AUSTRALIAN CONSTITUTIONAL LAW

October 6, 2021

 

AUSTRALIAN CONSTITUTIONAL LAW

Word Count: 2496

 

  • INTRODUCTION

This case raises a number of pertinent issues for determination. First, whether the state, through the proposed Extremists Act (“the SAFE Act”), is justified to exercise the powers listed in the proposed legislation on account of national security. Secondly, whether the proposed SAFE Act violates the doctrines of separation of powers, constitutional supremacy and the dictates of the rule of law. 

  • ANALYSIS
  • Defence powers and executive powers

S 51 (vi) of the Constitution vests the Federal Parliament with the power to make laws with respect to, among other matters, the naval and military defence of the Commonwealth and of the several States, and the control of the forces to execute and maintain the laws of the Commonwealth. Because of the purposive nature and the unique wording of the said proviso, the validity of defence powers must be considered having regard to subjective proportionality, necessity and prevailing political climate. This position was established in the leading case of Stenhouse v Coleman wherein the High Court was emphatic that for legislation proposing defence actions to succeed constitutional scrutiny, the legislation must have defence purposes, based on prevailing needs.

Therefore, there must be a reasonable connection and proportionality between the invoked defence power and the purpose of the measure taken. Applying this test, the Court in Adelaide Company of Jehovah’s Witnesses Inc v Commonwealth found that seizing of property of organizations was an invalid action as it had no connection between the defence power and seizure of property.

Turning to the facts of this case, a number of defence measures are proposed under the provisions of the proposed SAFE Act. The first one is to the effect that the Minister may declare state of emergency where the circumstances so permit. This is provision is problematic as the power to legislate on the appropriateness of state of emergency lies on the legislature and there is no cogent reason put forward to warrant derogation from the constitution. Accordingly, this aspect of the proposed legislation is invalid for usurping legislative powers and constitutional imperatives. 

The second defence measure, to wit, designation of persons as threats to national threats and directing their detention in DSC facilities also raises a number of constitutional issues with regard to exercise of defence powers. The said provision purports to grant the Minister judicial powers to decide whether certain persons may be detained without trial by competent courts of law. In constitutional democracies such as Australia, the right to a fair trial is so sacrosanct that convictions must be based on due process. In Ruddock v Vadarlis, the key issue before the Court was whether the Commonwealth had the prerogative power to detain asylum seekers who had tried entering Australia using a Norwegian cargo vessel. The majority’s decision was that there was no known legal provision authorizing the arbitrary actions of the Commonwealth.  

The landmark decision of Australian Communist Party v Commonwealth is also very instructive in this regard. In that case, the Prime Minister had introduced Communist Party Dissolution Bill for enactment by Parliament. The principal purpose of the Bill was to declare the Australian Communist Party an unlawful association and to abolish it and confiscate its property. The Bill was passed into law, prompting the constitutional challenge. The High Court, while invalidating the impugned legislation held that although the Commonwealth has the power to deal with subversion, through the defence power and executive power, the Parliament could not usurp judicial powers regarding determination of whether or not a fact existed.

With regard to the proposed SAFE Act’s provision on identity cards and national audits, a number of issues arise. To start with, the Executive is empowered under s 61 of the Constitution to execute and maintain the constitution and the laws of the Commonwealth. Against this backdrop, the Executive arm of the Commonwealth has a legitimate interest in requiring that its citizens take out Identification Cards and to conduct an audit. To determine the validity of the collection of biographical data, the key issue would be the public interest in such a collection exercise. It so arose in the case of Attorney-General (United Kingdom) v Heinemann Publishers Australia Pty Ltd [1988] HCA 25 wherein the following principles were established thus: 

“[g]overnments act, or at all events are constitutionally required to act, in the public interest. Information is held, received and imparted by governments, their departments and agencies to further the public interest. Public and not private interest, therefore, must be the criterion by which Equity determines whether it will protect information which a government or governmental body claims is confidential. [Emphasis supplied]

Based on the above established principles, it is possible that collection of biographical data by the Commonwealth would fit within public interest in view of the public security and terrorism challenges that the Government and the public have been confronted with. It is also reasonable to require that persons present their Identity Cards when voting in an election or referendum. 

However, a challenge arises in respect of the requirement that every person pays one-off $100 fee for the issue of Identity cards and that failure to produce an Identity card is a criminal offence punishable by a fine of $100,000 and/or 3 years in prison. This provision is unreasonable and overly punitive, hence against public interest because it has no relationship with maintenance of public security as alleged by the Minister.  The provision also does not provide room for competent courts to determine whether or not a person is in violation, hence leaving a wiggle room of violation by the Police.

Further, the issue of registration of Australian citizens for national conscription, it is clear that the proposed conscription of citizens is only intended for protecting the country in times of war and on that basis, it follows that there is a legitimate goal aimed to be met by the defence power. As suggested by the Court in Lloyd v Wallach, in times of war, the Commonwealth may interfere with personal rights, which would otherwise not be permissible during peacetime. Therefore, conscription may be in public interest in times of war and as such a justifiable exercise of defence power by the Commonwealth. 

In addition, regarding the regulation of social media activities, it is clear that the proposed actions are intended to operate only during state of emergency situations and not during peacetime. It is trite law that freedom of expression is not an absolute right, which means that the right may be limited in certain circumstances. In the Adelaide Company of Jehovah’s Witnesses Inc (supra), the Court approved a Commonwealth legislation whose effect was to limit the freedom of religion, contrary to the dictates of s 116 of the Constitution. Writing in affirmation of the position that certain rights could be limited during war, the Court held as follows (in part):

“[t]herefore there is no difficulty in affirming that laws or regulations may be lawfully made by the Commonwealth controlling the activities of religious bodies that are seditious, subversive or prejudicial”

In the circumstances, therefore, the proposed Government action in relation to social media accounts is justifiable as there is a reasonable connection between it and the maintenance of public interest and security. Be that as it may, the proposed action is short-term and the SAFE Act has not declared that the regulation of social media account will continue beyond wartime. 

Lastly, regarding the Minister’s power to pay National Security Innovation Bonuses’ to agile and disruptive security entrepreneurs, the issue would be whether payment of the said bonus fits within executive powers granted under s 61 of the Constitution. In the case of Pape v Commissioner of Taxation, the Court was asked to determine whether the Tax Bonus for Working Australians Act (No 2) 2009 (Cth) which ought to give one-off payments to Australian taxpayers was valid. The Court, ruling in the affirmative, reasoned that the Commonwealth has the constitutional power to appropriate and spend money provided that the same is approved by Parliament. Accordingly, the proposed bonus payments by the Minister will, if parliament passes the SAFE Act, be within the Commonwealth’s powers to spend. 

 

  • Separation of powers

The doctrine of separation of powers demands that responsibilities of Government should be divided among different organs namely, the legislature, executive and judiciary whose are to pass, implement and interpret laws, respectively. Baron de Montesquieu, in his masterpiece The Spirit of the Laws, argued that to prevent despotism, government authority must be divided among the different arms. The arms of government, however, may be interdependent and may exercise checks and balances on each other.  

The Australian constitution envisages separation of powers as it vests different powers to different arms and does not contemplate situations where one arm of Government usurps another arms powers and functions. Under the Australian concept of separation of powers, the executive’s s 61 powers and Parliament’s defence powers under s 51 are separate and distinct. This position was affirmed in Pape v Commissioner of Taxation (supra) where French CJ held that executive powers only extend to “short-term fiscal measures”. As already stated, the mainstay of the Court’s decision in Australian Communist Party v Commonwealth was separation of powers as the Court quashed the impugned legislation on the basis that the legislation gave the Governor General the power to declare certain bodies as illegal, which power did not belong to the Executive under the defence power.

In this case, the doctrine of separation of powers has been disregarded in a number of ways. First, the composition of the Department of Security Coordination, which is a department of the Executive, is problematic. This is evident from the fact that Senator Drax, a member of the legislature, administers the said Department. In so doing, Senator Drax exercises executive powers contrary to the constitutional doctrine of separation of powers. 

Secondly, declaration of a state of emergency is a legislative function under s 51 (vi) and not an executive function. As such, it is an error for the SAFE Act to donate such a power to the Minister. Thirdly, Part 1 of the SAFE Act further undermines separation of powers by providing that the Minister may designate persons as threats, order the detention of such persons and even suspend elections without parliamentary or judicial determination as to the circumstances and the issues of each case as envisaged in due process. It therefore follows that the proposed SAFE Act is a blatant and unjustified violation of separation of powers. 

  • The Rule of law

The rule of law is a legal concept that requires that all government and civil action be governed and limited within the law. This concept is attributed to A.V Dicey who propounded, through his celebrated writings, that power must be restrained by law and in accordance with the law, simply because the law is predictable. He argued against “…exercise by persons in authority of wide, arbitrary, or discretionary powers of constraint” 

The rule of law further demands that no person should suffer loss of property or be punished without sanction of the law; there should be access to the courts for interpretation and authority of the courts to enforce its own orders; equality before the law as John Locke argued, “no man in the civil society can be exempted from the laws of it”.Accordingly, the rule of law restrains the exercise of the rule of man, which may be unreasonable and arbitrary. 

The rule of law concept is so central to constitutions that it has been described as the heritage of all mankind. Writing in support of the rule of law, Soli Sorabjee, the former Attorney General of India argued that the rule of law is a salutary reminder that “wherever law ends, tyranny begins”.

The facts of the instant case have demonstrated that although there are legal and legitimate ends aimed to be met through the SAFE Act, Senator Dax is also intending to assert his own powers through the law. Senator Dax is very determined that the SAFE Act should come into force, to the extent that he has disagreed with the Government’s official legal advisor, Ms Marianne Croissant QC MP, who already expressed her concerns with the Bill as drafted. Senator Dax also insists that he is the Government’s Coordinator in a time of crisis and wonders why, for example he cannot conscript people. 

Clearly, Senator Dax’s attempts to introduce the SAFE Act are overambitious and must be tamed within the law. Senator Dax’s political and personal ends cannot be a basis for violating clear dictates of the constitution and the law as doing so would be substituting the rule of law with Senator Dax’s own rule. 

  • Constitutional supremacy

Metaphorically speaking, constitutions are living documents as they embody a peoples’ values and principles. Hans Kelsen, in his pure thepry of law, argues that the constitution is the grundnorm and its validity is beyond question. Therefore, because the constitution is supreme, it binds all persons and no law or action should be made in violation of the constitution. Any law made in violation of the letter and spirit of the Constitution becomes void to the extent of the ionconstitency and on that basis, invalid.This position was first exemplified by the US Supreme Court in the landmark case of Marbury v Madison. Delivering the Court’s unanimous decision in that case, Chief Justice John Marshall pronounced himself in the following terms:

“If, then, the courts are to regard the constitution, and the constitution is superior to any ordinary act of the legislature, the constitution, and not such ordinary act, must govern the case to which they both apply. Those then who controvert the principle that the constitution is to be considered, in court, as a paramount law, are reduced to the necessity of maintaining that the courts must close their eyes on the constitution, and see only the law.”

As already demonstrated elsewhere above, the SAFE Act goes against the Constitution by wrongly invoking defence powers and executive powers, by violating separation of powers and limiting certain rights without the due process of law. Most of the powers given to the Minister and the Executive are powers of a legislative nature under s 251 (vi), which also amounts to violation of parliamentary sovereignty as the Executive cannot purport to exercise to powers of a legislative nature.

 

  • CONCLUSION

In view of the foregoing analysis, it has emerged that although the SAFE Act is intended to safeguard the Commonwealth from terrorist attacks, it falls below constitutional imperatives by giving excessive powers of a legislative nature to Senator Dax, which is ultra vires the defence powers conferred upon Parliament by s 251. The Act is also characterized by instances of violation of separation of powers, the rule of law as well as constitutional supremacy. 

Accordingly, the proposed SAFE Act is invalid and cannot pass the requisite constitutional tests in its current form. 

 

BIBLIOGRAPHY

  • Articles/Books/Reports

Aroney, Nicholas, Peter A Gerangelos and James Stellios, The Constitution of the Commonwealth of Australia (Cambridge Univ. Press2015).  

A.V Dicey The Law of the Constitution (Oxford University Press 2013). 

Benedek, Wolfgang and Matthias C Kettemann, Freedom of Expression and the Internet (Conseil de lEurope2014).

Beck, Luke, Australian Constitutional Law: Concepts and Cases (Cambridge University Press2019) 72.

Head, Michael, Calling out the Troops: the Australian Military and Civil Unrest: the Legal and Constitutional Issues (Federation Press2009). 

James Silkenat, Peter Barenboim and James E. Hickey Jr The Legal Doctrines of the Rule of Law and the Legal State (Springer 2014).

Kelsen, Hans, Pure Theory of Law (Lawbook Exchange2009). 

Montesquieu, Charles de Secondat et al, The Spirit of Laws. By C. De Secondat, Baron De Montesquieu. (Translated by Thomas Nugent, Revised by J.V. Prichard.) On the Origin of Inequality. On Political Economy. The Social Contract. By Jean Jacques Rousseau. (Translated by G.D.H. Cole.) (Chicago1952). 

Ramraj, Victor V, Michael Hor and Kent Roach, Global Anti-Terrorism Law and Policy (University Press2006). 

Soli J Sorabjee, Rule of Law: A Moral Imperative for South Asia and the WorldLecture delivered at Brandeis University Massachusetts, 14thApril 2010. 

Thompson, Brian and Michael Gordon, Cases & Materials on Constitutional & Administrative Law (Oxford University Press2017). 

  • Cases

Adelaide Company of Jehovah’s Witnesses Inc v Commonwealth (1943) 67 CLR 116.

Attorney-General (United Kingdom) v Heinemann Publishers Australia Pty Ltd [1988] HCA 25. 

Australian Communist Party v Commonwealth (1951) 83 CLR 1. 

Lloyd v Wallach (1915) 20 CLR 299.

Marbury v Madison 5 U.S. 137 (1803). 

Pape v Commissioner of Taxation HCA 23, (2009) 238 CLR 1. 

Ruddock v Vadarlis (2001) 110 FCR 491. 

Stenhouse v Coleman (1944) 69 CLR 457.

  • Legislation

Australia Constitution Act 1900 (cth). 

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