog, University of Sydney, http://blogs.usyd.edu.au/cru/).

CRU Associate AMANDA SAPIENZA has contributed the following post:

First came the victory, when in Pape it was held to authorise laws governing stimulus payments during the GFC. Then came the defeat, when in Williams (No 1) it was denied the capacity to authorise funding for chaplains in schools. Now non-statutory executive power (NSEP) is poised to make a comeback, in its most controversial and politically-charged instalment yet, CPCF v Minister for Border Protection and the Commonwealth. But whereas in previous cases the stakes were measured in dollar terms, this time the consequences of the alleged exercise of NSEP have a human face.

CPCF is the case currently pending before the High Court that arose out of the interception on 29 June of 157 Sri Lankan asylum-seekers outside Australia’s territorial waters (though inside its contiguous zone), detention of the asylum-seekers and their Indian-flagged vessel and the Commonwealth government’s attempt to take the asylum-seekers to India. Submissions have been filed and the case is set down for hearing on 14-15 October.

The plaintiff is ultimately making a claim of false imprisonment, arguing that the detention of the plaintiff (one of the asylum-seekers) on the Australian vessel was not authorised by law. The defendants are claiming that the Maritime Powers Act 2013 (Cth) authorised their actions. Much of the submissions of the parties and the interveners (the United Nations High Commissioner for Refugees and the Australian Human Rights Commission) deal with interesting questions of how the powers in that Act interact with Australia’s international obligations, primarily its obligation of non-refoulement under the Refugee Convention; that is, the obligation not to send a person to a place in which the person’s life or freedom would be threatened on account of his or her race, religion, nationality, membership of a particular social group or political opinion (see Art 33(1) of the Refugee Convention). Interesting administrative law questions also arise as to the permissibility of general deterrence as a purpose for taking a group of people to a place other than Australia and whether the exercise of a statutory power by a maritime officer who was following an order of the National Security Committee of Cabinet constitutes acting unlawfully under dictation.

But the case will also be of interest to constitutional lawyers because it is the latest attempt by the government to source its power to take controversial action in the NSEP of the Commonwealth under s 61. The Commonwealth parties claim that, if their actions were not authorised by the Maritime Powers Act 2013, the actions were authorised by NSEP. It is making the argument that ultimately won the day in the dispute over the Tampa affair, Ruddock v Vadarlis (2001) 110 FCR 491: that Commonwealth executive power includes power ‘to prevent the entry of non-citizens and to do such things as are necessary to effect such exclusion’ (at [193] (French J)). Indeed, the Commonwealth’s submissions are littered with references to the reasoning of then Justice of the Federal Court, now Chief Justice of the High Court, Robert French, in the Tampa decision.

The substantive issues in the Tampa decision never made it to the High Court. Vadarlis was denied special leave to appeal because, with the transfer of the asylum-seekers to Nauru and New Zealand, their detention on board the MV Tampa could no longer be challenged so the precise issues raised before the Federal Court had become moot (see generally the transcript of the special leave application). Legislation was also passed that retrospectively authorised the detention of the asylum-seekers and other acts done in connection with the Tampa affair, and made clear that the Migration Act 1958 (Cth) did not abrogate any executive power that may authorise conduct covered by the Act. The panel of justices hearing the special leave application recognised that, although events and procedural issues had overtaken the application in that matter, the validity of the retrospective legislation and the issues of executive power raised in the Federal Court were important constitutional questions which might, in an appropriate case, warrant a grant of special leave to appeal.

The mootness argument raised its head again in CPCF. Following the bringing of the plaintiff and the other asylum-seekers to the Cocos (Keeling) Islands late in July, Hayne J heard argument on whether the matter could proceed as it was then instituted: on a case stated for the Full Court on an urgent basis regarding the legality of the detention on board the Commonwealth vessel for the purpose of taking the asylum-seekers to a place other than Australian territory (see the High Court transcript from 28 July 2014). Although it is not explicit on the transcripts, it can be inferred that the parties agreed to a reformulation of the case. Besides the obvious point that CPCF is an application in the High Court’s original jurisdiction, as opposed to an application for leave to appeal from existing orders, there was another point of departure from the circumstances surrounding the Tampa special leave application that presumably made negotiating a reformulation possible. This was that the plaintiff in CPCF has actually made a claim of false imprisonment, rather than the claim in the nature of habeas corpus made in the Tampa case. So even though the challenged detention (that of the asylum-seekers while on board the Commonwealth vessel) has come to an end, the legality of that detention is very much a ‘matter’ for an exercise of federal judicial power, and not a merely hypothetical question.

Now, the High Court might get its chance to weigh in on the ‘important constitutional question[s]’ that were previously determined by the Federal Court in the Tampa matter. It may be required to decide whether the executive power invoked in that case exists, whether legislative attempts (including in the Maritime Powers Act itself) to ensure that any such executive power has not been abrogated were successful and the NSEP question hitherto untouched by the High Court: whether an exercise of NSEP is attended by an obligation to afford procedural fairness and other administrative-law style limitations.

In relation to the application of procedural fairness to exercises of NSEP, it seems that neither party is willing to argue that the chief international authority on the issue, Council for Civil Service Unions v Minister for Civil Service [1985] 1 AC 374 (CCSU) should not be endorsed and applied by the High Court. In that case, the House of Lords held that a power’s non-statutory source alone is not a reason to shield its exercise from judicial review, and it would have found that the Minister failed to afford the Council procedural fairness but for the national security context of the decision, which the Lords considered rendered the exercise of power non-justiciable. This has been applied consistently in intermediate Australian courts (as discussed here) but the High Court has never been required to decide whether to apply it. Perhaps it will be required to do so in CPCF.

The defendants argue that either obligations of procedural fairness did not attach to the power to take the plaintiff to a place outside Australia or that the circumstances of the power’s exercise reduced the content of any procedural fairness obligations to nil. The circumstances that the defendant invokes to support this argument are based on the power being one that involves ‘broad (and contentious) political considerations and matters of public policy unsuited to examination by courts, including matters of defence, border protection and international relations’ (see Defendants’ submissions para [100]).

It is arguable that this submission does not pay enough heed to modern attempts by Australian courts to decide these issues not at a high level of generality, focusing on broad subject matters, but by focusing on whether the precise issues sought to be agitated by an applicant require a court to pass judgment on matters our system of government commits to the discretion of the executive (again see here). But perhaps this will be teased out in oral submissions. Any guidance the High Court can give as to how CCSU might play out in the Australian context of s 61 executive power will be most welcome.

More controversial are the plaintiff’s submissions as to other limitations on exercise of a NSEP to exclude and, where necessary to effect that exclusion, detain, people with no legal right to enter Australia. As with the statutory power under the Maritime Powers Act, the plaintiff argues that exercise of the power is constrained by Australia’s international obligations, particularly non-refoulement. The defendants deny that the NSEP is limited by international law. The UNHCR’s proposed submissions on this point assume the existence of NSEP as claimed by the defendants. But they argue that such power is constrained by Australia’s international obligations because a power to detain and remove a person to a place to which he or she does not want to go is extraordinary and should be constrained and because, in this case, the relevant power is a power to act outside Australian territory, in an area governed by international law. The UNHCR seeks to argue that, while Parliament could make laws authorising a breach of international law, it has not done so in this case and no NSEP to breach international law exists.

More controversial still is the plaintiff’s argument for further limitations on the exercise of any NSEP to exclude and detain. Unlike the purported exercise of statutory power, which the plaintiff contends was rendered unlawful by recognised legal errors of acting under dictation and acting for an unauthorised purpose, in respect of the defendants’ reliance on NSEP the plaintiff appears to be invoking a proportionality ground of review. The plaintiff submits that commencing to take the plaintiff to a country at which the plaintiff could not lawfully be discharged took the length of detention outside the control of the Commonwealth and thus extended detention beyond what is proportionate to achieve the power’s purpose of preventing entry to Australia.

The plaintiff’s pragmatic reasons for such a submission are understandable enough: although it does not seem to have been examined in any depth in Australia, cases and academic commentary contain broad brush statements about the difficulty of applying standard administrative law grounds to an exercise of NSEP, due to the lack of statutory purpose and context from which to draw relevant limitations. However, the reliance on a proportionality argument to get around any such difficulties is novel and, dare I say, brave. Although proportionality tests are well-recognised in constitutional law jurisprudence in relation to purposive powers, they remain largely unaccepted in Australian administrative law as a ground on which to challenge executive action (at least, statutory executive action). They have come to prominence in the UK largely as a necessary by-product of that country’s incorporation of the European Charter of Human Rights by the Human Rights Act 1998 (UK) and the consequent ‘Europeanisation’ of that country’s administrative law (see M Taggart, ‘”Australian Exceptionalism” in Judicial Review’ (2008) 36(1) Federal Law Review 1, 24-26). But that context is an insufficient basis on which to transplant the concept to Australia. Perhaps a need to impose limits on exercises of NSEP will give proportionality tests an opportunity to make inroads in Australian administrative law.

Yes, CPCF has the capacity to break new ground in relation to NSEP. But before we get too excited, it’s worth recalling that the NSEP argument is only made in the alternative to the Commonwealth’s primary argument, that the action was authorised by statutory power. The transcripts and submissions all make clear that arguments about NSEP are secondary to the main game: questions of construction of the Maritime Powers Act. CPCF may well see the High Court justices doing battle on statutory construction points redolent of Al-Kateb v Godwin (2004) 219 CLR 562; namely, whether there is sufficient ambiguity in the relevant provisions of the Maritime Powers Act to warrant recourse to international obligations for its resolution. Further, the High Court has previously displayed a broad approach to determining whether executive action is sufficiently connected to a statutory power to make arguments regarding NSEP unnecessary to resolve, and a corresponding keenness to avoid the question of the application of procedural fairness to exercises of NSEP until dealing with it becomes absolutely necessary (a good example of both being the unanimous judgment in Plaintiff M61/2010E v Commonwealth (2010) 243 CLR 319).

If the Maritime Powers Act governs the matter, not only will a chance for the High Court to engage in novel analysis of the limitations on exercises of NSEP go begging, but Tampa will have to keep waiting for either its ultimate vindication or its consignment to the annals of Australian constitutional law.

SUGGESTED CITATION: Amanda Sapienza, 'CPCF: Will Tampa finally get its day in the High Court?', Constitutional Critique, 11 October 2014, (Constitutional Reform Unit Blog, University of Sydney, http://blogs.usyd.edu.au/cru/).

History clearly does repeat itself. After the High Court handed down Williams v Commonwealth No 1 on 20 June 2012, striking down the validity of the schools chaplaincy scheme, the Labor Government rushed through the Commonwealth Parliament, within a week, legislation that purportedly authorised hundreds of Commonwealth spending programs that had previously relied upon Commonwealth executive power for their support. It was criticised for the rashness and bluntness of this exercise and its dubious constitutional validity.

In an astonishing replication of the past, the High Court handed down its judgment in Williams v Commonwealth No 2 on 19 June 2014 and the Coalition Government rushed through the Commonwealth Parliament, within a week, legislation to preserve the provisions made in 2012 which it had then criticised, in full knowledge that these provisions will in many cases not be constitutionally effective to support all the programs that they purport to authorise. This time, however, no fuss was raised, not an eye was blinked and almost nobody noticed.

The Commonwealth’s Response to Williams No 1

Back in June 2012 the Commonwealth Parliament enacted the Financial Framework Legislation Amendment Act (No 3) 2012 (Cth). It inserted provisions, including s 32B, into the Financial Management and Accountability Act 1997. Section 32B purported to authorise the making and administering of grants and payments of public moneys that fall within classes of arrangements, grants or programs specified in the Financial Management and Accountability Regulations 1997 (Cth). The Regulations were also amended to include a list of over 400 of these arrangements, grants and programs in Schedule 1AA. They include programs covering matters such as: drought assistance, animal welfare, ‘food in the national curriculum’, community legal services, crime-stoppers, disaster resilience, school security, child care, ‘creative young stars’, youth support and seasonal workers. Included in the list was Program 407.013 – ‘National School Chaplaincy and Student Welfare Program’.

Williams v Commonwealth No 2

Mr Williams then challenged this purported authorisation of funding of the chaplaincy program. He did so on the ground that there was no Commonwealth legislative head of power to support the authorisation of expenditure on the chaplaincy program. He also challenged the validity of s 32B on the ground that it impermissibly delegated to the Executive, authorisation of expenditure by virtue of the fact that the relevant programs were all identified by regulations which could be made and amended by the Executive.

The Court upheld Mr Williams’ first argument, holding that there was no legislative head of power to support the expenditure of funds on the chaplaincy program. It left undecided, however, the question of whether the whole of s 32B was invalid because of the impermissible delegation of the power to authorise expenditure to the Executive. It found that it was not necessary to decide this point, as s 32B, if valid, still did not support the chaplaincy program. For present purposes, it read down s 32B as not applying to support expenditure on those programs that do not fall within a Commonwealth head of power.

Hence, the status of s 32B was left in even greater uncertainty. At the very least, it must be read down so that it does not support what would appear to be a significant number of programs described in the regulations which do not fall within a Commonwealth head of power. This leads to the unfortunate outcome that while the statute book says that certain programs are authorised, they are in fact not authorised and expenditure upon them is invalid. Such a gap between what is stated on the face of the law and its constitutional effectiveness has the tendency to bring the law into disrepute. There also remains the bigger question of whether s 32B is valid at all.

The replacement of the Financial Management and Accountability Act

The dilemma that then faced the Abbott Government arose from a ticking time-bomb left by the Gillard Government. In the death-throes of the last Parliament, new legislation was again rushed through both Houses to reshape completely the Commonwealth’s financial management system. The new Public Governance, Performance and Accountability Act 2013 was enacted to replace the old Financial Management and Accountability Act 1997. The substantial provisions of the new Act were required to come into effect by 1 July 2014. The new Act did not contain any equivalent to s 32B of the Financial Management and Accountability Act. This left to the Abbott Government the question of what to do about s 32B – should it be replaced or left to die, or preserved as an anomalous island in an old Act from which the rest of its substance had been stripped?

The High Court handed down its judgment in Williams No 2 on 19 June 2014. On 24 June the Public Governance, Performance and Accountability (Consequential and Transitional Provisions) Bill was introduced into Parliament. It was rushed through both Houses, passing on 26 June and receiving royal assent on 30 June. What it did, amongst other things, was to strip out most of the Financial Management and Accountability Act, but to preserve s 32B and associated provisions and regulations, and rename the Act the Financial Framework (Supplementary Powers) Act. Hence, s 32B, despite its dubious constitutional status, and the highly misleading regulations all survive to be challenged another day.

Was there intense debate and scrutiny in the Parliament of this action? No. One oblique mention was made to the Williams case in the debate by a backbencher, but nothing else was said. Perhaps they are all waiting for history to repeat a third time.