Litigation notes No. 13

Number 13
29 November 2005

This issue

Advertisement of personal injury legal services

Workplace relations advertising case

Freedom of political speech

Constitutional validity of mandatory immigration detention provisions

Scope of the Kable principle

Validity of the Mirror Taxes Act

Constitutional decisions in brief

Advertisement of personal injury legal services

Andrew Buckland

Canberra
Andrew Buckland Senior Executive Lawyer
T 02 6253 7024
F 02 6253 7303
andrew.buckland@ags.gov.au

Robyn Briese

Canberra
Robyn Briese Lawyer
T 02 6253 7077
F 02 6253 7303
robyn.briese@ags.gov.au

A majority of the High Court held that
it is constitutionally permissible for state legislation
to prohibit lawyers from advertising the provision of personal
injury legal services. In reaching this conclusion, the
High Court considered the scope of the implied freedom
of political communication and the nature of the restraints
on legislative action which might be drawn from Chapter
III of the Constitution, as well as deciding a range of
other constitutional objections to the validity of the
challenged NSW legislation.

APLA Limited v Legal Services Commissioner (NSW)
High Court of Australia, 1 September 2005
[2005] HCA 44; (2005) 219 ALR 403

Background

Professional restrictions on advertising by lawyers in
NSW were removed by amendments made to the Legal Profession
Act 1987 (NSW) in 1994. However some restrictions on
lawyers advertising the provision of personal injury legal
services were recently reimposed by Part 14 of the Legal
Profession Regulation 2002 (NSW). Under Part 14 it is both
an offence and professional misconduct for a barrister
or solicitor to publish an advertisement that includes
any reference to personal injury, to the circumstances
in which personal injury might occur, or to personal injury
legal services (reg 139).

The purpose of Part 14, according to a Ministerial Statement
made in 2002 by the then NSW Premier, is to:

'[push] down the pressure on rising insurance
costs ... [including by preventing] lawyers engaging
in ambulance chasing advertising ... [which] encourages
people to claim for every slip and fall, regardless of
the merits ... [and thus to] counteract the trend to
excessive litigation which is evident in parts of our
society.'

The plaintiffs in this case, the Australian Plaintiff
Lawyers Association (APLA), Maurice Blackburn Cashman,
and Mr Whyburn, wanted to advertise legal services relating
to personal injuries. Their proposed advertisements were
to appear in newspapers, journals and on the internet from
a computer server located in Melbourne. They brought proceedings
in the High Court against the NSW Legal Services Commissioner
(who administers Part 14) and NSW, arguing that Part 14
is invalid because it:

  • infringes the implied constitutional freedom of political
    communication
  • infringes an alleged freedom derived by implication
    from Chapter III of the Constitution protecting a right
    to advertise legal services
  • impermissibly burdens freedom of interstate trade,
    commerce and/or intercourse, contrary to s 92 of the
    Constitution
  • has an extraterritorial effect that is beyond the
    legislative competence of NSW
  • alters, impairs or detracts from rights conferred
    and/or jurisdiction invested by Commonwealth legislation
    so as to render the regulations inconsistent with that
    legislation and thus invalid under s 109 of the Constitution.

A majority of the High Court found against the plaintiffs,
holding that Part 14 of the NSW Regulation is constitutionally
valid.

Summary of reasons

Does Part 14 infringe the implied constitutional freedom
of political communication?

The Court held 6:1 (Kirby J dissenting) that Part 14 does
not infringe the implied freedom of communication about
government or political matters. In doing so the Court
applied the test set out in Lange v Australian Broadcasting
Corporation (1997) 189 CLR 520 at 567, as modified
by Coleman v Power (2004) 209 ALR 182, which relevantly
involves the following two questions:

  • does the law effectively burden freedom of communication
    about government or political matters?
  • if it does, is the law reasonably appropriate and
    adapted to serve a legitimate end in a manner which is
    compatible with the maintenance of the system of representative
    and responsible government prescribed by the Constitution?

As to the first question, the majority held that the regulations
do not, in their terms, prohibit communications about government
or political matters. Rather than being of a governmental/political
nature, the prohibited communications are of a commercial
nature. In this regard the majority drew a distinction
between (a) the communication prohibited by Part 14 (advertising
personal injury legal services) – which is not political
communication, and (b) discussion of the merits of prohibiting
such advertising – which may be political communication.

The majority noted that Part 14 does not prevent lawyers
from making political statements as long as these are separated
from the advertisements prohibited by Part 14. The majority
went on to hold that an advertisement can validly be prohibited
by Part 14 even if it is combined with a political communication.
Thus APLA's proposed advertisement could validly
be prohibited even though it included the sentence 'Despite
the best efforts of Premier Bob Carr and Senator Helen
Coonan to stop you, you may still have legal rights to
compensation for [injuries]'.

In finding that Part 14 does not infringe the first limb
of the Lange test, the majority rejected the plaintiffs' argument
that the freedom protects not only communications with
and about the executive and the legislature, but also communications
with and about courts (as the third arm of government).
This outcome is consistent with the High Court's
focus on the structural and textual origin of the implied
freedom of political communication in Chapters I, II and
VIII of the Constitution.

The majority's conclusion on the first question
from the Lange test was sufficient to dispose of
the plaintiffs' argument based on the implied freedom
of political communication. Some judges did go on to consider
the second question (whether any burden on political communication
was appropriate and adapted to a legitimate end); however,
there was no majority decision on this question.

Does Part 14 infringe any relevant implication derived
from Chapter III of the Constitution protecting a right
to advertise legal services?

The Court also held 5:2 (McHugh and Kirby JJ dissenting)
that no separate implication could be drawn from Chapter
III of the Constitution (The Judicature) that would protect
a right to advertise legal services. The majority reached
this conclusion on the basis that 'there is nothing
in the text or structure of the Constitution, or in the
nature of judicial power, which requires that lawyers must
be able to advertise their services' (Gleeson CJ
and Heydon J [33]).

In this respect the plaintiffs had argued that:

  • a separate implication could be drawn from Chapter
    III of the Constitution and the assumption of the rule
    of law (on which the Constitution is based), to protect
    the capacity, ability or freedom of the people of the
    Commonwealth to ascertain their legal rights and to assert
    those legal rights in court
  • such an implication requires that people have a capacity,
    ability or freedom to communicate about, and particularly
    to receive such information or assistance as they may
    reasonably require to ascertain and assert, their legal
    rights.

The majority held that the effective exercise of the judicial
power of the Commonwealth does not require that legal practitioners
be immune from legislative control in marketing their services
to prospective clients, noting that federal jurisdiction
has always been exercised in the context of state-based
regulation of the legal profession. They noted that Part
14 does not prevent prospective litigants from seeking
advice or retaining lawyers, and does not otherwise impede
communications between lawyers and their clients.

Does Part 14 impermissibly burden freedom of interstate
trade, commerce and/or intercourse contrary to s 92 of
the Constitution?

Part 14 prohibits the advertising of personal injury legal
services that are to be provided in NSW. The advertising
itself need not originate in NSW. So, for example, the
second plaintiff, Maurice Blackburn Cashman, proposed to
advertise on a website, accessible in NSW, using material
uploaded on a computer server in Victoria.

The plaintiffs contended that Part 14, to the extent that
it prohibits such advertising across state borders, infringes
s 92 of the Constitution. A majority of the High Court
rejected this argument (with McHugh and Kirby JJ not deciding).

Section 92 provides:

... trade, commerce, and intercourse among the States
... shall be absolutely free.

Since the decision of the High Court in Cole v Whitfield (1988)
165 CLR 360 it has been accepted that s 92 contains two
limbs, the first of which protects interstate trade and
commerce, and the second of which protects interstate intercourse.

With respect to the trade and commerce limb of s 92, the
majority held that Part 14, by imposing a burden on paid advertising across
state borders, burdens interstate trade and commerce.
However Part 14 does not discriminate against interstate
trade and commerce in a protectionist sense and thus passes
the test for validity set out in Cole v Whitfield.

With respect to the intercourse limb of s 92, it was accepted
that advertising by means of the internet and other electronic
methods is a form of communication and can thus constitute 'intercourse'.
At least by prohibiting interstate intercourse that is
not done in trade and commerce (e.g. not- for-profit advertising),
Part 14 imposes a burden on interstate intercourse, raising
a question of its validity under the intercourse limb of
s 92. However the majority held that Part 14 does not infringe
the intercourse limb of s 92 because it is not directed
at restricting interstate intercourse and any incidental
burden that it imposes on interstate intercourse is no
greater than is reasonably required to achieve the object
of Part 14, namely the restriction of advertising of personal
injury legal services to be provided in NSW.

As to the relationship between the two limbs of s 92,
Gummow and Hayne JJ expressly held that the validity of
a law relating to activities (such as communications) which
have the character of both trade and commerce, and
intercourse, is to be determined by reference to the trade
and commerce limb of s 92 only. The other justices did
not decide this issue.

Does Part 14 have an extraterritorial effect that is
beyond the legislative competence of NSW?

A majority of the Court (McHugh and Kirby JJ not deciding)
held that Part 14 validly operates on conduct such as advertising
on the internet that originates outside NSW. In doing so
the majority rejected arguments that the operation of Part
14 outside NSW is invalid either because:

  • the regulation-making power under which Part 14 is
    made does not extend to regulations having an extraterritorial
    operation, or
  • if the regulation-making power does so extend, the
    power is invalid as beyond the legislative competence
    of NSW.

The circumstance that the advertised legal services were
to be provided in NSW provided a direct and substantial
territorial connection with NSW.

Does Part 14 alter, impair or detract from rights conferred
and/or jurisdiction invested by Commonwealth legislation
so as to render the regulations inconsistent with that
legislation and invalid?

Finally, the Court held 5:1 that Part 14 was not inconsistent
with any law of the Commonwealth identified by the plaintiffs
and falling into the following categories (Kirby J dissenting
and McHugh J not deciding):

  • Commonwealth laws conferring substantive rights and
    remedies (e.g. provisions of the Trade Practices Act
    1974)
  • Commonwealth laws conferring a right to legal representation
    and regulating legal representation in federal courts
    (e.g. provisions in Part VIIIA of the Judiciary Act
    1903)
  • Commonwealth laws conferring and defining the jurisdiction
    of various courts (e.g. ss 39(2) and 39B of the Judiciary
    Act 1903).

The plaintiffs argued that the enjoyment of federal rights
and the exercise of federal jurisdiction require that potential
claimants have the right to seek legal assistance and representation.
They argued that Part 14, by inhibiting people from seeking
legal advice and assistance, impaired the enjoyment of
those rights and exercise of that jurisdiction to an extent
inconsistent with their conferral.

The majority held that preventing lawyers from advertising
does not impair the relevant Commonwealth legislation.
The plaintiffs' argument that s 109 of the Constitution
is engaged to invalidate state laws if there is any more
than a slight, marginal or de minimis impairment
of the enjoyment of a federal right was rejected. Rather,
the question is always one of fact and degree. Here, the
relevant rights, powers and jurisdictions created have
full legal effect and operation regardless of whether,
at any given time, the states or territories permit or
restrict advertising by lawyers.

Commonwealth Solicitor-General, David Bennett AO QC, appeared
as senior counsel for the Commonwealth Attorney-General
and was instructed by AGS.

http://www.austlii.edu.au/au/cases/cth/high_ct/2005/44.html

The workplace relations advertising case

Kathryn Graham

Canberra
Kathryn Graham Senior General Counsel
T 02 6253 7167 F 02 6253 7304
kathryn.graham@ags.gov.au

In this case the plaintiffs did not establish
a basis for declarations or injunctions preventing expenditure
on an advertising campaign from the departmental appropriation
to the Department of Employment and Workplace Relations
(DEWR). The advertising campaign was to promote the Government's
workplace relations reforms.

A majority of the High Court found that
expenditure for 'departmental items' under
annual appropriation Acts is not required to be for any
of the stated 'outcomes' for the agency concerned.
Instead, all that is required is that the amount paid should
be for the 'departmental expenditure' of the
agency.

Combet v Commonwealth
High Court of Australia, 29 September 2005 (order), 21
October 2005 (reasons)
[2005] HCA 61

The Australian Government began a print and radio advertising
campaign in support of proposed workplace relations reforms
in mid-July 2005. The plaintiffs (the Secretary of the
ACTU and the Shadow Attorney-General) instituted proceedings
seeking to establish that the departmental appropriation
to DEWR would not support the expenditure on the advertising
campaign, and seeking to prevent the issuing of money from
the Treasury of the Commonwealth to pay for the campaign.

Argument before the Court focused on whether the proposed
expenditure fell within Outcome 2 of the appropriation
to DEWR in Appropriation Act (No.1) 2005–2006,
namely 'higher productivity, higher pay workplaces'.

Additionally, the question of the standing of the plaintiffs
to bring the proceedings was raised.

Decision

Four members of the High Court (Gummow, Hayne, Callinan
and Heydon JJ) in a joint judgment, concluded that for
departmental items (as opposed to administered items) it
was not necessary to demonstrate that the expenditure fell
within the terms of a particular outcome (such as outcome
2).

Rather, it was sufficient to demonstrate that the amount
to be spent was applied for 'departmental expenditure'.
This analysis was based on a construction of s 7(2) of
the Appropriation Act (No.1) and on the note to the definition
of 'departmental item' in s 3 of the No.1 Act,
which, the joint judgment held, together revealed that
outcomes do not restrict the scope of the authorised expenditure
for departmental items. That expenditure is limited only
by the requirement that the amount to be spent is spent
for 'departmental expenditure', and by the
amount specified in the relevant item. It followed that
all the Commonwealth needed to demonstrate was that the
advertising expenditure was within the terms of 'departmental
expenditure'.

The joint judgment did not give detailed consideration
to what might be encompassed by 'departmental expenditure'.
In the present case it merely noted that the plaintiffs
had not contended that the advertising expenditure was
not 'departmental expenditure', and it followed
that the plaintiffs could not obtain the relief they sought.

In the course of their reasons, the judges joining in
the joint judgment expressed the view that appropriations
can be made in extremely general terms, and that it is
for Parliament to determine how specific they are. They
noted that there is a considerable amount of past practice
to show that a very high level of generality is often the
option chosen by Parliament.

They also discussed whether the so-called 'Compact
of 1965', which is an agreement between the Senate
and the Government about what comprises the 'ordinary
annual services of the Government' in sections 53
and 54 of the Constitution, was of assistance in construing
the content of the Appropriation Act (No.1), and, in particular,
whether the appropriations authorised by that Act had to
be read down by reference to the terms of the Compact.
It had been agreed in the Compact that, among other things, 'new
policies' were not ordinary annual services of the
Government. The joint judgment concluded that the Compact
of 1965, in its original form and as varied by agreement
and by practice, shed little light on the question of what
falls within a departmental item. They concluded that the
Compact is of little relevance as a tool of construction
in relation to appropriations legislation.

Gleeson CJ agreed in the result, but for different reasons.
Both McHugh J and Kirby J held that the expenditure on
the advertising was not supported by the identified appropriation.

McHugh and Kirby JJ both expressed the view that Ms Roxon
had standing to bring the proceedings. The other judges
did not find it necessary to deal with this issue.

Implications

The most important implication of the decision is that,
while administered expenditure under annual appropriation
Acts is confined by reference to the outcomes contained
in those Acts, departmental items are confined only by
reference to the concept of 'departmental expenditure'.
The joint judgment provides little guidance, however, on
what is meant by 'departmental expenditure'.

Questions that agencies may have on the possible implications
of the decision for the appropriations framework may be
directed to Marc Mowbray d'Arbela at the Department
of Finance and Administration, T 6215 3657, marc.mowbray-d'arbela@finance.gov.au.

AGS represented the defendants (the Commonwealth, the
Minister for Employment and Workplace Relations, and the
Minister for Finance and Administration). AGS Senior General
Counsel, Kathryn Graham, appeared with the Commonwealth
Solicitor-General, David Bennett AO QC, as one of the junior
counsel for the defendants.

http://www.austlii.edu.au/au/cases/cth/high_ct/2005/61.html

Freedom of political speech

Graeme Hill

Canberra
Graeme Hill Senior Lawyer
T 02 6253 7080
F 02 6253 7303
graeme.hill@ags.gov.au

Andrew Buckland

Canberra
Andrew Buckland Senior Executive Lawyer
T 02 6253 7024
F 02 6253 7303
andrew.buckland@ags.gov.au

These cases considered aspects of the freedom of communication
about government and political matters implied in the Constitution. Coleman held
that a Queensland law prohibiting the use of 'insulting' words
did not apply to particular political statements (and perhaps
could not validly apply) because in their context those
statements were not reasonably likely to cause unlawful
physical retaliation. Mulholland upheld the validity
of certain requirements for registration of political parties
under the Commonwealth Electoral Act 1918.

Coleman v Power
High Court of Australia, 1 September 2004
[2004] HCA 39; (2004) 209 ALR 182

Mulholland v Australian Electoral Commission
High Court of Australia, 8 September 2004
[2004] HCA 41; (2004) 209 ALR 582

Coleman v Power

The appellant challenged his convictions for using insulting
words in a public place (the Townsville Mall) contrary
to s 7(1)(d) of the Vagrants, Gaming and Other Offences
Act 1931 (Qld) (the Vagrants Act) and assaulting and
obstructing police in the course of their duties. The convictions
arose out of his distribution of pamphlets containing allegations
of corruption against several local police officers. The
appellant challenged the validity of s 7(1)(d) on the ground
that it was contrary to the implied freedom of political
communication.

High Court's decision

A majority of the High Court (McHugh, Gummow, Kirby and
Hayne JJ) held, for different reasons, that the appellant
had not committed an offence under s 7(1)(d) of the Vagrants
Act. Gleeson CJ, Callinan and Heydon JJ dissented on this
issue. However, all justices except for McHugh J upheld
the related convictions for obstructing and assaulting
police.

Construction of s 7(1)(d) of the Vagrants Act: 'insulting' words

Section 7(1)(d) prohibits a person from using in a public
place 'any threatening, abusive or insulting words
to any person'. The Court divided on the proper meaning
of 'insulting' words in the statutory context.

Narrow interpretation – provocation required

Three members of the majority (Gummow and Hayne JJ [183],
Kirby J [226]) held that in its context the offence should
be given a confined operation to apply to words that are
(a) directed to hurting an identified person and (b) provocative,
in the sense that they are intended or reasonably likely
to provoke unlawful physical retaliation. A requirement
of provocation meant that s 7(1)(d) – a criminal
offence – would serve public, not private, purposes
and it was appropriate to interpret narrowly a provision
that limits a traditional common law right such as freedom
of expression. The narrower interpretation was also required
for s 7(1)(d) to be constitutionally valid.

Broad interpretation – natural meaning

By contrast, the other member of the majority (McHugh
J), and the three dissenting justices, said that 'insulting' had
its ordinary meaning which did not include a requirement
that the language be provocative or likely to occasion
a breach of the peace. However, according to Gleeson CJ
it was not sufficient that the language was derogatory;
rather it had to be 'contrary to contemporary standards
of public good order' [14].

Constitutional validity of s 7(1)(d) of the Vagrants
Act

The next issue was whether s 7(1)(d) operated as an invalid
burden on political communication. To determine this, the
Court applied the two-part test from Lange v Australian
Broadcasting Corporation (1997) 189 CLR 520, although
the majority justices applied the test in a slightly modified
form (McHugh J [92], with Gummow and Hayne JJ and Kirby
J agreeing on this point [196], [211]). Lange makes
clear that the implied freedom of political communication
derives from, and is limited by, the provisions of the
Commonwealth Constitution which require that federal elections
be free and that federal electors have access to information
relevant to their choice of candidate, and which prescribe
the federal system of responsible government – principally,
sections 7, 24, 64 and 128. The Lange test as reformulated
(by the words in italics, which replaced the words 'the
fulfilment of') asks:

  • Does the law effectively burden freedom of communication
    about government or political matters either in its terms,
    operation or effect?
  • If yes, is the law reasonably appropriate and adapted
    to serve a legitimate end in a manner which is
    compatible with the maintenance of the constitutionally
    prescribed system of representative and responsible government
    and the procedure prescribed by s 128 for submitting
    a proposed amendment of the Constitution to the informed
    decision of the people?

Federal political communication?

The implied freedom invalidates both Commonwealth and
state laws that burden, without justification, communications
concerning government and politics at the federal level.
On the first part of the Lange test, there was an
issue whether the appellant's statements (undoubtedly
political in some senses) were sufficiently connected with federal politics
and government to be covered by an implication drawn from
the Commonwealth Constitution. However, in the course
of argument, concessions had been made that s 7(1)(d) could
burden 'political' communications and that
the particular words used by the appellant concerned matters
within the scope of the constitutional implication even
though they concerned state police officers. A statement
that a state police officer was corrupt could have a sufficient
connection with federal politics and government, because
of the integrated nature of police enforcement in Australia
(see McHugh J [80], Gummow and Hayne JJ ('evident
strength' in this proposition, but not deciding)
[197], Kirby J [229]; however, Heydon J in particular was
critical of this question being determined by a concession
[319]). In view of the concessions, the Court did not need
to give further consideration to any limits in applying
the implied freedom to communications relevant only to
government or politics at the state level (compare Stephens
v West Australian Newspapers Ltd (1994) 182 CLR 211,
232, 257 and Levy v Victoria (1997) 189 CLR 579,
596–597, 626, cf. 643–644).

Broad prohibition on insulting political statements not
appropriate and adapted

On the second part of the Lange test, the Court
divided sharply on whether s 7(1)(d) was a reasonably appropriate
and adapted means of implementing a legitimate end.

McHugh J held that the prohibition in s 7(1)(d) on using
insulting words – on his broad construction – was
invalid because it was went too far in its restriction
on political statements [102]–[106]. As a minimum,
an offence designed to maintain public order would need
to require proof of a breach of the peace, and an intention
to breach the peace. The prohibition on 'insulting' words
was therefore to be read down so that it did not apply
to political communication [110].

Gummow, Kirby and Hayne JJ held that the reference to 'insulting' words
in s 7(1)(d) – construed to require 'provocation' in
the sense described above – was valid (Gummow and
Hayne JJ [198], Kirby J [256]–[257]). However, these
justices indicated that, if 'insulting' were
to be interpreted more broadly (as favoured by the other
justices), it would be invalid (Gummow and Hayne JJ [199],
Kirby J [237]–[239]).

Gleeson CJ, Callinan and Heydon JJ, by contrast, held
that the reference to 'insulting' words in
s 7(1)(d) was valid, even on their broad interpretation.
Gleeson CJ emphasised that s 7(1)(d) was not directed at
political communication, but only imposed an incidental
burden on it ([27], [31]; see also Heydon J [326]) and
was suitable for 'maintaining public order in a manner
consistent with an appropriate balance of the various rights,
freedoms, and interests, which require consideration' [32].
Callinan and Heydon JJ held that s 7(1)(d) imposed only
a very slight burden on political communication, that was
appropriate and adapted in any event to a legitimate purpose
(Callinan J [298]–[301], Heydon J [330]–[334]).

Second part of Lange test: closer scrutiny of means?

The reformulation by the majority justices of the second
part of the Lange test asks whether the law is appropriate
and adapted to serve a legitimate end in a manner which
is compatible with the relevant constitutional requirements.
This reformulation makes it clear that the Court will review
not only the purpose of a law, but also the means by
which the law achieves that purpose. A law will be invalid
if it chooses means that impose an unreasonable burden
on political communication, given the availability of other
alternative means of achieving its purpose (McHugh J [100]
).

Accordingly, it is possible that, following Coleman,
courts will be stricter in reviewing legislation. However,
McHugh J also emphasised that the constitutional test 'does
not call for nice judgments as to whether one course is
slightly preferable to another' ([100]; see also
Gleeson CJ [31], Heydon J [328]).

Mulholland v Australian Electoral Commission

In this case the High Court, in six separate judgments,
unanimously upheld the constitutional validity of the '500
rule' and the 'no overlap rule' for registration
of political parties under the Commonwealth Electoral
Act 1918 (Electoral Act). The Court found that the
provisions were validly made under s 51(xxxvi) of the Constitution
and did not contravene:

  • the constitutional requirement that members of the
    House of Representatives and senators be 'directly
    chosen by the people'
  • the implied constitutional freedom of political communication,
    or
  • any implied freedom of association and/or of privacy
    of political association.

Background

Registration of political parties was introduced into
the Electoral Act in 1983 as part of a package of reforms
that included public funding of political parties for election
campaigns, printing of party affiliation on ballot papers
and the list system for Senate elections (i.e. above the
line voting).

In order to be registered, a political party must have
at least 500 members (the 500 rule). Two or more parties
cannot rely on the same person as a member in calculating
the number of members for the purposes of the 500 rule
(the no overlap rule). The Australian Electoral Commission
(AEC) has the power to review a party's registration,
and to request specified information on a party's
eligibility to be registered. This includes the names of
the 500 members relied upon by the party for registration.
The DLP challenged the constitutional validity of the two
requirements for registration as a political party.

Constitutional issues

Are the two rules laws with respect to elections?

All members of the Court either expressly or implicitly
accepted that the 500 rule and the no overlap rule were
within the Commonwealth's power to make laws with
respect to elections conferred by s 51(xxxvi) (matters
in respect of which the Constitution makes provision until
the Parliament otherwise provides), read with certain sections
in Chapter I of the Constitution, including ss 10 and 31.
Section 51(xxxvi) is, however, expressed to be 'subject
to this Constitution', and is therefore subject to
the requirements of ss 7 and 24 discussed below. The further
issue, then, was whether the challenged provisions infringed
express or implied limitations in the Constitution.

Are the two rules contrary to the 'direct choice' requirement
of ss 7 and 24 of the Constitution?

Sections 7 and 24 of the Constitution require that the
Senate and the House of Representatives be composed of
senators and members 'directly chosen by the people' and
thus give effect to a principle of representative government.
In previous decisions members of the Court had variously
said that direct choice requires 'free elections',
a 'free choice', an 'informed choice' and 'a
true choice ... a choice made with access to the available
alternatives', and further that this requires that
voters have access to information about the candidates
among whom they are required to choose. This was the approach
adopted in the present case.

The appellant argued that the 500 rule and the no overlap
rule infringed the direct choice required by ss 7 and 24.
This was particularly because party affiliation is an important
piece of information used by voters when making a choice
between candidates; however, only candidates of registered
parties could have their party affiliation printed on the
ballot paper.

The Court endorsed the view that 'directly chosen' in
ss 7 and 24 meant more than just directly, as opposed
to indirectly chosen, and held that ss 7 and 24,
as part of the constitutionally prescribed system of representative
government, imposed some minimum requirements in relation
to electoral matters. However the Court also held that
those sections do not mandate any particular electoral
system.

In their joint judgment Gummow and Hayne JJ warned against 'elevating
a "direct choice" principle to a broad restraint
upon legislative development of the federal system of responsible
government', although accepting that extreme situations
would infringe ss 7 and 24 – giving as an example
a law making membership of a particular political party
the qualification for election to the House of Representatives
[156]. Beyond the minimum requirements of ss 7 and 24 the
form of electoral system is left to the Parliament, which
has a broad scope to determine what is appropriate.

In the present case, the Court held that the relevant
rules were not contrary to the direct choice requirements
of ss 7 and 24 as they preserved full and free choice between
the candidates for election. Also, the Court rejected the
appellant's argument that the challenged provisions
were invalid because they unreasonably discriminated in
favour of parties with large membership bases to the disadvantage
of small parties. The two challenged rules were within
the 'allowable measure of legislative choice' (Gummow
and Hayne JJ [147]).

In relation to the 500 rule Gleeson CJ referred to the
long history in Australia of electoral systems discouraging
multiplicity of candidates, which has never been regarded
as involving unreasonable discrimination [20]. Gleeson
CJ also said that underlying the no overlap rule is a purpose
of avoiding confusion, deception and frustration of the
democratic process (including, for example, to avoid the
use of 'decoy' or front parties to mislead
the voter into indicating a preference for a group ticket
which is merely calculated to channel preferences to another
party).

Do the challenged provisions infringe the implied freedom
of political communication?

The appellant also argued that the 500 rule and no overlap
rule infringed the implied freedom of political communication
as:

  • the ballot paper constituted a political communication
    (as to party affiliation)
  • the challenged provisions burdened that communication
    by small parties
  • the burden was not appropriate to a legitimate end
    , the fulfilment of which is compatible with representative
    and responsible government.

For a majority of the Court (McHugh, Gummow and Hayne,
Callinan, and Heydon JJ) this argument failed at the second
step. For this majority, a law will only be invalid if
it relevantly burdens an independently existing right to
communicate. In the present case the DLP has no right,
that exists independently of the entitlement conferred
by the Electoral Act, to communicate the party affiliation
of its candidates on a ballot paper (McHugh J [105]–[112],
Gummow and Hayne JJ [186]–[192], Callinan J [337],
Heydon J [354]; cf. Kirby J [274]–[280]). In relation
to the first step, Gleeson CJ [30], McHugh J [94]–[97]
and Kirby J [281]–[282] all held that the ballot
paper was a political communication between a party and
electors protected by the implied freedom. Heydon J expressly
held that the ballot paper was not a political communication
protected by the implied freedom [355].

Only Gleeson CJ, Kirby J and Heydon J considered the third
step. They all held that the challenged provisions satisfy
the relevant test of validity for similar reasons as applied
in relation to their conclusions on the requirements of
ss 7 and 24: [41], [290]–[292], [360]–[362].

Do the two rules provisions infringe any implied freedom
of association and/or privacy?

Finally, the appellant argued that the 500 rule and no
overlap rule infringed implied freedoms of association
and privacy of political association – largely because
of the requirement to disclose to the AEC details of party
members. The Court unanimously rejected this argument,
but for different reasons. Gleeson CJ considered that,
if any such freedoms existed (which he did not decide),
they would not be infringed for the same reasons as the
implied freedom of political communication was not infringed
[42]. McHugh J, who had previously recognised an implied
constitutional freedom of political association, held that
the challenged provisions did not infringe that freedom
on the basis that registration as a political party was
voluntary [115]. Gummow and Hayne JJ (Heydon J agreeing)
held that there is no freestanding right of association,
although a freedom of association to some degree may be
a corollary of the freedom of political communication [364].
Kirby J accepted that there is implied in ss 7 and 24 a
freedom of political association [284] and a limited measure
of implied political privacy [289], but held that any burden
on those freedoms in the present case was proportionate
to the attainment of Parliament's legitimate ends
[290]–[291]. Callinan J rejected the implication
of any such freedoms [335].

Commonwealth Solicitor-General, David Bennett AO QC, appeared
in both cases as senior counsel for the Commonwealth Attorney-General
and was instructed by AGS.

Coleman: http://www.austlii.edu.au/au/cases/cth/HCA/2004/39.html
Mulholland: http://www.austlii.edu.au/au/cases/cth/HCA/2004/41.html

Constitutional validity of mandatory immigration detention provisions

David Bennett

Canberra
David Bennett Deputy Government Solicitor
T 02 6253 7063
F 02 6253 7303
david.bennett@ags.gov.au

Andrew Buckland

Canberra
Andrew Buckland Senior Executive Lawyer
T 02 6253 7024
F 02 6253 7303
andrew.buckland@ags.gov.au

In a series of cases, the High Court
upheld the constitutional validity of mandatory immigration
detention provisions in the Migration Act 1958 (Cth).

Al-Kateb v Godwin
High Court of Australia, 6 August 2004
[2004] HCA 37; (2004) 208 ALR 124

Minister for Immigration and Multicultural and Indigenous
Affairs (MIMIA) v Al Khafaji
High Court of Australia, 6 August 2004
[2004] HCA 38; (2004) 208 ALR 201

Behrooz v Secretary, Department of Immigration and
Multicultural and Indigenous Affairs (DIMIA)
High Court of Australia, 6 August 2004
[2004] HCA 36; (2004) 208 ALR 271

Re Woolley; Ex parte Applicants M276/2003
High Court of Australia, 7 October 2004
[2004] HCA 49; (2004) 210 ALR 369

Background

Al-Kateb and Al Khafaji

Mr Al-Kateb was a stateless Palestinian born in Kuwait.
Mr Al Khafaji was born in Iraq but had lived most of his
life in Syria. Neither had visas granting permission to
remain in Australia and, as 'unlawful non-citizens',
were placed in immigration detention. Both had made written
requests to be removed from Australia but DIMIA had been
unable to effect their removal. They each brought proceedings
challenging the validity of their detention, which had
continued for more than two years.

In MIMIA v Al Masri (2003) 126 FCR 54, 197 ALR
241 the Full Federal Court held that the Migration Act
did not, as a matter of construction, authorise immigration
detention where there was no real likelihood of removal
from Australia in the reasonably foreseeable future. Subsequently,
the Federal Court made orders in several cases for the
release of persons from detention (including Mr Al-Kateb
and Mr Al Khafaji). Mr Al-Kateb and Mr Al Khafaji argued
in the High Court that the Full Federal Court in Al
Masri was correct and that, if provisions of the Act
authorised detention where there was no likelihood of removal,
they were invalid.

Behrooz

Mr Behrooz, a national of Iran, was placed in immigration
detention at Woomera as an unlawful non-citizen. He was
alleged to have escaped and was charged with escaping from
immigration detention contrary to s 197A of the Migration
Act. Mr Behrooz argued that the conditions under which
he was detained at Woomera were inhumane and that his detention
was therefore illegal, as it was not authorised by the
Act, or was punitive and constitutionally invalid. He argued
that he therefore could not be convicted of the offence
of escaping from (lawful) immigration detention.

Woolley

The applicant children and their parents were nationals
of Afghanistan who were placed in immigration detention
as unlawful non-citizens. The applicants argued in the
High Court that the Act did not authorise the detention
or prolonged detention of children and, if it did, it was
invalid.

Legal context

At the time when these cases were decided, the Migration
Act:

  • required an officer (not a court) to detain an unlawful
    non-citizen until removed or deported from Australia
    or granted a visa (ss 189 and 196)
  • imposed a duty on an officer to remove an unlawful
    non-citizen from Australia 'as soon as reasonably
    practicable' after the person asked in writing
    to be removed or after, in effect, any visa applications
    were finally determined (s 198).

Judgments of the High Court

The High Court by majority held that the provisions of
the Migration Act required detention until removal became
reasonably practicable (including where this involved detention
for a long, even indefinite, period because there was no
real prospect of removal) or the person was granted a visa.
The statutory limitation on the length of detention that
had been implied by the Full Federal Court in Al Masri was
expressly rejected. There was no basis for reading down
the mandatory detention provisions in the Act as having
a different operation in relation to a child.

The Court also held by majority that the provisions so
construed were constitutionally valid. Legislation conferring
on the executive government the power to detain aliens,
at least for the purposes of visa processing and removal,
was authorised by the aliens power in s 51(xix) of the
Constitution. Also, as that detention was for a non-punitive
purpose the separation of judicial power given effect by
Chapter III of the Constitution was not infringed. The
fact that the Migration Act authorised prolonged detention
where it was not reasonably practicable to remove the detainee
from Australia did not mean that the provisions were to
that extent punitive. The detention continued for the non-punitive
purposes notwithstanding any difficulties in effecting
removal. Three justices (McHugh, Hayne and Heydon JJ) also
expressly decided that the non-punitive purposes of detention
supported by the aliens power extend to include segregation
from the Australian community of aliens who do not have
permission to remain in Australia, until their removal
from Australia is practicable.

The Court accepted the Commonwealth's position that
the Migration Act does not purport to authorise detention
in inhumane conditions. Although the Act does not expressly
deal with conditions of detention, it was enacted against
the background of the common law and state and territory
law (e.g. negligence and criminal law) which would provide
remedies in the event of inhumane treatment of a detainee.
The detention provisions were therefore not punitive, and
the authority to detain under those provisions could not
be invalidated by inhumane treatment.

Aspects of the detention provisions in the Migration Act
have recently been amended by the Migration Amendment
(Detention Arrangements) Act 2005.

Commonwealth Solicitor-General, David Bennett AO QC and
AGS Chief General Counsel, Henry Burmester AO QC, appeared
as senior counsel for the Commonwealth parties in Al-Kateb and Al
Khafaji, and the Solicitor-General as senior counsel
in Behrooz and Woolley. AGS was solicitor
for the Commonwealth parties in each of the cases.

Al-Kateb: http://www.austlii.edu.au/au/cases/cth/HCA/2004/37.html
Al Khafaji: http://www.austlii.edu.au/au/cases/cth/HCA/2004/38.html
Behrooz: http://www.austlii.edu.au/au/cases/cth/HCA/2004/36.html
Woolley: http://www.austlii.edu.au/au/cases/cth/HCA/2004/49.html

Scope of the Kable principle

David Bennett

Canberra
David Bennett Deputy Government Solicitor
T 02 6253 7063
F 02 6253 7303
david.bennett@ags.gov.au

Graeme Hill

Canberra
Graeme Hill Senior Lawyer
T 02 6253 7080
F 02 6253 7303
graeme.hill@ags.gov.au

These cases raised the scope of the principle
in Kable v Director of Public Prosecutions (NSW) (1996)
189 CLR 51 which precludes the conferral on state courts
of functions that are incompatible with their role as courts
exercising federal jurisdiction. The decisions confirm
that the Kable principle is of limited application. Baker upheld
the validity of a NSW law having the practical effect of
restricting the availability of parole for certain prisoners
serving life sentences. Fardon upheld the validity
of a Queensland law authorising the Queensland Supreme
Court to order continuing preventative detention of sexual
offenders who are a 'serious danger' to the
community at the expiry of their sentences.

Baker v The Queen
High Court of Australia, 1 October 2004
[2004] HCA 45; (2004) 210 ALR 1

Fardon v Attorney-General (Qld)
High Court of Australia, 1 October 2004
[2004] HCA 46; (2004) 210 ALR 50

Background

Baker: re-determining life sentences and 'special
reasons'

Baker was a challenge to the validity of s 13A(3A)
of the Sentencing Act 1989 (NSW) (the NSW Act).
Under s 13A a person could apply to the NSW Supreme Court
for redetermination of a previously imposed life sentence,
to have fixed instead both a minimum term of imprisonment
which the person must serve and an additional term. A prisoner
would be eligible for release on parole during the additional
term. Section 13A was a transitional measure introduced
following the 1989 NSW 'truth in sentencing' legislation
which abolished parole for life sentences.

Section 13A(3A) provided that, if the sentencing court
had imposed a life sentence and had also recommended that
the person should never be released from prison, the Supreme
Court could not redetermine the person's life sentence
under s 13A unless satisfied there were 'special
reasons' to do so. (The Sentencing Act was repealed
by the Crimes Legislation Amendment (Sentencing) Act
1999 (NSW) but applied to the appellant.)

Fardon: dangerous sexual offenders and preventative detention

Fardon involved a challenge to the validity of
the Dangerous Prisoners (Sexual Offenders) Act 2003 (Qld)
(the Queensland Act). The Queensland Act provides for the
Queensland Attorney-General to apply to the Supreme Court
for an order for the continued detention in custody or
the supervised release of a prisoner despite the expiry
of a sentence of imprisonment for a 'serious sexual
offence'. The Attorney-General may apply for this
order in the last six months of the period of imprisonment
(rather than as part of the original sentencing process).
The Court can only make an order if it is satisfied that
there is an unacceptable risk that the prisoner will commit
a serious sexual offence if released, or if released without
a supervision order. The Queensland Act provides for regular
review of a detention order.

The High Court (Gleeson CJ, McHugh, Gummow, Hayne, Callinan
and Heydon JJ, with Kirby J dissenting) upheld the validity
of both the NSW and Queensland Acts.

Kable principle

The doctrine of separation of powers, derived from Chapters
I, II and III of the Commonwealth Constitution, does not
apply to the states. However, in Kable the High
Court held to be invalid a NSW law which provided for the
NSW Supreme Court to order the continued detention of one
person named in the law beyond the term of his sentence
of imprisonment, if the Court was satisfied that he was
more likely than not to commit a serious act of violence,
and that it was appropriate, for the protection of a particular
person or the community generally, that the person be held
in custody. In essence, the majority held that the NSW
law was invalid because in conferring a function on the
NSW Supreme Court in a context which gave the appearance
that the Court was not independent of the state government
the NSW law was incompatible with the exercise by the Court
of the judicial power of the Commonwealth from time to
time. The NSW law was invalid by reason of this incompatibility
although an application under it did not itself involve
the exercise of federal judicial power.

Baker: the 'special reasons' requirement
is valid

In Baker, the appellant argued that the 'special
reasons' requirement was invalid as:

  • in its context, it was devoid of content and the NSW
    Supreme Court's function of reviewing life sentences
    of those to whom s 13A(3A) applied was a charade. Given
    the factors that were ordinarily relevant to a redetermination
    under s 13A, it was impossible to demonstrate 'special
    reasons' and the Parliament was using the judicial
    process to give effect to a legislative decree, contrary
    to the Kable principle; and
  • the trigger for the requirement (that the trial judge
    had recommended that the person never be released) was
    arbitrary, contrary to the Kable principle. At
    the time these kinds of recommendations were made, they
    had no legal effect and they were not made according
    to a uniform practice among judges.

The appellant's arguments were rejected by the majority
justices. They held that it was possible to give meaning
to the 'special reasons' requirement in the
context of the facts in a particular case and the requirement
was not one which it was impossible to satisfy. Furthermore,
Gleeson CJ considered that using non-release recommendations
as a trigger on which the legislation operated was not
arbitrary; it was 'at least a good start' in
identifying the most serious offenders [8]–[9]. In
their joint judgment, McHugh, Gummow, Hayne and Heydon
JJ said that generally a Parliament may use whatever factum
it wishes as the trigger for a particular legislative consequence
[43] and that, given the long history in England and in
Australia of trial judges making recommendations to the
executive about carrying out sentences, there was nothing
repugnant to the notion of judicial power for the NSW Act
to use a non-release recommendation as the criterion for
the 'special reasons' requirement [47]–[49].
The validity of the NSW Act was also not affected by its
application to a limited class of identifiable persons
(apparently ten in number) [50].

The joint judgment of McHugh, Gummow, Hayne and Heydon
JJ did not need to explore the scope of the Kable principle
to decide this case. They held that the NSW Act could have
been validly enacted by the Commonwealth in compliance
with the more stringent requirements for the exercise of
federal judicial power under Chapter III of the Constitution,
and therefore necessarily met the less strict requirements
of the Kable principle [23]–[24], [51].

Fardon: preventative detention is valid

In Fardon, the appellant argued that the Queensland
Act was indistinguishable from the NSW law held invalid
in Kable. The majority justices rejected this argument.
Four justices noted that the Queensland Act was a general
law that applied to a class of dangerous sex offenders,
unlike the NSW legislation which applied to one named person.
Moreover, unlike the NSW law, the Queensland Act preserved
features of judicial process, such as a substantial area
of judicial discretion, a demanding onus of proof on the
Attorney-General, a requirement to provide reasons, and
provision for an appeal. There was 'nothing to suggest
that the Supreme Court is to act as a mere instrument of
government policy' (Gleeson CJ at [19] ).

The majority also rejected the appellant's argument
that ordering 'preventative' detention (that
is, detaining someone for what he or she might do)
was a function of a kind that was contrary to the Kable principle
and could never be given to state courts. There was nothing
inherent in making a preventative detention order that
would impair a court's institutional integrity. However,
unlike the approach of the joint judgment in Baker,
the majority in Fardon did not uphold validity by
concluding that the Queensland Act would not infringe Chapter
III if enacted as a Commonwealth law. Only Gummow J and
(in dissent) Kirby J addressed whether the Commonwealth
Parliament could have enacted the Queensland Act. Both
considered that it could not have done so. Gleeson CJ and
Hayne J expressly left this question open.

Kable test: institutional integrity

In Baker and Fardon, the Commonwealth and
the states argued that the High Court should take a narrow
view of 'incompatibility' for the purposes
of the Kable principle and, in particular, should
focus on the institutional independence or integrity of
state courts, rather than on general notions of public
confidence in the judiciary.

Although there is still some variation in how the members
of the Court express the test for deciding whether a state
law is contrary to the Kable principle, the majority
justices in Fardon (in which the main discussion
is to be found) emphasised the need to maintain the 'institutional
integrity' of state courts, and it seems clear that
a majority of the Court takes a limited view of the scope
of the Kable principle. Gleeson CJ said that Kable establishes
that 'since the Constitution established an integrated
Australian court system, and contemplates the exercise
of federal jurisdiction by state Supreme Courts, state
legislation which purports to confer upon such a court
a function which substantially impairs its institutional
integrity, and which is therefore incompatible with its
role as a repository of federal jurisdiction, is invalid' (at
[15]). According to McHugh J the concept of institutional
integrity turns on whether a reasonable person might conclude
that a court 'might not be an impartial tribunal
free of government influence or might not be capable of
administering invested federal jurisdiction according to
law' [35], [42].

It follows from the majority approach in Fardon that 'Kable is
a decision of very limited application' (McHugh J
at 43).

AGS Chief General Counsel, Henry Burmester AO QC, appeared
as senior counsel for the Commonwealth Attorney-General
and was instructed by AGS.

Baker: http://www.austlii.edu.au/au/cases/cth/HCA/2004/45.html
Fardon: http://www.austlii.edu.au/au/cases/cth/HCA/2004/46.html

Validity of the Mirror Taxes Act

Andrew Buckland

Canberra
Andrew Buckland Senior Executive Lawyer
T 02 6253 7024
F 02 6253 7303
andrew.buckland@ags.gov.au

Graeme Hill

Canberra
Graeme Hill Senior Lawyer
T 02 6253 7080
F 02 6253 7303
graeme.hill@ags.gov.au

The High Court by majority upheld the
validity of the Commonwealth Places (Mirror Taxes) Act
1998 (Cth) (the Mirror Taxes Act).

Permanent Trustee Australia Ltd v Commissioner of State
Revenue (Vic)
High Court of Australia, 12 November 2004
[2004] HCA 53; (2004) 211 ALR 18

Background

Permanent Trustee challenged an assessment of stamp duty
on an agreement for the development of a hotel at Melbourne
Airport. As Melbourne Airport is a Commonwealth place for
the purposes of s 52(i) of the Constitution, the usual
Victorian stamp duties legislation – the Stamps
Act 1958 (Vic) – could not apply of its own force to
the agreement (Allders International Pty Ltd v Commissioner
of State Revenue (Vic) (1996) 186 CLR 630). The Commonwealth's
exclusive legislative power over Commonwealth places under
s 52(i) means that the general body of state laws does
not apply to Commonwealth places (Worthing v Rowell
and Muston Pty Ltd (1970) 123 CLR 89).

Instead, the assessment of stamp duty was made pursuant
to the Mirror Taxes Act, which was enacted following Allders.
That Act imposes Commonwealth taxes in relation to a Commonwealth
place in a state equivalent to specified taxes imposed
by laws of the surrounding state. Revenue collected by
the Commonwealth under that Act is returned to the relevant
state. Cooperative arrangements between the Commonwealth
and Victoria give the Victorian Commissioner powers under
the Mirror Taxes Act equivalent to his or her powers under
the Victorian Stamps Act. Permanent Trustee argued that
the Mirror Taxes Act was invalid, including because it
infringed ss 55 and 99 of the Constitution.

Section 55 challenge

Section 55 requires that Commonwealth laws imposing taxation
deal only with the imposition of taxation and deal with
only one subject of taxation. The Mirror Taxes Act applied
as Commonwealth law in Commonwealth places a list of state
taxes that were excluded in Commonwealth places only by
reason of s 52(i) of the Constitution, including stamp
duty, payroll tax and land tax. Moreover, the state laws
applied by the Mirror Taxes Act not only impose taxation,
but also provide for the assessment, collection and recovery
of taxation.

Although holding that the Commonwealth places power in
s 52(i) was subject to s 55 of the Constitution, the joint
judgment rejected the argument that the Mirror Taxes Act
dealt with more than one subject of taxation. It was sufficient,
in their Honours' view, that the Act applied state
taxes to Commonwealth places in a 'single legislative
initiative', rather than a 'collection of distinct
and separate matters'; moreover, the Act's 'primary
purpose [was] the protection of State revenues' following
the decision in Allders [54].

A more difficult question was whether the Mirror Taxes
Act – which clearly imposed taxation – dealt
only with the imposition of taxation. Re Dymond (1959)
101 CLR 11 had suggested that the Income Tax Assessment
Act 1936 (Cth) was not wholly a law dealing with the imposition
of taxation. The joint judgment concluded that a provision
would 'deal with' the imposition of taxation
if it was 'fairly relevant or incidental to the imposition
of a tax' or if the provision was 'incidental
and auxiliary to the assessment and collection of that
tax' [68]–[69]. That construction was supported
by the purpose and history of s 55, which was designed
to prevent 'tacking' by the House. 'Tacking' was
said to be a very different matter from including provisions
for assessing, collecting and recovering tax [69].

Accordingly, s 55 of the Constitution does not prevent
a Commonwealth law that imposes tax from also including
provisions for the assessment, collection and recovery
of tax [73]. (And under s 53 of the Constitution, the Senate
would not have power to amend proposed laws in this form.)
Although there were no detailed submissions on the issue,
it appeared to the joint judgment that the state taxing
laws applied by the Mirror Taxes Act answered that description,
and therefore the Mirror Taxes Act was not contrary to
s 55. The joint judgment expressly noted, however, that
this expanded interpretation of laws 'dealing with' the
imposition of taxation did not prevent the Commonwealth
from continuing its current practice of splitting taxing
and assessment statutes [71].

Section 99 challenge

The High Court held that the Mirror Taxes Act does not
give a 'preference' to one state over another
contrary to s 99 of the Constitution by its scheme of assimilating
the taxation laws in a Commonwealth place with those in
the surrounding state, even though the rates of Commonwealth
taxes may vary between Commonwealth places, depending on
differences in the laws of the surrounding states. 'Preference' in
s 99 involved 'discrimination against', and
therefore differential treatment did not necessarily establish
that there was a preference [88]. Rather, it was necessary
to establish that the differential treatment 'is
not the product of a distinction which is appropriate and
adapted to the attainment of a proper objective' [89].
Stated at this level of generality, the Mirror Taxes Act
applied a uniform rule in each state [87], [91]. Here,
the Act involved a proper objective, and therefore the
differential treatment between Commonwealth places in different
states did not amount to a prohibited 'preference' [91],
[94].

Commonwealth Solicitor-General, David Bennett AO QC and
AGS Special Counsel, George Witynski, appeared for the
Commonwealth Attorney-General and were instructed by AGS.

http://www.austlii.edu.au/au/cases/cth/high_ct/2004/53.html

Constitutional decisions in brief

Graeme Hill

Canberra
Graeme Hill Senior Lawyer
T 02 6253 7080 F 02 6253 7303
graeme.hill@ags.gov.au

Singh v Commonwealth
[2004] HCA 43; (2004) 209 ALR 355, 9 September 2004

In this case the High Court decided
that the Commonwealth may treat a person born in Australia
of non-citizen parents
as an 'alien' for the purposes of s 51(xix)
of the Constitution (the naturalization and aliens power),
at least if the person is a citizen of another country.

The
plaintiff was born in Australia in 1998. Her parents were
born in and were citizens of India. Under s 10(2)
of the Australian Citizenship Act 1948 (Cth), the plaintiff
was therefore not an Australian citizen (although she would
become a citizen if she was ordinarily resident in Australia
for ten years from birth). The plaintiff and her family
were in Australia without visas and were therefore 'unlawful
non-citizens' liable to removal from Australia under
s 198 of the Migration Act 1958 (Cth). The plaintiff (through
her father) challenged the validity of s 198 in its application
to her, arguing that her birth in Australia meant that
she was not an 'alien' within the meaning of
s 51(xix) of the Constitution and that s 198 could not
validly apply to her.

The High Court (Gleeson CJ, Gummow, Hayne, Kirby and Heydon
JJ; McHugh and Callinan JJ dissenting) held that the plaintiff
was an 'alien' within s 51(xix). Section 198
of the Migration Act validly applied to require her removal
from Australia.

Ordinary meaning of alien

The Commonwealth Parliament has a broad but not unqualified
power under s 51(xix) to define who is a member of the
Australian community. It could not treat someone as an
alien if he or she 'could not possibly answer the
description of "aliens" in the ordinary understanding
of the word' (Pochi v Macphee (1982) 151 CLR 101,
109 Gibbs CJ). In previous cases, it had been sufficient
for the Court to conclude that an 'alien' included
a person (a) born outside Australia (b) to non-Australian
parents (c) who had not since been naturalised. In Singh,
however, feature (a) was not present, because the plaintiff
was born in Australia.

Two significant factors

The Court held that birth within Australia did not, in
itself, take a person outside the aliens power. There were
two significant factors in reaching that conclusion.

First, in 1901, there were differences of approach in
the major legal systems in the Western world on how to
define citizenship. Broadly, some countries focused on
birth within the country ('jus soli'), and
some countries focused on descent from citizens ('jus
sanguinis'). The majority in the High Court held
that the general reference to 'alien' allowed
Parliament to use either criterion (place of birth or descent)
as a basis for defining status as a national of Australia.
Therefore, it was open to the Commonwealth to treat a person
born of foreign citizens as an 'alien', even
if born in Australia.

Secondly, in this case, it appeared that the plaintiff
was a citizen of India under Indian citizenship law. Although
Kirby J noted a recent amendment to Indian law that might
have altered that position [211], the other majority justices
expressly proceeded on the basis that she was a citizen
of India. For those justices, the fact that she owed allegiance
to another country meant that she was an 'alien' for
the purposes of Australian law (Gummow, Hayne and Heydon
JJ [190], [205]; see also Gleeson CJ [32]). Only Kirby
J expressly decided that the plaintiff was an alien whether
or not she was a citizen of India [271]. That is, she would
be an alien even if a stateless person as to hold otherwise 'would
be to subject this country's basic law to the chance
provisions of the statute laws of other countries'.
Obiter comments by Gummow, Hayne and Heydon JJ suggest
that a person who, being stateless, owes no allegiance
to any sovereign power is an alien [190].

In Koroitamana v Commonwealth [2005] FCAFC 61 (15 April
2005) the Full Federal Court held that the applicants – who
were born in Australia of Fijian parents, were not Australian
citizens and were not citizens of Fiji but had a right
to apply for Fijian citizenship – were not outside
the concept of 'alien' in s 51(xix). On 30
September 2005 an application for special leave to appeal
to the High Court was referred by McHugh and Callinan JJ
to a Full Court of the High Court. The special leave application
raises whether a person born in Australia who is not an
Australian citizen but owes no allegiance to a foreign
power is an alien.

Commonwealth Solicitor-General, David Bennett AO QC, appeared
as senior counsel for the Commonwealth and was instructed
by AGS.

http://www.austlii.edu.au/au/cases/cth/HCA/2004/43.html

Re Minister for Immigration and Multicultural and Indigenous
Affairs; Ex parte Ame
[2005] HCA 36, 4 August 2005; (2005) 218 ALR 483

The High Court held unanimously that Commonwealth legislation
could validly withdraw Australian citizenship of persons
born in Papua when those persons acquired citizenship of
the newly-independent Papua New Guinea in 1975.

The Minister sought to remove Mr Ame from Australia under
s 198 of the Migration Act 1958 (Cth). Section 198 applies
to 'unlawful non-citizens'. Mr Ame argued that
he was not an unlawful non-citizen, and in fact was an
Australian citizen, by reason of his birth in Papua in
1967.

Between 1948 and the independence of Papua New Guinea
in 1975, people born in the former Territory of Papua were
granted Australian citizenship under Australian legislation.
When Australia granted PNG independence in 1975, it enacted
regulations that, from Independence Day, withdrew Australian
citizenship from any person who acquired PNG citizenship
under the PNG Constitution (reg 4 of the Papua New Guinea
Independence (Australian Citizenship) Regulations).

Section 65(1) of the PNG Constitution provides that any
person born in the country before Independence Day who
has two grandparents born in the country automatically
becomes a PNG citizen. Mr Ame fitted this description.
However, there were exceptions – relevantly, a person
would not become a PNG citizen if he or she had a right
to permanent residence in Australia (s 65(4)(a)). Mr Ame
argued that he had a right of permanent residence in Australia,
because he was an Australian citizen. Therefore (he argued)
he never became a PNG citizen, which in turn meant he never
lost his Australian citizenship under reg 4.

Mr Ame also argued that a fundamental right such as citizenship
could not be withdrawn by regulations, without the clearest
authorisation by the head statute (here, the Papua New
Guinea Independence Act 1975 (Cth)). He argued that that
Act did not contain the necessary clear authority. Alternatively,
he argued that Australia could not validly withdraw Australian
citizenship without the participation of the person concerned.

The High Court (six justices in a joint judgment, and
Kirby J writing separately) rejected each of Mr Ame's
arguments.

First, the Court held that Mr Ame did not have a right
of permanent residence in Australia in 1975. Accordingly,
he became a PNG citizen in 1975, which in turn meant that
his Australian citizenship was withdrawn by reg 4 of the
Papua New Guinea Independence (Australian Citizenship)
Regulations. Key points in this conclusion were as follows:

  • Mr Ame's argument, if correct, would mean that
    the great proportion of the population in what was Papua
    would still be Australian citizens, not citizens of PNG.
    That result was improbable in the extreme, and could
    not be reconciled with the historical background leading
    to the PNG Constitution [19]–[21].
  • In any event, the Migration Act required a person
    to have an entry permit to come into 'Australia'.
    Mr Ame would have required an entry permit, because Papua
    was not part of 'Australia', as defined for
    the purposes of that Act [22], [74].
  • Whatever the position with Australian citizens who
    reside in mainland Australia, there was no constitutional
    obligation for residents of an external territory (who
    need not be given Australian citizenship) to be given
    the right to enter mainland Australia [22].

Secondly, the Court held that the regulations withdrawing
Mr Ame's citizenship were supported by the regulation-making
power in the Papua New Guinea Independence Act.

Thirdly, the Court held that the regulations were constitutionally
valid.

The power to acquire territories under s 122 of the Constitution
must include power to relinquish those territories [28].
Residents of external territories could be given Australian
citizenship, but that was not constitutionally required
[33]. At least in relation to external territories, it
was clear that the Commonwealth could withdraw the Australian
citizenship of residents in a territory that was granted
independence [38]. The joint judgment also rejected Mr
Ame's argument that Australian citizenship could
only be withdrawn with the involvement of the person concerned
[36].

It followed that Mr Ame was an 'unlawful non-citizen',
and could be removed from Australia [39], [131].

Commonwealth Solicitor-General, David Bennett AO QC, appeared
as senior counsel and AGS Senior Lawyer, Graeme Hill, as
one of the junior counsel for the Minister, and were instructed
by AGS.

http://www.austlii.edu.au/au/cases/cth/high_ct/2005/36.html

Re Colonel Aird; Ex parte Alpert
[2004] HCA 44; (2004) 209 ALR 311, 9 September 2004

The High Court held that a general court martial could
validly try an alleged offence of rape committed overseas
by a member of the Australian Defence Force who was deployed
overseas but on recreation leave at the time of the alleged
offence.

Under s 61 of the Defence Force Discipline Act 1982 (Cth),
a member of the Defence Force commits a 'service
offence' if he or she does something that would be
a criminal offence in the Jervis Bay Territory, had it
been done there. Rape is a criminal offence in the Jervis
Bay Territory.

The extent to which military tribunals (which are not
constituted as courts under Chapter III of the Constitution)
may validly try service offences is limited by the separation
of judicial power provided for by Chapter III. In three
cases beginning with Re Tracey; Ex parte Ryan (1989) 166
CLR 518, High Court justices have expressed three different
views on this issue.

  • One view (held by Mason CJ, Wilson and Dawson JJ)
    was that it was open to Parliament to make any conduct
    by a
    defence member which constitutes a civil offence to be
    a service offence triable by a military tribunal. That
    is because, within broad limits, it is for Parliament
    to decide what is necessary to maintain the discipline
    of
    the defence forces. This is called the 'service status' test.
  • A middle view (held by Brennan and Toohey JJ) was
    that service offences could only validly be tried by
    a service
    tribunal if those proceedings could reasonably be regarded
    as substantially serving the purpose of maintaining or
    enforcing service discipline. This is called the 'service
    connection' test.
  • The final view (held by Deane and Gaudron JJ and later
    supported by McHugh J) was that service offences were
    only valid if the offence was exclusively disciplinary
    in nature.

In this case, the High Court held by majority (Gleeson
CJ, McHugh, Gummow and Hayne JJ; Kirby, Callinan and Heydon
JJ dissenting) that there was a sufficient service connection
for Private Alpert to be validly tried by general court
martial for the alleged offence. The grounds for concluding
that there was a sufficient service connection included
the harmful effects that an offence of rape could have
on the discipline and morale of the Defence Force.

According to the minority justices the practical effect
of the majority's view was that every serious criminal
offence could be tried as a service offence in military
tribunals, thereby introducing the broad 'service
status' view of Mason CJ, Wilson and Dawson JJ. Moreover,
any effect on morale in the Defence Force of a person committing
an offence such as rape had to be weighed against the effect
on morale of Defence Force members being tried for ordinary
criminal offences without the usual protections of civilian
courts.

Although the High Court held that a general court martial
could validly try this offence, the case does not settle
the jurisdiction of military tribunals. All members of
the majority specifically noted that Private Alpert had
not sought to reopen the Chapter III issue addressed in
the Re Tracey line of cases.

Commonwealth Solicitor-General, David Bennett AO QC, appeared
as senior counsel for the Commonwealth and was instructed
by AGS.

http://www.austlii.edu.au/au/cases/cth/HCA/2004/44.html

BHP Billiton Ltd v Schultz
[2004] HCA 61; (2004) 211 ALR 523, 7 December 2004

The High Court held that the general cross-vesting scheme
requires a court to transfer proceedings to the more appropriate
or 'natural' forum.

Consequently, the home court ordinarily should not give
any weight to the fact that:

  • the proceedings were regularly constituted in the
    home court, or
  • the transfer may cause the plaintiff to lose the advantage
    of special provisions of substantive law available
    in the home court.

In this respect, a decision whether to transfer proceedings
under the cross-vesting legislation is fundamentally different
from whether to stay proceedings on the common law grounds
of forum non conveniens (which requires the court to decide
the matter unless it is a 'clearly inappropriate' forum).

Commonwealth Solicitor-General, David Bennett AO QC, appeared
as senior counsel for the Commonwealth Attorney-General
and was instructed by AGS.

http://www.austlii.edu.au/au/cases/cth/HCA/2004/61.html

Agtrack (NT) Pty Ltd v Hatfield
High Court of Australia, 10 August 2005, [2005] HCA 38;
(2005) 218 ALR 677

Paterson v Air Link Pty Ltd
High Court of Australia, 10 August 2005, [2005] HCA 39;
(2005) 218 ALR 700

These cases concerned proceedings for damages brought
as a result of accidents which occurred during interstate
air travel.

In specified circumstances, Part IV of the Civil Aviation
(Carriers' Liability) Act 1959 (Cth) (the Carriers' Liability
Act) imposes liability on an air carrier for death of or
personal injury to a passenger. The liability of a carrier
under Part IV is in substitution for any civil liability
of the carrier under any other law (ss 35(2) and 36). The
right of a person to damages under Part IV is extinguished
if an action is not brought within two years (s 34). In
these cases, proceedings to recover damages were commenced
within the two-year limitation period; however, they did
not specifically plead the Carriers' Liability Act
and were expressed in terms of claims of liability arising
in negligence or contract.

The High Court heard appeals in Agtrack and Airlink together.
Two issues arose:

First, whether the statements of claim as originally filed
were sufficient to bring an action under s 34 of the Carriers' Liability
Act. The High Court held that the question of whether an 'action' has
been 'brought' under Part IV of the Carriers' Liability
Act is to be determined by construing that statute and
not by the application of state and territory pleading
rules. On that basis, although neither action had complied
with the relevant state pleading rules, the High Court
held that the plaintiffs had 'brought' an action
under Part IV because they had pleaded sufficient facts
to show that Part IV of the Carriers' Liability Act
applied. It was unnecessary to show that a plaintiff had
it in his or her mind that they were proceeding under Part
IV.

Secondly, if the statements of claim were not sufficient,
could state or territory laws which permit the amendment
of pleadings with the effect of reviving a statute-barred
cause of action apply to permit amendments being made outside
the two-year period with the effect (under the doctrine
of 'relation back') of deeming the actions
to have been properly pleaded when commenced and so brought
within the two-year period. The High Court held that the
two-year period in s 34 of the Carriers' Liability
Act was 'a prerequisite for the existence of a right
to compensation under Part IV of the Carriers Liability
Act' and once that period expired the right was 'extinguished'.
Therefore, state or territory law that would otherwise
have the effect of deeming an action which was not brought
under Part IV within the two-year period to have been so
brought could not be picked up and applied by s 79 of the
Judiciary Act 1903 (Cth).

AGS Chief General Counsel, Henry Burmester AO QC, appeared
as senior counsel for the Commonwealth Attorney-General
and was instructed by AGS.

Agtrack: http://www.austlii.edu.au/au/cases/cth/high_ct/2005/38.html
Paterson: http://www.austlii.edu.au/au/cases/cth/high_ct/2005/39.html

About the authors

David Bennett heads the AGS constitutional litigation
practice. He has advised the Australian Government on
constitutional law issues for more than 20 years.

Robyn Briese has been involved in a number of
recent constitutional cases in the High Court and other
superior courts and has advised on constitutional issues
raised by notices given under s 78B of the Judiciary
Act 1903.

Andrew Buckland has run several significant
constitutional cases in the High Court and other superior
courts. Prior to joining the constitutional litigation
practice, Andrew advised a number of Commonwealth clients
on constitutional and other public law issues.

Kathryn Graham has particular expertise in Commonwealth
financial management and provides advice on constitutional
issues; assists clients in policy development, the development
of drafting instructions and review of draft legislation;
and advises on the interpretation and application of
Commonwealth legislation.

Graeme Hill is a Senior Lawyer in constitutional
litigation, with a particular expertise in federal jurisdiction
and inter-governmental immunities. He has been involved
in major constitutional cases as counsel or instructing
solicitor.

AGS contacts

AGS has a team of lawyers specialising in constitutional
litigation. For further information on the articles in
this issue, or on other constitutional litigation issues,
please contact the authors or practice leader Deputy Government
Solicitor, David Bennett.

David Bennett

Canberra
David Bennett Deputy Government Solicitor
T 02 6253 7063 F 02 6253 7303
david.bennett@ags.gov.au

For information on general litigation and dispute resolution
matters and services please contact any of the lawyers
listed below.

Canberra
Jenny
Anderson

02 6253 7401

New South Wales
Julia Hall

02 9581 7432

Victoria
Susan Pryde

03 9242 1426

Queensland
Maurice
Swan

07 3360 5702

Western Australia
Graeme
Windsor

08 6268 1102

South Australia
David
Williams

08 8205 4283

Tasmania
Peter Bowen

03 6220 5474

Northern Territory
Jude Lee

08 8943 1444

ISSN 1329-458X (Print)
ISSN 2204-6542 (Online)

For enquiries regarding supply of issues, change of address
details etc.
T 02 6253 7052 F 02 6253 7313 E ags@ags.gov.au

Electronic versions of AGS newsletters are available for
clients who prefer to receive issues in this form. Please
contact 02 6253 7052 or email ags@ags.gov.au to arrange
supply.

The material in these notes is provided for general
information only and should not be relied upon for
the purpose of a particular matter. Please contact
AGS before any action or decision is taken on the basis
of any of the material in these notes.