Category: Uncategorized

Following is a new post by CRU Associate AMANDA SAPIENZA adding to her previous blog post on proposed policies to limit access of asylum seekers to judicial review:
Further to my recent post about the Coalition’s asylum seeker policy, much has been made in other commentary on the policy about the futility of any legislative attempt to restrict the High Court’s jurisdiction to conduct judicial review of immigration decisions. However, little has been said about the constitutionality of restricting or removing the Federal Court’s asylum-seeker judicial review jurisdiction. The assumption is that, with s 77(i) of the Constitution conferring power on the Commonwealth Parliament to make laws defining a federal court’s jurisdiction, what the Parliament giveth the Parliament may take away.
But a follower of this blog, Jim South, has reminded us that the High Court has previously hinted that this assumption may not be correct. He referred us to MZXOT v Minister for Immigration and Citizenship (2008), in which a majority of the High Court suggested that it would look closely at any future attempts to limit the jurisdiction of the Federal Court where the consequences would be such an increase in the trial load of the High Court that its capacity to carry out its appellate and constitutional functions would be severely impaired. Chief Justice Gleeson and Justices Gummow and Hayne said the following at [36]-[37] (references omitted):

The Commonwealth Solicitor-General … contended that there was no restraint upon the power of the Parliament to enact a repeal of [measures conferring jurisdiction over federal matters on other courts] and thereby burden exclusively the High Court with the full weight of original jurisdiction in federal matters. Such a state of affairs would, among other things, stultify the exercise of the appellate jurisdiction which is entrenched by s 73 of the Constitution. It would undermine the operation of Ch III which places this Court (subject to the obsolete provisions in s 74) at the apex of the judicial structure.

It is well recognised in the decisions of the Court that the powers of the Parliament conferred by the various heads of power conferred by the Constitution are not to be interpreted on the footing that the ends sought to be achieved by their exercise must appear desirable rather than absurd or inconvenient. But a law, apparently based upon s 77(iii), which repealed [measures conferring federal jurisdiction on State courts and other federal courts] would appear to strike at the effective exercise of the judicial power of the Commonwealth which is vested directly in the High Court by s 71 of the Constitution. Nor would it necessarily be decisive in this situation to invoke the principle that the legislative powers conferred by s 51 extend to the repeal of the whole or part of that which has been enacted; the legislative powers conferred within Ch III may require special consideration [emphasis added]. It is sufficient to conclude now that the submission put for the Commonwealth can hardly be said to be self-evidently correct.

These comments were made in the context of a submission that the High Court had an implied power of remittal to other courts based on the need to protect its ability to exercise its constitutional and appellate functions. The Court unanimously decided that the facts of the case did not warrant the implication of such a power. Justices Heydon, Crennan and Kiefel held that there was no such power but, as can be seen from the comments reproduced above, Gleeson CJ, Gummow and Hayne JJ indicated a willingness to explore the need for such an implication in an appropriate case. Justice Kirby was also very sympathetic to the argument. However, the four justices agreed that the legislative scheme in question in MZXOT did not place such a burden on the Court that the Court’s ability to sufficiently discharge its other functions was impaired (see [53] and [59]) and that therefore a remittal power was not a necessary implication.
So we have a majority of the High Court leaving open the possibility that an attempt to remove jurisdiction from a court with federal jurisdiction could be unconstitutional if the effect would be to burden the High Court with that jurisdiction and thereby impair the High Court’s capacity to exercise its appellate and constitutional functions. Put another way, there is a suggestion of an implied limitation on the power of the Parliament to significantly reduce the jurisdiction of federal courts.
A number of issues arise if the High Court intends to go down the road of implying such a limitation. First, who is to say that the appellate and constitutional functions of the High Court are the most important and therefore to be protected at the expense of other federal matters? Justice McHugh, in his tirade against the Parliament in Durairajasingham (2000) (at [8]-[15]), used parliamentary debates and secondary sources to support his conclusion that the intention behind the creation of the Federal Court was to free the High Court to focus on its appellate and constitutional functions. In MZXOT, Gleeson CJ, Gummow and Hayne JJ at [34] cited this passage of Durairajasingham in support of their view that the ‘major functions’ of the High Court are its constitutional and appellate ones. But there is nothing in the Constitution itself to suggest that this is so, at least in relation to the Court’s jurisdiction over matters arising under the Constitution or involving its interpretation. While the Court’s appellate functions are not constitutionally capable of being conferred on another court (giving some textual support for its perceived importance), its constitutional functions are so capable (see s 77(i) read with s 76(i)). Further, the constitutional functions are but one of four matters upon which the Constitution permits jurisdiction to be conferred on the High Court. Indeed, the framers of the Constitution did not even see fit to entrench the High Court’s jurisdiction over constitutional matters by including it in s 75. Rather, they listed it in s 76 and left it to Parliament to confer that jurisdiction on the High Court as it sees fit.
Secondly, where lies the limit of work that is neither constitutional nor appellate that the High Court can undertake and how will the judges decide that the limit has been breached? Obviously a conversation between the justices (or even four of them) around the Parkes Place water-cooler in which they agree that their trial load is too high will not suffice. A more rigorous, evidentiary approach will be required. In Abebe v Commonwealth (1999), Gleeson CJ and McHugh J at [50] predicted that the effect of the restriction of the Federal Court’s jurisdiction on the business of the High Court was certain to be serious. To confirm the accuracy of this prediction, McHugh J at note 2 of Durairajasingham referred to the number of applications pending in the Court for prerogative relief that arose under the Migration Act compared to the total number of pending applications for prerogative relief. In MZXOT, Kirby J noted that the evidence presented and ‘knowledge available by judicial notice’ contradicted the presence of the extreme circumstances that would be required for him to find that an implied constitutional power of remittal existed ([134]-[137]). The High Court will need to consider matters such as the number of applications pending in each kind of proceeding and the time spent sitting and writing on each. Still then there will be the need to undertake the unenviable, and ultimately impressionistic, task of deciding where the line is drawn between trial work consuming much of its resources and trial work preventing the effective discharge of its ‘major functions’.
Taking this volumetric approach to the question means that, to have good prospects of success in arguing that some constitutional limit has been breached, an applicant will have to wait before instituting proceedings to see what was the impact on the High Court’s workload of the removal of the Federal Court’s jurisdiction. Should the constitutionality of a legislative measure depend not on the measure itself but on its consequences? Particularly where those consequences may not be clear for several years?
Of the justices who left open the possibility of a constitutional impediment to restricting the Federal Court’s judicial review jurisdiction in MZXOT, only Hayne J remains on the Court. Justices Crennan and Kiefel also remain on the Court. Their Honours, with Heydon J, made the point at [203] of MZXOT that in Abebe a majority of the High Court upheld provisions that ultimately resulted in a significant increase in the number of proceedings instituted in the High Court pursuant to its original jurisdiction to conduct judicial review in s 75(v). Their Honours noted that the majority did so without seeing anything in ss 75-77 of the Constitution that prevented Parliament from severely restricting the jurisdiction of the Federal Court to review refugee decisions.
So one cannot predict with certainty how the current High Court might decide an argument that the Constitution prohibits stripping the Federal Court of its asylum-seeker judicial review jurisdiction and foisting it on the High Court. But the comments of Gleeson CJ, Gummow and Hayne JJ and Kirby J in MZXOT suggest that the High Court won’t take any increase in its trial load lying down.
SUGGESTED CITATION: Amanda Sapienza, ‘Who Needs a Union? A Constitutional Argument for Controlling the High Court’s Workload’, Constitutional Critique, 2 September 2013, (Constitutional Reform Unit Blog, University of Sydney, http://blogs.usyd.edu.au/cru/).

CRU Associate AMANDA SAPIENZAhas contributed the following post on the Coalition’s recently announced asylum seeker policy:
The Coalition has announced that, if elected to form government on 7 September, it will seek to prevent asylum-seekers who attempt to arrive (or have already arrived) in Australia by boat without a visa from being able to access the courts for review if their refugee or protection claims are rejected. The shadow Minister for Immigration also stated that the Coalition would make the process for assessment of such asylum-seekers’ claims “non-statutory”. Although neither the announcement nor the accompanying policy document makes it clear, the implication is that the “non-statutory” nature of the process will render decisions made pursuant to the process unexaminable by the courts. Given the High Court’s recent rhetoric on preventing “islands of power immune from supervision and restraint” (see Kirk v IRC (NSW) (2010) at [99]) this is a brave position to take. Indeed, the shadow Minister for Immigration admitted that the policy exists in a “complicated” legal area and that its details could not be worked through until the Coalition was in government and had access to the government’s full legal resources. He even foreshadowed the inevitable High Court challenge.
The policy raises two key legal issues:

1. Whether the assessment of a person’s claim to engage Australia’s protection obligations under the Refugees Convention can be a “non-statutory process”; that is, carried out not under legislation but pursuant to non-statutory power that the Constitution permits the executive branch of government to exercise; and
2. Whether the simple fact that an assessment process is non-statutory renders the process immune from judicial review.

To date it has not been necessary for the High Court to determine either of these issues, but judicial commentary on the issues suggests that the Coalition would find itself on shaky ground.
As to the first issue, it is to s 61 of the Constitution that attention will be directed. Section 61 authorises the executive branch to exercise both power conferred on it by legislation and some non-statutory power. The High Court has consistently held in recent years that exercises of non-statutory executive power by the Commonwealth pursuant to s 61 must fall into one of three categories of power: either prerogative power, the power that the Commonwealth has in common with other bodies with legal personality status (legal personality power) or the power to “engage in enterprises and activities peculiarly adapted to the government of a nation and which otherwise cannot be carried out for the benefit of the nation” (the AAP case (1975)at 397), known in academic circles as the “nationhood” power.
It is not clear that a non-statutory scheme to determine whether a person engages Australia’s protection obligations falls into any of these categories. While the Full Federal Court in the Tampa case (2001) was willing to hold that there still existed a prerogative power to prevent non-citizens from entering Australia, Black CJ in the minority held that it did not exist during peace time. Justice French (with Beaumont J agreeing) did not expressly limit the power to peace time, but stated repeatedly that it was not necessary to examine the full extent of any such power and limited his findings to the facts at hand: the power to enter a vessel to prevent the entry of non-citizens. These comments have no application to a purported power to assess a person’s claims to protection during peace time.
Indeed, when the Commonwealth sought to argue in the Christmas Island Detainees case (2010) that the Rudd government’s process for assessing the protection claims of offshore applicants was a non-statutory assessment process, it did not seek to argue that the process was an exercise of prerogative power. Rather, the Commonwealth submitted that the scheme was nothing more than an exercise of the Commonwealth’s power to inquire (an example of legal personality power). The Commonwealth relied on a statement by Griffith CJ in Clough v Leahy (1904) that the Commonwealth had the same power as anybody else to make inquiries of another person. His Honour also held that, like any other person, the Commonwealth had no power in the absence of legislation to force anyone to answer its questions. That is, the non-statutory executive power to inquire did not extend to coercive measures to obtain answers to the inquiries. No doubt the Commonwealth would argue that the asylum-seekers are not obliged to answer the government’s inquiries. But query how much of a choice an asylum-seeker really has when the consequence of not answering the government’s inquiries is deportation to a country in which the applicant claims to fear persecution.
As for nationhood power, a crucial limb of the test is the requirement that the enterprise be one that cannot, apart from an exercise of executive power, be carried on for the benefit of the nation. The precise function of the Coalition’s proposed non-statutory process is, of course, already being carried on. It is being carried on pursuant to the provisions of the Migration Act, with all of the judicial review rights that such a statutory process entails. The only aspect of the Coalition’s policy that is not presently being carried on is the ousting of the jurisdiction of the courts. It will be a big ask of the High Court to find that executive power authorises a scheme whose sole purpose is to avoid judicial review.
Even if the High Court is willing to find that the non-statutory process is authorised by the executive power of the Commonwealth, it does not necessarily follow that decisions made pursuant to the process will be immune from judicial review. The High Court was invited to consider these questions in the Christmas Island Detainees case but, having determined in a unanimous joint judgment that the scheme was in fact statutory, it held that it was unnecessary to consider whether an exercise of non-statutory executive power was attended by an obligation to afford procedural fairness (and, by implication, amenable to judicial review). However, other courts have been required to determine the justiciability of non-statutory executive action and the weight of authority suggests that the Coalition’s apparent assumption that a non-statutory assessment process will render decisions immune from judicial review is dubious.
The traditional position, dating from at least 1611, was indeed that, while the court could examine the existence and extent of a prerogative power, the manner of exercise of a prerogative power was unreviewable. This position has been recognised by the High Court since at least 1908 but Mason J started hinting that the position was untenable in modern times in R v Toohey; Ex parte Northern Land Council (1981). The House of Lords paved the way for judicial review of non-statutory action in the United Kingdom in Council for Civil Service Unions v Minister for Civil Service (1984), when a majority of the Lords held that Margaret Thatcher’s banning of trade union membership for employees of the government’s intelligence service could have been subject to judicial review in an appropriate case. The Full Federal Court unanimously held in Minister for Arts, Heritage and Environment v Peko-Wallsend (1987) that this should be the position in Australia. Chief Justice Bowen held that “subject to the exclusion of non-justiciable matters, the courts of this country should now accept responsibility for reviewing the decisions of Ministers or the Governor-General in Council notwithstanding the decision is carried out in pursuance of a power derived not from statute but from the common law or the prerogative” (at 278). The Victorian Court of Appeal was willing to review the action of a non-statutory taskforce in Victoria v Master Builders Association (1995). Justice Eames was scathing of Victoria’s argument that, in effect, “by device of not legislating to authorise the conduct, but relying on its common law powers and capacities, the executive can prevent the courts from reviewing the conduct so authorised by the executive, however intrusive or unreasonable that conduct may be, short of being prohibited by law.” In each of these cases the courts recognised that the traditional position was not appropriate for modern governments.
Even traditional exceptions to justiciability of non-statutory executive action, such as matters of international relations, are not automatically off-limits due to a lack of legislation. In Re Ditfort, Gummow J stated that not every case raising questions of international relations will be non-justiciable. In Hicks v Ruddock, David Hicks sought judicial review of the then Attorney-General Ruddock’s decision not to seek his release from detention in Cuba and his return to Australia. Ruddock applied for summary judgment on the basis of the non-justiciability of such a decision, but Tamberlin J refused Ruddock’s application on the basis that it was premature: whether or not the judicial review application raised justiciable issues would depend on the claims made and evidence adduced, not merely on the link between the facts and Australia-US relations. In Aye v Minister for Immigration and Citizenship, the Federal Court was willing, if presented with a properly framed application, to entertain an application for judicial review that touched upon a decision to impose sanctions on Burmese officials and their family members. An adult daughter of a senior military officer of the Burmese regime was studying in Australia and had her visa cancelled as a result of the policy. A majority of the Full Federal Court would have been willing to examine the decision if the judicial review application had argued grounds in relation to the application of the policy to the applicant, rather than the policy itself. These are but a few of the cases indicating a trend to a more substantive consideration of justiciability of non-statutory executive action: consideration of the specific claims made in each application rather than a decision of non-justiciability based on the source of the power exercised (statutory or non-statutory) or the context in which the decision made (such as international relations).
Decisions made pursuant to any non-statutory scheme for the assessing of protection claims will not ordinarily involve matters of international relations or assessments of the propriety of any government policy. Such decisions will involve the assessment of a particular applicant’s claims against criteria established by the government. Such decisions will directly affect the person making the application and are classic examples of administrative decision-making. Nothing about such a decision suggests that a non-statutory source alone will take it outside the reach of judicial review.
Not even clear attempts by legislation have succeeded in achieving this immunity from judicial review. The High Court held in Plaintiff S157 (2003) that no legislation could strip the High Court of its jurisdiction to conduct judicial review for jurisdictional error as this jurisdiction is constitutionally entrenched by s 75(v) of the Constitution. So even if a Coalition government passed legislation depriving other federal courts of judicial review jurisdiction in protection cases, all this would do is send applicants to the High Court instead, arguing that their decision is tainted by jurisdictional error. This is precisely what happened following each attempt by previous governments to restrict the power of the Federal Court to conduct judicial review of protection visa cases. One of those attempts earned the government of the day this sharp rebuke from Kirby J: “The prospect of this Court’s having to hear and determine, in its original jurisdiction, applications of this kind, in default of the availability of equivalent redress in the Federal Court … is extremely inconvenient. It is also expensive and time-consuming” (Abebe v Commonwealth (1999) at [207]).
So if the Coalition wins the election and seeks to implement this policy, there are no guarantees that the policy will achieve its aims of restricting access to Australian courts. The only guarantee is a High Court challenge. And while the polls seem to suggest a Coalition election victory, on this policy all the signs seem to point to defeat.

One of the many Bills that the Commonwealth Government is proposing to rush through the Senate with minimal scrutiny this week is the Public Governance, Performance and Accountability Bill. It raises a number of important constitutional issues, but has received little attention, given the other more prominent constitutional upheavals and the referendum proposal coming out of Canberra.
The Bill is intended to replace the Financial Management and Accountability Act 1997 and the Commonwealth Authorities and Companies Act 1997. In doing so, it will provide the legislative framework for the Commonwealth Government’s financial system. It is therefore a fundamentally important Bill.
One curious aspect of the Bill is its timing and commencement mechanism. The Bill is proposed to be rushed through the Senate, with gagged debate this week, so that its formal provisions can come into effect on 1 July this year, before the election. However, the substance of the Act is to commence upon proclamation, or if it is not proclaimed, by 1 July 2014. This means that an incoming government, whether it likes it or not, is stuck with the Act coming into force by 1 July 2014 at the latest, unless it can get changes to it passed by the Senate. This is happening so quickly that its proposed companion Bill, which will have to deal with consequential matters such as the formal repeal of the Financial Management and Accountability Act and the Commonwealth Authorities and Companies Act 1997, has not been introduced and is being left until after the election.
Another interesting aspect of the Bill is that it replaces detailed legislation with sections that establish basic principles and a framework, leaving most of the work and detail to the ‘rules’. The broad intention behind the Bill seems to be to increase flexibility for the executive, at the expense of accountability to Parliament and scrutiny of executive action. In the wake of the High Court’s judgment in the Williams case, one would imagine that a review of the Commonwealth’s financial system would be for the purposes of improving parliamentary accountability, especially in relation to expenditure. Remarkably, this Bill is directed at doing the opposite.
First, as the Act is largely about approving the making of unseen ‘rules’, it is very hard for Parliament to know what it is actually approving. The devil, as they say, is in the absent detail. The rules will be made later by the executive. Some rules are expressly identified as disallowable instruments, while others are not. It seems likely, in the post-Williams era, that the next High Court battleground will be about the extent to which the Parliament can delegate its authority and whether there are any implied constitutional constraints, such as a form of obligatory parliamentary supervision and scrutiny.
From a constitutional lawyer’s point of view, one of the first questions is how the Bill deals with Commonwealth expenditure. Does it provide parliamentary authorisation for specified kinds of expenditure, as was done post-Williams with the enactment of s 32B of the Financial Management and Accountability Act? The answer is no, it does not replicate that provision. It is likely that this is being left for later legislation to be enacted before the Financial Management and Accountability Act is repealed by 1 July 2014.
This leads to two interesting consequences. First, the proposed second challenge by Mr Williams to the funding of chaplains is potentially further delayed, as there is little point in launching a challenge to a section that will necessarily be repealed in just over a year. Presumably, Mr Williams and his counsel will want to know what, if anything, is to replace s 32B before commencing proceedings. Secondly, if the Coalition wins power in September, it puts it in the awkward position of having to take active measures in relation to the legislative authorisation of executive spending programs, given that the purported existing authorisation in s 32B will expire by 1 July 2014.
While the current Bill does not replace s 32B, what it does say about expenditure is still interesting. Clause 52 states:

The rules may prescribe matters relating to the commitment or expenditure of relevant money by the Commonwealth or a Commonwealth entity.

Could the Commonwealth intend to authorise expenditure through ‘rules’ rather than direct parliamentary authorisation? If so, would this be constitutionally acceptable?
Even more fascinating is the note attached to clause 52. It states:

Rules made for the purposes of this section could prescribe measures to ensure that, to the greatest extent practicable, relevant money that is within the CRF is not paid out without an appropriation.

This seems to imply that appropriation is merely desirable, not a constitutional requirement before money is paid out of the Consolidated Revenue Fund. Section 83 of the Constitution would appear to take a different approach.
Clause 105(3) also suggests that ‘rules’ may govern expenditure. Indeed, clause 105 is of interest in itself, being some kind of catch-all appropriation for when there is otherwise no appropriation, but without the specification of any ‘purposes of the Commonwealth’ at all. Despite the mess of appropriations made by the High Court in the Combet case, one wonders whether clause 105 would withstand judicial scrutiny.
The other interesting provision on expenditure is clause 71(1), which provides:

A Minister must not approve a proposed expenditure of relevant money unless the Minister is satisfied, after making reasonable inquiries, that the expenditure would be a proper use of relevant money.

This suggests that it is a matter for the Minister to decide upon expenditure, rather than a matter for Parliament.
All up, the Bill raises many important questions that are unlikely to be answered, or even considered in the 30 minutes of debate that is proposed to take place in the Senate this week. The Opposition, given that it might end up having to work with this legislation if enacted, would be wise to seek to defer debate until these constitutional issues are given further consideration.

The problem with the official Yes/No case in a referendum is that it is written by the advocates and the opponents of the proposed constitutional reform. It therefore tends to be misleading and not terribly informative. The Constitutional Reform Unit has had a go at putting together a more informative Yes/No case. It is not perfect, but it is a start. We will revise it as the debate develops and different arguments come to the fore. My thanks to CRU intern, Jackson Wherrett for preparing the first draft of this collaborative effort. The CRU’s web-page on the local government referndum, which sets out more information is here.
YES CASE
1. The power of the Commonwealth Parliament to fund local government directly is in doubt
Local government has, since the 1920s, received Commonwealth funding by way of grants to the States that require the money to be passed on to local government bodies within the State. For some years, the Commonwealth has taken an alternative route of providing some of its grants directly to local governments, by-passing the States. For example, the ‘Roads to Recovery’ scheme has been a significant source of direct funding for local governments. However, the ability for the Commonwealth to continue this form of direct funding was put in doubt in 2009 by the High Court’s Pape decision. It is likely that some schemes providing direct funding of local government may be declared invalid if they were to be challenged in the High Court. The proposed change would explicitly provide the Commonwealth with the power to fund local government directly, removing any doubt created by the High Court’s decision.
2. Constitutional recognition would acknowledge the role played by local government in Australian society
Local government has a significant role in the provision of services. Local government bodies also work collaboratively with the State and Commonwealth governments in the development and implementation of policy objectives. This contribution will be recognised by including an express reference to ‘local government’ in Australia’s most important legal document. Constitutional recognition of local government may help engender respect in the community for local government as an essential feature of the Australian system of government.
3. Direct funding of local government would avoid time-consuming negotiations with the States
Using the existing system of funding local government bodies through conditional grants to the States may result in delays which could be problematic when urgent funding or immediate economic stimulus is needed. Funding through the States is also dependent on State wishes, which may be different from Commonwealth policies.
Any stand-off between the Commonwealth and the States as to the conditions placed on grants may result in protracted negotiations and delays to funding. Direct Commonwealth funding would allow the Commonwealth to by-pass the States, permitting funding to flow to local government more quickly. It would avoid haggling about terms and conditions and allow governments to get on with the provision of services and facilities to the public.
4. The power to fund local government directly may result in more funding
The Commonwealth may be more likely to fund existing programs or new programs at the local level if there is political advantage in doing so. Although indirect funding of local government is possible by way of conditional grants to States, the Commonwealth may prefer to implement its own policies at the local level so that it can gain the electoral credit for building roads, sporting grounds and community facilities. This may give it the incentive to increase its funding. The possibility of such direct funding may be particularly important where the priorities of the Commonwealth and the States differ.
5. The Commonwealth would be better equipped to pursue national policy objectives
Collaboration between local government and the Commonwealth may result in more targeted investment in the provision of local services and the pursuit of national policy objectives. It would avoid the Commonwealth having to negotiate with the States about shared policy aims and instead permit the Commonwealth to pursue national policy objectives by funding local government bodies to implement them on the ground.
6. Direct Commonwealth funding to local government would be more equitable
Currently, most local government funding is made by way of conditional grants to the States. It is divided amongst the States on the basis of population and then distributed within each State with 30% going to local government areas based on their population and the rest distributed according to need. This advantages the more populous States as they get a larger proportion of the funding pool. If the Commonwealth directly funded local government it would be able to distribute funding to each local government body according to need. This is a more equitable way of distributing Commonwealth funding.
7. Constitutional recognition would help the voice of local government be heard
Local government is the level of government that is closest to the people. Its voice is often lost in the development of policy at the Commonwealth and State levels and in discussions on how it should be implemented. Local government bodies know best how to implement programs in their own communities. Constitutional recognition of local government may encourage other levels of government to take local government seriously and listen to local government bodies about their needs and community wishes.
8. The Constitution should be updated to recognise the entire system of government
The Australian people elect representatives to the federal Parliament, State and Territory legislatures and local councils. Yet only the State and federal Parliaments are mentioned in the Constitution. The level of government that most closely affects the day-to-day lives of the Australian people is not even mentioned in the Constitution. It is time to fix this anomaly and ensure that the existence of local government is recognised in the Constitution.
NO CASE
1. The Commonwealth Parliament already has the power to fund local government
The Constitution already provides the Commonwealth with the power to make grants to the States on the condition that all the money is passed on to local government. This is the way that the Commonwealth has provided funding to local government since the 1920s and it is clearly constitutionally valid. Even if direct funding of local government is unconstitutional in light of the High Court’s recent decisions, there is no doubt that the existing indirect method of funding local government could continue. There is therefore no risk at all to the Commonwealth’s ability to fund local government without this amendment.
2. The Commonwealth would have more influence over local government policy
Any direct funding to local government would be on such terms and conditions as the Commonwealth Parliament thinks fit. Those terms and conditions do not have to be confined to how the Commonwealth money can be spent. They could extend to anything that a local council does, regardless of whether the Commonwealth’s money funds it. This may limit the ability for local governments to pursue their own objectives in their own communities. It could potentially turn them into agents of the Commonwealth, implementing Commonwealth policies. The risk is that local government bodies would lose their identity and their capacity to implement the wishes of their local community, undermining their purpose and standing in the community.
3. The establishment of a central authority to oversee funding arrangements may be more costly and inefficient than the current system
Local government has different responsibilities and roles in each of the States. Because each State establishes and oversees its local government system, it already has all the necessary information about each of its local government bodies. If local government were to be funded directly from Canberra instead, a new federal bureaucracy would be needed to collect and assess this information. It would need to develop a single funding formula to fit different local government bodies across the country. This would be difficult, administratively burdensome and expensive. It would also increase the administrative burden on local government bodies as they would have to provide different information, based upon different funding formulas to two different levels of government. It is more efficient to use the systems that already exist at the State level.
4. Direct funding would not necessarily result in increased funding
The Commonwealth currently provides some direct funding to local government, as well as giving funding to local government through conditional grants to the States. It can already give as much money as it wants to local government. Changing the Constitution will not put any more money into Commonwealth coffers to allow it to spend more from its budget on local government. If the aim of the amendment is to facilitate pork-barrelling in marginal electorates as a means of getting more money to local government, then it should be rejected. The Commonwealth should fund local government properly. The Constitution should not be changed to facilitate poor behaviour.
5. It would centralise power in the Commonwealth
This expansion of Commonwealth power will contribute to the centralisation of power in Australia. The proposed amendment would permit the Commonwealth to by-pass the States and fund projects at the local level on any policy area, even when it is not otherwise within Commonwealth power. The High Court in two recent cases clipped the Commonwealth’s wings by telling it that it cannot spend money on programs that are not otherwise within its powers. This proposed amendment would allow the Commonwealth to by-pass the States and interfere in policy areas outside its powers by using local government and the conditions that it places on local government grants to do so. This would disturb the current constitutional balance between the division of State and Commonwealth responsibilities.
6. Centralised distribution of funding may seriously disadvantage some States
Most Commonwealth financial assistance to local government is currently distributed amongst the States on a population basis. Within each State, 30% is distributed according to the population of a local government area and the rest by reference to need. If the Commonwealth starts to give all its local government funding directly, rather than through the States, there would no longer be a distribution of funds amongst the States based on population. Instead, some form of ‘equalisation’ formula would most likely be applied (as with the distribution of the GST). When the Commonwealth Grants Commission looked at how such a system might work back in 1991, it calculated that New South Wales would lose about two-thirds of its local government funding. Victoria and Queensland would also have suffered significant losses. It also concluded that an equalisation system would involve extra administrative costs at the Commonwealth and State levels, reducing the size of the pool of money to be distributed.
7. Accountability would be reduced and the blame-game extended
A local government body would be accountable to both Commonwealth and State governments, as well as its electorate. The Commonwealth could impose conditions on its grants which may be inconsistent with State policies or incompatible with existing structures and procedures. It may also tie up local government budgets, placing conditions on grants that local government ‘match’ funding or maintain funding levels in relation to particular programs. This is likely to lead to a lack of responsibility, as some areas of local government will be over-funded, some under-funded and many important matters will simply get lost in-between. The Commonwealth, State and local governments will all blame each other for these failings and no one will be accountable. It is hard enough for local government to be accountable to two masters (the State and the local community). Being accountable to three masters would be impossible.

Earl Grey, famous for his family’s tea, has another claim to fame in Australia. He was the first person to achieve Julian Assange’s ambition – to be elected to an Australian Parliament while living in London, without any intention of travelling to Australia to take up the seat. To be fair to the Earl, he did not ask for this honour. In the mid-1800s, a person could be nominated without his consent, and he was.
Earl Grey’s nomination, like that of Assange, was more about making a political statement. In the 1840s, the people of the Port Phillip District of New South Wales did not like being governed from Sydney. They thought that Sydney-siders knew as much about them and their wishes as people in London. So they nominated as their candidates the Duke of Wellington, Lord Palmerston, Lord Brougham and Earl Grey, electing Earl Grey on 20 July 1848. Despite never visiting Australia, Earl Grey, who was Secretary of State for the Colonies, was a Member of the NSW Legislative Council until November 1850, when his seat was vacated due to his failure to attend a sitting. The Sydney Morning Herald criticised the ‘flagitious mockery of the Port Phillip voters’ in electing the Earl and suggested that they be whipped for trifling with the solemn duties imposed upon them by their country. But they were successful in making their point. Earl Grey responded in 1850 by the enactment of legislation to separate the Port Phillip District from New South Wales, creating the State of Victoria and permitting it to have its own Parliament.
Julian Assange’s proposed nomination for the Australian Senate is just as much a political statement and just as controversial. Unlike the 1840s, Australia now has far more rigorous laws and constitutional provisions concerning the election of candidates. Even if Assange can rely on the continuing ‘flagitious mockery’ of Victorian voters in electing him, he also has legal and constitutional barriers to surmount.
The first hurdle is the validity of his nomination. The initial problem faced by Assange was that he had lived overseas for many years and was not on the Australian electoral roll. To be nominated, a person must be at least 18 years old, an Australian citizen, and on the electoral roll or qualified to be on it. He could enrol as an ‘eligible overseas elector’, but only within three years of ceasing to reside in Australia and only if he intended to return within six years of departing. Biographical material on Assange, which may not necessarily be accurate, suggests that he ceased to reside in Australia as long ago as 2007, meaning that any such application would be out of time.
Assange’s application for enrolment is apparently based upon the fact that he returned to Australia to visit his mother in June 2010. He appears to be claiming to have ‘ceased to reside’ in Australia in 2010. There is a significant difference, however, between visiting Australia and ‘residing’ in Australia. In order to have ‘ceased to reside’ in Australia, Assange would need to show that he was actually residing in Australia in 2010. That would normally involve residence for a period (usually at least a month) and some evidence that it was his principal place of abode, not just a holiday visit. For example, when it was alleged that a Christian Democrat candidate could not fill a casual vacancy in the NSW Legislative Council because he really resided with his family in Queensland and was not validly on the NSW electoral roll, he had to show evidence that he actually lived in his rented accommodation in New South Wales, including utility bills and evidence of the movement of furniture to his new residence. It is unknown whether Assange would be able to produce such evidence.
The fact that the Electoral Commissioner ‘accepted’ his enrolment is not significant. The Electoral Commission is extremely limited in its power to reject enrolments. Section 172 of the Commonwealth Electoral Act provides that ‘a nomination shall be rejected by the officer to whom it is made if, and only if, the provisions of section 166, 167, 170 or 171 have not been complied with in relation to the nomination’. The nomination can therefore not be rejected on any other grounds. The critical provision is s 170. It provides that a nomination is not valid unless the person nominated declares that he or she is qualified under the Constitution and the laws of the Commonwealth to be elected as a Senator. Hence, if Assange made such a declaration and complied with all the other requirements for nomination set out in those sections, the Australian Electoral Commission would not be entitled to reject his nomination, even if his declaration was incorrect. This was confirmed by Justice Dawson in Sykes v Australian Electoral Commission (1993) 115 ALR 645, where he stated at 649 that the officer to whom the nomination is made is not required to determine whether the person nominated is actually qualified – only that the relevant declaration has been made.
The real question, therefore, is not whether Assange’s nomination was ‘accepted’, but only whether anyone will challenge the validity of his nomination or election in the courts on the ground that he is not qualified under the Constitution or a Commonwealth law. If so, the question of establishing his ‘residence’ will be crucial.
If Assange were elected, there are other possible grounds upon which his election might be held invalid. For example, there is a constitutional prohibition upon the election of a person who is ‘under any acknowledgment of allegiance, obedience or adherence to a foreign power’ or who is ‘entitled to the rights or privileges of a subject or a citizen of a foreign power’. It is unclear what Assange’s relationship with Ecuador is and whether it would result in a violation of this constitutional provision.
Assange’s election could be challenged within 40 days of the election by any candidate or person qualified to vote at the election. The challenge could only be brought before the Court of Disputed Returns (which is the High Court). The Electoral Commission also has the power to dispute an election. The Court would have the power to declare that he was not duly elected or that the election was void. The decision of the Court is final.
If no such challenge is made within the requisite time, the Senate may also refer any question about the qualification of a Senator to the Court of Disputed Returns. This can occur at any time within a Senator’s term.
If a court were to hold that Assange’s election was invalid, then his political party would not be entitled to choose a replacement for him. His election would be held void, resulting in a recount of votes to ascertain the person next entitled to election as a Senator. This approach was taken by the High Court in In Re Wood (1988) 167 CLR 145. Senator Wood was not an Australian citizen at the time of his election. The High Court held that he had therefore not been duly elected and that the election was void, rather than there being a casual vacancy.
If, on the other hand, Assange was validly elected but could not take up his seat for fear of arrest, then he could resign and his resignation would be treated as a casual vacancy. His seat would then be filled at a joint sitting of the Victorian Parliament by a person of the same political party. If Assange didn’t resign, but did not attend the Parliament, he would face two constitutional problems. First, s 42 of the Constitution provides that every Senator ‘shall before taking his seat make and subscribe before the Governor-General… an oath or affirmation of allegiance’. If he did not attend Parliament to make the oath, he could not ‘take up’ his seat. Further, s 20 of the Constitution states that the ‘place of a senator shall become vacant if for two consecutive months of any session of the Parliament he, without the permission of the Senate, fails to attend the Senate’. If Assange did not attend within that period, he would meet the same fate as Earl Grey, with his seat being vacated. The House of Representatives did once give leave of absence to a Member of Parliament, Mr Adair Blain (known as ‘Chill’), who was elected while being held a prisoner of war during World War II. However, it is doubtful that the Senate would treat self-inflicted incarceration in the Ecuadorian Embassy to avoid arrest on the same level as being held involuntarily as a prisoner of war while serving his country.
Finally, it is worth noting that if Assange walks out the door of the Ecuadorian Embassy as an Australian Senator, this would not give him any immunity from arrest on criminal charges. While some degree of immunity protects Senators from obligations to attend court during and immediately before and after parliamentary sitting days, it does not extend to immunity from arrest on criminal charges, such as the breach of bail conditions. No Australian politician is above the law, even though some seem to regard themselves as beyond its reach. This is something that one might imagine Wiki-Leaks would applaud.
A shorter version of this post was first published in The Spectator – Australia, 20 April 2013, p vii.

The recent death in an Israeli prison of an Israeli-Australian citizen, Ben Zygier, has escalated into a multidimensional drama. Claims of spying and counter-spying, speculations about Zygier’s plans and their potential to damage Australian-Israeli relations, have multiplied. Allegations of anti-Semitic motives on the part of critics of Israel’s response face allegations of Israeli complicity in Zygier’s death.
In its latest iteration, the drama has moved beyond the particular, and reached into the policy of dual citizenship for Australians. More than one commentator has suggested that dual citizenship should be questioned and perhaps ruled out, in cases where the Australian citizen works for the secret service or even just the government of another country. Some have implied that dual citizenship as such should be reconsidered.
These are knee-jerk responses. Apart from their impracticality, they overlook a long and cautionary history surrounding citizenship laws. It was not until well after the Second World War that dual nationality was accepted by the international community, and then, in many countries, only reluctantly, and in some still not at all. Before then, embarrassments in diplomatic relations, the threat of divided allegiance in wartime, and the principle of single family citizenship were regularly advanced as reasons against permitting what was then called ‘double nationality’. This policy produced many hardships for individuals. Persons who had acquired citizenship by the accident of birth in a country that practiced the jus soli rule (for example, Britain and its Dominions until relatively recently, and the United States, still, as guaranteed by the Fourteenth Amendment) found themselves unable to acquire the citizenship of the country in which they lived, and, as aliens, were consequently denied the rights and security of abode that come with citizenship. Refugees, driven by crisis or persecution, were unable to take the citizenship of their country of refuge or were forced to abandon their former citizenship and therefore, in many cases, their right eventually to return home.
Under the laws of virtually every country in the world (including Australia and, notwithstanding its apparent constitutional guarantee, the United States), between the mid-nineteen century and the mid-twentieth century, women who married foreign men were automatically stripped of their citizenship, in part because it was assumed that they would acquire their husband’s citizenship, and dual nationality was not permitted. Where new citizenship was not acquired, the women were rendered stateless – one of the most pitiable experiences a human being can suffer. Countless other hardships were produced, for example, for women who were deserted by their husband, who, even in their own country, could not regain their former citizenship and, thus, were condemned to live as aliens. The decades-long campaign against these laws was finally successful, with the UN Convention on the Nationality of Married Women in 1958, but its success depended in significant part on the willingness of countries to accept dual nationality.
We recognise, today, that dual nationality is a matter of considerable convenience in the lives of those many who live and work in more than one country, that it facilitates commerce and is an core aspect of globalisation. We also need to remember that the denial of dual citizenship would have commensurable negative consequences, and would create problems going well beyond the scale of anything at issue in the Zygier case.
The constitutional framework needs to be understood. Australian citizenship is not guaranteed or defined under the Constitution, but the Commonwealth parliament has the power, under the ‘Naturalization and aliens’ provision (section 51 (xxix) ) to pass laws with respect to the acquisition of citizenship and governing the conditions on which it can be held. Australia did not permit dual nationality until 2002 (much later than most ‘western’ countries). Before then, an Australian who was naturalized in another country (or who automatically acquired a foreign citizenship, for example, by marriage) lost their Australian citizenship. Those who acquired Australian citizenship by naturalization were, however, able to hold more than one. While the Australian naturalization oath for a time required ‘new Australians’ to renounce their former nationality, it had no such legal effect. Australia could not control whether the laws of other countries did or did not permit their citizens to hold another nationality. The naturalization oath today requires a pledge of loyalty to ‘Australia and its people’; that loyalty does not have to be exclusive, nor can Australia, in practice, require it to be.
Those who are currently suggesting that Australia should reconsider its approval of dual citizenship overlook the fact that it can be acquired by naturalization, as well as by birth and parentage. It would be a dramatic, and internationally-questionable step to offer naturalization only to those immigrants who had, prior to the ceremony, legally renounced their former citizenship, rendering themselves, for a time at least, stateless. It would also be irrational to deny dual nationality to Australians by birth or parentage for fear of hostile allegiances, but not to those who acquired Australian nationality by naturalization. No one, surely, is arguing that naturalization should be prohibited.
The Constitution does include a provision in which issues of dual nationality and allegiance are addressed. Section 44 (i) disentitles a person who is ‘under any acknowledgment of allegiance, obedience, or adherence to a foreign power, or is a subject or a citizen … of a foreign power’ from standing as a candidate for either House of federal Parliament. The High Court held in Sykes v Cleary in 1992, that this extended to dual citizens and had the purpose, in the words of Justice Deane, of ‘prevent[ing] persons with foreign loyalties or obligations from being members of the Australian Parliament.’ The 1890s Federal Convention debates reveal that the concern of the framers of the Constitution was primarily with the possibility that Members of Parliament might, during wartime, hold loyalties to an enemy state. The High Court concluded that dual citizens wishing to stand for Parliament needed to take every available step to divest themselves of their non-Australian citizenship.
This may be hard on individuals who stand but are not successful, and who find themselves, thereafter, deprived of the second (or more) citizenship they once held. But, it is limited and proportionate, and serves a clearly-defined purpose. Whatever the hardship, it can be assumed that the prospect of a seat in Parliament has been weighed against the loss of citizenship status. But, in no case, does the Constitution force an individual to renounce his or her citizenship for other reasons. Nor does it require or even assume a policy of single Australian nationality or a demonstration of exclusive allegiance. This, too, should be remembered by those who are currently over-excited by the citizenship implications of the Zygier affair.

The storm of protest that greeted the Commonwealth’s Exposure Draft of the Human Rights and Anti-Discrimination Bill last month was just the latest affirmation that rights instruments, whatever their form, are inherently controversial. We tend to think of Americans and their Bill of Rights as joined at the hip, but let’s not forget that the U.S. Constitution’s framers decided against one in 1787, setting off an intense political debate before the first ten amendments were ratified in 1791. More than two centuries later, bills of rights and controversy still go together. And so it has proved in the United Kingdom, where, just before Christmas, the Commission on a Bill of Rights released its much-anticipated report: two volumes, entitled ‘A UK Bill of Rights? The Choice Before Us.’
The appointment of the Commission in March 2011, ten months after the election of the Conservative – Liberal Democrat coalition government, followed a history of inconclusive inquiries and official reports: a Labour Green Paper in 2007 which proposed developing a British statement of values and a British ‘Bill of Rights and Duties’; an all party parliamentary Joint Committee on Human Rights whose report in 2008 was entitled ‘A Bill of Rights for the UK?’; a second Green Paper, in 2009, on ‘Rights and Responsibilities.’ All were careful and dispassionate in tone, but in the background loomed a long-running, angry debate over the respective rights of prisoners, accused persons, asylum seekers, terrorist suspects and members of minorities, against the rights of the general public. In simple terms, the antagonists saw each other as either too soft or too hard on rights, as bleeding-heart liberals or cruel-hearted conservatives. The UK Human Rights Act (1998), the European Convention on Human Rights and the rulings of Strasbourg provided the libretto.
The Conservative Party’s 2010 Election Manifesto had included a pledge: ‘To protect our freedoms from State encroachment and encourage greater social responsibility, we will replace the Human Rights Act with a UK Bill of Rights.’ But the realities of coalition with the Liberal Democrats saw the Commission’s terms of reference confined to investigating the creation of a UK Bill which incorporated and built on the European Convention, while examining the operation of the Convention and consulting widely (including with the devolved governments) and considering ways of promoting a better public understanding of Britain’s rights obligation. Whether the existing Human Rights Act should be jettisoned was a secondary consideration.
In the eyes of many, the task was doomed from the start. The Chair, Sir Leigh Lewis, alone was a self-declared neutral, but the eight commissioners, appointed by the Minister for Justice and the Deputy Prime Minister, personified the lines of division: variously, champions of UK parliamentary sovereignty or the European Court, universal human rights or distinct national rights, together on the same platform. At times at least, each side appeared to believe that the other was getting the more sympathetic hearing. One of the commissioners resigned in early 2012, publicly claiming that the goal of repatriating rights from Europe to the UK parliament had been sidelined. Two members, Helena Kennedy and Philippe Sands, wrote a minority report, ‘In Defence of Rights’, which they re-published in the London Review of Books in January this year, claiming the opposite.
The Commission’s Report begins ominously, with the admission that, unlike many government commissions, the members already had ‘well defined views on the protection of fundamental rights.’ A tone of weariness pervades what follows: two volumes of summaries of conflicting views and surveys of how things are done in other countries. It comes as no surprise that the sole decision was to delay deciding. The impact on the devolved governments of any changes, it was agreed, needed further consideration and nothing could be done before the Scottish independence referendum in 2014. After that, a Constitutional Convention should be held. The Commission itself was wound up. The Report’s title captured the moment: no conclusions, only ‘choices’, and these remained to be made.
The likelihood that time and the referendum result will blur the lines of disagreement seems small. The minority report’s re-publication was accompanied by its authors’ observation that the circumstances of the Commission’s appointment ‘were not auspicious’; the composition (unimaginable in an Australian analogue) – all white, all men except for Kennedy herself, and ‘almost all lawyers and London-based’ – had undermined its legitimacy from the start. The conservative government, Kennedy and Sands wrote bitterly, had always been committed to ‘tearing up’ the UK Human Rights Act, which many Tories saw as ‘little more than a charter for foreign terrorists and local criminals.’
The Report itself is more courteous. The commissioners, it notes, had treated each other’s views with respect, and their most significant source of disagreement was over how ‘creative’ the courts should be in applying existing rights (not a small disagreement, it must be said). Nevertheless, it regretted that public debate had too often been characterised by ‘polarised and sometimes exaggerated polemic’; cases involving extraditions or deportations had attracted particularly high levels of media attention; ‘stereotypes and caricatures’ abounded. In the Report’s melancholic words: ‘Into such waters was the Commission launched.’
The sense of déjà vu is strong, at least for those who took part in Australia’s National Human Rights Consultation and the debate following its 2009 proposal that the Commonwealth should adopt a UK style Human Rights Act. The only real surprise was the relatively small number of ‘substantive’ submissions received by the Commission (around 1,000, out of a population of more than 63 million). Perhaps, however, rather than lack of interest, this may have indicated the complexities involved. Among those who responded to the public consultations, some thought that the UK Human Rights Act should not change because they feared getting something worse; others because they were happy with it; some thought it should be amended to reduce the rights it protects and others to enlarge them; still others thought a British Bill of Rights should replace it for similarly negative or positive reasons; some wanted the Act, or a new Bill, to be supplemented with a special Bill for Northern Ireland, and so on. The permutations were exhausting even to a Bill of Rights junkie.
In the end, the schisms seemed unbridgeable: between those who wanted more justiciable and legally-enforceable rights (socio-economic rights, in particular, such as education and housing) or more powerful judicial review, and those who wanted the courts to play a more restricted role in rights enforcement or to butt out altogether; between those who have faith in the courts and those who have faith in parliamentary processes; between those who wanted greater internationalisation, and those who wanted less.
Three ‘lessons’ for Australians emerge. First, public confusion about what’s at stake in adopting or declining a national bill of rights happens in other countries too. The first task of any government wanting to understand why ‘stereotypes and caricatures’ abound is to recognise this. It was evident to me, as an outsider attending the Charter 88/IPPR Constitutional Convention in Manchester back in 1991 (at which a Bill of Rights was promoted as a panacea for virtually all of Britain’s social ills), that aspirations and legal capacity are not comfortable partners. Then, during a sabbatical semester in London in 2009, as well as on my many visits over the years, I learned that ‘ordinary’ Britons – even well-educated ones – do not understand, for example, the precise differences between the UK Human Rights Act and the European Convention; between the European Union and the Council of Europe; between judicial review of legislation and judicial enforcement of laws; between international law and foreign law.
Analogous confusions can be found in Australia, although there are also important contextual differences. Unlike in Britain, where it has happened many times, Australia has never experienced a direct terrorist attack; Australian law is not subject to the supervision of an extra-territorial court; it is also geographically more isolated. The stakes are higher and the fear more present in Britain. It would be easy to overlook this in assessing the public mind or taking a position on what Kennedy and Sands call the ‘delusional idyll’ of an earlier age of national sovereignty.
Secondly, debates about rights are complicated, because the issues themselves are complicated. Rights, as the famous expression goes, ‘collide’, and so do views about their protection. No one should be surprised. One of the virtues of a democratic system is its encouragement of alternative perspectives and debate. While the issue of whether to renovate or replace the UK Human Rights Act needs to be settled at some time, the UK Commission should celebrate the diversity of views it drew forth (as Australia’s parallel debates have done), rather than regret it.
Thirdly, all those in Australia who, during the debate on the proposed Human Rights Act, worried about our ‘pariah’ status and lamented that Australia, alone in the democratic world, lacked an entrenched bill of rights, should take heart. The British feel similarly about themselves! Despite its long tradition of parliamentary democracy, it sees itself – so we learn from the Report – as standing alone among the democracies without a written national constitution in which rights can be entrenched. Even Australia comes out clean in comparison. Indeed, Australia’s lacuna is scarcely noticeable, at least to the British. Australia is barely on the radar. The Commission’s Report contains a lengthy survey of the constitutions of democratic countries and their rights protection regimes. A team of top UK Post-Graduate students, we learn, was enlisted to help with the relevant research. They would have done better to shoot off a couple of emails. The survey of our constitutional rights is confused and incomplete, and it is almost amusing to find that Australia’s Constitution Act is dated 1960 – not just once, as might happen with a typo, but twice, clearly and unambiguously. If we are fretting about how the world sees us, we can relax. Even the country whose parliament passed our Constitution Act in 1900, hasn’t noticed.

While royal babies largely fall within the domain of gossip magazines and ‘celebrity’-worship, the impending birth of a child to the Duke and Duchess of Cambridge has also given birth to fascinating constitutional debates in the various Realms (being the countries of which Queen Elizabeth II is Sovereign). Agreement to change the rules of succession to the throne was relatively easily reached, in principle, in Perth at CHOGM in October 2011. Implementing that agreement has proved vastly more difficult. In Australia, Queensland has objected to the Commonwealth’s proposed legislation, not because it objects to the potential outcome in relation to royal succession, but because it is concerned that such a law will subordinate the State Crown to Commonwealth control.
The Canadian Bill
Canada, too, has its own federal problems with Quebec. The way it has sought to resolve them is, to a constitutional lawyer, quite bizarre. The Canadian approach appears to be either constitutionally invalid (purporting to return Canada’s Constitution to a pre-patriation position) or completely ineffective. Instead of enacting changes to the law of succession as it applies in relation to the Crown of Canada, it has instead introduced a Bill which merely assents to the British Succession to the Crown Bill 2013, as if the British can still legislate in relation to Canadian constitutional arrangements. Not even the British would still purport to have the power to do this. The Explanatory Notes to the British Bill make clear that it only applies to the United Kingdom, British Crown Dependencies and British Overseas Territories. It does not purport to apply to any other Realm.
The Succession to the Throne Bill 2013 (Canada) has only one substantive provision, which states:

The alteration in the law touching the Succession to the Throne set out in the bill laid before the Parliament of the United Kingdom and entitled A Bill to Make succession to the Crown not depend on gender; to make provision about Royal Marriages; and for connected purposes is assented to.

Hence, all that the Canadian Bill appears to do is to agree to a change in the law of succession in relation to the British Crown that does not in any way affect, or purport to affect, the succession to the Crown of Canada. The consequence would be that if the eldest child of the Duke and Duchess of Cambridge was a girl and a later child was a boy, the girl would become Queen of the United Kingdom and the boy would become King of Canada (assuming that neither jurisdiction had become a republic by that time).
Even more strange is the fact that the Canadian Government contends that this Canadian Bill, assenting to the alteration in the law made by the UK Bill, would have the effect of changing succession to the Crown of Canada. This is despite the fact that the UK Bill does not purport to apply to Canada and that s 2 of the Canada Act 1982 (UK) expressly provides that UK legislation can no longer apply in relation to Canada.
The most plausible argument that could be made to support this outcome would be that the Canadian Constitution requires that the person who is Sovereign of the United Kingdom be the Sovereign of Canada. Such an argument might have been based upon s 2 of the British North America Act 1867 (Imp) which previously stated that the provisions of that Act referring to the Queen extended to ‘the Heirs and Successors of Her Majesty, Kings and Queens of the United Kingdom of Great Britain and Ireland’. That provision was repealed, however, in 1893. The equivalent provision remains as covering clause 2 of the Commonwealth of Australia Constitution Act 1900 (Imp). Nonetheless, three Justices of the High Court of Australia, in the case of Sue v Hill (1999) 199 CLR 462, [93], rejected the notion that this meant that any change in the British laws of succession would affect the succession to the Australian Crown. Chief Justice Gleeson and Justices Gummow and Hayne observed that only Australian legislation could change the rules of succession to the throne with respect to Australia and that a change to the British law could have no effect in Australia since s 1 of the Australia Acts 1986 (UK) and (Cth) came into force. Section 1 of the Australia Acts states that no Act of the Parliament of the United Kingdom shall extend, or be deemed to extend, as part of the law of Australia. Likewise, s 2 of the Canada Act 1982 provides:

No Act of the Parliament of the United Kingdom passed after the Constitution Act, 1982 comes into force shall extend to Canada as part of its law.

It would therefore seem to be abundantly clear that a Canadian law that simply ‘assents’ to a British law that changes succession to the British throne, does not and cannot affect succession to the throne of Canada.
Canada and the role of the Provinces in constitutional amendment
So why have the Canadians taken this course and on what conceivable basis could it be argued to be effective? The ‘why’ is pretty easy to identify – fear of dealing with the Provinces. Section 41 of the Constitution Act 1982 (Can) states that an amendment to the Constitution of Canada in relation to ‘the office of the Queen’ can only be made by the proclamation of the Governor-General where authorized by resolutions of the Canadian Senate, the Canadian House of Commons and the legislative assembly of each Province. If s 41 applied to any Canadian legislation changing the rules of succession to the Canadian throne, resolutions of the legislative assembly in each Province, including Quebec, would therefore be required. While in Australia, it is currently proposed that each State Parliament will pass legislation requesting the enactment of Commonwealth legislation concerning succession to the Australian throne, the Canadian Government has balked at this prospect.
It is not overwhelmingly clear that s 41 would apply to Canadian legislation concerning succession to the Canadian throne. This is because it is not clear whether (a) such legislation would be an amendment to the ‘Constitution’; and (b) whether such legislation relates to the ‘office of the Queen’. [For a more detailed discussion in an article from which this blog is drawn, see: A Twomey, ‘Changing the rules of succession to the throne’ [2011] Public Law 378.]
The only judicial authority on the subject is that of the Ontario Superior Court of Justice in O’Donohue v Canada (2003) 109 CRR (2d) 1, which concerned a challenge to the law of succession to the throne on Charter grounds. Justice Rouleau decided that the matter was not justiciable because although the rules of succession were not part of the written Constitution of Canada, they were ‘part of the unwritten or unexpressed constitution’ and were therefore not subject to the Charter. Justice Rouleau also suggested at [33] that if the rules of succession with respect to the Queen of Canada were to be changed in Canada (by a court or Parliament) this would ‘bring about a fundamental change in the office of the Queen without securing the authorizations required pursuant to s 41 of the Constitution Act 1982.’ While these statements were merely obiter dicta, they are enough to suggest that it is plausible that s 41 might require the agreement of all Provinces to changes to the law of succession to the Crown of Canada, although there are also good arguments for the opposite view.
Canada and the Statute of Westminster
In order to avoid facing that federal problem, the Canadian Government has instead reverted to the position prior to the patriation of the Canadian Constitution when the United Kingdom could still legislate for Canada.
Prior to the enactment of the Statute of Westminster in 1931, the United Kingdom Parliament had full power to legislate in a manner that bound its Dominions (including Australia and Canada) by laws of paramount force. Section 2 of the Statute of Westminster removed the ‘paramount force’ of such laws by permitting their local amendment or repeal and s 4 limited the future extension of British laws to the Dominions to cases where the Dominion had requested and consented to such an enactment. Section 4 provided:

No Act of Parliament of the United Kingdom passed after the commencement of this Act shall extend, or be deemed to extend, to a Dominion as part of the law of that Dominion, unless it is expressly declared in that Act that that Dominion has requested, and consented to, the enactment thereof.

While sections 2 and 4 immediately applied to Canada when the Statute of Westminster came into force, they did not apply to Australia, New Zealand or Newfoundland until adopted by the Parliament of the relevant Dominion. Because of this disparity in application, the recitals in the preamble to the Statute also provided in paragraphs 2 and 3 that:

it would be in accord with the established constitutional position of all the members of the Commonwealth in relation to one another that any alteration in the law touching the Succession to the Throne or the Royal Style and Titles shall hereafter require the assent as well of the Parliaments of all the Dominions as of the Parliament of the United Kingdom.

…it is in accord with the established constitutional position that no law hereafter made by the Parliament of the United Kingdom shall extend to any of the said Dominions as part of the law of that Dominion otherwise than at the request and with the consent of that Dominion.

As Wheare has noted, these recitals and provisions declare three conventions and a legal requirement. These are as follows:
1. Dominion legislation that alters the law touching succession to the throne requires the assent of the Parliaments of the United Kingdom and other Dominions (preamble, paragraph 2 – convention);
2. United Kingdom legislation that alters the law touching succession to the throne, whether or not it is intended to extend as part of the law of the Dominions, requires the assent of the Parliaments of the other Dominions (preamble, paragraph 2 – convention);
3. United Kingdom legislation that alters the law touching succession to the throne and which is intended to extend to any Dominion, as part of its law, requires the request and consent of that Dominion (preamble paragraph 3 – convention); and
4. United Kingdom legislation that alters the law touching succession to the throne shall not extend, or be deemed to extend, to a Dominion as part of its law, unless it is expressly declared in that Act that the Dominion has requested, and consented to, its enactment (section 4 – legal requirement).
Underlying these interconnected provisions is the assumption that a Dominion may itself change the rules of succession to its own throne (because it could now legislate in a manner that was contrary to British laws, such as the Act of Settlement, that had previously applied by paramount force). If so, the Dominion should, by convention (but not as a legal requirement), seek the assent of the UK Parliament and other Dominion Parliaments. Equally, the UK Parliament could seek to change the law of succession with respect to the British throne only, in which case it should seek the assent of the Dominion Parliament. However, the UK Parliament could also change the law of succession so that it also applied to all the other Dominions as well as the United Kingdom. In those cases where s 4 of the Statute of Westminster had not yet been adopted, the third paragraph of the preamble set out a convention that it would only do so at the request and with the consent of each relevant Dominion. Where s 4 did apply, there was a legal requirement that such an Act not be deemed to extend to a Dominion as part of its law unless it was expressly declared in the Act that the Dominion has requested and consented to its enactment.
The abdication of Edward VIII in 1936 and the need to exclude him and any children he might have had from the line of succession, meant that these conventions and laws had to be put in practice. Canada, New Zealand and Australia sought to have the British law extend to them as part of their own laws. The Statute of Westminster applied in full to Canada, so conventions 2 and 3 and legal requirement 4 applied in its case. The consent and request of Canada to the enactment of His Majesty’s Declaration of Abdication Act 1936 was given by way of executive order in council on 10 December 1936 and recorded in the preamble to that Act (satisfying convention 3 and legal requirement 4). In order to meet the parliamentary assent requirement of convention 2, the Canadian Parliament later enacted the Succession to the Throne Act 1937 (Canada). It provided that:

The alteration in the law touching the Succession to the Throne set forth in the Act of the Parliament of the United Kingdom intituled “His Majesty’s Declaration of Abdication Act, 1936” is hereby assented to.

It is this provision upon which the 2013 Canadian Bill is modeled, despite it only forming a negligible part of Canada’s response to the 1936 abdication and despite subsequent constitutional changes, including the 1982 repatriation of the Canadian Constitution.
Section 4 of the Statute of Westminster had not yet been adopted by Australia or New Zealand in 1936, so it was not necessary to gain and record their request and consent for the UK law to extend to them. It extended to Australia and New Zealand of its own force without any further legal steps. Assent, under convention 2, and its mention in the preamble to His Majesty’s Declaration of Abdication Act 1936 (UK), was regarded by R T E Latham as a ‘matter of courtesy’. Australia’s Parliament was the only Dominion Parliament to indicate its assent prior to the enactment of His Majesty’s Declaration of Abdication Act. It did so, however, by way of resolutions of each House, rather than legislation, because of doubts as to whether there was a constitutional head of power that would support the enactment of legislation. New Zealand indicated its assent in advance by way of executive act, but later passed a parliamentary resolution in each House which ‘ratified and confirmed’ that assent for the purposes of convention 2. It appears that neither Dominion formally requested and consented to the enactment of the British Act, in accordance with convention 3 (although this might be implied from its assent).
As His Majesty’s Declaration of Abdication Act 1936 (UK) extended as part of the law of Canada, Australia and New Zealand as well as the United Kingdom, the effective date of the abdication in those four countries was the date of commencement of that Act, 11 December 1936, rather than 10 December, which was the day on which Edward VIII signed his declaration of abdication. The other Dominions of South Africa and the Irish Free State did not wish the British Act to apply to them. South Africa gave an initial executive ‘assent’ prior to the enactment of the British law, but then later enacted its own law, His Majesty Edward VIII’s Declaration of Abdication Act 1937. It gave parliamentary assent to the British law (in accordance with convention 2), but then enacted the changes itself as part of South African law and dated the abdication back to 10 December, being the day on which Edward VIII signed the instrument of abdication. The Irish Free State did not assent to the British Act at all. It enacted its own law, the Executive Authority (External Relations) Act 1936, implementing the abdication and changing the laws of succession to the throne on 12 December 1936. The abdication therefore took effect in the Irish Free State on 12 December 1936.
The consequence was that there were different Kings in different Dominions during the period 10-12 December 1936 marking the divisibility of the Crown in the personal, as well as the political, sense. As Wheare described it, the Commonwealth was ‘partly dismembered’ during this period.
The relevance of the Statute of Westminster today and the effectiveness of the Canadian Bill
The important lesson for the purposes of the current Canadian exercise is that the parliamentary assent, given pursuant to convention 2, only had the effect of making the change in royal succession applicable to a Dominion where that Dominion was still subject to the paramount legislative power of the Westminster Parliament (because it had not yet adopted s 4 of the Statute of Westminster). In the case of South Africa, to which the Statute of Westminster fully applied, assent under paragraph 2 of the preamble did not apply the British law to South Africa or in any way affect succession to the Crown of South Africa. It was simply a matter of courtesy. South Africa had to enact its own law to apply the change to South Africa (as it did). Alternatively, it could have taken the Canadian path of requesting and consenting to the application of the British law to it, as Canada did by way of executive order-in council. This was possible because of the application of s 4 of the Statute of Westminster.
The history of the Statute of Westminster and its application clearly shows that the proposed 2013 approach by the Canadian Parliament of simply assenting to the British Bill will not have the effect of applying the relevant change to the Crown of Canada.
Moreover, s 4 of the Statute of Westminster has now been repealed with respect to Canada (Constitution Act 1982 (Canada), s 53 and Schedule, item 17) and the United Kingdom can no longer legislate for Canada (Canada Act 1982, s 2). It is therefore extremely difficult to see how the UK changes to the rules of succession can apply with respect to the Canadian Crown and how the Succession to the Throne Act 2013 (Can) could achieve that outcome, unless Canada was to revert to its pre-patriation and pre-Statute of Westminster position of being subject to British laws of paramount force.
Conclusion
It is likely that the Canadian Government took the gamble of this approach in order to avoid the hassle of obtaining the agreement of the Provinces while banking upon the likelihood that no one would have the standing or motive to challenge it. Moreover, if the Duchess of Cambridge has a first-born son, it will avoid the problem of having a female monarch of the United Kingdom and a younger brother who becomes the monarch of Canada. Hence, the chances of getting by with such a constitutionally shoddy arrangement are reasonable.
Nonetheless, it shows a disappointing lack of understanding of the Crown and its divisible nature and a willingness on the part of Canadian politicians to sacrifice Canadian independence to avoid having to engage with the Provinces.

(An edited version of this entry appears in The Conversation, 24/1/13)
Australia lacks a national bill of rights and the many attempts of Labor Governments over the years to adopt one – whether statutory or constitutional – have failed. But Australia already has a raft of human rights laws, including many anti-discrimination Acts. The Gillard government has now turned to these Acts, proposing their consolidation into a single Human Rights and Anti-Discrimination Bill. The government’s stated aim is to harmonise and simplify the law, and to facilitate compliance. That the existing Acts have created a complicated, sometimes inconsistent, rights landscape is not open to doubt. But, many who campaigned in 2009-10 against the Human Rights Act that was proposed by the National Human Rights Consultation Committee and reluctantly abandoned by the government, will be scrutinising this new Bill for signs that it is intended as a surrogate.
The Bill, indeed, goes further than simply bringing the existing Acts together. No one should be surprised that it is already deeply controversial. Among the hundreds of submissions on the ‘Exposure Draft’ that have been received by the Senate’s Legal and Constitutional Affairs Committee, many have raised objections, including about the Bill’s constitutional validity.
The legal issues are complex, but there is some relief, at least, for those who fear a ‘back-door’ bill of rights. Debate about the desirability of a bill of rights is rarely about whether ‘rights’ should be protected. Mostly, it is about the recognition of particular rights, and, in particular, about who should enforce them. Bill of rights opponents (like myself) rarely oppose the legal protection of rights but, rather, resist the idea of rights-based judicial review; that is to say, the power of courts to determine whether legislation, as such, is rights-compliant. They believe that parliament should make the law without courts looking over its shoulder, and that the courts should enforce the law, and not decline to enforce it or declare it ‘incompatible’, because, in the judges’ opinion, it does not protect rights. Contentious legislation should be subject to political debate and, if it is objectionable, ultimately ‘sentenced’ at the ballot box.
One of the main objections to the Human Rights and Anti-Discrimination Bill is that it extends the scope of rights protection, creating, in effect, new rights. But at least it does not attempt to create a ‘superstatute’ – an Act that ‘trumps’ all other Acts. The Constitution makes Commonwealth laws override inconsistent State laws, but a ‘superstatute’ would override all other Acts or laws, including those passed by the Commonwealth parliament itself. It would effectively ‘constitutionalise’ rights, making all other laws subordinate to it, and thus subject to a judicial determination about their conformity. The creation of such an Act was probably tempting. Unique among the anti-discrimination Acts, the Racial Discrimination Act (1975) includes a provision that makes the Act prevail over all other Australian laws. The government might have generalised this provision, importing it from the Racial Discrimination Act, and applying it to all types of discrimination. It has not done so. It has included a ‘trumping’ provision in the Bill, but, as before, this is confined to laws concerning racial equality.
So, whatever the government’s intention, the Bill is not quasi-constitutional, at least not in this sense. But is it constitutionally valid? Constitutional invalidity is the ultimate trump card of a law’s opponents. Every Commonwealth Act must rest on a constitutional power. The current anti-discrimination Acts rely on the Constitution’s ‘external affairs’ power which, among other things, permits the parliament to incorporate Australia’s international treaty or convention obligations into legislation. The Bill makes it clear that this is its ‘main constitutional basis’. (It names several supplementary powers, but these are unlikely to be controversial.) The recitation of constitutional powers, however, does not make an Act constitutionally valid.
Law Professors, Nicholas Aroney and Patrick Parkinson, believe the Bill gives the Commonwealth powers that exceed what the Constitution grants. The Act’s provisions extend to persons in non-official roles (including volunteers) and even in informal settings, under the broad heading of ‘public life’. Additionally, discrimination can be claimed because a person, in public life, feels insulted or offended. School yard bullies, rude customers, gossiping employees, abusive sporting spectators, Aroney and Parkinson suggest, may become liable. But, as they know, this is not a constitutional argument.
The Bill, they add, goes beyond the terms of the human rights conventions upon which the parliament relies. Those conventions target particular ‘vertical’ conduct: that of employers, providers of services, and so on, people in positions of power. They do not require, or authorise, the regulation of all ‘public life’. Furthermore, Aroney and Parkinson say, the Bill ‘cherry-picks’ among obligations, protecting certain rights over others, whereas the conventions require implementation, and balancing, of all rights. The Bill also breaches the Constitution’s freedom of political communication, by making political opinion that offends (in a work context) a ground for alleging discrimination. (This particular argument has attracted the greatest attention in the media, and made odd bedfellows of critics across the political spectrum.) Additionally, the Bill gives excessive power to the Commonwealth, depriving the States of their constitutionally protected sphere of power.
So, are Aroney and Parkinson right? Is the Bill unconstitutional?
The High Court has overseen a significant expansion of the external affairs power over the years. Few limitations now surround what the parliament can do with this power, so long as the law in question concerns a geographically external matter. International conventions are unquestionably ‘external.’ But adherence to a convention must be bona fides; that is, not merely an excuse for expanding Commonwealth power. The latter, however, is almost impossible to demonstrate, and no Act has been struck down under that test. Furthermore, although the High Court has questioned the validity of laws relying on vague and open-ended international aspirations, it has rejected claims that all of a convention’s obligations must be included in an Australian Act or that the Act must precisely reflect the convention’s terms. Still, an Act must be reasonably appropriate and adapted to, or in conformity with, the convention upon which it relies. Aroney and Parkinson write that parts of the Bill ‘rely upon tenuous extrapolations from the texts’ of international treaties; if the Court agreed, these parts, at least, might be in doubt. The Court, however, has been fairly deferential to the parliament in identifying conformity to a convention, and in allowing the parliament to decide the manner of implementing international obligations.
International human rights conventions are not the only aspect of the external affairs power upon which the Bill relies. The Bill also states that the Act relates to ‘matters of international concern’, and ‘matters external to Australia’. These expressions are drawn from cases where legislation has been held to be valid, notwithstanding the absence of a relevant international instrument. Australia’s law that criminalises ‘sex tourism’, for example, is valid under these tests. But it will be harder to demonstrate that the regulation of Australian conduct in ‘public life’ is a matter of international concern. Again, however, no law has yet been struck down on this ground.
The current case law, it must be said, is not highly encouraging for the Aroney and Parkinson argument. They themselves describe the chance of success only as ‘not weak’. On the other hand, no constitutional power is entirely open-ended. The argument that a law giving effect to a convention cannot stray too far from the convention’s terms has a reasonable chance of success (the federalism argument is probably weaker). In the past, after decades of expansion in other constitutional powers, the Court has drawn a line. The external affairs power may now be ripe for line-drawing.
In contrast, the freedom of political communication argument is relatively strong, since the court has previously ruled against laws that inhibited political speech, even though the latter was intentionally offensive. But this would only result in the ‘severing’ or removal of the political opinion offence section from the Bill. Unless the external affairs argument succeeded, the rest would remain.
The current Court is difficult to predict. Not only has it recently enjoyed two new appointments, its record is mixed. In the recent past, it has given expanded application to the Constitution’s rights provisions. In the 2012 Schools Chaplains case, it reined in Commonwealth executive power. But, in the same year, in the tobacco plain packaging case, it rejected the argument for expanding property rights and the consequential restriction of Commonwealth power.
In any case, constitutional challenges are uncertain, time-consuming, and costly. Aroney and Parkinson make the valid point that many claims of discrimination are best handled outside the law. The same should apply to this Bill. The Bill clearly goes too far in subjecting non-coercive conduct to the courts (or the alternative dispute resolution table). Even the Australian Human Rights Commission questions the ‘offend or insult’ discrimination ground. The Attorney-General should take note of public opinion, amend the Bill, and not wait for a legal challenge. Political common sense is always preferable to litigation; it should prevail.

CRU Associate, LUKE BECK, has contributed the following post on the ramifications of the Williams case on school chaplains for the use of military chaplains by the Australian Defence Force:
You have probably heard of security contractors working alongside conventional military personnel in war zones. Well, you may also soon hear of religious contractors working with military personnel.
At the moment, the Australian Defence Force employs chaplains. They are commissioned officers of the Army, the Royal Australian Navy or the Royal Australian Air Force. According to the Defence Jobs website their work includes religious ministry, pastoral care, character training and administration and staff duties.
ADF chaplains are currently on deployment in places like Afghanistan. They obviously have a much tougher job than school chaplains do
There is also an important constitutional difference between ADF chaplains and school chaplains.
In the recent School Chaplains Case, the High Court unanimously found that the National School Chaplaincy Program did not violate section 116 – the religious freedom provision – of the Constitution. It did, however, strike down the program on the basis that it was not supported by any legislation. Parliament immediately sought to overcome this ruling by passing legislation.
If school chaplains are constitutionally okay in terms of s 116 then ADF chaplains must be okay too, right? Well, no.
The ‘religious tests clause’ of section 116 of the Constitution – which was the clause in issue in the School Chaplains Case – states that ‘no religious test shall be required as a qualification for any office or public trust under the Commonwealth.’ The High Court found that the school chaplains did not hold an office under the Commonwealth and therefore the religious tests clause did not apply.
In the School Chaplains Case, it was a case of government outsourcing. The Commonwealth paid its money to chaplaincy provider organisations. Those organisations employed chaplains and deployed them to schools. The Commonwealth had no direct relationship with the chaplains. The High Court said this meant the school chaplains did not hold an office under the Commonwealth.
It is a very different situation with ADF chaplains. They are members of the ADF just like all other military officers. They are appointed and employed directly by the Commonwealth. This would suggest that ADF chaplains hold an office under the Commonwealth.
The key question is whether ADF chaplains are subject to a religious test. In other words, is there some sort of religious selection criteria, entry requirement or condition of employment that must be met in order to become an ADF chaplain?
The answer is yes. The Defence (Personnel) Regulations 2002 set out who may be appointed as a chaplain in the ADF. The regulations say that a person must not be appointed unless ‘the person is a member of a church or faith group approved by the Religious Advisory Committee to the [ADF]’.
The Army is currently looking for chaplains. The Defence Jobs website says that a would-be chaplain in the Army must:

“Be from an endorsed denomination or faith group represented within the current religious diversity of Army personnel. These denominations are currently the Anglican Church, Catholic Church, Uniting Church, Presbyterian Church, Baptist Union of Australia, Lutheran Church of Australia, Churches of Christ, Salvation Army and Council of Australian Jewry.”

In other words, if you don’t belong to any of these religious groups there is no point in applying because you won’t get the job; you are simply not eligible.
ADF chaplains therefore appear to be unconstitutional. Or more specifically, the selection criteria for ADF chaplains are invalid because they impose a religious test for Commonwealth office.
Those criteria appear to be central to the purpose of the ADF having chaplains. The ADF wants to ensure that the religious affiliations of its chaplains mirror the religious affiliations of the ADF personnel to whom they will be providing services. As the Defence Jobs website says:

“The denominational role of the Army chaplain is to provide opportunity for Army personnel to practice their chosen religion by acts of public worship in a manner to which they are accustomed and as conveniently as can be arranged, both in peace and war.”

Simply changing the selection criteria is therefore not necessarily a workable solution to the constitutional problem.
But outsourcing chaplaincy services may well be a workable solution. The Commonwealth can get around the religious tests clause through outsourcing – the High Court said so in the School Chaplains Case.
Whether ADF chaplains get their constitutional marching orders any time soon depends on someone raising the matter in the High Court (or the Commonwealth unilaterally deciding to make changes, which seems a bit unlikely).
Luke Beck