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,

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.

The following blog-post has been contributed by CRU Intern Tim Craven:

It is generally agreed that the Commonwealth’s power to legislate ‘with respect to the people of any race for whom it is deemed necessary to make special laws’ (s. 51(xxvi)) should be repealed in any future constitutional referendum. Not only is repeal justified on the basis of its unclear scope but also the very existence of a power predicated on race - extra-judicially described by Chief Justice Robert French as a ‘harmful taxonomy of humanity’ - upsets contemporary Australian standards of equality. If the race power is repealed but not replaced, there is a risk that a number of present and future Commonwealth laws beneficial to Aboriginal people and Torres Strait Islanders would not find support within other heads of power. There are different views as to what exactly should replace s. 51(xxvi), with many of the suggested formulae bringing with them the problems that compel its repeal in the first place. A less commonly explored approach is to consider how current and future Indigenous-related legislation could draw on what remains in the Constitution so that a replacement head of power could be a more limited and nuanced power that is based upon need.

Proposed replacement heads of power generally allow the Commonwealth to legislate with regard to ‘Aboriginal and Torres Strait Islander peoples.’ This arguably perpetuates problems associated with s. 51(xxvi) related to its characterisation as a ‘people’s power’, that is, one that enables the government to make laws with respect to a specific group of people. Any form of differential operation, even if confined to positive measures, is itself a ‘false taxonomy’ by continuing to rely on racial classification as a criterion of legislative validity. This is inconsistent with notions of the legal equality of the people. Additionally, difficult questions of characterisation arise under a ‘people’s power.’ According to former NSW Chief Justice James Spigelman, a power based on making distinctions between people ‘may enable discriminatory laws to be enacted pursuant to [it].’

A proposed cure is to include qualifiers designed to clearly exclude discrimination from the purposes of the power, such as confining laws to Indigenous ‘benefit’ or ‘advancement’ or clarifying that laws should be passed ‘so as not to discriminate against them on the basis of their race.’ However, these terms bring with them interpretive difficulties, involving normative judgments for a branch of government designed to be apolitical. This may lead to the court declining to make such judgments and deferring to the legislature. Another suggestion has been to include a broad racial discrimination prohibition in the Constitution, but this is likely to muddy the issue of Indigenous recognition at referendum, jeopardizing the success of positive reforms.

An alternative worth considering is replacing the ‘race power’ with one still allowing the Commonwealth to legislate in relation to Indigenous issues, but on the basis of ‘subject-matters’ as opposed to ‘peoples.’ This does not deny that the Commonwealth should still have the power to ameliorate the effects of past inequality but attempts to avoid the pitfalls of a peoples power. This would not only remove the problematic connotations of ‘race’ as a constitutional fact but would also be less fraught with interpretive difficulties. Indeed, Justice Spigelman contended that ‘a subject matter power is…more likely to be read down in accordance with contemporary requirements of the rule of law and the rights of citizenship than a peoples power.’

What then should these subject matters be? Drafting a head of power that simultaneously upholds present indigenous-related legislation and ensures the validity of unknown future laws is no easy task. Any constitutional amendment should be formulated on the basis of need. As such, one avenue worth considering could be to determine what laws may stand up or be passed under the Constitution as is, and then to fill in the gaps with a subject matter power.

Importantly, the Commonwealth has already made use of the grants power (s. 96) to address indigenous issues relating to health, education, economic development and welfare through the provision of tied federal grants to the States. Repeal of the race power will not affect the status quo in that regard. The Commonwealth also has direct welfare powers in s 51(xxiiiA), including benefits to students, medical and dental services, unemployment benefits and family allowances.

The other provision the Commonwealth could rely upon is its power to legislate with respect to ‘external affairs’ (s. 51(xxix)). This power is particularly attractive as, owing to the High Court’s prevailing liberal interpretation, it is one that allows the Commonwealth to legislate on an expansive range of topics not confined within section 51. The mere existence of a treaty to which Australia is a party is, itself, enough to support a Commonwealth law that implements obligations under that treaty. With this in mind, it is important to consider what international agreements canvass indigenous-related issues. At present though, the utility of these treaties lies only in their potential to activate the external affairs power, as few are explicitly relevant to indigenous issues and Australia is yet to ratify those that are. Indeed, while some such as the World Heritage Properties Conservation Act have already been acknowledged judicially as relevant to Indigenous-related laws, only one treaty to which Australia is a party, the Convention on the Rights of the Child, makes direct reference to indigenous peoples (Article 30). Importantly though, Australia has previously indicated that it is considering ratification of the International Labor Organization’s Convention No. 169, the current most comprehensive formal treaty related to indigenous issues. Ratification would support domestic legislation on cultural heritage (Article 5), customary laws (Article 8), land rights (Article 14), and representative bodies (Article 6).

Reliance on the external affairs power would still bring with it some uncertainty, though, as any putative indigenous-related legislation must ‘conform’ to the provision of the treaties which it is intended to implement. Indeed, whilst it is not necessary to implement all provisions of a treaty, nor is it necessarily desirable to do so, the Commonwealth cannot pick and choose from them as it likes. According to the majority in the Industrial Relations Act case ‘a law will be held invalid if the deficiency is so substantial as to deny the law the character of a measure implementing the Convention or it is a deficiency which, when coupled with other provisions of the law, make it substantially inconsistent with the Convention.’

The inability of the Commonwealth to ‘cherry pick’ for fear of rendering legislation constitutionally invalid is potentially problematic for a number of reasons. First, the legislature is confined to implementing obligations imposed by the treaty and cannot stray too far outside their terms. Secondly, any indigenous-related legislation would be vulnerable to legal challenge. For example, a seemingly essential condition of ILO No 169 is the requirement for consultation prior to passing indigenous-specific laws (Article 6), rendering any legislation relying upon this Convention susceptible to challenge if these procedures aren’t sufficiently followed or included within its provisions. The extent and nature of this ‘consultation’ may itself be subject to interpretational difficulties.

Whilst this feature of the external affairs power may be viewed as a disadvantage to the Commonwealth, it may be advantageous from the perspective of Aboriginal people and Torres Strait Islanders. Importantly, the requirement of conformity militates against issues of characterisation raised earlier. Given that these treaty obligations have been drafted solely for indigenous benefit, relying on s. 51 (xxix) to give effect to them means that the High Court is likely to assess any disadvantageous or detrimental legislation as not reasonably appropriate and adapted to implementing the terms of a treaty. Additionally, Aboriginal and Torres Strait Islanders may see particular benefit in a requirement of genuine consultation before laws affecting their interests are made. This, however, is likely to be a politically contentious issue.

The broadest international instrument significant to Aboriginal and Torres Strait Islanders is the United Nations Declaration on the Rights of Indigenous Peoples, which Australia has formally endorsed. It is unlikely that a mere declaration would currently be regarded as sufficient to support the enactment of legislation under the external affairs power, but it remains possible that the High Court might expand its interpretation of the power in this manner in the future, opening up a broader Commonwealth legislative power with regard to Indigenous affairs.

Clearly, formulating a replacement to the ‘race power’ is fraught with many challenges. Those drafting a constitutional amendment should explore a number of different avenues, ranging from a people power to a subject-matter power, taking into account the range of other powers upon which the Commonwealth may rely.

SUGGESTED CITATION: Tim Craven, 'Filling the gaps - Options for replacing the race power', Constitutional Critique, 1 June 2014, (Constitutional Reform Unit Blog, University of Sydney,

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,

[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,

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,]

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,