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May 2012

As the Queen's Diamond Jubilee is celebrated over the next month, much will be written about how she has 'never put a foot wrong'. But how do we know? What do we really know about how the Queen exercises her constitutional power? The answer is - astonishingly little.

The Queen's communications with Ministers are confidential. Documents held by the Queen and her 'Royal Household' are deemed not to be 'public documents' and are neither available through public archives nor under freedom of information laws. Up until recently, the only knowledge we have had about how the Queen fulfils her constitutional functions has been obtained through government documents which reveal communications with the Palace. Even this small chink in the castle wall of secrecy concerning the Queen has now been sealed up. In January 2011 new laws came into effect in the United Kingdom which ban access to such information in UK government documents for a minimum period of 20 years, plus the life of the monarch, plus another five years after his or her death. The documents held by the Royal Household may still be kept secret past this time for as long as the Palace desires.

The justification given for these extreme levels of secrecy is that it is necessary to maintain the neutrality of the monarch and public confidence in the institution of the monarchy. If this is so, then it suggests that as a matter of fact the Queen is not neutral and that the institution of the monarchy could not withstand even a modicum of public scrutiny. Surely the Queen, in fulfilling her constitutional functions in relation to her sixteen Realms, behaves in such a responsible and appropriate manner that her actions could withstand some public scrutiny? To suggest otherwise is an insult to the Queen and ought to be disturbing to the public.

While it is perfectly reasonable for government documents to be kept secret for a period of 20 years (recently reduced from 30 years in the United Kingdom), it is perfectly unreasonable that even after that period has expired, the public has no access at all to information concerning how the constitutional role of the monarch has been exercised. The exercise by the Queen of her constitutional role and its impact on the governance of each of her Realms is an important part of the history of those Realms. Such knowledge is also essential for the people to understand how their system of government actually works. To deny the people their history and an understanding of their system of government is surely wrong.

This issue is discussed in greater detail in an article in the 'Review' section of the Australian Financial Review on 25 May 2012, which is available here: http://afr.com/p/lifestyle/review/her_majesty_secret_jzTQ6ilMGt4yqjuvY1GL6N. It also draws on material that was obtained from archives and FOI requests before the new ban took effect, which shows that the Queen is far from a rubber-stamp. She has been an interventionist monarch who has used her soft power with great skill and effect. The extent to which she has exercised that power, however, is unknown and, at least for the time being, unknowable. In a democracy, can this really be justified?

Anne Twomey
16 May 2012

In this blog, Ellen Joy, one of the CRU's interns, discusses the significance of the use of the term 'peoples' in the constitutional amendment proposed by the Expert Panel on Indigenous Constitutional Recognition:

What difference does a letter 's' make? When it comes to the words 'people' and 'peoples' the distinction, although at first elusive, is potentially quite important. The Expert Panel’s report ‘Recognising Aboriginal and Torres Strait Islander Peoples in the Constitution’ proposes a provision to give the Commonwealth Parliament power to make laws with respect to Aboriginal and Torres Strait Islander 'peoples' rather than 'people'. The existing constitutional provision- which would be repealed and replaced by the recommended provision- gives Parliament the power to make special laws with respect to the 'people' of any race. What constitutional ramifications might flow from the addition of the letter 's' to the word 'people'?

First, it would suggest that Parliament could not legislate generally in relation to Aboriginal persons and Torres Strait Islanders. It would instead have to legislate in relation to different 'peoples'; presumably groups such as the Wik people or the Eora people. This leads to questions about how a 'people' would be defined and whether this would prove more or less difficult to define than the people of a 'race'.

Secondly, 'peoples' at international law have particular rights, including the right to self-determination. To what extent is the reference to 'peoples' in the proposed constitutional provision able to attract particular rights at international law and would the High Court interpret it as doing so?

The concepts of self-determination and ‘peoples’ under international law are (deliberately) vague, although there is some consensus that Indigenous peoples may be defined as ‘peoples’ under international law and entitled to ‘internal’ self-determination. This means the right to freely determine political status and pursue their economic, social and political development. Examples of this process can be seen in the Indian Territories in the United States, the recognition of Indigenous languages as a national language, or the creation of governing bodies (such as the now defunct Aboriginal and Torres Strait Islander Commission). This right to Indigenous self-determination is also affirmed by the Declaration on the Rights of Indigenous Peoples (DRIP) which was eventually supported by the Rudd Government in 2009. However, it is questionable whether the High Court would impute this meaning into the proposed provision.

If the Court were to take a textual approach, ‘peoples’ is likely to be understood as a reference to the various Indigenous communities within Australia, which would not import any right to self-determination. However, where there is ambiguity in a provision, the court may look to other sources to determine meaning. The court is therefore likely to look to comparative international jurisprudence, parliamentary debates and perhaps international instruments such as treaties.

A number of other jurisdictions recognise Indigenous ‘peoples’ in their Constitutions, including Canada, Columbia, Ecuador, Mexico and Russia. Canada’s constitution defines ‘peoples’ as the Inuit, Indian and Metis peoples, and does not incorporate the international definition. Interestingly, Russia’s constitution gives its Indigenous persons any rights created under international law. Although subsequent cases have restricted rights to self-determination; it is difficult to assess the extent to which Indigenous peoples have been afforded those rights. As such, international comparisons would suggest a leaning towards the recognition of multiple indigenous communities in a territory, and a tendency not to recognise ‘peoples’ in an international sense that would imply rights to self-determination.

The Court may also look to the Convention Debates to ascertain the intended purpose of a constitutional provision. The modern equivalent of the debates would be Parliamentary second reading speeches, which may also assist in determining purpose. Although there are currently no relevant speeches to examine, the focus of the Expert Panel’s report and poor community attitudes towards Indigenous self-determination and sovereignty suggest it is highly unlikely the Parliament will illustrate such a purpose in a second reading speech.

Finally, the High Court may choose to use former Justice Michael Kirby’s ‘interpretive principle’ of reading ambiguous provisions in light of universal rights principles. Given the ICCPR, ICESCR and DRIP, the Court could find that Indigenous persons are to be regarded as ‘peoples’ in the international sense, attracting a right to self-determination. However, Kirby’s interpretive principle has not been well received or implemented by other members of the judiciary. Heydon J pointedly stated in Roach v Electoral Commissioner that twenty-one Justices had considered and rejected the notion that legislative power could be curtailed by implied rights stemming from international law. A reliance on international treaties to impute a right of indigenous self-determination is unlikely to be accepted by the courts.

Even if the Court established that Aboriginal and Torres Strait Islander persons constituted ‘peoples’ in the international sense, there is still the issue of whether this implies the right to self-determination. The Court has been reticent to imply terms into the Constitution and at the very least, any implication needs to be based on the terms and structure of the Constitution itself. It seems a significant stretch to suggest that the term ‘peoples’ implies not only an international definition, but also a right to self-determination. Furthermore, implying rights derived from an alternative legal system would drastically undermine the supremacy and legitimacy of the Constitution.

Whilst it seems unlikely that the Court will imply a right to self-determination in the proposed provision, it is clear that greater discussion is required regarding the intended purpose of the proposed provision and what rights, if any, are intended to be conferred on Aboriginal and Torres Strait Islander Peoples.

Ellen Joy, CRU Intern, 17 May 2012

The Australian Electoral Commission today released its analysis of the Fair Work Australia report into Mr Thomson. The AEC’s analysis (which can be found here: http://www.aec.gov.au/Parties_and_Representatives/compliance/files/hsu-report.pdf)
discloses two significant issues with respect to the operation of the disclosure laws under the Commonwealth Electoral Act.

First, the ‘donations’ that allegedly funded the employment of staff to raise Mr Thomson’s profile in the electorate of Dobell did not require disclosure because they occurred before the date he was pre-selected as a candidate for the seat in 2007. As he was a new candidate and had not run in the previous election, donations to support his campaign did not count until he was pre-selected. The vast bulk of the HSU money that was allegedly used to support Mr Thomson’s campaign, as set out in the Fair Work Australia report, occurred before he was pre-selected. Equally, his electoral expenditure only counted if it occurred during the election period (from the issue of the writs to polling day). So any expenditure that occurred earlier than this did not need to be declared by Mr Thomson.

The second issue is the high disclosure threshold, which in 2007-8 was $10,500. While the amount of all donations needs to be recorded by political parties and by donors in their returns to the AEC, they do not need to be ‘particularised’ unless a single donation is over the threshold amount. For example, expenditure of $4,826.99 to establish a Campaign Office would have to be disclosed in the overall total of donations made by the HSU or received by the ALP, but didn’t have to be specifically itemised. Hence the AWC cannot tell whether or not it has been disclosed, because all it has is a global figure.

Prior to 2006, the disclosure threshold was $1500, so a far greater proportion of donations had to be itemised and the names of donors disclosed. The Howard Government increased this to $10,000 in 2006 and indexed it, so it is steadily increasing. The Rudd Government promised to reduce it to $1000, but this was opposed by the Coalition and did not get sufficient support in the Senate. The Bill lapsed. The Gillard Government also promised, in its deal with the independents, to undertake electoral reform including the reduction of the disclosure threshold to $1000. The Bill passed the House of Representatives in 2010 but remains lingering in the Senate.

The Thomson affair is a timely reminder of the importance of electoral disclosure laws and the setting of sensible disclosure thresholds that on the one hand do not impose excessive bureaucracy on the parties but on the other hand allow transparency and scrutiny. It also raises the question of whether donations and expenditure on the campaigns of candidates which take place before they are pre-selected by a party, should also be disclosed after their pre-selection.

The biggest issue, however, is whether the Commonwealth should follow New South Wales and impose strict limits on political donations and electoral expenditure. While the NSW laws may have gone a bit too far, there is much to be said for reducing the amount of money spent on electoral campaigning and regulating donations both to ensure transparency and reduce the real and perceived influence of political donors. Unless we clean up the rules, more scandals will follow.

Anne Twomey, 16 May 2012.

Jess Natoli, one of the CRU's student interns, has been researching the application of 'special measures' in the context of the proposals of the Expert Panel on the Constitutional Recognition of Indigenous Australians. Here is her blog discussing the issues:

The Expert Panel has recommended inserting an anti-racial discrimination provision into the federal constitution. The goal is to ensure more robust protection against discrimination for Indigenous people and members of all cultural backgrounds. While most Australians would agree with this sentiment, entrenching such a provision in the Constitution is not without its risks.

The main challenge is to come up with a provision that guards against discrimination while ensuring that laws implementing affirmative action are not struck down for invalidity. The Panel has attempted to accommodate these considerations in proposed constitutional provision 116A, which consists of a broad prohibition on racial discrimination, followed by an exemption permitting special measures for the purpose of overcoming disadvantage. ‘Special measures’ exemptions already exist in Commonwealth and State anti-discrimination statutes, and the way they have been interpreted and used in practice should give us pause for thought.

In Australia there is currently no requirement that the government consult the intended beneficiaries of a ‘special measure’ before it is implemented. This means that the political branches of government can assert that a law or action has the purpose of overcoming disadvantage, and the judiciary can determine this is so, without taking the wishes of those affected by the measure into account. In Gerhardy v Brown, the leading Australian authority on the construction of ‘special measures,’ Brennan J expressed the opinion that the consent of the affected group is ‘perhaps essential’ to a determination that a law or action is a ‘special measure.’ However, as the issue of consultation was not addressed by the other Justices, Brennan J’s opinion does not have the force of law. Although it has been considered persuasive in subsequent cases, it has not been applied across the board.

There is also no requirement that a ‘special measure’ be proportionate to the end sought to be achieved. While Justices Mason and Deane in Gerhardy advocated a ‘reasonably appropriate and adapted’ test and Gibbs CJ found it a relevant consideration that the impugned provision was not more stringent than was necessary, the other justices neither endorsed nor rejected the use of a proportionality test. In some subsequent judgments of lower courts the use of a proportionality test has been criticised as involving a usurpation of legislative and executive power, and a subjective test has been applied. In other words, it has been considered sufficient that the political branches of government subjectively believed that a given law had the purpose of overcoming disadvantage.

The interpretation of ‘special measures’ under Australian law is at odds with the construction recommended by the Committee on the Elimination of Racial Discrimination, that ‘special measures’ must be proportionate to the achievement of a legitimate end and are only to be implemented after consultation. This seems somewhat incongruous considering the Racial Discrimination Act (Cth) expressly defines ‘special measures’ by reference to Article 1(4) of the International Convention on all the Elimination of All Forms of Racial Discrimination. The Human Rights Commission has also contributed to this debate, arguing that consultation should be an essential pre-condition to the existence of a ‘special measure’ and that proportionality is a relevant factor in determining whether a purported special measure has the purpose of overcoming disadvantage.

While the exemption for ‘special measures’ has been used to grant Indigenous groups land rights and to implement affirmative action such as Abstudy payments, it has also been used as the legal basis for policies involving the significant curtailment of rights. By far the most notorious ‘special measure’ is the legislative package commonly known as the Northern Territory Intervention, introduced in response to a report exposing the devastating levels of child sexual abuse in the Northern Territory. Among other things, the Intervention facilitated the compulsory acquisition of five-year leases over Aboriginal land by the Commonwealth, the quarantining of 50 percent of welfare payments for food and other essentials, and the stripping of the right to appeal to tribunals against the quarantining measures. These laws were introduced without any prior consultation with the Indigenous communities concerned. The UN Special Rapporteur on the Rights of Indigenous Peoples has stated that the Intervention is racially discriminatory, and that the curtailment of rights is disproportionate to the legitimate end of protecting women and children from violence and promoting well-being in Indigenous communities. Further, the Special Rapporteur found that the Intervention has stigmatised and disempowered Indigenous people and reinforced the perception they are responsible for their own situation of disadvantage.

It is by no means certain that the High Court would interpret proposed constitutional provision 116A(2) in the same way as the existing ‘special measures’ exemptions, particularly as the language used is not identical to section 8 of the Racial Discrimination Act (Cth) which was the subject of the decision in Gerhardy v Brown. However, given the protective purpose of the proposed amendment, it is essential that the wording of any constitutional ‘special measures’ provision is not open to being hijacked to legitimise racially discriminatory laws that further disempower Aboriginal people. Academic Sean Brennan has proposed a formulation that incorporates a test of reasonableness, proportionality and necessity. This would ensure that the protection provided is genuinely more robust than that currently on offer under the anti-racial discrimination legislation.

Jess Natoli, CRU Intern, 16 May 2012

Could the Federal Parliament expel or suspend Craig Thomson or Peter Slipper?

The House of Representatives could suspend either of them – but not expel them. This is because s 49 of the Constitution gives to the Parliament the power to legislate about the powers of its Houses, but until it does so, the Houses of the Federal Parliament have the same powers as the House of Commons had at the time of federation. These powers include the power to expel and the power to suspend.

Expulsion

The Parliament has overridden these ancient powers by abolishing the power of its Houses to expel their Members. It did this in 1987 through the enactment of the Parliamentary Privileges Act. A parliamentary committee had previously recommended that the power to expel be abolished because of the potential for it to be abused. It noted that the Constitution already sets out the circumstances in which Members are disqualified or their seats vacated (such as bankruptcy and conviction of certain criminal acts). It also pointed to the democratic principle that it is up to the electors to decide the composition of Parliament. It ought not to be left to Members to decide, lest they make partisan decisions for political benefit.

The Committee discussed the one occasion upon which a Member of the House of Representatives, Hugh Mahon, was expelled in 1920. He had given a speech at a public event in Melbourne at which he had criticised British policy in relation to Ireland and urged Australia to become a republic. On 11 November (a dangerous date for dismissals) he was expelled by the House of Representatives for his ‘seditious and disloyal utterances’. The Leader of the Opposition argued that it should be up to a court to try Mahon for sedition, not the House. He also argued that Mahon’s actions had not occurred in the House or disrupted the Parliament in any way. There was therefore no need to discipline him. Nonetheless, the expulsion motion was passed on party lines. In retrospect, it has been argued that this expulsion was inappropriate and partisan in nature and that any offence should have been left to a court to determine.

Section 8 of the Parliamentary Privileges Act 1987 now states that a ‘House does not have power to expel a member from membership of a House.’

Suspension

The Parliamentary Privileges Act did not abolish the power to suspend a Member of Parliament. It may be arguable, however, that it altered the scope of the power to suspend. For example, section 4 imposes statutory limits on what amounts to an offence against a House. It provides:

Conduct (including the use of words) does not constitute an offence against a House unless it amounts, or is intended or likely to amount, to an improper interference with the free exercise by a house or committee of its authority or functions, or with the free performance by a member of the member’s duties as a member.

Ordinarily, if a Member is suspended it is for disorderly conduct which disrupts the free exercise of the performance by a House of its functions and therefore meets the description of an ‘offence against a House’. Under the Standing Orders the Speaker will name a member and then a vote is held to suspend the Member. On the first occasion, the suspension is for 24 hours. On a second occasion within the same calendar year, the suspension is for three consecutive sitting days. For a third suspension within that year, it is for seven consecutive sitting days. (The periods are different in the Senate.)

It is unclear whether the power to suspend continues to apply to conduct which does not fall under the Standing Orders and does not amount to an ‘offence against a House’ as defined in s 4 of the Parliamentary Privileges Act. Such a power continues to exist in the House of Commons which has suspended Members for acts ranging from removing the ceremonial mace to rorting expenses, but it is unclear whether the Parliamentary Privileges Act was intended to limit the scope of that power in relation to the House of Representatives.

Could the suspension of a Member of Parliament be challenged in the courts?

As a general principle, the courts try to avoid interfering in internal parliamentary matters and treat them as ‘non-justiciable’ (i.e. something that they cannot or will not determine). However, when questions of power arise, it is ultimately for the courts to determine whether an institution of government, including a House of the Parliament, has the capacity to exercise a power. Accordingly, in those jurisdictions, such as New South Wales, where the power to suspend a Member of Parliament rests upon an implication of reasonable necessity and can only be used for self-protection, the courts have been prepared to determine whether a suspension is beyond the power of the House. For example, the validity of the suspension of Michael Egan in 1996 by the NSW Legislative Council was determined by the both the NSW Court of Appeal and the High Court.

In the past, the NSW courts have taken into account factors such as the length of the suspension, the presumption of innocence, the rights of constituents to be represented in Parliament and deference to the House’s assessment of the seriousness of the conduct in question. Courts and litigants have also contended that indefinite suspension is worse than expulsion, both for the Member concerned and his or her constituents. Expulsion causes a by-election, which means constituents are represented again reasonably soon and the expelled Member has a chance to run and be re-elected. Indefinite suspension, however, leaves everyone in limbo.

In the case of the Federal Parliament, where the power to suspend is determined by reference to the scope of the powers of the House of Commons at the time of federation, the courts have not so far been called upon to intervene. They might agree to do so, however, if the challenge related to the power to suspend, rather than the merits of the suspension.

The exercise of such a power might be challenged on the ground that either (a) it was beyond the power held by the House of Commons at the time of federation (which is unlikely); or (b) that the power has been impliedly altered since by legislation or constitutional implications. For example, it might be argued that since the enactment of the Parliamentary Privileges Act 1987, the power to suspend is limited to ‘offences against the House’ and could not be exercised in relation to events that took place before the Member was elected and did not interfere in any way with the free exercise of a House of its authority or functions. It might also be argued that the constitutional implications derived from the system of representative government preserve the right of a Member of Parliament to exercise his or her vote in the Parliament on behalf of his or her constituents unless disqualified from doing so by legislation or the express provisions of the Constitution.

How might a Member otherwise lose his or her seat?

Sections 44 and 45 of the Constitution provide that if a Member of Parliament is convicted of an offence ‘punishable under the law of the Commonwealth or of a State by imprisonment for one year or longer’, then his or her seat in Parliament becomes vacant. First, the Member must be ‘convicted’. Secondly, the offence in question must have a maximum penalty of imprisonment for 12 months or more. Even if the Member is only sentenced to a fine or a term of two months in prison, the critical fact is that the offence is ‘punishable’ by the sentence of imprisonment for 12 months. It is therefore the maximum possible penalty for that offence, rather than the sentence given, that is important.

If a Member were convicted of an offence where the maximum penalty was imprisonment for 8 months and was actually sentenced to be imprisoned for 8 months, this would not cause his or her seat to be vacated under ss 44 and 45. However, s 38 also provides that the ‘place of a member shall become vacant if for two consecutive months of any session of the Parliament he, without the permission of the House, fails to attend the House’. Therefore, if a Member were imprisoned and the House did not give him or her permission to be absent from the House, then the Member would lose his or her seat after two months of non-attendance of Parliament.

Other grounds for a Member losing his or her seat include: becoming a citizen of a foreign power, becoming bankrupt, holding a paid government office (other than that of Minister, Speaker, etc), having a pecuniary interest in a contract with the Public Service and taking payments to act in the Parliament on behalf of any person or State. A person also ceases to be a Member if he or she dies or resigns.

Suspension and confidence in the government

If a Member lost his or her seat now (eg through death, resignation or disqualification) and the consequence was that until the by-election was held the Gillard Government did not hold majority support in the House of Representatives, the Prime Minister could ask the Governor-General to prorogue the Parliament. This would mean that Parliament would stop sitting and all business would cease until it was summoned to commence a new session. Although this would be controversial, it would not be unprecedented. Such action has previously occurred in the States, on the ground that confidence in a Government should be determined by a fully constituted Parliament – not by accidents of fate. This is a reasonable view to take, as long as the by-election is held promptly and the period of prorogation does not extend for an unnecessarily long period. If the Government did not gain the support of the Member elected in the by-election, then it could resign, call an election or face a vote of no confidence.

The situation is different, however, if a Member is suspended and the vote of that Member is needed to sustain the Government’s majority. Suspension would presumably be for a period of ‘sitting days’ so that the adjournment of Parliament would not be of any help. Prorogation, on the other hand, would have the effect of terminating the suspension, because prorogation ordinarily terminates all resolutions of a House (unless it is a standing order). So if the Parliament were to be prorogued once the Member had been suspended and the Parliament was then summoned by the Governor-General to meet the following day, this would have the effect of terminating the suspension of the Member. However, it would probably not stop the House from suspending the Member again, sending the House into a farcical cycle of suspension, prorogation, commencement of a new session and then suspension again. For this reason, prorogation is unlikely to be a helpful tool in such circumstances, unless there were some other reason to believe that in the interim confidence in the government would be restored by other means.

Anne Twomey
14 May 2012

Welcome

14 May

Welcome to the Constitutional Reform Unit's blog. We intend to use this blog to alert people to the research that is being conducted by the CRU and any events and publications as they occur. We also intend to use it to discuss and critique current topics of constitutional interest. Often these issues are raised by the media in interviews with members of the CRU - but the full picture of what was discussed does not come across. So this will be a repository where people can gain a more detailed picture of the constitutional issues behind current political controversies and can make their own judgements.

Anne Twomey, 14 May 2012