This post is a keynote paper that was delivered by Justin Gleeson SC at the 2018 Constitutional Law Conference in Sydney. Noting that other papers at the conference covered individual cases from 2017, Mr Gleeson offers more general perspectives on the High Court’s year in constitutional law. He focuses on section 44 cases, observing that they placed a significant burden on the Court in 2017, and Chapter III cases including Rizeq, Knight and Graham. He also notes cases that were not seen in 2017, such as challenges to Commonwealth statutes for exceeding the heads of power in section 51. In his conclusion he suggests that the High Court is encouraging lawyers to ‘continually search for bridges between constitutional law’ and other areas of law such as administrative law, statutory interpretation, evidence and procedure.
The work of an ultimate constitutional court can be approached from different angles. A simple entry point is subject matter: what are the types of cases that the court is considering—or not—at a given point in time? What does subject matter tell us about the concerns of litigants, the proclivities of governments or indeed the discretionary choices of a court to take on some matters over others? I will start with subject matter, but I will also mention some other frames of reference.
As I read the constitutional cases decided by the Court in 2017—which represent a little over 20% of the total judgments of the Court for the year—it is immediately striking that most judgments are evenly spread across two particular areas of federal constitutional law: on the one hand, the now ubiquitous section 44 cases on the grounds of disqualification of persons from Parliament; and on the other, a continued exploration of the concepts and limitations on judicial power and federal jurisdiction arising from Chapter III. Beyond these two areas, we have one important decision on the implied freedom of political communication in Brown, and the important discussion in Wilkie on the nature of appropriations. I will focus mainly on the section 44 and Chapter III cases, save to make one observation about Brown near the end.
What then are we not seeing at present? Missing in action, first of all are cases challenging Commonwealth statutes for exceeding the heads of power in section 51. Also, unlike a number of recent years, the limits of Commonwealth Executive Power, particularly where it is sourced directly to section 61 rather than a statute, are escaping scrutiny. Other staples of recent years—sections 90, 92 and 109 or Kable—are largely absent. Why is this so? A simple explanation might be that the Commonwealth drafters are succeeding in their job of keeping cases out of the High Court. Perhaps also the Commonwealth Executive, bruised over the past decade by Pape and the two Williams cases, and hardly encouraged by observations in Plaintiff M68/2015 and CPCF, has recognised that it is safest to source Executive Power in a valid statute. Maybe the States—the usual targets of sections 90, 92 and 109 or Kable—are being equally modest in their ambitions? Or this might just be “swings and roundabouts”.
The Court can decide only the cases that parties seek to bring before it. But I do observe, with just a note of concern, that the Court’s constitutional work at present has a strong “Commonwealth-centric” focus. Most of the cases have the Commonwealth as a party, concern Commonwealth legislation or Federal Constitutional provisions and do not engage the States to offer a competing argument to Commonwealth power. Often, it falls to a private citizen or body, or a public interest organisation, to get the case before the Court, regularly requiring pro bono representation and strained efforts to establish standing. As well, we are not seeing much State or Territory Constitutional law get to the High Court.
My initial urging to all the fine young, as well as not so young, Constitutional lawyers in this room is to think not only about what 2017 teaches us, but also about the many other areas of our Constitutional frameworks—Commonwealth, State and Territory—that might be productive of further examination, both in the High Court and also in all other Courts exercising federal jurisdiction.
Section 44 cases
The Court, sitting as the Court of Disputed Returns, decided a large number of section 44 cases in the year: four, if you count conservatively; ten, if the related judgments of 27 October are counted separately; and this does not include the cases heard or underway at year end or cases still threatened. As you will well appreciate, the section 44 cases all arise out of the election held on 2 July 2016, not a distant 18 months ago. A large part of the term of the 45th Parliament will be consumed over challenges to its composition!
An immediate systemic question arises. The High Court sits as the Court of Disputed Returns by reason of provisions in the Commonwealth Electoral Act 1918 (CEA) which go back to Federation, at a time when it was the only available court of federal jurisdiction. Should this continue to be the work of the Court? Is it imposing too great a burden on the balance of the Constitutional, as well as non-Constitutional, work of the Court?
Some cases in the Court of Disputed Returns raise matters which are strictly electoral – such as the 2014 Western Australia Senate Election case, where the question was whether the loss of ballot papers which might have made a difference to the result compelled the Court to order a new election for the whole of the WA Senate. The CEA currently allows the High Court to remit such petitions for trial in the Federal Court, or to remit part of the petition being a factual question to such court (s 354). However it also contains a finality, no appeal provision (s 368).
The 2017 cases went not so much to the election process but to the qualifications of candidates. Re Culleton (No 2) in February resolved in the main judgment that a conviction in fact for a relevant Commonwealth offence at any time during the election period was a disqualifying event, and a later annulment of the conviction was irrelevant to that disqualification, at least under particular NSW legislation that did not give the annulment full retrospective effect. Nettle J would have gone further: order and certainty require that a relevant conviction produces an immediate and irreversible disqualification irrespective of any form of later annulment.
Re Day (No 2) in April contains a ground-breaking analysis of the high purposes served by section 44(v). The Court swept aside the narrow view of Barwick CJ in 1975 in Webster, that the provision did no more than mirror its progenitor in the House of Commons (Disqualification) Act 1782 (UK). The broader view of the purpose of s 44(v), unanimously adopted across the four separate judgments, is that it serves to ensure that Members of Parliament will not seek to benefit by agreements with the Public Service, nor put themselves in a position where their duty to the electors and their own personal interests may conflict. We see here a notion of Public Trust. Parliamentarians have a duty as representatives of the people to act in the public interest. They must act in good conscience, uninfluenced by other considerations, especially personal financial considerations (at -, , , ). There are differences between the four separate judgments as to exactly why Mr Day’s arrangements crossed the line.
Then on 27 October we had the important section 44(i) judgments in Re Canavan, affirming the correctness of Sykes v Cleary, and noting that the Constitution draws no distinction between natural born and naturalised Australian citizens when it comes to this ground of disqualification. Where a person otherwise qualified for Parliament “is” under the law of a foreign country a citizen or subject of it, that means disqualification, save for the “constitutional imperative” that a person otherwise qualified to stand should not be irremediably prevented from doing so by foreign law. Knowledge of foreign citizenship is irrelevant. The constitutional imperative explains the “reasonable steps” exception identified in Sykes v Cleary, and the limits of it will be traced in the Gallagher reference heard on 14 March this year.
Finally, on 6 December, Re Nash (No 2) decided the novel point that the process of “choosing” referred to in section 44 does not end until every step in the process of choice leading to the lawful declaration of the result has occurred. This conclusion has the benefit of purity and consistency, but does lead to the practical consequence identified in the final paragraph of the judgment of 5 Justices: for so long as there is the possibility of a section 44 challenge, the process of election is never over; any person with a residual chance of stepping up to a potential vacancy, particularly in the Senate, would do well to avoid any of the grounds in section 44 in the meantime.
A common theme to the relief granted in the various section 44 cases is that, in the Senate, which has multi-member constituencies, there is a special count to determine who would have been elected next had the disqualified person not been on the ballot paper. By contrast, in the House of Representatives, with its single member constituencies, it is assumed that no accurate voter intent can be observed as to the counter-factual where the name of the disqualified person was not on the ballot paper; accordingly, the seat is declared vacant and a by-election held. In the Senate, the votes given at the previous election are re-interpreted; whereas in the House of Representatives they are cast aside. That disparity in relief seems compelled by authority but it is striking in its practical outcomes. Mr Joyce was able to fight his way back into the 45th Parliament but Ms Nash was not.
I return then to my earlier systemic question. These section 44 cases have placed, and continue to place, a considerable extra burden on the Court, not just in the hearing time and writing of judgments, but in the intensive case management prior to the hearing and in disposing of the questions of relief afterwards. We have profited in 2017 from the Court authoritatively deciding fundamental questions about the scope and purposes of the various heads of section 44; but there is a case for amending the CEA to allow all matters, whether electoral or constitutional, to be remitted to the Federal Court, while at the same time removing the finality/no appeal provision.
Chapter III cases
Chapter III cases continue to roll into the Court and allow the opportunity to re-think the most fundamental questions about judicial power and federal jurisdiction.
In February, the Court delivered the reasons in Palmer for earlier pronounced orders upholding the validity of the compulsory examination powers in section 596A of the Corporations Act. The main judgment disposed of the challenge swiftly. True, a federal court was being given a power of inquisition which was not inherently judicial. But, as a forward-looking power—designed to elicit information which might be used in proceedings brought to recover the corporation’s property—it is conferred as part of a larger “matter” in which federal jurisdiction could properly be vested. Some doubts earlier raised by Gaudron J in Gould (at -) were swept aside.
Gageler J came to the same ultimate conclusion, but only after a far greater excursion into the history of the conferral on courts of inquisitorial powers and into the legal, philosophical and political writings of Montesquieu, Blackstone and others which underpinned the separation of powers guaranteed by Chapter III. The relevant “matter” is not simply the prospect that actions might be brought in the future based on the information acquired; rather, that power is conferred as part of the court’s role in the supervision of the external administration of corporations. As such, there is no damage to the core idea of the separation of powers—that the function of judging disputes be given to an arm of government not caught up in the legislative or executive functions.
The second big Chapter III case was Rizeq decided in June in which the Court resolved uncertainties raised by a number of earlier decisions and commentary about the intersection between federal jurisdiction, the application of State law and the role of section 79 of the Judiciary Act. Jurisdiction is the authority to decide; and can be federal or State. It is discrete from the body of law applied to resolve a dispute; which can be Commonwealth, State or a mixture of the two. A State has power to supply a general body of law, such as the criminal law regulating the misuse of drugs, which law then operates of its own force whether the matter is in State or federal jurisdiction. What a State cannot do is to legislate directing a court how to exercise federal jurisdiction. This creates a “gap” which section 79 fills.
In Rizeq, the State law for majority verdicts fell into the gap. Once the trial is in federal jurisdiction, as for example under the diversity jurisdiction of section 75(iv), the majority verdict law applies by force of section 79, but the underlying criminal law offence remains applicable as State law. It never becomes a “law of the Commonwealth” so as to attract section 80 of the Constitution and its implied requirement for unanimous verdicts.
In Knight, the Court held, consistent with previous authority, that a law targeted at ensuring a particular convicted person does not get parole does not interfere with the judicial power exercised earlier in setting the criminal sentence, at least where the non-parole order takes the shape that the person is not to be released before a particular date (as opposed to an order that the person be released, conditionally, on a date described as the “parole date”).
Which brings me to mention Graham The judgment of six Justices is, I venture to suggest, the strong vindication of a project of Gageler J while as Solicitor-General and on the Court for the last five years. Section 75(v) now operates not just as a constitutional entrenchment of the writs mentioned therein, preventing the Parliament from abolishing them, but also as a deeper reflection of the correct relationship between the three arms of Government, at least at federal level. The Parliament makes the laws, which allows it to decide what powers to confer on the Executive and what limits to place around those powers. Once those limits have been placed, it is the function of the courts to police those limits – to determine whether they have been exceeded or not and, if exceeded, to grant the appropriate remedy. What Parliament cannot do is to confer powers and ostensibly put legal limits around them, but then prevent the courts from being able effectively to police those limits. Section 503A of the Migration Act offended these notions because, in a context where the court was asked to determine whether the Minister’s decision exceeded the legal limits set by Parliament, it prevented the court from seeing relevant material on which the Minister acted. Edelman J gave a stirring dissent which I will leave for later discussion.
Plaintiff M96A/2016 dealt with the outer limits of the Lim principle in the migration context. Where an alien is brought to Australia under s 198B as a “transitory person” – such as for the purposes of medical treatment – section 189 requires the person to be kept in immigration detention because the person is an unlawful non-citizen. Does that detention offend Chapter III? The Court unanimously held no. The main judgment assumed, without deciding, that the only lawful purposes for the detention of non-citizens are those concerned with either removing them from Australia or considering their application for a visa or whether to permit them to make such an application. However, it distinguished the purpose of their detention—which remained the lawful purpose of ensuring that they were available for removal from Australia under the range of circumstances permitted by the Act—from the temporary purpose for which they came to Australia.
Perhaps more importantly, the Court clarified what was meant by statements in Plaintiff S4 that Chapter III requires that the duration of the detention must be capable of being objectively determined from time to time. This is really an Australian Communist Party case point. Parliament cannot evade judicial scrutiny of the legality of detention by criteria that are too vague to be capable of objective determination, such as making them depend on unconstrained and unascertainable opinions of the Executive.
Interestingly the main judgment noted that the conditions need not be ones entirely within the control of the Executive, such as where the question is whether it is reasonably practicable to remove a person from Australia, citing the judgment of Hayne J in Al-Kateb v Godwin. This suggests to me that the thorny questions over the correctness of AlKateb are unlikely to be successfully revisited before this High Court.
I will also mention the related case of Falzon, which was heard in November 2017 but decided on 7 February 2018. In Falzon, a challenge was made on Lim grounds to section 501(3A) of the Migration Act —a provision which requires the Minister to cancel a person’s visa if the Minister is satisfied that the person fails the character test because the person has suffered conviction for identified serious criminal offending and the person is currently serving imprisonment for any Commonwealth, State or Territory offence. (Note the condition of criminal guilt was framed in terms of a conviction, not simply a Ministerial satisfaction that a person had committed a crime).
The core argument was that the provision confers judicial power on the Minister because it enables the Minister to impose a punishment—cancellation of the visa—which is additional to that imposed by the criminal courts. The main judgment upheld section 501(3A) as no more than a legislative judgment that certain classes of serious offending combined with imprisonment justifies the cancellation of the permission of an alien to remain in Australia and the conversion in status from lawful to unlawful non-citizen. Once those events have lawfully occurred, the provisions of sections 189 and 196 cut in and do their ordinary work, requiring the person as an unlawful non-citizen to be taken into detention and removed from Australia as soon as practicable. Interestingly, the main judgment made clear proportionality testing has no place in Chapter III.
Gageler and Gordon JJ disposed of the point more summarily. Section 501(3A) neither required nor authorised the detention, as would be necessary before any Lim issue could arise. Further, section 501(3A) confers a power which is administrative in character, and in no way trespasses on the exclusive judicial function of determining or punishing criminal guilt.
Stepping back from the last three cases, the message seems to be that the Court is not interested, at least explicitly, in whether the Parliament has legislated in the migration context in a way that may produce harsh and draconian outcomes. The aliens power is deliberately one designed to give the Parliament very broad latitude to set the rules for whether and when particular aliens or classes of aliens should be removed from Australia for the safety and welfare of Australia; or conversely the conditions under which they should be accepted into the community on a temporary or final basis. A person like Mr Falzon, who came to Australia at the age of three, more than 60 years ago, but who remained merely under permission as a non-citizen, can have his status converted to an unlawful non-citizen, setting in train requirements for his detention and removal if that is Parliament’s view.
The place where Parliament becomes unstuck is if it defines the rules in a way that prevents the Courts doing their usual job that could come about, as in Graham, if Parliament prevents the court seeing material necessary to decide if the Executive has remained within the limits of law; or, as in the point adverted to in Plaintiff M96A but not there made out, where Parliament sets the legal rules in ways which involved unconstrained, unascertainable Executive opinions.
I note the Court is reserved in Burns, an important case on diversity jurisdiction and State tribunals.
Some broader observations
Stepping back from the cases, I suggest four overall observations can be drawn. The first is that I mentioned at the outset that Constitutional cases number a bit over 20% of the total cases decided by the Court in 2017. The majority of the time and energy of a High Court judge remains devoted to cases under the general law—most typically regulatory law, taxation, criminal law, family law, industrial law, equity, occasionally a commercial case, and of course, migration. Most of the work done by the High Court, leaving aside migration, is in the appellate jurisdiction. I suggest that this balance of work, very different to that of the United States Supreme Court, explains some of the thinking of the Court in Constitutional matters.
The Court strives very hard not to be driven by politics in the way that regularly occurs with the US Supreme Court. Politics is the preserve of the politicians. But to the extent there is a theme running through the section 44 decisions, it is that the Court will take a stricter, rather than looser and more pragmatic, view towards the disqualification requirements, and rightly so. The Court’s role in striking down laws made by the elected politicians is a confined and restrained one. But one of the quid pro quos is not to tolerate any slackness in establishing their entitlement to take part in the law making in the first place.
Secondly, in the Chapter III cases, we see the Court emphasising that the divide between legislative and executive power, on the one hand, and judicial power on the other is a crucial one, informed by deep systemic values. The Court is helped to discern the implications for that divide by a detailed knowledge that it acquires from its cases in general jurisdiction. Think about it: Palmer engages corporation law; Rizeq and Knight engage the criminal law; M196A, Graham and Falzon engage migration law. The results reached in each of these cases are strongly supportive of practical, pragmatic approaches to how the courts of the land go about their business in these cases every day. This is subject to the qualification I have noted that the Court will scrutinise closely laws which interfere with the ability of the courts to perform their basic function of policing the limits set by law. Whether the result in Burns when it comes is pragmatic remains to be seen.
Thirdly, Brown presents a different picture. Here, because of the way the implied freedom jurisprudence has developed, the Court sits in judgment on the legislative judgment. It is probably the most radical decision of the year in its implications for Parliaments—whether federal, State or Territory. Parliaments need to do a far better job than they often do when restricting political communications to think through the hard questions: what exactly is the legitimate aim I am pursuing; and have I chosen means that are tailored to that aim and are not disproportionate, unnecessary, vague and uncertain in their reach; does my drafting make rational sense in exposing how means are being chosen to pursue legitimate ends?
Finally, the statement in Rizeq that there is a single composite body of law—whether federal, State or Territory—to be applied whatever jurisdiction a court is exercising, is an important one for where the Court is leading us, whether as Constitutional or general lawyers or scholars. It was not that long ago that cases like Lange first declared, in the course of a constitutional case, that there is but one common law of Australia. Rizeq goes further to speak of a single, composite body of law, whether statutory or common law, even if derived from different sources. The result in Rizeq is respectful of the traditional differences between States in stating norms within their criminal law, while confirming that laws directed to a court exercising federal jurisdiction ultimately are sourced to federal law and may be made uniform if desired at that level. We recall other cases speaking in terms of a national judiciary, and single set of principles of statutory interpretation including, for example, the principle of legality.
The deep thinking about the separation of powers which informs Graham, particularly Gageler J’s judgment, produces evident outcomes for judicial review at federal level. A question thrown up by this thinking is how long can differences be tolerated between the standards that govern justice at federal level and those at State or Territory level? I think the Court may be telling us that we need think about Constitutional law in a more holistic way than we often do. There are State and Territory Constitutions as well as the federal one, and no doubt the separation of powers is more explicit in the latter case. But ultimately, we have one set of courts across the nation; one composite body of law; and one need for our courts to stand independent of Parliaments and Executives and to police in a real and meaningful fashion the limits of law.
It is not too fanciful to think that the High Court is pointing us in the direction that cases like Kable, Kirk, and now Graham (and perhaps even in its own way Brown) are but stepping stones to a single unified set of principles which govern all courts in the nation: all judicial review reduces to a single question whether the Parliament or the Executive has overstepped the bounds of law; and no Parliament or Executive, anywhere in the nation, can denude a court of the ability to perform that entrenched function, whether by requiring central evidence to be withheld from the court, defining the limits of law in ways that are too vague for courts meaningfully to police, or in any other way that may appeal to a Parliament. In the same vein, I think the style of legal thinking being encouraged by the High Court invites all lawyers continually to search for the bridges between constitutional law, administrative law, statutory interpretation, public law, private law, evidence and procedure. The search must always be for a coherent whole rather than discordant parts.
Justin Gleeson SC is the former Solicitor-General of the Commonwealth and a barrister at the NSW Bar.
Suggested citation: Justin Gleeson, ‘The High Court on Constitutional Law: The 2017 Term Keynote Address to 2018 Constitutional Law Conference’ on AUSPUBLAW (5 April 2018) <https://auspublaw.org/2018/04/the-high-court-on-constitutional-law-the-2017-term/>