https://austlii.community/foswiki/Sandbox/ConstitutionalCritique Critical constitutional analysis by the CRU en-us Copyright 2026 by contributing authors Wiki Administrator [wiki@austlii.edu.au] Wiki Administrator [wiki@austlii.edu.au] AustLII Communities https://austlii.community/foswiki/Sandbox/ConstitutionalCritique https://austlii.community/foswiki/pub/System/ProjectLogos/AustLII_red_50x230.jpg https://austlii.community/foswiki/Sandbox/ConstitutionalCritique/TheJudiciousnessOfAdvisingTheGovernorGeneral 2012-08-30T00:00:00Z , Anne Twomey The reserve powers are powers exercisable by the Governor-General or a State Governor without, or contrary to, the advice of his or her responsible Ministers. They are primarily exercised in circumstances where the Governor-General does not have ‘responsible’ advisers (eg when the Governor-General is appointing a new Prime Minister or where the Prime Minister has lost the confidence of the lower House and seeks an election or to continue to govern without confidence, in which case the Governor-General can refuse a dissolution or dismiss the Prime Minister) or where there is a breach of the rule of law (eg the Prime Minister persists in acting in breach of the law, in which case he or she may be dismissed). Although the appointment of every Prime Minister is technically an exercise of the reserve powers, it is normally uncontroversial because it is clear who has the support of a majority in the lower House. For the purposes of this post, a reference to the ‘reserve powers’ means the refusal of a dissolution, the dismissal of a government or the appointment of a Prime Minister or Premier who does not or may not hold the confidence of the House.
Excluding Lord Hopetoun’s blunder, the very first exercise of a reserve power by a Governor-General in Australia was the refusal of a dissolution to the first Labor Prime Minister, terminating Labor’s first term in office after a mere four months. Prime Minister Chris Watson had lost a crucial vote on an industrial relations bill. He had made it clear that the vote would indicate confidence in his government. He asked the Governor-General to dissolve Parliament and hold an election. The Governor-General, Lord Northcote, sought the advice of the Chief Justice of the High Court, Sir Samuel Griffith. After listening to that advice, he refused Watson a dissolution and asked Watson to stay in office until a new administration could be formed. George Reid was then asked to form a government.
In 1905 Reid’s Government was defeated on the Address in Reply, which is the equivalent of a vote of no confidence. Reid sought a dissolution but was also refused. Although it is likely that Griffith advised the Governor-General (as he did in relation to other constitutional matters), there are no documents to establish whether or not he did, leaving this the only example of the exercise of such a reserve power at the Commonwealth level in relation to which we cannot be sure that a High Court judge advised.
Certainly, Griffith advised in relation to the third exercise of the reserve powers, being the refusal of a dissolution to Fisher Government in 1909. He also advised the Governor-General on the extent of his discretion in relation to the grant of a double dissolution in 1914 and advised how the Governor-General should deal with the resignation of Fisher as Prime Minister in 1915. Edmund Barton, when a High Court Justice, was also a frequent adviser to the Governor-General. Both Barton and Griffith advised on whether a referendum could be held over conscription and also on how to deal with Prime Minister Hughes’ resignation after the second conscription referendum failed in 1917.
Interestingly, the Governor-General, Sir Ronald Munro Ferguson, took the view that Griffith and Barton were entitled to advise him because they were Privy Councillors. In England, it is the role of Privy Councillors, including members of the Judicial Committee of the Privy Council, to advise the monarch. There are formal mechanisms to give this advice, such as s 4 of the Judicial Committee Act 1833, but such advice also apparently continues to be given informally to the Queen by British judges. After Sir Samuel Griffith’s retirement, the Governor-General urged the appointment of the new Chief Justice, Sir Adrian Knox, as a Privy Councillor, in order to gain the benefit of his advice.
It is not known the extent to which Knox advised the Governor-General. It may have been the case that there was no need to do so. As the two-party system solidified and majority governments became the norm at the Commonwealth level, there was no real call on the Governor-General to exercise reserve powers and therefore little need for constitutional advice. This did not mean that High Court Justices were necessarily more circumspect in their offerings of advice. Sir John Latham, for example, advised the Prime Minister on the drafting of a referendum to overturn the High Court’s judgment in the Communist Party Case.
The next occasion for the exercise of reserve powers at the national level did not arise again until the Prime Minister, Harold Holt, went missing in 1967. The Governor-General then sought the advice of the Chief Justice, Sir Garfield Barwick, as to what to do. Having taken Barwick’s advice, the Governor-General exercised his reserve power to terminate Harold Holt’s commission as Prime Minister and appoint John McEwen as Prime Minister until a new Liberal leader could be chosen.
In the meantime, at the State level, constitutional crises still abounded and advice was regularly given to Governors by judges. In 1932 the NSW Governor received advice from the NSW Chief Justice on dismissing the Lang Government, just as in 1927 his predecessor had received the Chief Justice’s advice on his reserve powers concerning the dissolution of Parliament and the ‘swamping’ of the upper House. In 1939, the next Chief Justice of the NSW Supreme Court advised the Governor about a constitutional crisis involving the defeat of the Government on a financial measure.
In Victoria, political instability and constitutional crises extended into the 1950s. In 1952, for example, the Chief Justice of the High Court, Sir Owen Dixon, along with the Chief Justice of the Victorian Supreme Court and a puisne judge, advised the Governor about a conflict very similar to that of 1975. Labor, with the support of break-away Liberals, blocked supply in the upper House. The Governor refused the Country Party Premier an election because supply would have run out during the election period. A new Premier was commissioned, who managed to achieve the passage of supply in the upper House but was then defeated in the lower House. Sir Owen Dixon first advised the Governor to refuse a dissolution and appoint the Labor leader, John Cain, as Premier because he led the largest party in the House. The Governor, Sir Dallas Brooks, replied that Cain would not accept the premiership because he preferred to go to the election as Opposition Leader. Dixon then advised the Governor to restore the former Premier to the premiership and grant him an election, which the Governor duly did. Note that Dixon was not simply advising on the scope of the Governor’s powers, but on how they should be exercised in the political circumstances.
The Victorian Governor again called upon Dixon’s aid on 2 April 1955. John Cain had been elected Premier of Victoria, but the Labor Party had split. Cain only had supply until 30 June and a faction of the Labor Party had proclaimed that it would not vote for supply when Parliament resumed. It was most likely that when Parliament met a vote of no confidence in the Government would be passed. Cain decided he wished to keep governing until the end of June without recalling Parliament to pass the supply bills. But if he resigned then, there would still have been a significant period in which the State had no supply. Dixon advised the Governor that he should ensure that there was no interval in which the services of Government were not paid. He told Brooks to tell Cain that he would not dissolve Parliament unless supply was provided or unless the possibility of a government of some kind obtaining supply was exhausted. This effectively warned Cain that rather than being permitted to go to an election as Premier, he would be replaced and a new government formed. In these circumstances, Cain agreed to the recall of Parliament in order to face a vote of no confidence. Cain’s government was defeated, he was granted a dissolution and went to the election as Premier, at which he was defeated.
Both these supply crises and the role of the Chief Justice in advising the vice-regal representative on their resolution show distinct similarities to what occurred in 1975. Interestingly, Sir John Kerr’s personal papers in the National Archives show that he took a great interest in what had occurred during the Victorian crises.
There were other occasions when Sir Owen Dixon gave advice to the Western Australian Governor. We only know this because he left behind diaries which informed the biography of Dixon written by Philip Ayres. We also know of Griffith’s and Barton’s extensive advice because their records were left to libraries and archives and because of the work of Don Markwell in writing about them. No doubt these examples are the tip of the iceberg and that much more informal advice has been given to vice-regal officers from judges over the years. In these circumstances, advice to vice-regal officers from judges can hardly be described as unprecedented, unusual or unconventional.
Looking at Sir Anthony Mason’s informal advice to Sir John Kerr through post-1975 eyes is unfair. In the context of the time, his actions were not inconsistent with those of his predecessors or his colleagues.
The primary objection to a judge giving informal advice to a vice-regal officer on a constitutional matter is that the matter might later come before the court. This was recognised by the Justices of the NSW Supreme Court when they agreed to advise the Governor in 1856 on the transition to responsible government. The Chief Justice, Sir Alfred Stephen, writing to the Governor, Sir William Denison on 8 February 1856, observed:

It is right to remind you, that in giving our views in the capacity rather of lawyers than of judges, without argument (or the means of hearing arguments) from any party to be affected by them, we may possibly hereafter, should the same question arise in the course of any judicial proceeding, see occasion to change these views, and that it will be our duty in the event of discussion to keep our minds open to change.

The other alternative is for a judge to decline to sit on a matter upon which he or she has previously advised. It should be remembered, however, that the likelihood of the exercise of the Governor-General’s reserve power to dismiss a Prime Minister being regarded as justiciable by the High Court in 1975 was extremely low. The question of whether the double dissolution criteria had been met could have come before the Court, but it does not appear that Sir Anthony advised upon that issue.
Since 1975, there have been significant changes. Some decisions of Governors-General have become subject to judicial review (see: R v Toohey (Aboriginal Land Commissioner); Ex parte Northern Land Council (1981) 151 CLR 170; and FAI Insurances v Winneke [1982] HCA 26; (1982) 151 CLR 342), but even now it is unlikely that the exercise of a reserve power would be regarded as justiciable. The High Court has also developed a stricter separation of powers, particularly when it comes to judges fulfilling roles that involve advising the executive, even as persona designata (see: Wilson v Minister for Aboriginal and Torres Strait Islander Affairs [1996] HCA 18; (1996) 189 CLR 1). Yet all this, which we can see with the benefit of hindsight, could not have been seen in 1975.
Today, it would be unwise for a judge to advise a vice-regal representative. This has not, however, completely stopped this practice from occurring. In 1985, only ten years after the dismissal, the Victorian Governor, Sir Brian Murray, facing the prospect of dismissal from office, sought advice from the Victorian Chief Justice. The Chief Justice wisely refrained from advising but one of the other judges, Sir John Starke, who was shortly to retire, did provide advice to the Governor. Again, this is only known because of archival work. No doubt other examples also exist.
Perhaps the last word should go to the current Chief Justice of the High Court, Robert French. Taking into account the controversy surrounding the 1975 dismissal and the uncertainty concerning the justiciability of acts of the Governor-General, he concluded in his article ‘The Chief Justice and the Governor-General’ [2009] MelbULawRw 23; (2009) 33 MULR 647, at 656:

[I]t is difficult to conceive of circumstances today in which it would be necessary or appropriate for the Chief Justice to provide legal advice to the Governor-General on any course of action being contemplated by the holder of that office, whether such advice were tendered with the prior consent of the government of the day or otherwise. If, in some constitutional crisis requiring consideration of the possible exercise of reserve powers, the Governor-General felt the need to seek independent legal advice, there are plainly sources other than the Chief Justice to whom he or she could resort.

]]> https://austlii.community/foswiki/Sandbox/ConstitutionalCritique/AustraliaMayLeadTheWorldButTheWorldCantBreatheFreelyYet 2012-08-16T00:00:00Z , Helen Irving The international interest, no doubt, is encouraging for the Australian government and inspiring for anti-smoking campaigners. Still, it is intriguing, even faintly nonsensical, for other countries to take heart from this decision. The BATA challenge was mounted on numerous grounds, but revolved, essentially, around the particular constitutional claim that the Act compulsorily acquires the companies’ intellectual property without proper compensation. Section 51 (xxxi) of the Australian Constitution (the provision that starred, albeit misleadingly, in the iconic 1997 comedy ‘The Castle’) empowers the Commonwealth to acquire property, but requires ‘just terms’ in return. There may well be counterparts in the laws and constitutions of other countries, but existing Australian case law is unlikely to provide a trans-national precedent, and this latest case is unlikely to alter this.
Fascinating and frustrating at the same time, the Court only handed down its Orders yesterday, telling us that ‘at least a majority’ had found the law to be constitutionally valid (is someone still making up his or her mind?) and reserving the reasons for a later date. Analysis of the reasoning must therefore be speculative. But while we don’t know what the Court will say, we have some idea of what it will not say. Australia, it seems clear, has resisted the invitation to go down the ‘regulatory takings’ road that the United States has pioneered and other countries have followed.
The Fifth Amendment of the U.S. Constitution (upon which Australia’s section 51 (xxxi) was more or less modelled) requires that ‘just compensation’ must be given when private property is taken for public use. This provision evolved in the twentieth century to apply not only to actual acquisition, but also to the regulation of property that goes ‘too far’, not merely impairing value or utility, but depriving the owner of the property’s use or economic value, or thwarting ‘investment backed expectations’. Zoning and land use laws were the seedbed of the doctrine in the 1920s, and have generated the greatest challenges. The Supreme Court has not been consistent in its approach, however, and it has looked to the degree to which the public interest is served by the relevant law against the extent of the regulation. This of course, is the rub in the present case. There can be no doubt that the cigarette companies’ economic value and investment backed expectations will be affected by the Act, and that such an argument would be central if a similar U.S. law were to pass, but how much weight would the countervailing public interest be given? As Chief Justice French said, when invited by BATA to consider the regulatory takings argument, ‘none of the [U.S.] cases to which you have taken us involve somebody putting into the marketplace a substance which places at risk of serious and fatal disease … all who use it.’
But this aside, no one on the Court seemed to want to bite at the regulatory takings carrot. The decision, at a guess, will rest instead on the familiar argument (one that does not arise under U.S. takings law) that the Act (which merely adjusts statutory rights) does not involve an acquisition. To breach section 51 (xxxi) something first has to be ‘acquired’ by the Commonwealth. What is acquired does not have to be the same as what was lost, but some Commonwealth benefit has to be made out. No one was seriously arguing that the cigarette companies’ intellectual property had been transferred to the Commonwealth. BATA, however, submitted that a benefit lay in the ‘negative use’ of property, in the Commonwealth’s ability to impose its own design, etc, on BATA’s property, and in its use of the property for its own ends. The Court, it is clear, did not embrace these propositions. We wait now, to find out why.
Meanwhile, other countries should not celebrate too soon, but would be wise to hold off for the WTO’s ruling in the challenge brought by Ukraine, Honduras, and the Dominican Republic to the Australian Act alleging breach of international trade law. That is where the international lesson will really lie. Meanwhile, in Australia (with a ruling that paradoxically reverses the grounds for the fictional ‘little man’s’ victory against big commercial interests depicted in ‘The Castle’) the government and, with it, the ordinary public can breathe freely. At least for the moment.

]]> https://austlii.community/foswiki/Sandbox/ConstitutionalCritique/PrayersInParliamentAndTheConstitution 2012-08-08T00:00:00Z , Luke Beck Luke Beck, a CRU Associate, has contributed the following post about prayer in the Commonwealth Parliament:
From time to time there are calls for Parliament to stop opening its proceedings with prayers. Equally, there are those who support the practice. For example, former prime minister, John Howard once said that to get rid of parliamentary prayers would be to ‘abandon our Judeo-Christian heritage’.
But why does Parliament open with prayers and is the practice legal?
Why Parliament prays
Parliament did not introduce prayers because of ‘our Judeo-Christian heritage’. It introduced prayers in response to lobbying from churches.
During the 1890s when the Constitution was being drafted, the colonial churches began a campaign of petitions calling for three things. The petitions read:

1. That in the preamble of the Constitution of the Australian Commonwealth it be recognised that God is the Supreme Ruler of the world, and the ultimate source of all law and authority in nations.

2. That there also be embodied in the said Constitution, or in the standing orders of the Federal Parliament, a provision that each daily session of the Upper and Lowers Houses of the Federal Parliament be opened with a prayer by the President and Speaker, or by a chaplain.

3. That the Governor-General be empowered to appoint days of national thanksgiving and humiliation.
The Constitutional Convention drafting the Constitution received 49 petitions to this effect containing more than 36,000 signatures. That was a very large number in the 1890s.

The petitioners achieved two of their aims. The preamble to the Constitution says that in deciding to federate the Australian people were ‘humbly relying on the blessing of Almighty God’. And prayers began in Parliament in June 1901.
It is interesting to note that the Constitutional Convention did not start its day with prayers. And, only some of the colonial Parliaments had prayers. Indeed, some of them had even abandoned the practice by the time of the Constitutional Convention. Some of the delegates to the Constitutional Convention considered the parliamentary practice to be a ‘farce’, ‘a perfect piece of mockery’ and a ‘matter of … indifference’.
What are the prayers?
There are two parliamentary prayers. In the House of Representatives the Speaker reads the following prayers:

Almighty God, we humbly beseech Thee to vouchsafe Thy blessing upon this Parliament. Direct and prosper our deliberations to the advancement of Thy glory, and the true welfare of the people of Australia.

Our Father, which art in Heaven: Hallowed be Thy Name. Thy Kingdom come. Thy will be done in earth, as it is in Heaven. Give us this day our daily bread. And forgive us our trespasses, as we forgive them that trespass against us. And lead us not into temptation; but deliver us from evil: For Thine is the kingdom, and the power, and the glory, for ever and ever. Amen.

The first prayer in the Senate read by its President has a minor difference in wording.
Are these prayers ‘Judeo-Christian’? You can probably recognise the second prayer as the Lord’s Prayer. But it is not generically Christian.
There are two versions of the Lord’s Prayer: a Catholic one and a Protestant one. The difference is the line ‘For thine is the kingdom, and the power, and the glory, for ever and ever’. That line appears only in the King James Version of the Bible used by Protestants.
When the prayers were introduced in the House of Representatives in 1901, the Catholic Archbishop of Melbourne at the time called them ‘distinctly Protestant’.
The first prayer is not just distinctly Protestant it is also distinctly Anglican. It is a modified version of the ‘Prayer for the High Court of Parliament’ in the Church of England’s Book of Common Prayer.
Is it legal?
As it happens, there are also petitions relevant to this question.
The churches were not the only ones sending petitions to the Constitutional Convention in the 1890s. Petitions with almost 8,000 signatures were sent to the Convention asking it to ensure that the Commonwealth would not be able to legislate to interfere with religious liberty.
These petitions were largely organised by the Seventh Day Adventists who were worried that any reference to God in the Constitution might be seen as giving the Commonwealth power to legislate for religious matters. They feared they might be on the receiving end of any such legislation.
They got what they wanted too. At the end of the Constitutional Convention, its president Edmund Barton, who later became Australia’s first prime minister, explained what had been decided:

While, therefore, a concession has been made to the popular opinion that some reverential expression should be embodied in the preamble, due care has been taken by the Convention that no reliance upon that provision, and no far-fetched arguments based upon it, shall lead to any infraction of religious liberty under the laws of the Commonwealth which we hope to create

The due care was section 116 of the Constitution. It says:

The Commonwealth shall not make any law for establishing any religion, or for imposing any religious observance, or for prohibiting the free exercise of any religion and no religious test shall be required as a qualification for any office or public trust under the Commonwealth.

So, do the standing orders requiring parliamentary prayers violate section 116? The prayers appear to closely identify Parliament – the heart of the Australian state – with Protestant Christianity. After all, the first prayer says that Parliament works to the advancement of God’s glory. This might be seen as involving some sort of religious establishment.
The standing orders also rather look like they impose a religious observance. They command the Speaker (and the President of the Senate) to read the prayers. Mandatory prayer might also be seen as an interference with the free exercise of religion.
Even if all of this were accepted it would only make the prayers unconstitutional if the standing orders requiring they be read are ‘laws’. There are arguments for and against that conclusion, and the answer is not clear.
That said, one politician seems to have had a point when he said in opposing the introduction of parliamentary prayers in 1901:

What did the framers of the Constitution mean? Did they mean that the Parliament was not to impose religious observances in the streets or in the schools? Did they mean that Parliament was not to impose religious observances anywhere else but here?

If you look closely at section 116 you will see that its final clause about religious tests is not limited in its application only to laws. If it were to be accepted that the requirement to read prayers every day amounts to a religious test for the position of Speaker (and also President of the Senate) then there might well be constitutional problems with the parliamentary prayers.
Legalities aside, given that in the 2011 census nearly half of the population reported either being Catholic (25.3%) or having no religion (22.3%) it might be wondered why Parliament continues to say distinctly Protestant prayers every day.

Author Anne TwomeyPosted on August 8, 2012

]]> https://austlii.community/foswiki/Sandbox/ConstitutionalCritique/EntrenchingRacialDiscriminationTheProposedConstitutionalisationOfNotSoSpecialMeasures 2012-05-16T00:00:00Z , Jess Natoli

Jess Natoli, one of the CRU’s student interns, has been researching the application of ‘special measures’ in the context of the proposals of the Expert Panel on the Constitutional Recognition of Indigenous Australians. Here is her blog discussing the issues:
The Expert Panel has recommended inserting an anti-racial discrimination provision into the federal constitution.

The goal is to ensure more robust protection against discrimination for Indigenous people and members of all cultural backgrounds. While most Australians would agree with this sentiment, entrenching such a provision in the Constitution is not without its risks.
The main challenge is to come up with a provision that guards against discrimination while ensuring that laws implementing affirmative action are not struck down for invalidity. The Panel has attempted to accommodate these considerations in proposed constitutional provision 116A, which consists of a broad prohibition on racial discrimination, followed by an exemption permitting special measures for the purpose of overcoming disadvantage. ‘Special measures’ exemptions already exist in Commonwealth and State anti-discrimination statutes, and the way they have been interpreted and used in practice should give us pause for thought.
In Australia there is currently no requirement that the government consult the intended beneficiaries of a ‘special measure’ before it is implemented. This means that the political branches of government can assert that a law or action has the purpose of overcoming disadvantage, and the judiciary can determine this is so, without taking the wishes of those affected by the measure into account. In Gerhardy v Brown, the leading Australian authority on the construction of ‘special measures,’ Brennan J expressed the opinion that the consent of the affected group is ‘perhaps essential’ to a determination that a law or action is a ‘special measure.’ However, as the issue of consultation was not addressed by the other Justices, Brennan J’s opinion does not have the force of law. Although it has been considered persuasive in subsequent cases, it has not been applied across the board.
There is also no requirement that a ‘special measure’ be proportionate to the end sought to be achieved. While Justices Mason and Deane in Gerhardy advocated a ‘reasonably appropriate and adapted’ test and Gibbs CJ found it a relevant consideration that the impugned provision was not more stringent than was necessary, the other justices neither endorsed nor rejected the use of a proportionality test. In some subsequent judgments of lower courts the use of a proportionality test has been criticised as involving a usurpation of legislative and executive power, and a subjective test has been applied. In other words, it has been considered sufficient that the political branches of government subjectively believed that a given law had the purpose of overcoming disadvantage.
The interpretation of ‘special measures’ under Australian law is at odds with the construction recommended by the Committee on the Elimination of Racial Discrimination, that ‘special measures’ must be proportionate to the achievement of a legitimate end and are only to be implemented after consultation. This seems somewhat incongruous considering the Racial Discrimination Act (Cth) expressly defines ‘special measures’ by reference to Article 1(4) of the International Convention on all the Elimination of All Forms of Racial Discrimination. The Human Rights Commission has also contributed to this debate, arguing that consultation should be an essential pre-condition to the existence of a ‘special measure’ and that proportionality is a relevant factor in determining whether a purported special measure has the purpose of overcoming disadvantage.
While the exemption for ‘special measures’ has been used to grant Indigenous groups land rights and to implement affirmative action such as Abstudy payments, it has also been used as the legal basis for policies involving the significant curtailment of rights. By far the most notorious ‘special measure’ is the legislative package commonly known as the Northern Territory Intervention, introduced in response to a report exposing the devastating levels of child sexual abuse in the Northern Territory. Among other things, the Intervention facilitated the compulsory acquisition of five-year leases over Aboriginal land by the Commonwealth, the quarantining of 50 percent of welfare payments for food and other essentials, and the stripping of the right to appeal to tribunals against the quarantining measures. These laws were introduced without any prior consultation with the Indigenous communities concerned. The UN Special Rapporteur on the Rights of Indigenous Peoples has stated that the Intervention is racially discriminatory, and that the curtailment of rights is disproportionate to the legitimate end of protecting women and children from violence and promoting well-being in Indigenous communities. Further, the Special Rapporteur found that the Intervention has stigmatised and disempowered Indigenous people and reinforced the perception they are responsible for their own situation of disadvantage.
It is by no means certain that the High Court would interpret proposed constitutional provision 116A(2) in the same way as the existing ‘special measures’ exemptions, particularly as the language used is not identical to section 8 of the Racial Discrimination Act (Cth) which was the subject of the decision in Gerhardy v Brown. However, given the protective purpose of the proposed amendment, it is essential that the wording of any constitutional ‘special measures’ provision is not open to being hijacked to legitimise racially discriminatory laws that further disempower Aboriginal people. Academic Sean Brennan has proposed a formulation that incorporates a test of reasonableness, proportionality and necessity. This would ensure that the protection provided is genuinely more robust than that currently on offer under the anti-racial discrimination legislation.
Jess Natoli, CRU Intern, 16 May 2012

Author Anne TwomeyPosted on May 16, 2012

]]> https://austlii.community/foswiki/Sandbox/ConstitutionalCritique/ElectoralDisclosureLawsAndTheThomsonAffair 2012-05-16T00:00:10Z , Anne Twomey

The Australian Electoral Commission today released its analysis of the Fair Work Australia report into Mr Thomson. The AEC’s analysis (which can be found here: http://www.aec.gov.au/Parties_and_Representatives/compliance/files/hsu-report.pdf)
discloses two significant issues with respect to the operation of the disclosure laws under the Commonwealth Electoral Act.
First, the ‘donations’ that allegedly funded the employment of staff to raise Mr Thomson’s profile in the electorate of Dobell did not require disclosure because they occurred before the date he was pre-selected as a candidate for the seat in 2007.

As he was a new candidate and had not run in the previous election, donations to support his campaign did not count until he was pre-selected. The vast bulk of the HSU money that was allegedly used to support Mr Thomson’s campaign, as set out in the Fair Work Australia report, occurred before he was pre-selected. Equally, his electoral expenditure only counted if it occurred during the election period (from the issue of the writs to polling day). So any expenditure that occurred earlier than this did not need to be declared by Mr Thomson.
The second issue is the high disclosure threshold, which in 2007-8 was $10,500. While the amount of all donations needs to be recorded by political parties and by donors in their returns to the AEC, they do not need to be ‘particularised’ unless a single donation is over the threshold amount. For example, expenditure of $4,826.99 to establish a Campaign Office would have to be disclosed in the overall total of donations made by the HSU or received by the ALP, but didn’t have to be specifically itemised. Hence the AWC cannot tell whether or not it has been disclosed, because all it has is a global figure.
Prior to 2006, the disclosure threshold was $1500, so a far greater proportion of donations had to be itemised and the names of donors disclosed. The Howard Government increased this to $10,000 in 2006 and indexed it, so it is steadily increasing. The Rudd Government promised to reduce it to $1000, but this was opposed by the Coalition and did not get sufficient support in the Senate. The Bill lapsed. The Gillard Government also promised, in its deal with the independents, to undertake electoral reform including the reduction of the disclosure threshold to $1000. The Bill passed the House of Representatives in 2010 but remains lingering in the Senate.
The Thomson affair is a timely reminder of the importance of electoral disclosure laws and the setting of sensible disclosure thresholds that on the one hand do not impose excessive bureaucracy on the parties but on the other hand allow transparency and scrutiny. It also raises the question of whether donations and expenditure on the campaigns of candidates which take place before they are pre-selected by a party, should also be disclosed after their pre-selection.
The biggest issue, however, is whether the Commonwealth should follow New South Wales and impose strict limits on political donations and electoral expenditure. While the NSW laws may have gone a bit too far, there is much to be said for reducing the amount of money spent on electoral campaigning and regulating donations both to ensure transparency and reduce the real and perceived influence of political donors. Unless we clean up the rules, more scandals will follow.
Anne Twomey, 16 May 2012.

Author Anne TwomeyPosted on May 16, 2012

]]> https://austlii.community/foswiki/Sandbox/ConstitutionalCritique/ParliamentsAbjectSurrenderToTheExecutive 2012-06-27T00:00:00Z , Anne Twomey Last week, in the case of Williams v Commonwealth, the High Court held that the Commonwealth Government could not rely on executive power alone to support the funding of the chaplaincy program. Not even an Appropriation Act was enough to support it. There needed to be validly enacted legislation to support such expenditure. The Court stressed a number of points. First, this was public money that was being spent (not the private money of the Government) and that it therefore had to be subject to parliamentary scrutiny. Secondly, there is a need for parliamentary engagement in the formulation, amendment and termination of programs for the spending of money and there will be a ‘deficit in the system of representative government’ if these programs remain solely within the Executive’s domain. Thirdly, the Court pointed to ‘federal considerations’ and the fact that the public school system in a State ‘is the responsibility of that State’.
So how has the Commonwealth Parliament responded? Yesterday, with no opportunity at all for prior consideration or scrutiny, the House of Representatives passed the bland-sounding Financial Framework Legislation Amendment Bill (No 3) 2012. It gives legislative authority to the Executive to make, vary or administer any arrangement by which public money is paid out by the Commonwealth and the grant of financial assistance to any person whatsoever. The only constraint is that the arrangement or grant must be either specified in financial management regulations, or be included in a ‘class of arrangements or grants’ or a program mentioned in the regulations. The draft regulations show that these categories of approved grants and programs are extremely wide, including expenditure for ‘Foreign Affairs and Trade Operations’, ‘Payments to International Organisations’, ‘Public Information Services’, ‘Regulatory Policy’, ‘Diversity and Social Cohesion’, ‘Domestic Policy’ and ‘Regional Development’.
Another example, listed in the draft regulations, is the payment of funds for ‘Electorate and Ministerial Support Costs and Parliamentary Entitlements Support Costs’, the objective of which is described as: ‘To provide funds to support the provision of entitlements to the current Prime Minister, and to former Prime Ministers once they have left Parliament, the Australian Political Exchange Council and related activities, and political party secretariat training.’ Another description might be political slush funds. One can see why there may be reluctance to have parliamentary scrutiny of that!
Some of those speaking in the debate on the Bill, who had for the most part only seen the Bill as the debate commenced, seemed to be under the delusion that it was all about ensuring that funding to the chaplaincy program continued. Others seemed to think that the Bill just supported existing funding that was under threat. But the Bill goes much further than that. It gives the Executive carte-blanche to enter into such programs in the future without any parliamentary scrutiny at all as long as the program or grant comes under one of the existing broad descriptions in the regulations, or with only the need to amend the regulations (by executive action), if a new category needs to be inserted. Never has such enormous power been surrendered by the Parliament to the Executive in one hit – and certainly not with a debate that went scarcely over three hours.
The complete lack of understanding of what the House was doing is most poignantly evidenced in the speech by the Independent Rob Oakeshott. He lauded the High Court decision’s decision in the Williams case, saying that it ‘adds to the cultural shift in our institutions and marks a return to the importance of this chamber, the parliament and the parliamentary process and a reaffirmation of the states and the foundation blocks upon which this place and the whole concept of the Commonwealth are built.’ He went on to state:

In my view the Williams case will now establish two very clear paths for the future for anyone involved in the executive. One is through parliamentary processes and very clearly defining any grant programs through the parliament itself. The second one is by agreement with the states. If there is anything in this ruling, it is at its very heart saying to all of us, “Respect this chamber, respect this parliament and respect the role of the states in the delivery of programs and services to the communities.”

So what did Mr Oakeshott do? He voted for the Bill which ditches the use of Parliament to scrutinise and define grant programs or the making of grants through the States and instead gives full power to the Executive to do as it wishes. Mr Oakeshott even joined with the Government to vote down an Opposition amendment to put a sunset clause on the operation of the Act so that any problems could be sorted out in the meantime, with the passage of appropriate legislation or the transfer of funding into section 96 grants to the States. Amazingly, Mr Wilkie, Mr Windsor, Mr Bandt and Mr Katter all took the same approach, granting extraordinary powers to the Executive while negating their own roles in the House of Representatives.
Will this Bill, once enacted, be effective? It is really just setting up more stoushes with the High Court. What the Court stressed in the Pape case in 2009 and the Williams case last week, was that the Commonwealth must have a head of legislative power to support its spending. Where is the head of legislative power to support this Bill? Many of the programs listed in the draft regulations will fall under a head of legislative power, and it is conceivable (although contestable) that this Bill, once enacted, is enough to support them. But others will not be supported by a head of power and will remain invalid regardless of such a law. Hence, this Bill merely provides a fig-leaf for the Commonwealth’s legislative incompetence. It still leaves open the question of whether the Commonwealth has the legislative power to support the chaplaincy program along with many others.
Finally, what is most extraordinary above all is the fact that the Commonwealth Government seems so determined not to listen to the High Court. It ignored the High Court’s judgment in the Pape case, merrily going on with funding of bodies and programs without sufficient legislative power. In response to the Williams case it simply enacts a law that attempts to restore what it wrongly believed to be its former powers, without actually listening to or taking to heart the High Court’s concerns about a democratic deficit, the important role of parliamentary scrutiny and the importance of federal considerations. This Bill, in a bald-faced manner, rejects the fundamental propositions put by the High Court in the Williams case. The Commonwealth is clearly asking for another clobbering by the Court.

Author Anne TwomeyPosted on June 27, 2012

]]> https://austlii.community/foswiki/Sandbox/ConstitutionalCritique/TheValidityOfSamesexMarriageInTasmania 2012-08-05T00:00:00Z , Anne Twomey

Does the Tasmanian Parliament have the power to pass a law permitting same-sex marriage? The short answer is ‘Yes’. But the more difficult question is whether that law will be effective or whether it will be inoperative because it is inconsistent with a Commonwealth law. The answer to this question is unclear and unknowable until the High Court decides.
The answer will depend upon two decisions which ultimately the High Court would have to make, assuming that the constitutional validity of the Tasmanian law would be challenged. The first is whether the Commonwealth Parliament’s constitutional power in s 51(xxi) to make laws with respect to ‘marriage’ extends to the marriage of same-sex couples. If the answer is ‘No’, then there would be no issue of a conflict between State and Commonwealth laws and a State Parliament, exercising its plenary legislative powers, could enact laws concerning same-sex marriage (although there may be an argument about whether the term ‘marriage’ ought to be used in such circumstances). If the answer is ‘Yes’, then the High Court would have to decide whether there was an inconsistency between any State law on marriage and the Commonwealth’s marriage law. If there was an inconsistency, then the Commonwealth law would prevail and the State law would be inoperative to the extent of the inconsistency.
The meaning of ‘marriage’ in the Commonwealth Constitution
Whether the Commonwealth Parliament has the power to legislate with respect to the marriage of same-sex couples will depend upon the approach to constitutional interpretation taken by the Court. If an originalist approach is taken, the Court will consider the contemporary meaning of the term ‘marriage’ at the time the Constitution was enacted in 1900. In doing so, it would take into account the common law, the statutes and the practice of the late nineteenth century. In 1866 Lord Penzance, in Hyde v Hyde, defined marriage as being ‘the voluntary union for life of one man and one woman, to the exclusion of all others’. This definition is likely to be regarded as representing the meaning of the term ‘marriage’ at the time the Constitution was enacted. It has been adopted by Australian courts from time to time in interpreting the meaning of ‘marriage’ in the Constitution. For example, Justice Brennan applied it in The Queen v L [1991] HCA 48; (1991) 174 CLR 379, 391-2.
The constitutional definition of ‘marriage’ cannot be expanded by the Parliament. As Justices Mason and Deane noted in Re F; ex parte F [1986] HCA 41; (1986) 161 CLR 376, at 389:

Obviously, the Parliament cannot extend the ambit of its own legislative powers by purporting to give to “Marriage” an even wider meaning than that which the word bears in its constitutional context.

However, the High Court can expand its meaning by way of constitutional interpretation if it is to take a non-originalist approach. It could look to the meaning of ‘marriage’ today, taking into account ‘contemporary understandings of its meaning’ including changes in the meaning of language and the different social circumstances in which the language applies. Justice McHugh explained these two contrasting approaches in Re Wakim; Ex parte McNally [1999] HCA 27; (1999) 198 CLR 511, where he said at 553:

[I]n 1901 “marriage” was seen as meaning a voluntary union for life between one man and one woman to the exclusion of all others. If that level of abstraction were now accepted, it would deny the Parliament of the Commonwealth the power to legislate for same sex marriages, although arguably “marriage” now means, or in the near future may mean, a voluntary union for life between two people to the exclusion of others.

The difficulty, however, if one takes a non-originalist approach, is identifying at what point the contemporary meaning of a term has changed and what level and evidence of community support is needed to justify a change in constitutional meaning. Given the current highly contested political debate on the meaning of ‘marriage’ this would be a difficult decision for the High Court to make.
Inconsistency of laws on marriage
If the High Court decided that the Commonwealth Parliament does have the power to legislate about same-sex marriages under s 51(xxi) of the Constitution, then a question would arise as to whether any Tasmanian law on the subject would be inconsistent with a valid Commonwealth law on the subject. The Marriage Act 1961 (Cth) provides in s 5 that ‘“marriage” means the union of a man and a woman to the exclusion of all others, voluntarily entered into for life.’ It picks up Lord Penzance’s definition from 1866 and would safely fall within an originalist interpretation of s 51(xxi) of the Constitution. The Marriage Act then sets out the requirements for all marriages solemnised in Australia and sets out the pre-conditions for marriage and the circumstances in which marriages are invalid.
The question would be whether the proposed Tasmanian law would be inconsistent with the Marriage Act. This would depend upon the wording of the Tasmanian law. If the Tasmanian law purported to give to same-sex couples the legal status of being ‘married’ for the purposes of all law across Australia, including Commonwealth law, this would give rise to a direct inconsistency with the Marriage Act, as it would be purporting to grant people a status which is denied to them by a Commonwealth law. It would therefore be inoperative to the extent of this inconsistency.
In any case, it would be beyond the legislative powers of the Tasmanian Parliament to purport to confer on persons the status of ‘married’ for the purposes of laws in other States or the Commonwealth. Hence, a Tasmanian same-sex marriage, even if made under a valid and operative Tasmanian law, would not give the same-sex couple any of the legal rights of a ‘married’ couple under Commonwealth law or under the law of any other State (unless the States or Commonwealth legislated to recognize the status of same-sex couples married in Tasmania or the courts interpreted existing laws widely enough to pick up a married status under Tasmanian laws). Same-sex couples married in Tasmania would most likely not, in effect, be legally ‘married’ for any purposes other than Tasmanian laws. This might dampen the anticipated tourist trade in same-sex weddings, if such a ‘marriage’ would not change the couple’s marital status on mainland Australia.
Even if the Tasmanian law was drafted so as to confine its effects to Tasmanian laws, it might still be held to be inconsistent with the Commonwealth’s Marriage Act to the extent that the Commonwealth law was regarded as ‘covering the field’ of marriage. Although the Marriage Act confines its definition of marriage to opposite sex couples, it is likely to be argued that it was intended to cover the entire field of marriage within Australia and to prohibit marriage of same-sex couples, just as it prohibits certain other marriages, including marriages between certain family members. Section 48 states that marriages solemnised in Australia otherwise than as stipulated by the provisions of the relevant division are not valid. Section 88EA also says that a union solemnised in a foreign country between a man and another man or a woman and another woman must not be recognized as a marriage in Australia. These provisions suggest an intention to cover the field. While s 6 of the Marriage Act states that the Act shall not be taken to exclude the application of State laws in so far as they relate to the ‘registration’ of ‘marriages’, this is only directed to registration – not the solemnisation of marriages and it is also confined to ‘marriages’ as defined by the Act.
Conclusion
A Tasmanian law permitting same-sex marriage, even if operative, would do little more than facilitate the holding of a ceremony, the consumption of champagne and the taking of photos. It might confer on the parties to a same-sex marriage the status of ‘married’ for the purposes of Tasmanian legislation, but it is most unlikely that they would be regarded as legally ‘married’ for the purposes of Commonwealth law or under the law of any other State and would therefore not attract any legal benefits or status accorded to a married couple.
In addition, there is a distinct possibility that such a law would be held to be inoperative because it is inconsistent with a valid Commonwealth law. It is therefore not yet time for same-sex marriage proponents to crack open the champagne.

Author Anne TwomeyPosted on August 5, 2012

]]> https://austlii.community/foswiki/Sandbox/ConstitutionalCritique/TheLetterSAGatewayToSelfDetermination 2012-05-17T00:00:00Z , Ellen Joy

In this blog, Ellen Joy, one of the CRU’s interns, discusses the significance of the use of the term ‘peoples’ in the constitutional amendment proposed by the Expert Panel on Indigenous Constitutional Recognition:
What difference does a letter ‘s’ make?

When it comes to the words ‘people’ and ‘peoples’ the distinction, although at first elusive, is potentially quite important. The Expert Panel’s report ‘Recognising Aboriginal and Torres Strait Islander Peoples in the Constitution’ proposes a provision to give the Commonwealth Parliament power to make laws with respect to Aboriginal and Torres Strait Islander ‘peoples’ rather than ‘people’. The existing constitutional provision- which would be repealed and replaced by the recommended provision- gives Parliament the power to make special laws with respect to the ‘people’ of any race. What constitutional ramifications might flow from the addition of the letter ‘s’ to the word ‘people’?
First, it would suggest that Parliament could not legislate generally in relation to Aboriginal persons and Torres Strait Islanders. It would instead have to legislate in relation to different ‘peoples’; presumably groups such as the Wik people or the Eora people. This leads to questions about how a ‘people’ would be defined and whether this would prove more or less difficult to define than the people of a ‘race’.
Secondly, ‘peoples’ at international law have particular rights, including the right to self-determination. To what extent is the reference to ‘peoples’ in the proposed constitutional provision able to attract particular rights at international law and would the High Court interpret it as doing so?
The concepts of self-determination and ‘peoples’ under international law are (deliberately) vague, although there is some consensus that Indigenous peoples may be defined as ‘peoples’ under international law and entitled to ‘internal’ self-determination. This means the right to freely determine political status and pursue their economic, social and political development. Examples of this process can be seen in the Indian Territories in the United States, the recognition of Indigenous languages as a national language, or the creation of governing bodies (such as the now defunct Aboriginal and Torres Strait Islander Commission). This right to Indigenous self-determination is also affirmed by the Declaration on the Rights of Indigenous Peoples (DRIP) which was eventually supported by the Rudd Government in 2009. However, it is questionable whether the High Court would impute this meaning into the proposed provision.
If the Court were to take a textual approach, ‘peoples’ is likely to be understood as a reference to the various Indigenous communities within Australia, which would not import any right to self-determination. However, where there is ambiguity in a provision, the court may look to other sources to determine meaning. The court is therefore likely to look to comparative international jurisprudence, parliamentary debates and perhaps international instruments such as treaties.
A number of other jurisdictions recognise Indigenous ‘peoples’ in their Constitutions, including Canada, Columbia, Ecuador, Mexico and Russia. Canada’s constitution defines ‘peoples’ as the Inuit, Indian and Metis peoples, and does not incorporate the international definition. Interestingly, Russia’s constitution gives its Indigenous persons any rights created under international law. Although subsequent cases have restricted rights to self-determination; it is difficult to assess the extent to which Indigenous peoples have been afforded those rights. As such, international comparisons would suggest a leaning towards the recognition of multiple indigenous communities in a territory, and a tendency not to recognise ‘peoples’ in an international sense that would imply rights to self-determination.
The Court may also look to the Convention Debates to ascertain the intended purpose of a constitutional provision. The modern equivalent of the debates would be Parliamentary second reading speeches, which may also assist in determining purpose. Although there are currently no relevant speeches to examine, the focus of the Expert Panel’s report and poor community attitudes towards Indigenous self-determination and sovereignty suggest it is highly unlikely the Parliament will illustrate such a purpose in a second reading speech.
Finally, the High Court may choose to use former Justice Michael Kirby’s ‘interpretive principle’ of reading ambiguous provisions in light of universal rights principles. Given the ICCPR, ICESCR and DRIP, the Court could find that Indigenous persons are to be regarded as ‘peoples’ in the international sense, attracting a right to self-determination. However, Kirby’s interpretive principle has not been well received or implemented by other members of the judiciary. Heydon J pointedly stated in Roach v Electoral Commissioner that twenty-one Justices had considered and rejected the notion that legislative power could be curtailed by implied rights stemming from international law. A reliance on international treaties to impute a right of indigenous self-determination is unlikely to be accepted by the courts.
Even if the Court established that Aboriginal and Torres Strait Islander persons constituted ‘peoples’ in the international sense, there is still the issue of whether this implies the right to self-determination. The Court has been reticent to imply terms into the Constitution and at the very least, any implication needs to be based on the terms and structure of the Constitution itself. It seems a significant stretch to suggest that the term ‘peoples’ implies not only an international definition, but also a right to self-determination. Furthermore, implying rights derived from an alternative legal system would drastically undermine the supremacy and legitimacy of the Constitution.
Whilst it seems unlikely that the Court will imply a right to self-determination in the proposed provision, it is clear that greater discussion is required regarding the intended purpose of the proposed provision and what rights, if any, are intended to be conferred on Aboriginal and Torres Strait Islander Peoples.
Ellen Joy, CRU Intern, 17 May 2012

Author Anne TwomeyPosted on May 17, 2012

]]> https://austlii.community/foswiki/Sandbox/ConstitutionalCritique/TheUSSupremeCourtAndObamacareSurprisesAllRound 2012-06-29T00:00:00Z , Anne Twomey Yesterday morning (Washington time), as Australians slept, the United States Supreme Court handed down its much-anticipated decision on the constitutional validity of the Patient Protection and Affordable Care Act (aka ‘Obamacare’). The Act, a keystone in Obama’s credentials as a progressive and reforming President, had proven as controversial and politically-charged (if not more so) as any law in post-war U.S. history. Challenges to the Act were immediate; Florida and twelve other States filed a complaint on the day the President signed the Act into law.
The 900+ page Act involved a complex matrix of provisions, designed to universalise health insurance coverage for Americans, and to extend the reach of existing Medicaid schemes (State medical coverage for classes of poor and disabled persons, funded through federal grants). At the Act’s heart, the most controversial provision was the ‘individual mandate’, requiring (almost) all persons, not otherwise covered by health insurance (through their employer or under Medicaid), to purchase private health insurance. A penalty was to be levied on those who did not.
It was this (unpopular) provision that commentators regarded as the soft underbelly of the Act, and many thought most likely to be defeated. (Would its invalidation have destroyed the whole scheme? For the constitutional lawyers, assuming invalidation, the next question was whether the provision could be severed, leaving the rest of the Act intact. The District Court of Northern Florida had already said that it couldn’t; the Appeals Court of the Eleventh Circuit had disagreed.) Congress had sought to persuade the Supreme Court that the provision was supported by the Constitution’s Commerce Clause. Like the Australian Constitution’s Trade and Commerce power (s 51 (i) ), the Commerce power is confined to interstate and international commerce, but (unlike in Australia) it had been given a vastly expanded scope over the years, at least until relatively recently, permitting Congress to do many things that appeared (to Australian eyes) only loosely concerned with ‘commerce’. In this case, Congress argued that the health insurance mandate was part of the regulation of interstate commerce (in the health industry), or alternatively, that it substantially affected interstate commerce, or that it was ‘necessary and proper’ (like Australia’s incidental power) for the regulation of interstate commerce.
The Court’s decision took almost everyone by surprise. By a 5:4 majority, it upheld the whole Act. This was not the only surprise. It was Chief Justice Roberts who proved to be the ‘swing’ judge (not, as considered most likely, Justice Kennedy). Indeed, it was Roberts (a conservative, who had locked horns with President Obama in the recent past) who wrote the Opinion of the Court (some, it is true, had predicted this – although not what the Opinion would be). But, perhaps the biggest surprise was that the Court based validity not on the Commerce Clause, but on a constitutional provision that had been argued in support of the provision only as an alternative, and fairly weakly at that: Congress’s Taxation power.
In an exercise that is entirely familiar to Australian constitutional lawyers, the Court took the provision through a test of characterisation. It held that the fact that the Act spoke of a ‘penalty’, rather than a tax was not fatal; that, indeed, a penalty could be a tax, regardless of what it was called. (Our Australian students would immediately know this as ‘dual characterisation.’) What made the ‘penalty’ a tax? The amount was capped at no more than the average annual insurance premium; it did not involve punitive measures or prosecution for noncompliance (effectively, people could choose to pay the ‘tax’ as an alternative to paying health insurance); and it was to be collected by the IRS, alongside regular taxes.
A consequential surprise was the Court’s attention to the Anti-Injunction Act of 1867. This Act bars suits for ‘restraining the assessment or collection of any tax’, prior to the tax being imposed and a plaintiff being sued for failure to pay (its purpose is to protect the government’s capacity to collect revenue without interruption). If the mandate had been characterised as a tax, the Court might have lacked jurisdiction to hear the challenge. The plaintiffs in this case wanted their day in court, and they needed, therefore, to avoid the tax argument. They got both. No commentators, however, had really seemed to treat the Anti-Injunction Act as a genuine threat. By contrast, the Court spent significant time on it. How, then, did the suit proceed? The Court found that, although the Affordable Care Act’s mandate ‘penalty’ was in fact a tax, Congress had effectively legislated around the Anti-Injunction Act, as it was entitled to do.
Why was the Act not supported by the Commerce Clause? Congress, the Court concluded, could not regulate the failure to engage in or enter commerce. It could only regulate commerce that already existed (this, it said, was what ‘regulate’ implied: you can’t regulate nothing.) And the ‘necessary and proper’ argument failed similarly.
Interestingly, it was the latter that had been the quiet hope of supporters of the Act who feared that what could be called the ‘broccoli mandate argument’ might otherwise work to defeat it. The ‘broccoli’ argument (arising from a question put to the Solicitor-General during oral argument by the ever-colourful Justice Scalia) had gone along these lines: if Congress is empowered to make people do things (like buying health insurance) just because these are good for their health, then what were the limits on what Congress could make people do? Could they force people to eat broccoli? The ‘necessary and proper’ response was that compulsory health insurance membership was necessary to regulate the health care industry, but compulsory eating of broccoli was not. In the end, this saving device was not needed (although broccoli did get a mention in the dissent.)
The second key issue was the Medicaid Expansion provisions of the Act. These rested on the capacity of Congress to make conditional grants to the States, via the Constitution’s ‘Spending’ power (Congress is empowered ‘to pay the Debts and provide for the … general Welfare of the United States’). The Act provided for increased federal grants to the States to support the expansion of existing Medicaid schemes, and also provided that all Medicaid grants to any State that would not comply would be withdrawn. Could Congress use the Spending power coercively (withdrawal was a significant threat: Medicaid currently makes up more than 10% of States’ budgets)? The Court concluded that it could not. (The principle, then, holds, that the Spending power cannot be used coercively, although, in fact, no Act has ever been found to be relevantly coercive. In this, as in its reach, we are reminded of section 96 of the Australian Constitution.) Again, the objection did not prove fatal: the provision was saved by the canon of statutory interpretation that requires every effort to uphold the constitutionality of an Act; the Court read the provision to mean that only the extra ‘Expansion’ grants could be withheld.
The dissenting Justices – Scalia, Kennedy, Thomas, and Alito – found the Act entirely invalid. They agreed that the Act was beyond the Commerce Clause, because it purported to ‘direct creation of commerce’; and that failure to engage in commerce was not ‘commerce’. They agreed that ‘the failure to purchase health insurance, unlike the failure to purchase… broccoli, creates a national, social-welfare problem..’ But they rejected the proposition that this difference demonstrated that the failure to enter the health-care insurance market ‘unlike the failure to buy … broccoli, is an activity that Congress can “regulate”’. They virtually laughed out loud at the proposition that an exaction of money can simultaneously be a penalty and a tax. That, they said, would be ‘a creature never hitherto seen in the United State Reports’.
The ‘creature,’ it seems, has arrived. For those in Australia who watch U.S. constitutional law (at least those with the patience to plough through the 193 pages) this case will hold more than usual interest. It offers a counterfactual on what might have happened had the 1946 referendum (which added section 51 (xxiiiA) to the Constitution) not been successful. For the present, it provides an interesting glimpse into another country’s constitutional battles over federal spending. Along with challenges to taxation laws, these (as we have just seen with Williams v. Cth) promise much rich fare for Australia’s constitutional lawyers.

Author Helen IrvingPosted on June 29, 2012

]]> https://austlii.community/foswiki/Sandbox/ConstitutionalCritique/Welcome 2012-05-14T00:00:00Z ,

Welcome to the Constitutional Reform Unit’s blog. We intend to use this blog to alert people to the research that is being conducted by the CRU and any events and publications as they occur. We also intend to use it to discuss and critique current topics of constitutional interest. Often these issues are raised by the media in interviews with members of the CRU – but the full picture of what was discussed does not come across. So this will be a repository where people can gain a more detailed picture of the constitutional issues behind current political controversies and can make their own judgements.
Anne Twomey, 14 May 2012

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