The latest video in Castan Centre’s Have You Got That Right? series considers the right to a healthy environment. Monash University’s Associate Professor Adam McBeth says while the UN does not yet explicitly recognise it, “a new right to a healthy planet may continue to be fleshed out, emerging from our existing rights” to health, food, water, and the like. South Africa’s constitutional bill of rights includes section 24, which protects human rights “to an environment that is not harmful to their health or well-being” and “to have the environment protected, for the benefit of present and future generations”. In a decision upholding the government’s right to prevent the construction of a new petrol station, Claasen J of the South African High Court (roughtly equivalent to an Australian State Supreme Court) ruled that s 24 meant “[p]ure economic principles will no longer determine in an unbridled fashion whether a development is acceptable. Development, which may be regarded as economically and financially sound, will in future be balanced by its environmental impact…” In 2014, in a report considering the right to a healthy environment around the world, the UN’s Special Rapporteur on Human Rights and the Environment observed that “over 90 national constitutions recogniz[e] some form of the right”, including 30 African countries, but that “implementation was the major issue”.
Australia’s 22nd Prime Minister, Malcolm Fraser, died yesterday, aged 84. He was a complex politician whose allegiances shifted—some say he moved to the left, while he maintained Australian politics moved to the right. During his term in office, he was a divisive figure due to his role in the Dismissal of Gough Whitlam’s government (though the two men became friends later in life), and in retirement he became estranged from his Liberal Party—even campaigning for the Greens in 2013 due to his opposition to Tony Abbott’s refugee policies. He will be remembered as a “giant of Australian politics”, in part because he was 193cm tall, but mainly because the Fraser Government made lasting changes in a number of significant areas. In 1977, it conducted four referendums. Three passed: giving ACT and NT residents the right to vote in referendums, requiring federal judges to retire at 70 years old, and ensuring Senate casual vacancies would be filled by the same party. A plebiscite endorsing Advance Australia Fair as the national anthem also passed. On governance, Fraser established self-government for the Northern Territory, freedom of information laws, the Federal Court of Australia, and the Administrative Appeals Tribunal (which provided a model for VCAT). He cemented an official policy of multiculturalism, establishing the Australian Ethnic Affairs Council, the Institute of Multicultural Affairs and the Special Broadcasting Service (SBS), and welcoming the Vietnamese “boat people” as refugees. On human rights, Fraser established land rights for Aboriginal people in the Northern Territory, campaigned against apartheid in South Africa, and set up the Human Rights Commission—whose necessity and independence he defended until this year.
The Abbott Government is struggling to make laws, as the AFR‘s Laura Tingle observed: “Consider the government’s legislative record for 2015. It is not good. It has passed just one piece of legislation through both houses of parliament this year… On all its major reforms, its lack of political capital now renders the government impotent in the Parliament.” In part, this is because with 33 seats the Government does not have a majority in the Senate, and must find an extra six votes from Labor (29), the Greens (10) or a diverse group of minor party and independent senators (8). (The task has become more difficult with the resignations of Jacqui Lambie and Glen Lazarus from the Palmer United Party; they must now be courted separately.) The difficulty of negotiating bills through the Senate is highlighted by the Government’s proposed higher education reforms, which involve funding cuts to be made up through deregulation of student fees. The Education Minister, Christopher Pyne, adopted a tough negotiating stance, threatening to end a scientific research program if the bill wasn’t passed. This was rejected by most of the crossbench senators, and Pyne said he had “fixed it” by splitting the bill into two parts. The first, dealing with fee deregulation, was rejected yesterday, with only three crossbenchers supporting it. Pyne now says he will reintroduce it later, potentially creating a trigger for a double dissolution election. However, Professor Anne Twomey explains that the Government would be unlikely to pull that trigger because, while the they might be able to pass the deadlocked bill through a joint sitting under section 57, “it would be likely to make it even harder for the Coalition to negotiate [other] bills through the Senate. Because 12 Senators would be elected in a State, rather than six, the quota for winning a seat would be lower. This makes it much easier for micro parties and independents to win seats.” A joint sitting to resolve a deadlock has only occurred once in Australia’s history.
Professor George Williams argues: “When it comes to achieving the right to die, community support has yet to translate into votes on the floor of Parliament”. He notes that “the law forbids a doctor from acting on a request from a terminally ill patient to end their life… The best that the law offers such a person is to permit them to starve to death”, citing the WA case of Christian Rossiter. Euthanasia was legalised in the Northern Territory in 1996, but the Commonwealth used its constitutional power over the territories to repeal that law in 1997, by withdrawing the NT’s self-government over laws concerning euthanasia. A bill to legalise euthanasia was narrowly defeated in the Tasmanian parliament last year. In Victoria, Dr Rodney Syme has been defying the law in order to pressure the government to change the law, and an opinion poll suggests a majority of Victorians support legal change, but the Andrews Government has given no indication that it intends to act on the issue.
The High Court held a ceremonial sitting in Canberra yesterday to mark the appointment of Justice Geoffrey Nettle to the bench. He had formerly been a Justice of the Victorian Court of Appeal. The appointment was made after Justice Susan Crennan chose to retire five months ahead of the Constitutional age limit. While Justice Nettle is regarded as “one of the intellectual leaders of the profession” and “a non-political choice”, the shift in gender balance on the court has been questioned. Writing in the Canberra Times, Professor Kim Rubenstein called for a review of how judicial appointments are made. Rubenstein argues the “backdoor system of affirming men in the top posts” undermines the High Court because we should “ensure that the diversity of our community is reflected in the High Court of Australia and gender is one of the meritorious matters that must be considered in the appointment process”. However, Attorney-General George Brandis wound back reforms that made the judicial appointment process more transparent, and would not commit to promoting diversity in the judiciary. There are now five men and two women on the High Court. Justice Kenneth Hayne will retire later this year.
Under the division of powers, defamation is a matter for the States, and historically, the law was different in each jurisdiction. With the rise of national (and international) media and communications, this led to “forum shopping” in which plaintiffs could choose to sue in the State with the most plaintiff-friendly law. In order to achieve nationally consistent laws, the States agreed to implement uniform legislation, with an identical Defamation Act 2005 passed in each State. Now, Tasmania is threatening to abandon the national scheme by allowing big corporations to sue individuals. Critics say this will make Hobart the “defamation capital of Australia” by again allowing forum-shopping. The proposed change is part of a broader suite of Tasmanian reforms designed to crack down on anti-forestry protesters, but which may have much broader impacts.
The High Court recently handed down its judgment on a constitutional challenge to Queensland’s anti-bikie legislation. The case upheld part of the laws, but declined to rule on other parts. A control order scheme aimed at members of declared organisations was found not to infringe the separation of powers between the executive and the judiciary, because it still required courts to consider guilt or innocence in the ordinary way. However, the most controversial parts of the Queensland laws—in particular the Vicious Lawless Association Disestablishment Act 2013 (Qld)—were not considered by the Court because the applicant lacked standing to bring the case. The concept of legal standing is designed to keep hypothetical cases out of the system, but it can prevent test cases being run. Dr Binoy Kampmark of the Rule of Law Institute is highly critical of this aspect of the decision: “Significant in this case is the ruling against the plaintiff’s standing, suggesting a vital blow to public interest and civil liberty litigation. … It is hard to see what Kuczborski could have done [to gain standing] short of actually committing an act in violation of the VLAD laws, and being convicted as a result. One can only appeal after the fact. … Such a ruling places any efforts to challenge legislation that overreaches into the spheres of public life under question.”
The Australian Electoral Commission has announced that at the next federal election, NSW will lose a seat in the House of Representatives, and WA will gain one. Section 24 of the Constitution requires that “[t]he number of members chosen in the several States shall be in proportion to the respective numbers of their people”, with a minimum of five seats if the population is too low (such as in Tasmania). The AEC calculates the number of seats based on up-to-date statistics, and then holds public consultations on the fairest way to redraw the electoral boundaries.
Former Prime Minister Gough Whitlam died this morning, aged 98. From a Legal Studies perspective, his short term in office provided much to consider. His program included many legal reforms, including lowering the voting age to 18, allowing the Territories to elect two senators each, establishing the Family Court and a no-fault divorce system, funding legal aid and community legal centres, creating the Australian Law Reform Commission, signing a raft of UN treaties, supporting Indigenous land rights, and introducing significant legislation like the Racial Discrimination Act 1975. He proposed two increases in Commonwealth Constitutional power, but both failed at the 1973 referendum. He called a double-dissolution election in 1974, and is the only Prime Minister to subsequently hold a section 57 joint sitting of both Houses of Parliament to pass deadlocked bills. He controversially appointed his Attorney-General, Senator Lionel Murphy, to the High Court—over the objection of Chief Justice Garfield Barwick. In retaliation NSW filled the Senate vacancy with a non-Labor appointment. Later that year, Queensland also replaced a dead Labor senator with a conservative. This process was changed by a referendum in 1977 to prevent it happening again, but at the time it tipped the balance of power in the Senate and allowed the Opposition to block supply bills. Whitlam refused to resign because he believed he was accountable only to the House of Representatives, but his government could not function without supply. The Chief Justice of the High Court provided legal advice to the Governor-General, arguably in breach of the separation of powers, and instead of dissolving parliament, the Governor-General sacked Whitlam and swore in Malcolm Fraser as the new prime minister. The supply bills were passed by the Senate before Labor senators had been told about the change of government. The House of Representatives immediately voted confidence in Whitlam, but it was too late. Fraser comfortably won the subsequent double-dissolution election. This series of events is known as a Constitutional Crisis because it highlighted that unwritten (and therefore breakable) conventions are very important to the functioning of Australia’s written Constitution.
In its Tajjour v NSW judgment delivered yesterday, the High Court ruled on a challenge to section 93X of the Crimes Act 1900 (NSW), a guilt-by-association offence that bans “habitually consorting” with convicted criminals. The High Court upheld the law’s validity and rejected the plaintiffs’ three arguments. First, applying the Lange test, a majority of the Court accepted that s 93X burdens political communication, but said it is still valid because “it is reasonably appropriate and adapted, or proportionate, to serve the legitimate end of the prevention of crime”. Second, the Court reiterated its previous rulings that there is no “free-standing” implied freedom of association in the Constitution—association is only protected to the extent that it is a form of political communication. Third, the Court unanimously held that freedom of association under the International Covenant on Civil and Political Rights could not restrict State Governments because it has not been ratified by Commonwealth legislation.