Appleby UNSW staff photoBY GABRIELLE APPLEBY

This post is the final in a special series providing expert analysis on the Australian Citizenship Amendment (Allegiance to Australia) Bill 2015. The Parliamentary Joint Committee on Intelligence and Security is currently conducting an inquiry into the Bill.

The constitutional validity of the government’s proposals for stripping citizenship from those engaged in terrorist acts has been front and centre of the political debate. Government Ministers broke ranks and even the usual bipartisan support that we expect in Australia over national security proposals disintegrated. The Opposition asserted that, while it was serious and tough on terrorism, it wasn’t prepared to support an unconstitutional proposal.

In this post, I explore the use (and abuse) of the Constitution in the political debate around the citizenship-stripping proposal. Before turning to the current debate, I will first explain that while a responsible, conscientious Parliament ought not enact legislation that is clearly unconstitutional, the invocation of the Constitution in political debate is often problematic. The Constitution is often invoked as a shield against enacting politically controversial measures (such as proposals to allow same-sex marriage), and often substitutes for more substantive policy debate and deliberation.

Parliament’s obligations to act constitutionally

With Adam Webster, I have argued elsewhere that the conscientious, responsible parliamentarian ought to consider the constitutional validity of proposed legislation. Parliamentarians should not enact legislation that they believe is clearly unconstitutional. However, they should also remember that their role is to develop the Australian statute book so that it continues to reflect contemporary social values. In doing so, they will often face constitutional uncertainty, and they are unassisted in this by the High Court. In the 1921 decision of Re Judiciary and Navigation Acts, the Court found that it was unable to advise Parliament on constitutional questions.

Constitutional uncertainty ought not prevent parliamentarians from enacting constitutionally novel legislation. Indeed, it is often at the edge of constitutional certainty that important social change is achieved. The validity of the Racial Discrimination Act 1975 (Cth) was constitutionally uncertain, as was the World Heritage Properties Conservation Act 1983 (Cth), which allowed the Commonwealth to stop the Tasmanian government’s attempt to dam the Franklin River. Both were subject to, and withstood, High Court challenge. More recently, many of the Howard Government’s anti-terror reforms also pushed the boundaries of constitutional certainty. The control order regime, for example, was subjected to (ultimately unsuccessful) constitutional challenge the first time it was used.

So if Parliament approaches its role in an unduly or excessively cautious fashion in relation to constitutional validity, it may needlessly restrict its policy agenda and capacity to drive social change. Where there are reasonable arguments to support constitutionality, parliamentarians should not be dissuaded from acting if they are convinced that the policy is a worthwhile one. That is, debate and the ultimate decision should be on the substantive policy, not on possible constitutional invalidity of the measure.

We have recently witnessed some of the dangers of undue constitutional caution in parliamentary debate. In 2012, when a number of bills to legalise same-sex marriage were before Parliament, a strong political campaign emerged that same-sex marriage was likely to be unconstitutional (because it would not be supported by the Commonwealth’s power to make laws with respect to marriage), and that, therefore, the question should be put to a referendum. This position was politically convenient for parliamentarians wishing to avoid taking a potentially politically costly stand on a divisive social and moral issue, particularly where their constituency might have been sharply divided, or where powerful interests opposed the change. Calls for a referendum were also advantageous for those wishing to stymie the reform, given the notorious difficulty of satisfying the referendum requirements. In December 2013, however, the High Court finally confirmed that Parliament has the constitutional power to legislate for same-sex marriage, putting to bed claims that the reform would be unconstitutional. Any future debate on the question will have to be on its own terms, without employing the Constitution to avoid or thwart Parliament’s role.

Equally, however, Parliament should not be constitutionally reckless, enacting legislation that is clearly unconstitutional. Such an approach undermines the rule of law, and creates significant uncertainty for governments and individuals trying to organise their affairs.

We also have a recent example of the difficulties caused by constitutional recklessness. In 2012, the High Court struck down the Commonwealth’s funding of chaplaincy services in schools. The Court found that, with some exceptions, government expenditure required authorisation in the form of an appropriation as well as substantive legislative backing. The Commonwealth responded to the decision by enacting legislation that purported to authorise, by regulation, the school chaplaincy program together with hundreds of other federal spending programs. However, the Commonwealth largely ignored the need for these programs to have a connection to one of its heads of legislative power. The Opposition supported the legislation, although then Shadow Attorney-General George Brandis QC noted his serious constitutional concerns about it, stating in debate:

I am far from satisfied that that umbrella form of statutory validation is effective to satisfy the constitutional lacuna which the High Court identified in the Williams case.

In 2014, the High Court upheld a second challenge to the Commonwealth’s school chaplaincy funding, this time on the basis there was no head of power to support the legislation purporting to authorise the expenditure. In response, the Finance Minister had to ‘forgive’ the debts that were now owed by chaplaincy providers because of unconstitutional payments made by the Commonwealth. Despite this further warning from the Court about the constitutional validity of many of the programs purportedly authorised under the 2012 scheme, the Commonwealth refused to change the design of its funding arrangements. Indeed, just last month it was forced to pass retrospective legislation validating its spending on offshore immigration detention centres.

Debate over constitutional validity of the citizenship-stripping proposals

How, then, has the Constitution been employed in the current debate over citizenship-stripping powers?

In May, it was reported that a number of Ministers had raised rule of law and separation of powers concerns in Cabinet over the Prime Minister’s initial proposal: to vest the Minister for Immigration with the power to strip the citizenship of dual nationals, or even sole nationals who were eligible for dual nationality. Communications Minister Malcolm Turnbull said publicly:

We’ve obviously got to make sure that we protect the national security of Australia …. and we also have to do so within the rules … which above all of course is the constitution [with] which we all have to comply.

It was leaked that there was even advice from the Solicitor-General that the proposal might be unconstitutional – although the actual advice was never released and so we do not know the terms in which it was framed. The Opposition indicated that, while it hadn’t seen the details of the Bill, it was alarmed by reports that the proposal allowed the revocation of citizenship without a full court process, and was concerned by its potential to infringe the separation of powers.

Despite the increasing certainty in political and media circles that the initial citizenship-stripping proposal was unconstitutional, constitutional experts were divided. While Professor Greg Craven was quoted as saying that the proposal was ‘irredeemably unconstitutional’, that it would be ‘swatted down like a bug by the High Court’, Professor George Williams couched his view in decidedly more circumspect language, indicating it would be vulnerable to challenge. As did others.

There are certainly arguments that the stripping of citizenship by ministerial discretion would breach the Constitution. It might, arguably, be unconstitutional because the stripping of citizenship is a punitive measure which, under the separation of powers in the Constitution, must be performed by the courts, or because there is a constitutionally implied protection of citizenship status.

However, the High Court has never heard a case that raised any of these arguments. Each argument requires the Court to draw a number of conclusions about what is implied in the Constitution. So, while the stripping of citizenship by executive discretion certainly raised constitutional questions – and might have been a really bad idea as a matter of policy – it was not a definitively unconstitutional position for the government to have taken.

Interestingly, once the government amended its proposal and introduced the Australian Citizenship Amendment (Allegiance to Australia) Bill 2015, under which the revocation of citizenship is so-called ‘self-executing’, questions about constitutional validity largely disappeared from the political debate. If members of the Cabinet, and the Opposition were truly concerned about ensuring the constitutional validity of the proposals, there remained similarly serious questions about the constitutional validity of the Bill that was ultimately introduced (see, for example, the explanation of the continuing separation of powers concerns by Rayner Thwaites and Helen Irving, and the constitutional questions about legislative power and constitutional status of citizenship by Sangeetha Pillai).

Despite these constitutional questions remaining, the Opposition has indicated it will support, in principle, the introduced Bill. Any lingering concerns over the constitutional validity of this proposal that the Opposition may harbour have not been reported. Neither have any other, more substantive, policy concerns about the proposal. We have returned to bipartisan support for tough national security measures.

The Constitution in political debate

There are a number of serious questions that the citizenship-stripping proposal raises that relate to the desirability, proportionality and effectiveness of the policy as a national security measure. These questions must be answered regardless of whether the proposal is framed by reference to the exercise of a ministerial discretion, or as a so-called ‘self-executing’ legislative provision.

The answers to these questions do not necessarily go to the constitutional validity of the legislation. The protections that our Constitution affords are, in this area at least, largely uncertain. As such, Parliament would not have been acting improperly to pass the measures even their initial form. Arguments about the constitutional validity of the proposal do not answer the questions about whether the measures reflected good policy, and a proportionate response to the current level of national security threat that Australian faces. Our Constitution is very limited in the protection it affords individual rights and liberties. Instead, the Australian constitutional system must rely heavily on legislative deliberation about and protection of rights.

Yet we have seen very few of these more substantive policy questions raised in the current political debate over the citizen-stripping proposals. Instead, government Ministers and the Opposition pushed back against the initial proposal drawing on, predominantly, concerns over its possible constitutional invalidity. The Constitution appears to have been invoked as a substitute for – or a shield against – more important, substantive policy debates. While this has meant that some changes were made to the policy, they have been necessarily narrow and many of the most serious questions about the proposal remain unanswered.

Dr Gabrielle Appleby is an Associate Professor at UNSW and the Co-Director of The Judiciary Project, Gilbert + Tobin Centre of Public Law.

Suggested citation:  Gabrielle Appleby, ‘The use (and abuse) of the Constitution in political debate’ on AUSPUBLAW (23 July 2015) <https://auspublaw.org/2015/07/the-use-and-abuse-of-the-constitution/>.