In this episode of Hearsay, I’ll take a look at the international legal dispute that led to our Prime Minister being dubbed “Mr Trumble”. I’ll also talk about some of the other controversies surrounding Donald Trump’s fledgling presidency, and explain how they have parallels with issues in Australia’s legal system. Continue reading “1×01: Mr Trumble goes to Washington”
The High Court last week made an important decision on the implied constitutional freedom of political communication. Jeff McCloy, a property developer, challenged the validity of NSW restrictions on political donations. The High Court’s ruling was important because it upheld the laws, clarified the test to be applied in “implied freedoms” cases, and confirmed that equality of participation in democracy was a “grand underlying principle” of the Constitution.
In its 2013 Unions NSW v New South Wales decision, the High Court ruled that a ban on all non-voters making political donations was an impermissible restriction of the implied freedom of political communication. While the government claimed it was aimed at eliminating corruption, the Court held there was no clear link between the challenged provisions and that purpose, and therefore the law failed the Lange test.
This prompted McCloy to challenge provisions in the Election Funding, Expenditure and Disclosures Act 1981 (NSW), which bans property developers from making political donations. Applying the logic of the precedent, he argued there was no reason to believe property developers were more likely to make corrupt donations than other people, therefore there was no rational connection to anti-corruption purposes.
However, a majority of the Court firmly rejected this argument, finding that “Property developers are sufficiently distinct to warrant specific regulation”, referring to “recent history” in NSW including a number of reports by the Independent Commission Against Corruption (ICAC). The law was therefore appropriately adapted to the legitimate purpose of preventing corruption or the appearance of corruption.
(The Court’s reliance on ICAC was interesting because the plaintiff’s illegal donations to Liberal Party MPs were uncovered through an ICAC investigation. In his testimony, McCloy said, “They all come to see me for money, I feel like a walking ATM, some days.”)
The Unions NSW case also struck down a combined cap on election spending by political parties and any affiliated industrial organisations. Although the law did not specify any particular target, the plaintiffs pointed out the Labor Party had maintained affiliation with trade unions for more than a century. Hayne J expressed concern this may have been the true target of the law, asking the NSW Government’s counsel, “Is there any other party to which 95G(6) presently has application? … Are we to ignore 100 years of history in this country, Mr Kirk? Are we to shut our eyes to what has been observed over the last decades?” The Court again held there was no rational link to an anti-corruption purpose, so the combined spending cap was unconstitutional.
McCloy sought to expand on this precedent, taking aim at the Act’s general cap on political donations. He argued “that the ability to pay money to secure access to a politician is itself an aspect of the freedom and therefore the subject of constitutional protection”. The High Court majority emphatically rejected this argument, holding that donation caps “are not only compatible with the system of representative government; they preserve and enhance it.”
They noted that in the absence of limits on donations, wealthy citizens may have a greater influence over our political system than others. The majority explicitly held that “Equality of opportunity to participate in the exercise of political sovereignty is an aspect of the representative democracy guaranteed by our Constitution.” Professor Graeme Orr argues this is the most significant aspect of the decision, because it balances the competing values of liberty and equality.
Another significant aspect of the decision was the Court’s attempt to clarify the second limb of the Lange test, which requires that a law is “appropriately adapted” to achieve its purpose. However, over a series of cases there was disagreement about how to judge this, and in particular whether this was a test of “proportionality”. In August this year, Sir Anthony Mason (who was Chief Justice from 1987-1995) gave a speech on Proportionality and its Use in Australian Constitutional Law, in which he identified three competing versions of the concept emerging from past High Court precedents.
In McCloy, the High Court majority confirmed that “proportionality analysis of some kind is part of the Lange test”, and clarified what this meant in the Australian context. They said it did not simply “involv[e] matters of impression, such as whether the legislative measures go too far, or not far enough”. Specifically, “there are at least three stages to a test of proportionality. … [T]hey are whether the statute is suitable, necessary, and adequate in its balance.” That final stage requires the Court to consider whether the burden on an implied Constitutional right outweighs the benefit of the law.
Critics of “judicial activism” argue that this allows unelected judges to interfere with the power of the Parliament to determine priorities and legislate accordingly. However, the High Court majority explicitly rejects this criticism: “The fact that a value judgment is involved does not entitle the courts to substitute their own assessment for that of the legislative decision-maker. … However, the courts have a duty to determine the limit of legislative power affecting constitutionally guaranteed freedoms, and assessments by courts of the public interest and benefit in a piece of legislation are commonplace. … To say that the courts are able to discern public benefits in legislation which has been passed is not to intrude upon the legislative function.”
Professor Anne Twomey suggests the decision may prompt legal change in jurisdictions around Australia: “the High Court has opened the way for more comprehensive reform of political donations at the state and federal level. The excuse that it ‘might be unconstitutional’ no longer has legs.”
With separate private members’ bills introduced to parliament by the Greens, the Liberal Democratic Party, the Labor Party, and most recently a multi-party group, the Coalition Government has come under pressure to allow its members a conscience vote on the issue.
After an extensive debate in caucus, the Coalition decided defer a decision on a conscience vote until after the next election. While the Coalition allows its backbench MPs to vote against party policy, the decision locks all Ministers in to opposing the bill.
During the meeting, Abbott told his colleagues he thought a referendum to settle the issue was “extraordinarily attractive“. There is speculation that his position is motivated by a belief that a “no” vote would make the reform difficult to justify, and referendums are historically unlikely to pass without strong bipartisan support.
This new position reflects a sudden change of mind on the part of the Prime Minister. In May, following Ireland’s referendum on the issue, Abbott said, “Referendums are held in this country where there’s a proposal to change the constitution. I don’t think anyone’s suggesting that the constitution needs to be changed in this respect. Under the constitution, questions of marriage are the preserve of the Commonwealth parliament.”
That view reflected the precedent established by the Same-Sex Marriage Case (2013), in which the High Court unanimously held: “the federal Parliament has legislative power to provide for marriage between persons of the same sex”.
Other Coalition members are pushing for a plebiscite, which is a non-binding national vote on an issue. In the past, plebiscites have been held on military conscription and the national anthem. According to the Australian Electoral Commission, a plebiscite held at the same time as the next election would cost $44 million to administer, and a stand-alone plebiscite would cost $158 million.
Ireland has become the first country in the world to legalise same-sex marriage through a Constitutional referendum: “With the final ballots counted, the vote was 62 percent in favor of legalizing same-sex marriage, and 38 percent opposed. The turnout was large — more than 60 percent of the 3.2 million eligible voters cast ballots, and only one district out of 43 voted the measure down.”
All parties in the Oireachtas (Irish parliament) support same-sex marriage. However, Article 41 the Irish Constitution “guarantees to protect the Family”, and “pledges itself to guard with special care the institution of Marriage, on which the Family is founded, and to protect it against attack”. Legal advice suggested this meant the common law definition of marriage “between one man and one woman” could not be altered. Though others disagreed, the government was reluctant to simply legislate and risk the law being declared invalid.
A Constitutional Convention was established, made up one-third by politicians and two-thirds by ordinary citizens, and it recommended amending the Constitution to require (not just allow) legislation to permit same-sex marriage. Ireland’s Constitution is entrenched by a referendum process requiring a simple majority of voters to approve amendments. The weekend’s proposal was to add a line to the document: “Marriage may be contracted in accordance with law by two persons without distinction as to their sex.” Following the successful vote, the Oireachtas will pass the Marriage Bill 2015, and it is expected that the change will be implemented before Christmas this year.
Tony Abbott responded by saying no referendum would be held in Australia, because “I don’t think anyone is suggesting the constitution needs to be changed in this respect”. Professor George Williams agrees, pointing out that in 2013 our High Court “described marriage in gender-neutral terms as being ‘a consensual union formed between natural persons in accordance with legally prescribed requirements'” and therefore same-sex marriage would be valid under section 51(xxi) of the Constitution.
In November, crossbench senator David Leyonhjelm introduced the Freedom to Marry Bill 2014 as a private member. The major parties are now debating internally how they should respond, and a big factor is whether the issue should be left to a conscience vote. The Coalition requires its MPs to vote against same-sex marriage, but senior members (along with Tony Abbott’s sister) are pushing for freedom to vote as they choose. Labor MPs are free to vote either way, but Deputy Leader Tanya Plibersek is pushing to require them to vote for marriage between “all adult couples irrespective of sex”. This conscience vote debate will ultimately determine whether the Freedom to Marry Bill is passed.
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.”
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.
The UNESCO World Heritage Committee yesterday took only seven minutes to reject an application by the Abbott Government to reduce the size of the Tasmanian Wilderness. The protected area was expanded by UNESCO last year, and the government sought to return to the previous boundary, in order to allow logging to resume. No member nation spoke in favour of the proposal, but Portugal spoke against, saying, “The justifications presented to the reduction are to say the least feeble.” The world heritage status of Tasmania’s forests has been politically sensitive since it was first listed by the UN in December 1982. Only a few months later, the Hawke Government ratified the listing with the World Heritage Properties Conservation Act 1983 (Cth), in order to prevent the Tasmanian government building the Franklin Dam. In the Tasmanian Dam case, the High Court adopted a broad interpretation of “external affairs” and upheld the dam ban.
The High Court has again struck down the National School Chaplaincy and Student Welfare Program as unconstitutional. In a 2012 decision, it was thrown out because the executive was acting without legislation to authorise the program. The government responded by passing amendments to the Financial Management and Accountability Act 1997 (Cth) to give itself broad power to spend money on any program approved by a minister. In today’s new judgment, Williams v Commonwealth (No 2), the High Court said any such program would still need to fall under a head of Commonwealth power—and school chaplains don’t. The High Court’s interpretation of the phrase “benefits to students” was the crux of the case: “Providing money to pay persons to provide [chaplaincy] services at a school is not to provide benefits which are directed to the consequences of being a student. It is not a provision of benefits to students within the meaning of s 51(xxiiiA).” It also ruled that a law authorising a payment to a corporation was not a law with respect to corporations, so section 51(xx) did not apply either. As a result, the program did not fall under a head of power and the spending was invalid. The real significance of the case, though, is the precedent it establishes for future challenges to government programs. Because the High Court approached the case narrowly and only made a decision about the chaplaincy scheme, over 400 Commonwealth programs authorised under the FMA Act will continue until they are specifically challenged.
A High Court challenge to Australia’s policy of sending asylum seekers to be detained and processed in Papua New Guinea was unanimously rejected today. In Plaintiff S156/2013 v Minister for Immigration and Border Protection, The High Court ruled that the legislation was valid under the “aliens” power in s 51(xix) of the Constitution, adopting a broad interpretation of the word. It also ruled that the designation of PNG as a “regional processing country” was valid, because the Migration Act 1958 (Cth) was amended after the successful challenge to the so-called Malaysia Solution, giving the Minister much broader discretion.
Laws restricting political campaigns by Queensland trade unions were quietly repealed on Wednesday night, in the face of a High Court challenge. In 2013, new rules requiring industrial organisations to conduct a ballot of members before spending more than $10,000 on political campaigns were introduced. Affected unions launched a High Court challenge, saying that the cost and delay caused by the processes were a burden on their freedom of political communication. The explanatory notes for the repeal bill say the decision was prompted by the “recent decision of the High Court in Unions NSW v New South Wales“, which “indicates that the High Court will read widely the implied right of freedom of communication on government and political matters”. (In that case, the NSW government’s attempt to cap political spending by unions was unanimously held to be an illegitimate burden on the implied freedom.) The Queensland Attorney-General, Jarrod Bleijie, has been forced to defend his performance as a minister; the Court of Appeal struck down a law allowing him to jail people despite court orders to release them because it breached the separation of powers, and his anti-bikie laws are currently before the High Court.