October 2014 – Constitutional Critique

CRU Intern, MICHAEL STARKEY, has contributed the following post:
The delay of the referendum on indigenous recognition until at least after the 2016 federal election has created an important opportunity: to consider including in the final proposal for change an obligation on government known in international law as ‘the duty to consult.’ In legal speak, the idea is that governments should, in good faith, consult with indigenous peoples in order to obtain their free, prior and informed consent before adopting any measure that specially affects them. In the words of Noel Pearson, it is that indigenous peoples ‘get a fair say in laws and policies made about [them].’
While the normative content of the duty to consult is expressed most clearly by international law (particularly by Article 19 of the UN Declaration on the Rights of Indigenous Peoples and Article 6 of ILO Convention 169), in seeking practical guidance on how to implement it, Australia should turn to two foreign jurisdictions. The first, Canada, is a likely comparator. The second, Bolivia, less so. But by drawing on the jurisprudence developed in the former, and appropriating the constitutional provision of the latter, Australia could effectively entrench the duty to consult to the enduring benefit of our nation as a whole.
In 1982, the Canadian Constitution was amended to recognise, inter alia, the rights of indigenous Canadians. Section 35(1) of the newly entrenched Constitution Act provided: ‘The existing aboriginal and treaty rights of the aboriginal peoples of Canada are hereby recognized and affirmed.’ Following this amendment, a comprehensive body of Canadian case law has confirmed that the Crown has a duty to consult indigenous Canadians before taking actions which might affect their ‘aboriginal rights.’ This development cannot be explained by the constitutional amendment alone, however, because, as its wording suggests, section 35(1) conferred no new rights on indigenous Canadians. What it did do, though, was constitutionally protect the common law of Canada’s conception of the relationship between indigenous Canadians and the Crown as fiduciary in certain circumstances. That relationship, when it arises, requires Canadian governments to consult with indigenous peoples to ensure the Crown’s power is exercised in their best interests. In Mabo, the High Court (with the exception of Toohey J) refused to characterise the relationship between the Crown and indigenous Australians as fiduciary. Because of this, simply transplanting section 35(1) of the Canadian Constitution Act into our own would not entrench a duty to consult. However, if we could import the duty by other means, Canadian jurisprudence would provide a rich resource to be drawn on by our courts in fleshing out its local requirements.
Canadian courts have held that both federal and provincial governments must consult with indigenous Canadians and accommodate their established or asserted rights prior to making decisions which might affect them. It is important to note that the Canadian duty is not a duty to agree. Rather, it is about good faith negotiation and the balancing of interests. A breach of the duty becomes relevant when it is alleged that a government measure infringes an ‘aboriginal right’ protected by section 35(1) of the Constitution Act. Such infringement will not pass the required test of ‘justification’ unless the procedural duty to consult has been fulfilled. Where consultation has been inadequate, the purported decision can be suspended or quashed. In numerous cases, administrative decisions have been overturned as a consequence of the duty’s breach (see, e.g., R v Sparrow [1990] 1 SCR 1075; Haida Nation v British Colombia (Minister of Forests) [2004] 3 SCR 511; Tsilhqot’in Nation v British Columbia [2014] SCC 44). While in theory the duty also applies to legislative decision-making, there appear to have been no cases in which legislation has been struck down on the basis of inadequate consultation. However, legislation has been held to have no effect with respect to particular indigenous individuals if it infringes their rights for no good reason (see R v Powley [2003] 2 SCR 207).
If Australia were to adopt a duty to consult, drawing on this jurisprudence would continue the established tradition of our courts referring explicitly to Canadian decisions in indigenous rights cases. The question remains though, how might we effectively frame the duty to consult in the Australian context? The answer, it is proposed, lies in the Bolivian Constitution, Article 30 of which provides: ‘…indigenous peoples enjoy [the right]… to be consulted by appropriate procedures, in particular through their institutions, each time legislative or administrative measures may be foreseen to affect them.’ Since its adoption in 2009, this provision has been used to challenge a major government works project involving the building of a highway through the TIPNIS, a national park home to 12,000 indigenous Bolivians. While the consultations mandated by Bolivia’s Plurinational Constitutional Tribunal as a result of that challenge were criticised as being neither free nor informed, it is clear that the duty to consult is forcing a change in the way the Bolivian Government interacts with the 62 per cent of Bolivia’s population who identify as indigenous.
Appropriating the directness of the Bolivian duty’s wording, an Australian duty to consult might affirm: ‘The Commonwealth, a State or a Territory shall consult indigenous peoples, through their representatives, before taking legislative or executive measures that may be seen to specially affect their interests.’ It would be the familiar role of Australian courts to interpret this provision, and it is here that Canadian jurisprudence on that country’s duty to consult would play an invaluable role.
The merits of this proposal are numerous. Adopting a duty to consult will guarantee that indigenous voices continue to be heard once the current process of constitutional recognition is over. It will help generate the climate of confidence, currently lacking, between Australia’s indigenous peoples and its governments. And importantly, the duty to consult addresses the practical need to resolve the recent, dangerous emergence of partisanship in the recognition debate. While the Australian Labor Party seems intent on including an anti-discrimination provision in the final recognition proposal, the Coalition Government appears to be moving to quell expectations of anything more than symbolic recognition. A duty to consult provision arguably paves a middle road between these two extremes. If there is one thing that the history of referenda in Australia tells us, it is that bipartisanship is essential for success, and not since 1967 has success been as important as it is now.
SUGGESTED CITATION: Michael Starkey, ‘Indigenous Constitutional Recognition – A Duty to Consult?’, Constitutional Critique, 26 October 2014, (Constitutional Reform Unit Blog, University of Sydney, http://blogs.usyd.edu.au/cru/).

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, http://blogs.usyd.edu.au/cru/).