On Thursday, 20 June 2013, the House of Representatives Standing Committee on Social Policy and Legal Affairs held a ‘Constitutional Roundtable’ at Parliament House, Canberra. The Committee was joined by a number of constitutional experts to discuss topical issues in relation to the Constitution and its reform. The Roundtable was open to the public and streamlined live. Members of the public were encouraged to write in their questions via Twitter and be part of the discussion.
The Roundtable was divided into two sessions, the first considered ‘The role of the High Court in interpreting the Constitution’ and the second considered ‘Campaigns to change the Constitution’. The Adelaide Law School’s Dr Gabrielle Appleby was asked to give the opening remarks in the first session. Reproduced below is a full version of those remarks.
The Roundtable can be accessed online on the Australian Parliament Website, under the ‘House Highlights’ Tab.
OPENING REMARKS: The High Court’s role in constitutional interpretation
The High Court’s role is to interpret the text of the Constitution in its application to modern circumstances. In doing so, it often makes incremental change to our understanding of that text. The High Court’s role in constitutional change stands in contrast to the power of change vested in the Australian Parliament together with the Australian people in s 128 of the Constitution. One allows for potentially sweeping changes anchored in legitimacy through popular vote. The other allows for smaller changes that are often subject to criticism on the basis of their lack of democratic legitimacy.
Relationship between High Court and Parliament
The High Court’s role in constitutional interpretation and change is dependent upon the activity of others. Unlike the Government and Parliament, which can select issues for constitutional change, the High Court does not ‘select’ cases that come before it. The High Court’s constitutional agenda reflects the decisions and actions taken by Parliament and the Executive. This raises a question about the role of Parliament in constitutional interpretation. An overly cautious approach by Parliament to passing legislation of questioned constitutional validity can ‘needlessly hinder’ Parliament’s policy agenda and its capacity to drive social and constitutional innovation, and reduce the circumstances in which the courts have the opportunity to extend and adapt the law to modern life. When the Parliament approaches the task in a way that is too liberal, this may result in the passage of unconstitutional legislation that is subsequently struck down by the Court, with the consequent loss of legal certainty for government and individuals.
Therefore, as the members of this Committee are no doubt aware, Parliament, parliamentary committees and parliamentarians need to be cognisant of constitutional limitations and the general trends in the approach of the High Court to interpreting these. I welcome the organisation of this roundtable as a forum at which these issues can be discussed.
Trends in High Court jurisprudence
If I had to identify one trend under the current High Court, it would be a re-emphasis on the importance of constitutional context and underlying constitutional principles in ascertaining the extent of constitutional limits.
We have seen, for example, the re-emergence of federalism as an interpretative tool, a principle long thought dead in constitutional jurisprudence. But cases such as Pape v Commissioner of Taxation and the School Chaplains’ Case, used this principle, together with the concept of responsible government, to reign in previously understood conceptions of the breadth of the Commonwealth executive power and specifically its power to enter into contracts and spend money.
There is also the emphasis that the High Court has placed on its role in ensuring the proper operation of representative and responsible government. We saw this in the School Chaplains’ Case, where the Court gave Parliament additional responsibility in overseeing the expenditure of federal funds, requiring money expended outside of ‘the ordinary and well-recognised functions of government’ and some other limited exceptions, to be authorised by legislation in addition to an appropriation.
We also saw the High Court place itself at the centre of supervising the operation of representative and responsible government in its renewed engagement with questions of proportionality. We saw this in the application of the implied freedom of political communication (and also the implied right to vote cases). In the High Court’s most recent case in this area, Monis v The Queen, many of the judges engaged in an extensive analysis of whether a government policy objective was compatible with the system of representative and responsible government. In previous High Court cases this question has been the subject of limited analysis and scrutiny, the Court deferring to Parliament the role of determining which policy objectives were compatible with these principles.
The importance of the separation of powers, and its emphasis on the protection of judicial independence and judicial process, has also been of resurgent interest to the Court. This is most noticeable in the cases that have considered the impact of the separation of powers doctrine on State anti-organised crime measures. While these cases occurred in the State sphere, they have implications for the Commonwealth, which is more directly affected by the separation of powers doctrine.
Possible future challenges
Turning then from current trends to the possibility of future challenges. I’d like to reinforce my earlier remarks that future directions the High Court may take are dependent upon the activity of Parliament and the Government.
Challenges arising from the School Chaplains’ Case
I see parliamentary control over executive power continuing to be an issue as the High Court is invited to work out the repercussions of its ruling in Pape and the School Chaplains’ Case. The amendments passed to the Financial Management and Accountability Act 1997 (Cth) in the wake of the School Chaplains’ Case that provide legislative authorisation to the myriad of direct Commonwealth funding programs is the most obvious vehicle for this challenge.
I see two key facets to this challenge. The first is whether the legislation meets the requirements of parliamentary supervision over executive spending and contracting that were set by the majority in the School Chaplains’ Case, or whether the broad language used to describe many of the listed grants and programs, or the delegation of future authorisation to the Executive itself through regulation, fail these standards.
The second facet to such a challenge may bring into the spotlight again the breadth of Commonwealth legislative power and therefore the distribution of power among the units of the federation. Since 1920 the High Court’s trajectory in interpreting the heads of Commonwealth legislative power in the Constitution has been ever-broadening. However, in the School Chaplains’ Case there was an indication by at least two of the judges who considered the breadth of the ‘benefits to students’ power that the presumption in favour of Commonwealth power may be waning.
The School Chaplains’ Case also raises the possibility that the High Court will reconsider some of its earlier jurisprudence about the scope of s 96 of the Constitution – the grants power (and the subject of the upcoming referendum). The Commonwealth Parliament’s power to make grants to the States on the terms and conditions it thinks fit has been interpreted extremely widely by the High Court and can extend to areas outside of the Commonwealth’s legislative powers. The question, however, has not been reconsidered by the court since 1981. The High Court’s earlier cases accepted that funding granted under s 96 was distinguishable from other forms of legislation on the basis that it wears a consensual aspect, that is, the recipient consents to the funding and the conditions attached to it. In the School Chaplains’ Case several members of the Court acknowledged that in modern government contracting and spending can and does control behaviour of parties to the contract and recipients of funding. The offer of contracts or payments on conditions therefore can be, and indeed often is, used as an important part of a government’s regulatory arsenal. While I see no concrete challenge to s 96 grants on the horizon, given the chance, the High Court may be tempted to reconsider its earlier jurisprudence on this point in light of its acceptance of the reality of funding.
Moving away from the School Chaplains’ Case, the High Court will no doubt continue its interest in teasing out its role in determining proportionality of measures in the field of political communication (and also section 92). We know that there are challenges or proposed challenges by union groups against NSW’s legislation that limits political donations to individuals enrolled to vote and caps expenditure by third parties on political campaigning; and against Qld’s recent attempt to place disclosure obligations on unions and place limits on their political spending. These will provide a further opportunity for us to understand the extent of scrutiny and balancing that is involved in the High Court’s determining whether a measure that burdens the freedom of political communication may nonetheless be constitutional if it is proportionate to the achievement of some legitimate objective.
Indefinite immigration – separation of powers
I also believe that there are ahead for the Commonwealth future separation of powers challenges. For example, there is the potential for challenges to be mounted again to the effectively indefinite immigration detention of persons seeking asylum in Australia under provisions of the Migration Act 1958 (ss 189 and 196). These provisions and the desperate situation these people find themselves in are not new. The High Court has once before ruled on the question (Al-kateb v Godwin), with a 4:3 decision in 2004 finding that the detention of a stateless Palestinian man was not in breach of the separation of powers doctrine. In 2012 we saw the High Court avoid considering the issue for a second time in a case that came before it involving a Sri Lankan asylum seeker who had been the subject of an adverse ASIO security assessment. So long as we continue to lock up people who come to our shores seeking asylum – locking them up potentially indefinitely – there is the real possibility the current Court will have to reconsider the question of the power of the Executive to detain persons indefinitely in the absence of a court order.
The last challenge that I would like to mention as one to be looking for on the horizon is that which may arise if a Bill is passed in the Parliaments of either the Commonwealth or the States to allow for marriage between same-sex couples.
If, as seems increasingly likely, this step will be taken by the States, there is a constitutional question that arises about whether such a law would be inconsistent with the Commonwealth Marriage Act 1961 and specifically its definition of marriage as ‘the union of a man and a woman to the exclusion of all others, voluntarily entered into for life’ (section 5).
If a Commonwealth Parliament of the future were ever brave enough to pass this legislation itself, it is no doubt also destined to come before the High Court. As this Committee is aware, there is a substantive constitutional question about whether the Commonwealth’s legislative power with respect to ‘marriage’ extends to marriage between persons of the same-sex. The challenge brings into sharp relief questions around the appropriate interpretative method the High Court ought to adopt and its role in constitutional change. Should it adopt an approach that reflects the meaning that the constitutional language held in the late nineteenth century when the text was drafted? Or should it adopt an approach that reflects the expectations of contemporary Australians?
Dr Gabrielle Appleby is a Senior Lecturer at the Adelaide Law School, University of Adelaide. Her research interests focus on public law, and specifically the accountability of the executive government and the role of the courts in Chapter III of the Constitution.