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.”
The Abbott Government has introduced its citizenship-stripping bill — called the Australian Citizenship Amendment (Allegiance to Australia) Bill 2015 — into the House of Representatives. It applies to dual nationals, and contains three new ways they can lose their Australian citizenship: by committing certain crimes, by serving a declared terrorist organisation, or by engaging in certain conduct connected with terrorism.
Under a proposed new section 35A of the Australian Citizenship Act 2007, a dual national “ceases to be an Australian citizen” if and when they are convicted of specified Commonwealth crimes, described as “terrorist offences and certain other offences”. UNSW professor George Williams says the list of offences is too broad, and “appears to cover low-level offences that have only a very minor connection to terrorism”.
Williams points out that damaging Commonwealth property is on the list. This offence is unconnected to terrorism or sedition, and the offender doesn’t even need to know the damaged property belongs to the Commonwealth. If a dual national committed a minor act of vandalism — such as scratching a plaque on the banks of Canberra’s Lake Burley Griffin — their Australian citizenship would be forfeit.
Other parts of the Bill are more clearly tied to terrorism. Under the existing section 35, Australian citizenship “ceases” when a dual national “serves in the armed forces of a country at war with Australia”. The new version would extend this to include “fight[ing] for, or [being] in the service of, a declared terrorist organisation” (there are currently 20 organisations on this list).
The current legislation allows a dual national to apply to the Minister to voluntarily renounce their Australian citizenship. The proposed new section 33AA introduces the concept of “renunciation by conduct”: where a person “acts inconsistently with their allegiance to Australia”, this will be treated as if they had applied to renounce their citizenship. The conduct that triggers this provision ranges from supporting a terrorist organisation through to actually engaging in a terrorist act.
All of these provisions are framed as being automatic, triggered by the action of the person concerned. The Explanatory Memorandum states: “By acting in a manner contrary to their allegiance to Australia, the person has chosen to step outside of the formal Australian community”, and therefore they are effectively removing their own citizenship. However, in practical terms the person’s citizenship will continue to be recognised until the Government makes make a factual determination that the triggering conduct has occurred.
The Bill provides: “If the Minister becomes aware of conduct because of which a person has, under this section, ceased to be an Australian citizen, the Minister must give written notice to that effect at such time and to such persons as the Minister considers appropriate.” Furthermore, the Minister can decide to “rescind the notice”, and they must exercise these powers to issue and rescind notices personally.
While Immigration Minister Peter Dutton claims the law “operate[s] automatically, without a decision from the minister”, the Bill puts the Minister in the position of determining (by “becoming aware”) on behalf of the Government whether the “automatic” cessation of citizenship has occurred. This aspect of the proposal will likely come under scrutiny, as the role of the Minister in the decision-making process was the focus of Cabinet and public debate before the release of the bill.
The bill expressly provides that “[t]he rules of natural justice do not apply in relation to the powers of the Minister”. Natural justice is also referred to as procedural fairness, and generally requires an unbiased decision-maker, a right to be heard about a decision that will affect you, and a decision based on cogent evidence. Chief Justice French has said, “I do not think it too bold to say that the notion of procedural fairness would be widely regarded within the Australian community as indispensable to justice.” Removing these basic standards raises the prospect of unfair decisions being made.
Section 39 of the Australian Security and Intelligence Organisation Act 1979 prohibits the Commonwealth from taking administrative action “on the basis of any communication in relation to a person made by the Organisation not amounting to a security assessment”. The Bill exempts the Minister from complying with this restriction, thereby allowing any information provided by ASIO to be relied upon; Bret Walker SC argues this amounts to “substituting a ministerial opinion based on untested hearsay and intelligence for the verdict of a jury”. ASIO has a history of making errors in even formal security assessments, so any move to rely on preliminary information increases the risk.
The Bill states that “[a]n instrument exercising any of the Minister’s powers under this section is not a legislative instrument.” This is designed to ensure the Minister’s notices are not covered by the Legislative Instruments Act 2003, which would require them to be presented to Parliament, and would make them susceptible to disallowance by a vote of either House.
The Bill also provides that “section 47 does not apply in relation to the exercise of [the Minister’s] powers” — exempting the Minister from the usual requirement to notify the affected person of the decision. As a result, the loss of citizenship under the Bill would be kept secret from the person concerned.
While they would retain the right to seek judicial review of the Minister’s decision to issue a notice, they would not discover this need until they sought to exercise a citizenship right and were refused. For example, a person who found themselves in difficulty overseas and sought consular assistance would be refused, and may not be in a practical position to challenge the decision. Even if they could commence a challenge, they may not know why they had lost their citizenship, and they may not be allowed to see the ASIO intelligence the Minister relied upon.
Labor has indicated it supports the general thrust of the Bill, so it is likely to be passed by Parliament. However, Opposition Leader Bill Shorten indicated he had reservations about some of the details.
If it passes, the Bill is likely to face a High Court challenge. Citizenship law expert Professor Kim Rubenstein told SBS: “The loss of citizenship is a very dramatic change in a person’s status in our democratic system and so the question is: to what extent is there a restriction on the Commonwealth’s power to remove someone’s citizenship and deprive them of their citizenship? There are questions of the separation of powers for automatic loss of citizenship.”
The Abbott Government is expected to introduce a bill to Parliament today to allow the removal of Australian citizenship from dual citizens who fight with groups such as Islamic State. The Prime Minister says action is needed because there are “currently 120 Australians fighting with Daesh, also known as the Islamic State, with another 160 Australians supporting them through financing and recruiting”.
The issue caused embarrassment for the Government earlier this month when its preliminary discussions were leaked. Cabinet discussions are held in strict confidentiality, allowing ministers to “discuss proposals and a variety of options and views with complete freedom”. However, discussions of the citizenship proposal were revealed by the media, and six ministers reportedly expressed strong opposition to the original version of the plan. These included several whose portfolios are closely related to the issue, including the Attorney-General, the Defence Minister and the Foreign Affairs Minister.
A key sticking point was the proposal to give power to the Minister, rather than the Courts, to decide when to remove citizenship: “The deputy leader of the National Party went to the heart of the matter: ‘If you don’t have enough evidence to charge them in a court, how can you have enough evidence to take away their citizenship?’ According to participants, Dutton replied: ‘That’s the point, Barnaby. You don’t need too much evidence. It’s an administrative decision.'” Conservative constitutional expert Greg Craven described the plan as “plain dumb”: “even if this proposal ever did hit the statute books, it would last as long as a Melbourne warm spell. It would be irredeemably unconstitutional. By conferring a profoundly judicial power on a minister, it mocks the separation of powers. It would be swatted down like a bug by the High Court.”
In its defence, Abbott said the plan was “precisely what was recommended by the former independent national security monitor Bret Walker” in a 2014 report. That report does recommend “the introduction of a power for the Minister for Immigration to revoke the citizenship of Australians, where to do so would not render them stateless”. However, Walker says this power should only arise “after a criminal trial”. He told the ABC, “I’d like to see something in the nature of a criminal trial. That is not conducted by a minister leafing through a manila folder with intelligence that will never be presented in a court of law to be tested.”
The Government maintains that any decision made by the Minister would be subject to judicial review. This is not the same as an appeal, and would allow people to challenge decisions on very narrow grounds relating to the process — and not including the merits of the decision. As the Immigration Minister insists, “the government’s not going to have the court second-guessing ministerial decisions”. Tony Abbott expressed a similar view this week: “They say they’ll put you on trial. Well, fair enough. But we all know the perils of that.” Supreme Court Justice Lex Lasry tweeted a riposte: “The perilous feature of putting people on trial is fairness.”
While the text of a bill has not been released, the latest version of the proposal to be floated in the media would amend the Australian Citizenship Act 2007 to make the cancellation of citizenship automatic when a person commits an act of terrorism or fights with a group such as Islamic State. This would remove ministerial discretion from the process, but would still allow an opportunity for the underlying fact to be tested in court. Section 35 of the Act already uses this system where a person serves with an enemy nation’s army — however, it has never been used, and therefore nobody has had standing to challenge its constitutionality. While Communications Minister Malcolm Turnbull insists “[t]he principles are well understood”, Charles Darwin University law lecturer Ken Parish believes it is “likely invalid”.
Justice Kenneth Hayne will be forced by s 24 of the Constitution to retire in June when he turns 70, and the Government has announced he will be replaced on the bench by his wife, current Federal Court Justice Michelle Gordon. The appointment has been “widely applauded” by the legal profession. Justice Gordon has a very strong reputation as a lawyer and judge, and is a specialist in taxation and commercial law. Professor Andrew Lynch welcomed the decision to appoint a judge who would sit for 20 years: “There is a lot to be said for a bit of constancy.” While it is sometimes suggested that governments make such long appointments because they expect political support, only last month Justice Gordon made a high profile decision against the government. The appointment also answers concerns about gender balance on the High Court bench, restoring the proportion of women to 3 out of 7.
The Victorian Law Reform Commission has released an issues paper on Medicinal Cannabis. The paper notes that the “terms of reference do not invite the Commission’s views on [the merits of] this policy”; instead, the Attorney-General asked it to consider how the policy could be implemented, and to ensure the expert advice of medical practitioners was taken into account. The two main questions it seeks to answer are “Who should be eligible to use cannabis for medicinal purposes?” and “How extensive should any Victorian medicinal cannabis scheme be?” The VLRC has asked the public for submissions in response by 30 April 2015, as it must report by 31 August. Meanwhile, the NSW government is scaling back their Law Reform Commission. It has not referred an issue for more than two years, and legal journalist Richard Ackland reports, “The position of chairman of the LRC has not been filled since James Wood retired over a year ago. No full-time commissioners have been appointed for over 12 months.” Furthermore, “All five of the existing LRC staff are seeking jobs elsewhere, and have been advised to do so by the department”; the Justice Department will instead take over the day-to-day administration of the LRC and allocate departmental staff when needed. Ackland suggests this may be an attempt by the executive to effectively abolish the NSWLRC as an independent body without parliament repealing the Law Reform Commission Act 1967 (NSW): “The commission, as a self-contained functioning entity, dedicated to independent investigation into legal policy issues, is finished.” (This approach has been taken before: when the Abbott Government’s attempt to abolish the Office of the Australian Information Commissioner was blocked in the Senate, it nevertheless redistributed staff to other agencies and closed the office, leaving the Commissioner to oversee the Freedom of Information system by himself, working on a laptop at home.)
The debate over whether to build the East West Link tunnel was a key point of difference between the major parties before the 2014 election. In an effort to lock in its plan, the Napthine Government signed a contract as well as a controversial “side letter” promising compensation to the builder if the contract later proved to be illegal. Before the election, Labor promised it would “release the full business case, the full contract and the full side deal … and every Victorian will be able to see what’s gone on”. However, after winning power it decided to keep the documents secret while complex negotiations continue to cancel the project and minimise the cost to government. The Legislative Council passed a motion calling on the Government to honour its promise and release the documents, but Premier Daniel Andrews has refused to do so. This may result in a penalty against the Government’s leader in the upper house, Gavin Jennings: “He could be suspended from the chamber, possibly indefinitely.” This is one mechanism the legislature can use to scrutinise and hold the executive to account.
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.
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.”
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.