Constitutional Critique

The following post has been contributed by TIMOTHY MAYBURY, CRU Intern:
Since the early days of the Australian federation the High Court has emphasised the importance of electors having sufficient access to information to be able to make informed and genuine choices when casting their votes in elections and referendums. In the judgment in Smith v Oldham (1912) 15 CLR 355, Isaacs J delivered the following statement of general principle:

The vote of every elector is a matter of concern to the whole Commonwealth, and all are interested in endeavouring to secure not merely that the vote shall be formally recorded in accordance with the opinion which the voter actually holds, free from intimidation, coercion and bribery, but that the voter shall not be led by misrepresentation or concealment of any material circumstance into forming and consequently registering a political judgment different from that which he would have formed and registered had he known the real circumstances.

This post examines the legal framework determining the Australian Government’s ability to engage in communication and public education strategies around federal referendums, questions whether the law remains fit for its purpose in the present day, and makes suggestions for how it could be improved.
Yes/No cases in Commonwealth referendums
The traditional Yes/No pamphlet that is printed and delivered to electors prior to a Commonwealth referendum continues to serve as the primary means via which the Government may lawfully educate voters as to the arguments for and against proposed amendments to the Constitution. This method for engaging voters in referendums has been utilised for over one hundred years without substantial modernisation – a fact that is concerning in light of advances in information and communications technology, and the now entrenched presence of social media in everyday lives.

The Yes/No pamphlet was first introduced in 1912 via the insertion of section 6A into the Referendum (Constitution Alteration) Act 1906 (Cth), which remains in force today, virtually unaltered, in the form of section 11 of the Referendum (Machinery Provisions) Act 1984 (Cth) (‘the Act’). The provision enables a majority of Members of Parliament who have voted either in support of or against a proposed constitutional amendment to prepare and authorise a written argument corresponding with their position, limited to 2000 words, to be displayed on the pamphlet.
There are key issues with the Yes/No pamphlet that pertain to both its content and its form. A number of shortcomings in these respects were highlighted in public submissions made to the House of Representatives Standing Committee on Legal and Constitutional Affairs (‘the House of Representatives Committee’) during an inquiry into the machinery of referendums conducted in 2009, and aired in its final report A Time for Change: Yes/No?.
Content
With regard to the pamphlet’s content, the prevailing challenge is how to best facilitate the public interest in ensuring enough factual and objective information is made available to voters so that they are sufficiently informed and able to make a genuine choice at the ballot box. Critics of the Yes/No pamphlet allege that not only does the method fail to achieve the educational purpose of aiding voters’ understandings of the relevant issues, it actually achieves the opposite, serving instead as a site of misrepresentation and confusion. Many put this down to the fact that the arguments for and against are prepared by Parliamentarians, ensuring that the content is often politicised and adversarial. While it is important for democracy that partisan positions are voiced, it is also important that basic facts are not obscured in the process.
To this end lessons may be learned from the California Elections Code, which establishes a process for making alterations to the Constitution of California (and implementing other state measures) that employs a Yes/No mechanism analogous to ours. In a similar manner to the Australian legislation, the Code enables members of the California State Legislature who voted in support of or against a measure to prepare, or to appoint other people to prepare, an argument corresponding with their preferred position. However, a point of difference and strength of the Californian arrangement is that these political perspectives do not form the sole source of educational information provided; they are offset by the inclusion on the Yes/No pamphlet of a statement prepared by the Legislative Analyst, a non-partisan government agency that regularly performs the function of providing fiscal and policy advice to the Legislature. The Legislative Analyst’s contribution offers a concise summary of the general meaning and effect of the ‘yes’ and ‘no’ votes on the existing law and any new legislation that is being put forth (section 9805), as well as a statement outlining any fiscal impact of the proposed measure (section 9807). The legislation requires the Analyst’s statement to employ clear and concise language avoiding use of technical terms where possible, and to “generally set forth in an impartial manner the information the average voter needs to adequately understand the measure” (section 9807(b)) (emphasis added).
A comparable arrangement that incorporates contributions of independent participants from outside of the political process is also used in New South Wales, where arguments for and against proposed amendments to the Constitution Act 1902 (NSW) are prepared by public servants and then vetted externally by experts in constitutional law in order to ensure objectivity.
Taking these and other such considerations into account, in its final report the House of Representatives Committee recommended the Act be amended to provide for the establishment at every referendum of an independent and bipartisan referendum panel with responsibility for determining communication campaign strategies and disseminating appropriate volumes of educational materials regarding proposed amendments. In 2012, the Gillard Government did not adopt this recommendation in its formal response to the Committee’s report. Although it recognised the benefits a referendum panel could provide, the Government’s position was that one could be constituted on an as-needed basis by introducing temporary measures prior to a referendum, such as those enacted for the 1999 Australian republic referendum, and as such there was no need for permanent legislation. In view of the current government’s agenda of cutting red tape and downsizing the number of public service agencies, panels and committees, it is unlikely that the referendum panel recommendation would gain any renewed traction in the present climate.
An alternative suggestion that, if adopted, would make use of current resources and public service infrastructure could be to give the Commonwealth Parliamentary Library the task of preparing additional objective information about referendum proposals which could be included along with the Yes/No cases as approved by Members of Parliament. Situated in the Department of Parliamentary Services, the Commonwealth Parliamentary Library is well placed to perform this function as its Research Branch already provides highly regarded analysis, interpretation and explanation on bills relating to all areas of public policy to senators, MPs, the Governor-General and their staffers, and as such undertakes a role in ways similar to that of the Legislative Analyst in California.
Form
With regard to form, it is important to ensure that the presentation of the Yes/No cases is accessible, logical and concise so that any voter may quickly garner a general understanding of the issues at hand, but that facilities are also provided for people who wish to learn more to easily access detailed information.
Critics of the current arrangement have taken issue with the format of the Yes/No pamphlet, noting the high likelihood that a somewhat cumbersome printed document of up to 4000 words may be overlooked by many voters who are today accustomed to receiving information at a rapid pace via a range of electronic media. Notwithstanding the Committee’s recommendation that the word limit be removed, the previous government did not support this.
In view of the preference to retain a word limit, the California comparison is again useful as the political cases that are prepared there are limited to 500 words. A shorter length has benefits as it compels the writers to be more concise, meaning that the finished product may be more likely to hold readers’ attention. Also, taking into account concerns that the adversarial nature of Australian Yes/No cases leads to the inclusion of inflammatory and misleading statements, a shorter word limit could reduce the extent, sophistication and impact of these.
Even though it is likely that more people would read the shorter version, it would of course be concerning if two 500 word arguments formed the entirety of what is presented to voters, given that the importance and complexity of issues to be considered may not be adequately dealt within such a limited space and that the degree of complexity is likely to vary from referendum to referendum. A solution could be to publish online versions of the Yes/No cases containing embedded links that direct readers who want further information to more detailed arguments. These sources could incorporate both the objective material provided by the Parliamentary Library, as well as independent research commissioned by think tanks and universities. For instance, prior to the proposed local government referendum that did not end up going ahead in 2013, both this Constitutional Reform Unit at Sydney Law School and the Gilbert + Tobin Centre for Public Law at UNSW published objective analyses on their websites. It would be helpful if perspectives such as these could be picked up and used to inform broader public opinion beyond the otherwise niche readership their platforms reach on a regular day-to-day basis.
Conclusion
In light of the Prime Minister’s recent indication that the anticipated referendum to recognise Australia’s Indigenous peoples in the Constitution may be held in 2017, the time is now ripe for ensuring that our referendum machinery legislation is up to date and fit for its purpose. Considering that the result of such a referendum will undoubtedly be of immense historical significance and bear greatly upon the nation’s identity, it is important that the Australian public is educated sufficiently to make an informed and genuine choice when votes are cast.
SUGGESTED CITATION:Timothy Maybury, ‘A Time for Change… Still: Yes/No Cases in Commonwealth Referendums’, Constitutional Critique, 9 March 2015, (Constitutional Reform Unit Blog, University of Sydney, http://blogs.usyd.edu.au/cru/).

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

CRU Associate AMANDA SAPIENZA has contributed the following post:
First came the victory, when in Pape it was held to authorise laws governing stimulus payments during the GFC. Then came the defeat, when in Williams (No 1) it was denied the capacity to authorise funding for chaplains in schools. Now non-statutory executive power (NSEP) is poised to make a comeback, in its most controversial and politically-charged instalment yet, CPCF v Minister for Border Protection and the Commonwealth. But whereas in previous cases the stakes were measured in dollar terms, this time the consequences of the alleged exercise of NSEP have a human face.
CPCF is the case currently pending before the High Court that arose out of the interception on 29 June of 157 Sri Lankan asylum-seekers outside Australia’s territorial waters (though inside its contiguous zone), detention of the asylum-seekers and their Indian-flagged vessel and the Commonwealth government’s attempt to take the asylum-seekers to India. Submissions have been filed and the case is set down for hearing on 14-15 October.
The plaintiff is ultimately making a claim of false imprisonment, arguing that the detention of the plaintiff (one of the asylum-seekers) on the Australian vessel was not authorised by law. The defendants are claiming that the Maritime Powers Act 2013 (Cth) authorised their actions. Much of the submissions of the parties and the interveners (the United Nations High Commissioner for Refugees and the Australian Human Rights Commission) deal with interesting questions of how the powers in that Act interact with Australia’s international obligations, primarily its obligation of non-refoulement under the Refugee Convention; that is, the obligation not to send a person to a place in which the person’s life or freedom would be threatened on account of his or her race, religion, nationality, membership of a particular social group or political opinion (see Art 33(1) of the Refugee Convention). Interesting administrative law questions also arise as to the permissibility of general deterrence as a purpose for taking a group of people to a place other than Australia and whether the exercise of a statutory power by a maritime officer who was following an order of the National Security Committee of Cabinet constitutes acting unlawfully under dictation.
But the case will also be of interest to constitutional lawyers because it is the latest attempt by the government to source its power to take controversial action in the NSEP of the Commonwealth under s 61. The Commonwealth parties claim that, if their actions were not authorised by the Maritime Powers Act 2013, the actions were authorised by NSEP. It is making the argument that ultimately won the day in the dispute over the Tampa affair, Ruddock v Vadarlis (2001) 110 FCR 491: that Commonwealth executive power includes power ‘to prevent the entry of non-citizens and to do such things as are necessary to effect such exclusion’ (at [193] (French J)). Indeed, the Commonwealth’s submissions are littered with references to the reasoning of then Justice of the Federal Court, now Chief Justice of the High Court, Robert French, in the Tampa decision.
The substantive issues in the Tampa decision never made it to the High Court. Vadarlis was denied special leave to appeal because, with the transfer of the asylum-seekers to Nauru and New Zealand, their detention on board the MV Tampa could no longer be challenged so the precise issues raised before the Federal Court had become moot (see generally the transcript of the special leave application). Legislation was also passed that retrospectively authorised the detention of the asylum-seekers and other acts done in connection with the Tampa affair, and made clear that the Migration Act 1958 (Cth) did not abrogate any executive power that may authorise conduct covered by the Act. The panel of justices hearing the special leave application recognised that, although events and procedural issues had overtaken the application in that matter, the validity of the retrospective legislation and the issues of executive power raised in the Federal Court were important constitutional questions which might, in an appropriate case, warrant a grant of special leave to appeal.
The mootness argument raised its head again in CPCF. Following the bringing of the plaintiff and the other asylum-seekers to the Cocos (Keeling) Islands late in July, Hayne J heard argument on whether the matter could proceed as it was then instituted: on a case stated for the Full Court on an urgent basis regarding the legality of the detention on board the Commonwealth vessel for the purpose of taking the asylum-seekers to a place other than Australian territory (see the High Court transcript from 28 July 2014). Although it is not explicit on the transcripts, it can be inferred that the parties agreed to a reformulation of the case. Besides the obvious point that CPCF is an application in the High Court’s original jurisdiction, as opposed to an application for leave to appeal from existing orders, there was another point of departure from the circumstances surrounding the Tampa special leave application that presumably made negotiating a reformulation possible. This was that the plaintiff in CPCF has actually made a claim of false imprisonment, rather than the claim in the nature of habeas corpus made in the Tampa case. So even though the challenged detention (that of the asylum-seekers while on board the Commonwealth vessel) has come to an end, the legality of that detention is very much a ‘matter’ for an exercise of federal judicial power, and not a merely hypothetical question.
Now, the High Court might get its chance to weigh in on the ‘important constitutional question[s]’ that were previously determined by the Federal Court in the Tampa matter. It may be required to decide whether the executive power invoked in that case exists, whether legislative attempts (including in the Maritime Powers Act itself) to ensure that any such executive power has not been abrogated were successful and the NSEP question hitherto untouched by the High Court: whether an exercise of NSEP is attended by an obligation to afford procedural fairness and other administrative-law style limitations.
In relation to the application of procedural fairness to exercises of NSEP, it seems that neither party is willing to argue that the chief international authority on the issue, Council for Civil Service Unions v Minister for Civil Service [1985] 1 AC 374 (CCSU) should not be endorsed and applied by the High Court. In that case, the House of Lords held that a power’s non-statutory source alone is not a reason to shield its exercise from judicial review, and it would have found that the Minister failed to afford the Council procedural fairness but for the national security context of the decision, which the Lords considered rendered the exercise of power non-justiciable. This has been applied consistently in intermediate Australian courts (as discussed here) but the High Court has never been required to decide whether to apply it. Perhaps it will be required to do so in CPCF.
The defendants argue that either obligations of procedural fairness did not attach to the power to take the plaintiff to a place outside Australia or that the circumstances of the power’s exercise reduced the content of any procedural fairness obligations to nil. The circumstances that the defendant invokes to support this argument are based on the power being one that involves ‘broad (and contentious) political considerations and matters of public policy unsuited to examination by courts, including matters of defence, border protection and international relations’ (see Defendants’ submissions para [100]).
It is arguable that this submission does not pay enough heed to modern attempts by Australian courts to decide these issues not at a high level of generality, focusing on broad subject matters, but by focusing on whether the precise issues sought to be agitated by an applicant require a court to pass judgment on matters our system of government commits to the discretion of the executive (again see here). But perhaps this will be teased out in oral submissions. Any guidance the High Court can give as to how CCSU might play out in the Australian context of s 61 executive power will be most welcome.
More controversial are the plaintiff’s submissions as to other limitations on exercise of a NSEP to exclude and, where necessary to effect that exclusion, detain, people with no legal right to enter Australia. As with the statutory power under the Maritime Powers Act, the plaintiff argues that exercise of the power is constrained by Australia’s international obligations, particularly non-refoulement. The defendants deny that the NSEP is limited by international law. The UNHCR’s proposed submissions on this point assume the existence of NSEP as claimed by the defendants. But they argue that such power is constrained by Australia’s international obligations because a power to detain and remove a person to a place to which he or she does not want to go is extraordinary and should be constrained and because, in this case, the relevant power is a power to act outside Australian territory, in an area governed by international law. The UNHCR seeks to argue that, while Parliament could make laws authorising a breach of international law, it has not done so in this case and no NSEP to breach international law exists.
More controversial still is the plaintiff’s argument for further limitations on the exercise of any NSEP to exclude and detain. Unlike the purported exercise of statutory power, which the plaintiff contends was rendered unlawful by recognised legal errors of acting under dictation and acting for an unauthorised purpose, in respect of the defendants’ reliance on NSEP the plaintiff appears to be invoking a proportionality ground of review. The plaintiff submits that commencing to take the plaintiff to a country at which the plaintiff could not lawfully be discharged took the length of detention outside the control of the Commonwealth and thus extended detention beyond what is proportionate to achieve the power’s purpose of preventing entry to Australia.
The plaintiff’s pragmatic reasons for such a submission are understandable enough: although it does not seem to have been examined in any depth in Australia, cases and academic commentary contain broad brush statements about the difficulty of applying standard administrative law grounds to an exercise of NSEP, due to the lack of statutory purpose and context from which to draw relevant limitations. However, the reliance on a proportionality argument to get around any such difficulties is novel and, dare I say, brave. Although proportionality tests are well-recognised in constitutional law jurisprudence in relation to purposive powers, they remain largely unaccepted in Australian administrative law as a ground on which to challenge executive action (at least, statutory executive action). They have come to prominence in the UK largely as a necessary by-product of that country’s incorporation of the European Charter of Human Rights by the Human Rights Act 1998 (UK) and the consequent ‘Europeanisation’ of that country’s administrative law (see M Taggart, ‘”Australian Exceptionalism” in Judicial Review’ (2008) 36(1) Federal Law Review 1, 24-26). But that context is an insufficient basis on which to transplant the concept to Australia. Perhaps a need to impose limits on exercises of NSEP will give proportionality tests an opportunity to make inroads in Australian administrative law.
Yes, CPCF has the capacity to break new ground in relation to NSEP. But before we get too excited, it’s worth recalling that the NSEP argument is only made in the alternative to the Commonwealth’s primary argument, that the action was authorised by statutory power. The transcripts and submissions all make clear that arguments about NSEP are secondary to the main game: questions of construction of the Maritime Powers Act. CPCF may well see the High Court justices doing battle on statutory construction points redolent of Al-Kateb v Godwin (2004) 219 CLR 562; namely, whether there is sufficient ambiguity in the relevant provisions of the Maritime Powers Act to warrant recourse to international obligations for its resolution. Further, the High Court has previously displayed a broad approach to determining whether executive action is sufficiently connected to a statutory power to make arguments regarding NSEP unnecessary to resolve, and a corresponding keenness to avoid the question of the application of procedural fairness to exercises of NSEP until dealing with it becomes absolutely necessary (a good example of both being the unanimous judgment in Plaintiff M61/2010E v Commonwealth (2010) 243 CLR 319).
If the Maritime Powers Act governs the matter, not only will a chance for the High Court to engage in novel analysis of the limitations on exercises of NSEP go begging, but Tampa will have to keep waiting for either its ultimate vindication or its consignment to the annals of Australian constitutional law.
SUGGESTED CITATION: Amanda Sapienza, ‘CPCF: Will Tampa finally get its day in the High Court?’, Constitutional Critique, 11 October 2014, (Constitutional Reform Unit Blog, University of Sydney, http://blogs.usyd.edu.au/cru/).

History clearly does repeat itself. After the High Court handed down Williams v Commonwealth No 1 on 20 June 2012, striking down the validity of the schools chaplaincy scheme, the Labor Government rushed through the Commonwealth Parliament, within a week, legislation that purportedly authorised hundreds of Commonwealth spending programs that had previously relied upon Commonwealth executive power for their support. It was criticised for the rashness and bluntness of this exercise and its dubious constitutional validity.
In an astonishing replication of the past, the High Court handed down its judgment in Williams v Commonwealth No 2 on 19 June 2014 and the Coalition Government rushed through the Commonwealth Parliament, within a week, legislation to preserve the provisions made in 2012 which it had then criticised, in full knowledge that these provisions will in many cases not be constitutionally effective to support all the programs that they purport to authorise. This time, however, no fuss was raised, not an eye was blinked and almost nobody noticed.
The Commonwealth’s Response to Williams No 1
Back in June 2012 the Commonwealth Parliament enacted the Financial Framework Legislation Amendment Act (No 3) 2012 (Cth). It inserted provisions, including s 32B, into the Financial Management and Accountability Act 1997. Section 32B purported to authorise the making and administering of grants and payments of public moneys that fall within classes of arrangements, grants or programs specified in the Financial Management and Accountability Regulations 1997 (Cth). The Regulations were also amended to include a list of over 400 of these arrangements, grants and programs in Schedule 1AA. They include programs covering matters such as: drought assistance, animal welfare, ‘food in the national curriculum’, community legal services, crime-stoppers, disaster resilience, school security, child care, ‘creative young stars’, youth support and seasonal workers. Included in the list was Program 407.013 – ‘National School Chaplaincy and Student Welfare Program’.
Williams v Commonwealth No 2
Mr Williams then challenged this purported authorisation of funding of the chaplaincy program. He did so on the ground that there was no Commonwealth legislative head of power to support the authorisation of expenditure on the chaplaincy program. He also challenged the validity of s 32B on the ground that it impermissibly delegated to the Executive, authorisation of expenditure by virtue of the fact that the relevant programs were all identified by regulations which could be made and amended by the Executive.
The Court upheld Mr Williams’ first argument, holding that there was no legislative head of power to support the expenditure of funds on the chaplaincy program. It left undecided, however, the question of whether the whole of s 32B was invalid because of the impermissible delegation of the power to authorise expenditure to the Executive. It found that it was not necessary to decide this point, as s 32B, if valid, still did not support the chaplaincy program. For present purposes, it read down s 32B as not applying to support expenditure on those programs that do not fall within a Commonwealth head of power.
Hence, the status of s 32B was left in even greater uncertainty. At the very least, it must be read down so that it does not support what would appear to be a significant number of programs described in the regulations which do not fall within a Commonwealth head of power. This leads to the unfortunate outcome that while the statute book says that certain programs are authorised, they are in fact not authorised and expenditure upon them is invalid. Such a gap between what is stated on the face of the law and its constitutional effectiveness has the tendency to bring the law into disrepute. There also remains the bigger question of whether s 32B is valid at all.
The replacement of the Financial Management and Accountability Act
The dilemma that then faced the Abbott Government arose from a ticking time-bomb left by the Gillard Government. In the death-throes of the last Parliament, new legislation was again rushed through both Houses to reshape completely the Commonwealth’s financial management system. The new Public Governance, Performance and Accountability Act 2013 was enacted to replace the old Financial Management and Accountability Act 1997. The substantial provisions of the new Act were required to come into effect by 1 July 2014. The new Act did not contain any equivalent to s 32B of the Financial Management and Accountability Act. This left to the Abbott Government the question of what to do about s 32B – should it be replaced or left to die, or preserved as an anomalous island in an old Act from which the rest of its substance had been stripped?
The High Court handed down its judgment in Williams No 2 on 19 June 2014. On 24 June the Public Governance, Performance and Accountability (Consequential and Transitional Provisions) Bill was introduced into Parliament. It was rushed through both Houses, passing on 26 June and receiving royal assent on 30 June. What it did, amongst other things, was to strip out most of the Financial Management and Accountability Act, but to preserve s 32B and associated provisions and regulations, and rename the Act the Financial Framework (Supplementary Powers) Act. Hence, s 32B, despite its dubious constitutional status, and the highly misleading regulations all survive to be challenged another day.
Was there intense debate and scrutiny in the Parliament of this action? No. One oblique mention was made to the Williams case in the debate by a backbencher, but nothing else was said. Perhaps they are all waiting for history to repeat a third time.

The following blog-post has been contributed by CRU Intern Tim Craven:
It is generally agreed that the Commonwealth’s power to legislate ‘with respect to the people of any race for whom it is deemed necessary to make special laws’ (s. 51(xxvi)) should be repealed in any future constitutional referendum. Not only is repeal justified on the basis of its unclear scope but also the very existence of a power predicated on race – extra-judicially described by Chief Justice Robert French as a ‘harmful taxonomy of humanity’ – upsets contemporary Australian standards of equality. If the race power is repealed but not replaced, there is a risk that a number of present and future Commonwealth laws beneficial to Aboriginal people and Torres Strait Islanders would not find support within other heads of power. There are different views as to what exactly should replace s. 51(xxvi), with many of the suggested formulae bringing with them the problems that compel its repeal in the first place. A less commonly explored approach is to consider how current and future Indigenous-related legislation could draw on what remains in the Constitution so that a replacement head of power could be a more limited and nuanced power that is based upon need.
Proposed replacement heads of power generally allow the Commonwealth to legislate with regard to ‘Aboriginal and Torres Strait Islander peoples.’ This arguably perpetuates problems associated with s. 51(xxvi) related to its characterisation as a ‘people’s power’, that is, one that enables the government to make laws with respect to a specific group of people. Any form of differential operation, even if confined to positive measures, is itself a ‘false taxonomy’ by continuing to rely on racial classification as a criterion of legislative validity. This is inconsistent with notions of the legal equality of the people. Additionally, difficult questions of characterisation arise under a ‘people’s power.’ According to former NSW Chief Justice James Spigelman, a power based on making distinctions between people ‘may enable discriminatory laws to be enacted pursuant to [it].’
A proposed cure is to include qualifiers designed to clearly exclude discrimination from the purposes of the power, such as confining laws to Indigenous ‘benefit’ or ‘advancement’ or clarifying that laws should be passed ‘so as not to discriminate against them on the basis of their race.’ However, these terms bring with them interpretive difficulties, involving normative judgments for a branch of government designed to be apolitical. This may lead to the court declining to make such judgments and deferring to the legislature. Another suggestion has been to include a broad racial discrimination prohibition in the Constitution, but this is likely to muddy the issue of Indigenous recognition at referendum, jeopardizing the success of positive reforms.
An alternative worth considering is replacing the ‘race power’ with one still allowing the Commonwealth to legislate in relation to Indigenous issues, but on the basis of ‘subject-matters’ as opposed to ‘peoples.’ This does not deny that the Commonwealth should still have the power to ameliorate the effects of past inequality but attempts to avoid the pitfalls of a peoples power. This would not only remove the problematic connotations of ‘race’ as a constitutional fact but would also be less fraught with interpretive difficulties. Indeed, Justice Spigelman contended that ‘a subject matter power is…more likely to be read down in accordance with contemporary requirements of the rule of law and the rights of citizenship than a peoples power.’
What then should these subject matters be? Drafting a head of power that simultaneously upholds present indigenous-related legislation and ensures the validity of unknown future laws is no easy task. Any constitutional amendment should be formulated on the basis of need. As such, one avenue worth considering could be to determine what laws may stand up or be passed under the Constitution as is, and then to fill in the gaps with a subject matter power.
Importantly, the Commonwealth has already made use of the grants power (s. 96) to address indigenous issues relating to health, education, economic development and welfare through the provision of tied federal grants to the States. Repeal of the race power will not affect the status quo in that regard. The Commonwealth also has direct welfare powers in s 51(xxiiiA), including benefits to students, medical and dental services, unemployment benefits and family allowances.
The other provision the Commonwealth could rely upon is its power to legislate with respect to ‘external affairs’ (s. 51(xxix)). This power is particularly attractive as, owing to the High Court’s prevailing liberal interpretation, it is one that allows the Commonwealth to legislate on an expansive range of topics not confined within section 51. The mere existence of a treaty to which Australia is a party is, itself, enough to support a Commonwealth law that implements obligations under that treaty. With this in mind, it is important to consider what international agreements canvass indigenous-related issues. At present though, the utility of these treaties lies only in their potential to activate the external affairs power, as few are explicitly relevant to indigenous issues and Australia is yet to ratify those that are. Indeed, while some such as the World Heritage Properties Conservation Act have already been acknowledged judicially as relevant to Indigenous-related laws, only one treaty to which Australia is a party, the Convention on the Rights of the Child, makes direct reference to indigenous peoples (Article 30). Importantly though, Australia has previously indicated that it is considering ratification of the International Labor Organization’s Convention No. 169, the current most comprehensive formal treaty related to indigenous issues. Ratification would support domestic legislation on cultural heritage (Article 5), customary laws (Article 8), land rights (Article 14), and representative bodies (Article 6).
Reliance on the external affairs power would still bring with it some uncertainty, though, as any putative indigenous-related legislation must ‘conform’ to the provision of the treaties which it is intended to implement. Indeed, whilst it is not necessary to implement all provisions of a treaty, nor is it necessarily desirable to do so, the Commonwealth cannot pick and choose from them as it likes. According to the majority in the Industrial Relations Act case ‘a law will be held invalid if the deficiency is so substantial as to deny the law the character of a measure implementing the Convention or it is a deficiency which, when coupled with other provisions of the law, make it substantially inconsistent with the Convention.’
The inability of the Commonwealth to ‘cherry pick’ for fear of rendering legislation constitutionally invalid is potentially problematic for a number of reasons. First, the legislature is confined to implementing obligations imposed by the treaty and cannot stray too far outside their terms. Secondly, any indigenous-related legislation would be vulnerable to legal challenge. For example, a seemingly essential condition of ILO No 169 is the requirement for consultation prior to passing indigenous-specific laws (Article 6), rendering any legislation relying upon this Convention susceptible to challenge if these procedures aren’t sufficiently followed or included within its provisions. The extent and nature of this ‘consultation’ may itself be subject to interpretational difficulties.
Whilst this feature of the external affairs power may be viewed as a disadvantage to the Commonwealth, it may be advantageous from the perspective of Aboriginal people and Torres Strait Islanders. Importantly, the requirement of conformity militates against issues of characterisation raised earlier. Given that these treaty obligations have been drafted solely for indigenous benefit, relying on s. 51 (xxix) to give effect to them means that the High Court is likely to assess any disadvantageous or detrimental legislation as not reasonably appropriate and adapted to implementing the terms of a treaty. Additionally, Aboriginal and Torres Strait Islanders may see particular benefit in a requirement of genuine consultation before laws affecting their interests are made. This, however, is likely to be a politically contentious issue.
The broadest international instrument significant to Aboriginal and Torres Strait Islanders is the United Nations Declaration on the Rights of Indigenous Peoples, which Australia has formally endorsed. It is unlikely that a mere declaration would currently be regarded as sufficient to support the enactment of legislation under the external affairs power, but it remains possible that the High Court might expand its interpretation of the power in this manner in the future, opening up a broader Commonwealth legislative power with regard to Indigenous affairs.
Clearly, formulating a replacement to the ‘race power’ is fraught with many challenges. Those drafting a constitutional amendment should explore a number of different avenues, ranging from a people power to a subject-matter power, taking into account the range of other powers upon which the Commonwealth may rely.
SUGGESTED CITATION: Tim Craven, ‘Filling the gaps – Options for replacing the race power’, Constitutional Critique, 1 June 2014, (Constitutional Reform Unit Blog, University of Sydney, http://blogs.usyd.edu.au/cru/).

Although the Court of Disputed Returns has not yet formally declared that the WA half-Senate election was void, Justice Hayne’s judgment has made it clear that this is the necessary outcome. Below is a discussion of the facts, the case and the outcome.
The Background
On 7 September 2013, a half-Senate election was held in Western Australia (and other States) to fill six Senate seats that will become vacant on 1 July 2014. Three Liberals and one Labor candidate were elected to the fist four spots. The fifth and sixth spots were initially announced being won by Zhenya Wang (Palmer United Party) and Louise Pratt (ALP). The election was so close, however, that a re-count was requested and granted before any result was officially declared.
During the re-count, it was discovered that 1370 of the ballots had gone missing. Without these ballots, the result was different, with Wayne Dropulich (Australian Sports Party) and Scott Ludlam (Greens) declared as winning the fifth and sixth spots.
The Electoral Commissioner concluded that the result of the election could not be known and there was a real chance that the declared result would have been different if the missing ballots had been able to be included in the count. The Electoral Commissioner therefore petitioned the Court of Disputed Returns to declare that the half-Senate election in Western Australia was void and that a new election should be held.
The various political parties presented tortured arguments to the Court in an attempt to secure the outcome that best suited their candidates, being either that the earlier counts should be restored, or the re-count outcome should prevail. No one seemed to want a fresh election, except the Electoral Commission.
The facts
The facts in relation to the polling and scrutiny were as follows. When the election was held, a first count took place at polling places on the evening of the poll. A second count, known as the ‘fresh scrutiny’ was then held in each electoral division. It assessed the total number of first preference votes for each candidate and the number of informal votes. The above-the-line votes were recorded and entered into the computer system. Those votes, plus the informal votes, were then bundled up and sent to a warehouse for storage. The below-the-line votes, which are more complex, were all sent to the central office for manual entry into the computer system.
The Electoral Commission’s computer then conducted a number of ‘counts’ that allocate preferences. These involve the exclusion, at different stages, of the candidate with the lowest number of votes and the redistribution of his or her preferences to the next preferred candidate remaining in the count. The crucial point in the WA Senate election was on count 141 at the point of the exclusion of the 50th candidate. The two candidates at that stage with the lowest votes were Mr van Burgel (Australian Christians) and Mr Bow (Shooters and Fishers). If van Burgel had the higher number of votes, the rest of the preference distribution would have given a decisive victory to Dropulich and Ludlam. If Bow had the higher number, it would have given a decisive victory to Wang and Pratt.
According to the ‘fresh scrutiny’ Van Burgel was beaten by Bow by 14 votes, leading to the election of Wang and Pratt. However, when the re-count took place, two factors changed. First, due to the more experienced officials and scrutineers, the assessment of the formality of some of the votes changed. The total number of informal votes increased by 324. There were 3,913 ballots that were treated differently from the fresh scrutiny. Secondly, the missing votes, comprising 120 informal votes and 1250 above-the-line votes, were excluded from the count. The result was that van Burgel had 12 votes more than Bow. This meant that Dropulich and Ludlum were declared to have won the fifth and sixth Senate seats.
However, if the information known about the missing votes from the ‘fresh scrutiny’ was factored into the computer, along with the changes in the assessments of re-scrutinised votes and the resulting changes in preference distribution in the re-count, the result would have been that Bow would have had one more vote than van Burgel, causing Wang and Pratt to be elected.
Given that the reconstructed count turned upon one vote and that no one could guarantee that every single one of the 1370 missing votes had been accurately assessed as formal or informal and correctly recorded, no one could say with confidence whether that one vote margin would be sustained. If, for example, the votes cast for van Burgel and Bow were even, then on a back-count, van Burgel would have remained in the count, and Dropulich and Ludlam would have been elected.
The Law
The Court of Disputed Returns has very limited powers in relation to elections. Where an ‘illegal practice’ has occurred (including failure to comply with provisions of the Act), it can declare that candidates who were returned as elected were not elected. It can declare that other candidates were duly elected. It can also declare an election to be absolutely void. There are two conditions for doing so. The Court must be satisfied that it was likely that the outcome of the election was affected by the illegal practice and that it is just to make such a declaration.
In dealing with a challenge, the Court usually has the benefit of being able to assess the ballot papers. The problem in this case was that some of them were missing. The question then was whether the Court could consider the earlier counts, which had taken into account those ballots, in order to reconstruct an outcome.
The Commonwealth Electoral Act provides that if anyone was ‘prevented from voting’, the Court cannot admit evidence of their voting intentions. This was an important element of the case, because it affected what evidence the Court could rely upon in reaching its decision.
The Court of Disputed Returns
Section 354 of the Commonwealth Electoral Act provides that the High Court shall be the Court of Disputed Returns and shall have jurisdiction either to try a petition or refer it, or part of it, for trial to the Federal Court of Australia. Its jurisdiction may be exercised by a single judge.
Section 368 states that all decisions are final and cannot be appealed. While a previous challenge to the constitutional validity of this provision has failed in relation to the determination of a challenge by the Federal Court (Smith v AEC [2009] FCAFC 43), there is still the possibility that it could be challenged as unconstitutional in relation to appeals from a single Justice of the High Court to the Full Bench.
Given the political importance of this case, one might have expected the Full Bench of the High Court to have sat as the Court of Disputed Returns. Surprisingly, it provided only a single judge bench comprised by Justice Hayne. This had ramifications for the case, as a single judge is bound by decision of the Full Court and therefore has less flexibility in dealing with precedents.
The Court of Disputed Returns’ judgment
There was no difficulty for the Court in identifying an illegal practice. The loss of the ballot papers gave rise to a number of contraventions of the Act. This was accepted by all the parties. The issues were then whether the illegal practices were likely to have affected the outcome of the election and whether it was just to make an order declaring the election void, or declaring candidates duly elected or not duly elected.
Much of the argument in the case concerned whether voters had been prevented from voting, as this was critical to the admission of evidence upon which the Court could rely. The provision that prohibits the admission of evidence of voters who have been prevented from voting was really intended to prevent people from taking the witness stand and being asked in court how they had intended to vote, as this would undermine the secrecy of the ballot. In this case, however, that prohibition was also regarded as capturing evidence of voting intention from earlier counts, even though it did not violate the secrecy of the ballot and identify the voting intentions of particular voters.
Some parties argued that the act of voting is complete when the voter places the ballot in the box. Others said that a voter could be prevented from voting if his or her vote wasn’t counted. Justice Hayne considered at [79] that ‘to vote’ means ‘to express or signify a choice’, but that the phrase ‘prevented from voting’ ‘extends to taking account of the expression or signification of the choice.’ He held that people were prevented from voting because their votes were lost and not counted. In reaching this conclusion, he drew on ss 7 and 24 of the Constitution and their requirement that the Houses of Parliament be directly chosen by the people. This, he concluded at [81], requires that ‘the lawful expression of every voter’s choice is taken into account in determining who has been chosen’.
The consequence was that he could not go back to the evidence of the earlier counts to determine the intention of these voters. It was not possible to mix and match from the various election counts to come up with a composite result. The Act required that the election outcome be ascertained by scrutiny of the ballot paper and once a re-count was directed, it required that the scrutiny begin afresh. That scrutiny could not be completed because of the absence of some of the ballot papers. Justice Hayne noted at [111] that the Act did not permit the making of ‘patchwork’ results.
As to whether the election outcome was likely to have been affected by the loss of the ballot papers, Justice Hayne concluded at [11] that without admissible evidence of voting intentions in the lost ballot papers, ‘the conclusion that the result which was declared was likely affected by the loss of the ballot papers is inevitable.’ This was because the critical margin of votes involved was 14, 12 or even just 1, depending upon which counts were used. Even though the evidence of earlier counts could not be admitted, Justice Hayne concluded that the margin was so small that it was ‘more probable than not that the loss of the ballot papers affected the result of the election which was declared.’
One of the parties made a rather ambitious argument that in the absence of evidence of voting intention, the Court had no evidence at all about likely outcomes and could therefore not find that any result was more likely than any other. It was therefore impossible to find that the result was likely to have been affected. This argument was summarily dismissed at [106].
Justice Hayne clearly stated at both [18] and [122] of his judgment that the Court must find that Mr Dropulich (Australian Sports Party) and Senator Ludlum (Greens) ‘were not duly elected’. He also stated that the Court ‘cannot declare who was duly elected.’ He concluded by stating that the ‘only relief appropriate is for the election to be declared void’.
The outcome
Despite making these findings on the questions of law, Justice Hayne did not actually declare the election void. Instead, he required the parties to come back before the Court for ‘argument about any remaining issue’ on Thursday, 20 February. This was probably a consequence of how the case was structured. Some of the parties had also asked the Court to review and determine the validity of certain challenged ballot papers. This would have involved taking evidence and making findings of facts. Justice Hayne was asked first to address certain legal questions. In addressing those questions, he found that there was no need to consider the validity of the reserved ballots. He then answered the legal questions asked of him. They did not deal with the making of orders to resolve the petition.
Hence, Justice Hayne decided to recall the parties on 20 February 2014. He will presumably then make any necessary orders to resolve the petition once the parties have been heard on the point. Given his findings on the legal questions, the only possible order would seem to be a declaration that the election was absolutely void.
The Act requires that in such a case a fresh election be held. It would then be a matter for the Commonwealth to nominate the polling date and the Governor of Western Australia to issue the writs for the half-Senate election. This is likely to happen in late April, after Easter, in order to ensure that a full Senate is available when it first sits after 1 July.
SUGGESTED CITATION: A Twomey, ‘The case of the missing votes’, Constitutional Critique, 19 February 2014, (Constitutional Reform Unit Blog, University of Sydney, http://blogs.usyd.edu.au/cru/).
[A shorter version of this post was published by The Conversation on 18 February.]

The following blog post has been contributed by CRU intern, STEPHEN SHARPE:
When the Expert Panel on the Constitutional Recognition of Aboriginal and Torres Strait Islander Peoples proposed the insertion of an anti-racial discrimination provision in the Constitution, it had to struggle with the vexed problem of how to prohibit racial discrimination while still permitting measures intended to reverse or ameliorate the practical effects of past discrimination. Should it adopt the ‘special measures’ approach used in the International Convention on the Elimination of All Forms of Racial Discrimination (‘ICERD’), which was adopted by the Racial Discrimination Act 1975 (Cth) (‘RDA’), or should it use different terminology to fulfill its intention?
One of the difficulties is that we have had very little indication from the High Court of the meaning of ‘special measures’ and how far it extends in Australian law. Until recently, the only substantive authority on the issue was the High Court’s 1985 judgment in Gerhardy v Brown, and in particular the judgment of Brennan J. Given the recent controversies concerning the Northern Territory intervention and the use of alcohol restriction laws in Aboriginal communities, greater clarity upon what amounts to a ‘special measure’ has been desperately needed.
The position has now changed with the High Court handing down a recent judgment dealing with special measures – Maloney v The Queen [2013]. The High Court largely endorsed Brennan J’s four indicia of what amounts to a special measure, as set out in Gerhardy v Brown:

A special measure (1) confers a benefit on some or all members of a class, (2) the membership of which is based on race, colour, descent, or national or ethnic origin, (3) for the sole purpose of securing adequate advancement of the beneficiaries in order that they may enjoy and exercise equally with others human rights and fundamental freedoms, (4) in circumstances where the protection given to the beneficiaries by the special measure is necessary in order that they may enjoy and exercise equally with others human rights and fundamental freedoms. (1985) 159 CLR 70, 133.

The Court in Maloney revealed a strong deference to Parliament’s assessment that criminal sanctions may constitute ‘special measures’ under the RDA, providing governments with a wide capacity to implement and enforce restrictive alcohol laws in Indigenous communities. The judgment suggests that the Court will interpret the Parliament’s powers broadly under any prospective non-discrimination clauses included as a part of Aboriginal and Torres Strait Islander recognition within the Australian Constitution.
Maloney v The Queen
In Maloney, a majority of Justices found the regulations restricting the possession of alcohol in the Aboriginal community of Palm Island to be an infringement of either one or a number of rights protected by s 10 of the RDA, which operates to ensure equality before the law, by conferring rights upon those discriminated against in legislation. However, the Court unanimously held that the laws implementing the alcohol restrictions were valid special measures under s 8 of the RDA, and therefore exempt from being considered discriminatory. The necessity and relevance of consultation or consensus was found to be largely a matter of political judgment, to be determined by Parliament, outside the jurisdiction of the Court.
Although the judgments emphasized the role of the RDA in giving effect to Australia’s obligations under the ICERD, none of the Justices were willing to accept the current international consensus of the United Nations ICERD Committee as having any bearing on the classification of laws as special measures. The Court found that the prior informed consent or consultation of an affected community, a requirement adopted by the ICERD Committee, was unnecessary for a law to be a special measure. While the majority referred to Brennan J’s remark in Gerhardy, that the wishes of the beneficiaries of special measures ‘are of great importance (perhaps essential)’, the Justices considered this not to be an essential feature in determining a special measure’s legitimacy. The effect is to vest greater power and discretion in the Parliament and the Government through the making of regulations that affect Aboriginal and Torres Strait Islander peoples.
The Court also largely deferred to Parliament in determining whether a special measure was for an affected community’s benefit and of ongoing necessity. The judiciary’s role was essentially defined as determining whether it was reasonably open for a legislative finding that a special measure was required, and that such a measure’s sole purpose was the adequate advancement of the affected community. Various standards of proportionality, reasonable necessity, and what is reasonably appropriate and adapted, were found to be in some way applicable to the legislation. However, the Court’s emphasis was on the initial legislative finding, supported primarily by the Cape York Justice Study, that some action was required to ensure the equal enjoyment of human rights and fundamental freedoms on Palm Island through the restriction of alcohol possession. This emphasis leaves little room for domestic challenges to restrictive criminal measures that have purportedly been enacted for the advancement of a racial group made under the RDA. The refusal to build upon the obiter of Brennan J and strengthen the community consultation requirement developed by international law, suggests a Court and a country out of step with contemporary notions of discrimination, and further emphasizes the need for both the constitutional recognition of Indigenous Australians and the review of the RDA.
Maloney and Stronger Futures
The Maloney decision’s inconsistency with international law was highlighted by the compatibility review undertaken by the Parliamentary Joint Committee on Human Rights. The Committee agreed with the UN Special Rapporteur on Indigenous Peoples that a measure criminalizing the conduct of members of the community for the benefit of the community as a whole should not be considered a special measure. This line of argument was led by the appellant in Maloney, but received little attention in the judgments. This again demonstrates the broad purview given by the High Court to Parliament under s 8 special measures.
The Committee suggested that the RDA be reviewed so that infringements of s 10, occasioned by laws like those in Maloney, do not have to be justified as special measures under s 8. The Committee suggested that such actions should be considered under a broader justification in international law of a reasonable and proportionate measure in pursuit of a legitimate goal. Whether or not this broader exception would place a greater emphasis on consultation with the affected community, or allow for equally restrictive laws as those held valid by Maloney, is yet to be tested. However, the use of proportionality, and the legal history it imports, may assist in refining an approach to such legislation. The High Court’s willingness to stretch, in terms of current international law, the domestic understanding of special measures in Maloney to encompass all forms of discriminatory laws for the benefit of a racial group, emphasizes the need for reform of racial discrimination law.
Non-Discrimination as a part of Constitutional Recognition
Section 116A, proposed by the Expert Panel on Indigenous Constitutional Recognition and designed to enshrine non-discrimination in the Constitution, avoids the language of special measures and opts for excepting ‘laws or measures for the purpose of overcoming disadvantage, ameliorating the effects of past discrimination, or protecting the cultures, languages or heritage of any group.’ The suggested provision accommodates a broader range of exceptions than the RDA and draws upon similar international constitutional and bill of rights provisions, such as those in New Zealand and Canada, in emphasizing the historic disadvantage of the relevant racial group. Significantly, the ‘sole purpose’ requirement of s 8 special measures is absent, preserving the operation of laws with multiple purposes and aims.
The Panel’s recommended s 51A, gives the Parliament the power to make laws for the peace, order and good government of the Commonwealth with respect to Aboriginal and Torres Strait Islander peoples, and contains an acknowledgement of ‘the need to secure the advancement of Aboriginal and Torres Strait Islander peoples’ in its preamble. Such wording accommodates the language of s 8 special measures by making it potentially relevant to the interpretation of the proposed power’s scope, but avoids adopting it as substantive law by placing it in the preamble. The associated jurisprudence concerning the need for such laws to be for the benefit of a community may therefore be drawn upon, if the High Court chooses to use the preamble in this way, without being imposed as a legal requirement.
Like the Report of the Human Rights Committee discussed above, the Expert Panel’s Report suggests a wariness of special measures that criminalize community conduct or erode principles of self-determination. The Maloney case, however, shows that the current High Court is prepared to defer to the judgment of the Parliament in upholding as special measures restrictive alcohol laws, such as those in place on Palm Island, which criminalize the conduct of a racial group in the pursuit of substantive equality, with or without the consultation of the affected community. Those reviewing the Expert Panel’s recommendations should now take into account the High Court’s Maloney decision in assessing how the notion of special measures should be dealt with in any anti-discrimination measure to be inserted in the Constitution and whether deference to Parliament should be replaced by judicial assessments of proportionality to legitimate ends.
SUGGESTED CITATION: Stephen Sharpe, ‘Finding the balance between special measures and the prohibition of discrimination’, Constitutional Critique, 9 February 2014, (Constitutional Reform Unit Blog, University of Sydney, http://blogs.usyd.edu.au/cru/).

This week the High Court will hear the Commonwealth’s challenge to the ACT’s Marriage Equality (Same Sex) Act 2013. Contrary to public expectations, the case is really about the inconsistency of laws, not human rights. The parties to the proceedings are the Commonwealth and the Australian Capital Territory. Australian Marriage Equality Inc (AME) has also applied to be heard in the proceedings as amicus curiae. Interestingly, none of the States have decided to intervene. Despite the potential for their interests to be affected, it would appear that the issue is too politically contentious.
The Commonwealth’s submissions show that it will argue that the Commonwealth Parliament has the power to legislate in relation to all forms of marriage. While it recognises that the full scope of the marriage power in the Constitution has not yet been determined, it argues that ‘the better view is that the constitutional concept of “marriage” includes a marriage between members of the same sex’. It would appear that the Commonwealth’s interests in maintaining as broad a view as possible as to the scope of its powers has won out over the interests of the Abbott Government in advocating an originalist interpretation of the constitutional term ‘marriage’.
The Commonwealth argues, however, that its Marriage Act 1961 was intended to cover the entire field of marriage in Australia to the exclusion of any State or Territory laws on the subject and that the ACT law is therefore invalid for trespassing into this field. The Commonwealth contends that ‘it is not open under the law of Australia for any other legislature to purport to clothe with the legal status of marriage (or a form of marriage) a union of persons, whether mimicking or modifying any of [the] essential requirements of marriage’.
The Commonwealth’s submissions also assert that the Marriage Act prevents a State or Territory from conferring the legal status of marriage or a form of marriage on a union of people that would not be valid under the Commonwealth law (eg because one of the parties is under age, or lacks capacity, or is already married, or the marriage is to expire after a fixed period, or the parties are closely related or of the same sex). While it accepts that a State or Territory can confer rights on couples, including same-sex couples, ‘as if they were married’, it contends that this still amounts to recognition that they are not legally ‘married’.
The ACT, on the other hand, contends that the Commonwealth’s Marriage Act deals only with the legal status of opposite-sex couples and that it does not prohibit or exclude laws conferring the status of marriage on others, including same-sex couples, or a status that is intended to equate to marriage.
In 2004 the Commonwealth passed the Marriage Amendment Act 2004 which defined marriage as the union of a man and a woman to the exclusion of all others, voluntarily entered into for life. One of the arguments is that this Act narrowed the field of the Commonwealth’s Marriage Act, opening up the field of same-sex marriage for the States and Territories to legislate within. The issue is one of intention. If one looks to the extrinsic materials, the Explanatory Memorandum stated that the intention was ‘to protect the institution of marriage by ensuring that marriage means a union of a man and a woman and that same sex relationships cannot be equated with marriage.’ The ACT argues, however, that this intention was not made out in the provisions of the Act. While it may have prohibited recognition of overseas same-sex marriages as ‘marriages’ in Australia, it did not expressly prohibit same-sex marriages under the law of other jurisdictions in Australia.
The AME’s submissions argue that the status conferred by the ACT Act is different from marriage. They contend that the mere use of the word ‘marriage’ does not indicate that the status is the same. They point to the terms ‘de facto marriage’ and ‘common law marriage’, which really mean that the relationship is not a marriage. They argue that the preceding words, ‘de facto’, ‘common law’ or ‘same-sex’ ‘serve to distinguish the status from marriage’. They conclude that as the ACT is legislating about something different from marriage, it is not inconsistent with the Commonwealth’s Act.
The ACT submissions primarily hang on a technicality unique to it. Its laws are subject to a differently worded inconsistency provision than that which applies to the States or other Territories. Section 28 of the ACT (Self-Government) Act 1988 states that a provision of a territory law has no effect to the extent that it is inconsistent with a Commonwealth law, but that the Territory provision shall be taken to be consistent with the Commonwealth law ‘to the extent that it is capable of operating concurrently with that law.’
The ACT claims that this means that Territory laws can operate concurrently with Commonwealth laws as long as there is no direct inconsistency. While State laws will also be invalid if they intrude into a field that the Commonwealth law intends to cover completely and exhaustively, it is argued that this does not apply to ACT laws. The effect, according to the ACT, is that its Marriage Equality (Same Sex) Act can operate fully in parallel with the Commonwealth’s Marriage Act without any direct inconsistency arising, because the institution of same-sex marriage is different from that of marriage under the Marriage Act.
The issue about the application of the ACT’s inconsistency provision is the dark horse in this case. There is very little authority on the subject and surprisingly, given the significance of this distinction, there seems to be no discussion of the intent behind it in either Parliament or the numerous reports that preceded self-government. This leads to interesting speculative conclusions– perhaps it was a drafting error or was intended to be cancelled out by the Commonwealth’s disallowance provision, or perhaps it simply means that ACT laws should be read down to avoid inconsistency with Commonwealth laws so that they can operate concurrently. The drafting history of s 28, the context in which it was enacted and the potentially different ways in which it might be interpreted are all addressed in a detailed paper here.
If the ACT’s Marriage Equality (Same Sex) Act was upheld solely on the basis of this different inconsistency provision, it would mean that same sex marriage in Australia would only be available and valid in the ACT. Equivalent laws could not be enacted in any other State or Territory. It would not give rise to ‘marriage equality’, but rather, as the AME argues, a status that is ‘not marriage’. This may well be a pyrrhic victory, but no doubt it is simply intended to be a battle in a bigger war.
[An edited version of this blog was first published by The Conversation on 2 December 2013. Suggested Citation: Anne Twomey, ‘Same-sex marriage – A High Court preview’, Constitutional Critique, 2 December 2013, (Constitutional Reform Unit Blog, University of Sydney, http://blogs.usyd.edu.au/cru/).]

CRU intern HANNAH SOLOMONS has prepared the following post about the political and judicial controversy concerning Prince Charles’ “black spider letters” (named in honour of his black-ink spidery hand-writing):
In July this year, the English High Court upheld the UK Attorney-General’s decision to maintain the secrecy of the so-called “black-spider letters” between Prince Charles and government Ministers, sparking widespread outrage in some quarters, and relief in others. For decades, controversy has been growing around the Prince’s prominent and assertive role in public life. He has long been active and vocal in promoting his favourite causes and charities, often through written correspondence with Cabinet members.
The High Court decision is but the latest development in an eight-year legal battle under the United Kingdom’s Freedom of Information Act. It all began when Mr Evans, a Guardian reporter, made a request under that legislation for access to the Prince’s letters to Ministers made over a five month period in 2004-5. They included 27 letters described as “advocacy correspondence” that sought to promote certain charitable needs and views on policy matters to Ministers. The letters fell into a FOI category of qualified exemption – the Government could only refuse access if the principle of disclosure was outweighed by the public interest in withholding disclosure. The Government refused access to them and was supported by the Information Commissioner. However, the UK Act gives a court, in this case the UK Upper Tribunal, the rare power to re-evaluate the public interest in disclosure from scratch.
Arguments Before the Tribunal
Both sides’ arguments revolved around Prince Charles’ current and future constitutional roles. The roles of British royal family members are largely governed by “constitutional conventions.” These are unwritten non-legal rules that underpin the core functions of many Commonwealth governments, including Australia. Some of these are relatively well-settled and agreed upon, such as the conventions that the Queen acts on ministerial advice (except in relation to the reserve powers), maintains a level of public neutrality, and has the right and duty to participate in government by “encouraging, advising and warning.” However, these are only agreed upon in their application to the Sovereign. The conventions surrounding the Prince, as heir to the throne, are far more vague and uncertain, allowing both sides to argue for vastly different interpretations, and correspondingly differing needs for secrecy.
One of the few conventions directly relevant to the Prince is his right to be prepared for kingship. However, the Tribunal noted that it had been “little more than a footnote” before this case. In fact, this convention was so amorphous that expert witnesses could not even agree upon what to call it. Professor Brazier argued that it should be called the “apprenticeship convention,” because the heir’s training for kingship involved practical experience and participation in the business of governing. He further argued that this included engagement in debate, relationship-building and lobbying. All of these things, he argued, required secrecy in order to be effective. Alternatively, he suggested the more moderate view that such activities, whilst they might not be part of any convention themselves, were still both permissible and useful. It was therefore said to be in the public interest that fear of embarrassment should not discourage them.
The Tribunal decisively rejected all these arguments. It was far more sympathetic to the views of Professor Tomkins, Mr Evans’ witness. Professor Tomkins argued for a much narrower “education convention”, merely giving the Prince a right to inquire and be informed regarding government matters. Indeed, he even suggested that the convention might include limits on the Prince which would render his “advocacy correspondence” unconstitutional.
The Tribunal based its conclusions on consideration of a widely-accepted list of the factors relevant to determining constitutional conventions, originally propounded by Sir Ivor Jennings. Historical precedents and subjective feelings of obligation are the first two of these. Professor Brazier has long argued that the consistent participation by the Prince and Ministers in confidential written lobbying and debate provide sufficient evidence of precedent and feelings of obligation to justify its inclusion in the Prince’s conventional role. However the revelation of some letters in a biography of Prince Charles undermined that argument. The last of Jennings’ factors is the justification for the convention. In this regard, the Tribunal pointed to the illogicality of arguing for an “apprenticeship convention” where the activities of the apprentice are in direct contrast to the neutrality of the role he is preparing for, and which have the potential to damage his ability to fulfill it. In contrast, Tribunal members felt that a justification could be found in democratic values for concluding that public scrutiny of the Prince’s actions is a right not easily dismissed.
The Tribunal therefore concluded that all three factors pointed towards a narrower convention. In fact, although it did not need to go as far as Professor Tomkins and directly question the constitutionality of secret advocacy correspondence, many of the Tribunal’s reasons did imply doubts. It concluded that two advantages of disclosure were the encouragement of public debate about the Prince’s place in the Constitution, and a disincentive to go beyond informative correspondence in the future. It held that the advocacy correspondence was not part of Prince Charles’ preparation for kingship and did not fall within the proper limits of any education convention. All this was enough to find that the statutory requirement for a public interest in non-disclosure had not been fulfilled.
The Attorney-General’s veto.
The Attorney-General, however, returned fire. He used a statutory veto power to prohibit disclosure by certifying his continued belief that disclosure was not in the public interest. In his reasons, he noted that the letters were “particularly frank” and reflected the Prince of Wales’ “most deeply held personal views and beliefs”. He stressed that under the UK constitution it was a matter of the highest importance that the monarch is a “politically neutral figure” and is able “to engage with the government of the day, whatever its political colour”. He concluded that disclosure of the correspondence could undermine Prince Charles’ “position of political neutrality” and that “if he forfeits his position of political neutrality as heir to the Throne he cannot easily recover it when he is King”.
The Attorney-General disagreed with the Upper Tribunal’s assessment that advocacy did not form part of the Prince’s education for kingship. He argued, controversially, that advocacy comes within the tripartite convention that allows the monarch to “advise, encourage and warn” Ministers. He said:

Discussing matters of policy with Ministers, and urging views upon them, falls within the ambit of “advising” or “warning” about the Government’s actions. It thus entails actions which would (if done by the Monarch) fall squarely within the tripartite convention. I therefore respectfully disagree with the Tribunal’s conclusion that “advocacy correspondence” forms no part of The Prince of Wales’ preparations for kingship. I consider that such correspondence enables The Prince of Wales better to understand the business of government; strengthens his relations with Ministers; and enables him to make points which he would have a right (and indeed arguably a duty) to make as Monarch. It is inherent in such exchanges that one person may express views and urge them upon another. I therefore consider that, whether or not it falls within the strict definition of the education convention, “advocacy correspondence” is an important means whereby The Prince of Wales prepares for kingship. It serves the very same underlying and important public interests which the education convention reflects.

The High Court’s judgment
Mr Evans’ response was to go to the High Court seeking judicial review of the Minister’s decision. Their Lordships expressed concern about the constitutionality of Ministers overturning the effect of court decisions. Lord Judge described the constitutional position as follows:

It is fundamental to the constitutional separation of powers, the independence of the judiciary, and the rule of law itself that, although judicial decisions may be reversed by legislation (but very rarely with retrospective effect) ministers are bound by and cannot override judicial decisions: in our constitution that power is vested in Parliament. If ever the Government or any minister in the Cabinet could, without more, but in particular because of dissatisfaction with a judicial decision, not merely ignore it, but nullify it, the elementary entitlement of the citizen to effective recourse to independent courts would be extinguished.

He concluded, however, that the fact that the Minister was required to give reasons and that these could be subject to judicial review by the courts, leaving the ultimate decision in judicial hands, provided the “necessary safeguard for the constitutionality of the process”.
The Court accepted that the Attorney-General had been reasonable in reaching his conclusion, even though it was different from that of the Upper Tribunal. The Attorney-General had given reasons that could be regarded as cogent. It was not impossible for diametrically opposed views both to be reasonable. What was at issue was a value judgment as to where the public interest lay, and this could reasonably be decided in different manners.
The Current State of Play
Having so concluded, the Court was compelled to find in the Attorney-General’s favour. Thus, “the black spider letters” will remain confidential for the time being. The High Court’s reluctance to uphold the refusal is understandable. Whether or not the Prince’s behaviour is itself socially advantageous, it is disturbing that the judiciary has been unable to remove a double shroud of secrecy woven from constitutional arguments. That shroud has since been turned into a wall. In 2011 the law was amended so that the correspondence between the Prince of Wales and Ministers is now subject to an absolute exemption from disclosure under FOI for 20 years or five years from his death, whichever is the later. The Guardian’s litigation commenced before this change, so it continues to be litigated under the old law.
The final battle for the black spider letters still awaits. The Guardian intends to appeal the High Court’s decision. Given the dramatic twists and turns in the story so far, the outcome is anything but certain.
SUGGESTED CITATION: Hannah Solomons, ‘Royal Secrets: Signed, Sealed and Delivered’, Constitutional Critique, 2 November 2013, (Constitutional Reform Unit Blog, University of Sydney, http://blogs.usyd.edu.au/cru/).

Before the election, Tony Abbott ruled out negotiating with independents or minor parties if he didn’t achieve a majority in the lower House. But the pain Gillard experienced in bargaining for the votes of three independents in the House of Representatives is likely to be magnified for Abbott in getting six or more votes from a motley crew of micro-parties in the Senate. Is there another path? Abbott previously threatened to call a double dissolution if his legislation was blocked in the Senate. How feasible and likely is this?
The composition of the Senate
While the House of Representatives is dissolved at every general election, the Senate is a continuing House with fixed terms. Apart from the four Territory Senators, whose terms are tied to the House of Representatives, the Senators elected by each State have a term of six years with half being elected every three years. The Senate itself is not ordinarily dissolved – it just keeps operating with a change to its membership.
The candidates who were elected to the Senate at the 7 September 2013 election (except for the Territory Senators), will therefore not take up their seats until after the terms of half the current Senators run out on 30 June 2014. That means that the Abbott Government will confront a Senate where the Greens hold the balance of power until 30 June 2014, followed by a Senate where micro parties hold the balance of power for the next three years.
Double dissolution
The only exception is if a double dissolution is held. This means that both the Senate and the House of Representatives are dissolved. The consequence is that all the Senate seats become vacant and are immediately filled in the election. Twelve Senators are elected for each State, rather than six. The Senate then divides the Senators into two groups – those who get a six year term (who are usually those with the highest vote, but this is determined by a resolution of the new Senate) and those who get a three year term. The old Senate is terminated and replaced by a newly elected and constituted Senate.
Double dissolutions are relatively rare. They have taken place in 1914, 1951, 1974, 1975, 1983 and 1987. There is a special constitutional procedure that must be met before a double dissolution can be held. A Bill (or Bills) must be initiated in the House of Representatives and then blocked in the Senate (either by being rejected, failing to pass or passing with amendments that the House will not accept). A period of three months must then pass. Then the House must pass it again and the Senate block it. Only once the Government has such a trigger can a Prime Minister advise the Governor-General to grant a double dissolution. Double dissolution triggers may be ‘stock-piled’, but a double dissolution cannot be held in the six months before the House of Representatives expires.
There is also an issue about the extent to which the Governor-General has a discretion in granting a double dissolution. On previous occasions, such as 1914 and 1951, the view was taken by the Governor-General that he did have a discretion. In 1914 the Governor-General sought advice from the Chief Justice of the High Court on the extent of his powers to help him decide. In 1951, Labor Members of Parliament argued that the Governor-General should take advice from the Chief Justice, Sir John Latham, although it appears that he made his decision without such advice. Certainly in 1983, the Governor-General, Sir Ninian Stephen did not regard the Prime Minister’s advice as sufficient and sent him back to provide further advice about the importance of the blocked bills and the workability of Parliament. He stated in his letter to Prime Minister Fraser on 8 February 1983:

Such precedents as exist, together with the writings on section 57 of the Constitution, suggest that in circumstances such as the present, I should, in considering your advice, pay regard to the importance of the measures in question and to the workability of Parliament.

It might prove difficult to characterise the Parliament as unworkable if there had only been one rejection of a Bill and the Parliament had only been in operation a short time. It could prove even more difficult if the composition of the Senate was about to change.
Could a double dissolution be held before the Senate’s composition changes on 1 July?
Holding a double dissolution before 1 July faces two potential hurdles. First, there is a timing problem. The Senate is perfectly entitled to scrutinise bills, including sending them off to committees for public hearings and the receipt of expert advice. Once this is combined with the three month delay between bills, the process can become quite drawn out.
The Government would run a great risk in simply categorising a bill as having ‘failed to pass’ the Senate, just because the Senate took time to scrutinise it. The Whitlam Government tried this in 1974 but the High Court later held that one of its bills was not a valid double dissolution trigger because the Senate had not been given adequate time to scrutinise it. Fortunately for Whitlam, he had plenty of other triggers to rely upon. If an Abbott Government was relying on a single double dissolution trigger, it would have to be very careful indeed.
Secondly, there is a constitutional question as to whether a double dissolution could be held before the 1 July changeover, given that new Senators have already been elected. It could be argued that a double dissolution is intended to resolve a deadlock between the Houses, but once the Senate’s composition changes on 1 July, such a deadlock might no longer exist. The Governor-General might contend that to decide upon the workability of Parliament, she would need advice from the Prime Minister on the workability of Parliament under the changed composition of the Senate after 1 July 2014. Further, people who had been elected as Senators, to commence office on 1 July 2014, might contend that their election could not be wiped out in this manner.
On the other hand, it could be argued that while s 57 of the Constitution expressly prevents the holding of a double dissolution in the last six months before the House of Representatives expires, it does not expressly prevent the holding of a double dissolution immediately before the Senate’s composition is changed on 1 July. It could also be argued that the candidates elected in the half-Senate election in September 2013 were elected to fill future vacancies in a continuing House. However, a double dissolution would completely dissolve that House, rendering their election of no effect. The Senate to which they had been elected would no longer exist and they would therefore have no entitlement to take up that office on 1 July 2014.
Timing problems
A double dissolution held before 1 July 2014 would also give rise to timing problems in relation to subsequent elections. Section 13 of the Constitution provides that after a double dissolution, the terms of Senators are dated back to the previous 1 July (i.e. 1 July 2013). The consequence would be that the next half-Senate election would have to be held some time in the 12 months before 30 June 2016. Assuming that an Abbott Government won a further term in office at a double dissolution held in, say, April 2014, it would need to go to the polls again in two years, if it were to hold the next half-Senate election with a general election. Alternatively, it would have to face a separate half-Senate election after being in office for two years, which like a by-election would probably result in some anti-government expressions of voter discontent. Neither outcome is terribly good for a Coalition Government.
Would a double dissolution improve the Coalition’s position in the Senate?
The main reason why it is unlikely that a double dissolution would be held is that it would be likely to make it even harder for the Coalition to negotiate bills through the Senate. Because 12 Senators would be elected in a State, rather than six, the quota for winning a seat would be lower. This makes it much easier for micro parties and independents to win seats. It is also more difficult for a major party to win six out of twelve Senate seats in a State than it is to win three out of six. Given the high vote for micro parties at this half-Senate election, the likely outcome of a double dissolution in the next 6 months would be to increase the number of cross-benchers holding the balance of power in the Senate, which would not be likely to be to the Coalition’s benefit.
The only likelihood of a double dissolution would be if the major parties got together and agreed to change the electoral laws in such a way as to limit the ability of micro parties to be elected to the Senate. This could be done by increasing the threshold quota for election, increasing the deposit paid by candidates and increasing requirements for party membership before a party can get on the ballot. They might also consider the approach that NSW took after the infamous ‘table-cloth ballot paper’ of 1999, which was to move to optional preferential above-the-line voting, so that voters can still vote above the line but can control their preference flows, rather than having the gaming of upper house seats by micro parties.
Finally, there is the issue of sending voters back to the polls so soon after an election. There is likely to be a backlash from the public if they feel that they are being forced to put up with another long election campaign simply because the government feels that they got it wrong. Many will have deliberately voted against the Coalition in the Senate because they didn’t support many of their policies and wanted the Coalition to be forced to negotiate and compromise. They might be none too thrilled to be told to go back and vote again.
[This blog-post is an extended version of an opinion piece published in The Australian on 11 September 2013.]
SUGGESTED CITATION: Anne Twomey, ‘From Simple Disillusion to Double Dissolution’ Constitutional Critique, 12 September 2013, (Constitutional Reform Unit Blog, University of Sydney, http://blogs.usyd.edu.au/cru/).