Tim O’Reilly proposed the slogan “Government as a platform” for his Government 2.0 activities which he’s heavily scaled back in favour of more lucrative opportunities. But there was always a problem. That problem was that it wasn’t so much that no-one had ever had the idea that government might be an enabling resource – a platform in the lingo of Web 2.0. The real problem is that government has no culture of this. Departments are proprietorial and secretive and that’s a tenacious culture which is prevented from evaporating by lots of expectations and structures.

But there is one part of government that has cultivated the culture of ‘Government as a platform’ since its inception around a century and a half or so ago:  The GLAM sector – that’s galleries, libraries, archives and museums. I couldn’t help noticing when doing the Government 2.0 Taskforce that the GLAM sector were up and at it long before anyone else. The National Library had its newspaper digitisation program and Seb Chan from the Sydney Powerhouse Museum was on our Taskforce and instrumental in getting us to run a mashup competition – and likely instrumental in getting the Powerhouse to become the first museum anywhere in the world to post its historic photos on Flikr and licence them Creative Commons. Seb’s unit built the mashup of baby names in NSW which is fascinating to play with.

I also learned about all the problems the national and state libraries were having getting rights to archive web content that were analogous to their rights as libraries of record to receive a copy of all publications in their jurisdiction from publishers. If they had such rights all they would need would be a robot to go and collect the material and Bob’s your uncle. In fact without this, much of their efforts involve sending people letters to ask their permission to archive their sites. I discussed with various people in libraries of record having such rights which certainly made sense to me.

Anyway, they still don’t have such rights.

Meanwhile . . . they are certainly keen on their rights to printed material as you will observe from this letter I received from the Victorian State Library this week (I might add that The Victorian State Library is a terrific organisation, which I am very fond of, but even terrific organisations do really silly things):

The State Library of Victoria tries to collect a copy of all books, videos, CD’s, CD-ROMs, pamphlets, periodicals, newspapers and any other items published in Victoria for permanent preservation in the Library.

To help us in this endeavour, legislation was passed in 1869 requiring publishers to deposit free of charge with the library a copy of every item published in Victoria. Current legislation is contained in section 49 of the Libraries Act 1988 (see enclosed leaflet).

Recently the following publication came to our notice.

The economic value of Australia’s investment in health and medical research: reinforcing the evidence for exceptional returns. 

We look forward to receiving a copy of this publications (sic), as well as any other publications you might not have previously sent us for legal deposit. Please follow the enclosed legal deposit instructions when forwarding publications.

This is really silly. In fact Lateral Economics is not the publisher of this ‘book’.  Our client was Research Australia which published it on their website (pdf). It’s true they distributed a few copies to the conference where the report was launched. But it’s not a ‘book’ and it wasn’t ‘published’.  And it would be a lot cheaper and a lot safer as far as preservation goes if the State Library downloaded the ‘book’ from the website where it reposes and archived it rather than spending a lot of money sending silly letters to people.

I got a similar letter from The Australian National Library about a number of other Lateral Economics studies all of which are freely downloadable on the internet.

What a load of old sensationalist nonsense. I’m seriously starting to worry about Giz. If I want to search anonymously there is a thing called an anonymous tab. And I don’t log into my Google account outside work because why would I? – My phone is logged in.

That’s how the first commenter responded to this piece in Gizmodo accusing Google of being evil because it – wait for it – shares identity information between functions. That’s right, Gmail can now share information with Google search with Google + and on it goes.

This is supposed to be some attack on our privacy. Well there are very nasty things Google can do to harm my privacy. Those things would be telling other people things it knows about me that it could reasonably expect that I might not want them to tell them.

But it doesn’t do that. It is just using all the data it has to further improve improve the adds and other services it provides me. WTNTLAT? *

My point is, as I said here, privacy law, and privacy activism should be focused wherever practicable on stopping conduct that actually threatens privacy – ie where that information is provided to agents other than the one that has the information in the first place. It always pissses me off when I have to wait to be read some stupid thing which tells me my voice is going to be recorded “for quality purposes”. If it’s for training purposes they can protect my privacy by making sure the recordings don’t get leaked and by destroying them after the couple of weeks it was necessary to hold them to use them for the entirely benign purposes of quality control.

And remember, although Google is probably mostly thinking of optimising advertising here . . .

1. making advertising relevant is a source of considerable value to the world and
2. there are lots of other ways that the data might be able to be used to simply provide improved services to people – such as search, prompting connections with others, or with information of relevance to users, task management and all the other things that I can’t think of.

So broadly speaking, and with the caveat that I’ve not researched all this in great depth, I submit these views to you O Troppodores and Troppodillians.

* “Define: WTNTLAT” doesn’t generate any answers in Google, so we’re on the ground floor here Troppodores. This could be Troppo’s big break – our own little footnote in the English language, our own corner of the universe.

Judge Michael Finnane

Justice Michael Finnane of the NSW District Court has long been one of my favourite legal characters.  But then I’m not a criminal defence lawyer.  If I was I’d almost certainly have a different opinion, as this SMH story notes:

But it is as the state’s most punitive District Court judge – the man who jailed the gang rapist Bilal Skaf for 55 years and the paedophile Robert ”Dolly” Dunn for 30 – that Michael Finnane has made his name. His reputation has prompted defence lawyers to try in vain to move their clients to other courts, and for good reason.

A Herald analysis of the Court of Criminal Appeal’s published decisions since January 2008 shows Judge Finnane is the state’s toughest sentencer.

In the past two years, he has had a total of 37 years stripped from his sentences because the state’s top criminal court deemed them excessive, at a time when it is increasingly reluctant to do so.

Judge Finnane’s decisions were overruled 16 times – 10 of them for excessive sentences.

Even his oldest legal mates like solicitor Greg Walsh try to avoid having a matter heard by Finnane J if they get half a chance.  His Honour explained the extent of his relationship with Walsh in recent reasons for decision for decision in which he refused an application that he disqualify himself  for reasonable apprehension of bias from hearing charges against one of Walsh’s paedophile priest clients:

I have known Mr Walsh personally for more than 30 years. When I was a barrister, he would brief me to appear for his clients from time to time. For the most part I appeared in civil cases.Mr Walsh has always a done a considerable amount of criminal law work in his practice and in the few years before 2000, when I became a judge, he developed a considerable practice appearing for Catholic priests and brothers who were charged with child sex offences. At one stage, he frequently briefed Mr Chester Porter QC to appear for his clients. He also briefed other barristers to appear for them and he appeared for some of them directly. To my knowledge he has appeared in such cases in New South Wales, Victoria, Queensland, Tasmania and Western Australia. From time to time, over the years, I have met him on a social basis and have discussed in a broad sense this part of his practice.

Within the past few years, he has borrowed from me a set of robes I had kept from my days as a junior counsel, my barristers wig and some jabots so that he could appear as counsel in the Supreme Court of Tasmania in a child sex case involving a priest or a brother. He discussed this briefly with me.

Greg Walsh’s bias application against his old mate Finnane J arose from a jocular conversation at a morning tea at the District Court following the swearing in of a new judge. On Walsh’s recollection you can certainly see why he was concerned that His Honour might not bring an entirely unbiased mind to bear on the question of sentencing his priestly client CUR24 if a jury ended up finding him guilty of any of the very large number of child sexual abuse charges due to be heard before Finnane J. Unfortunately for Walsh’s client, His Honour’s admittedly hazy recall of the conversation was different enough to allow him to adopt the robust attitude that the High Court says judges should apply towards bias disqualification applications. We wouldn’t want to encourage solicitors to manufacture spurious bias claims against trial judges merely for the purpose of cynical forum shopping, would we?

Anyway, whether Walsh’s recollection or that of Finnane J is the more accurate is currently a moot point. His Honour refused to disqualify himself. Nevertheless His Honour’s version of his morning tea conversation with Greg Walsh is well worth revisiting:

After the CUR24 case commenced, I cannot recollect discussing child sex cases with him in any way except perhaps in passing. If I bumped into him in the street, he might mention that he had another case. I have never discussed CUR24 with him at all.

I can remember Mr Walsh being present at the swearing-in and at the morning tea ceremony and I recollect him telling me at the morning tea ceremony that he was particularly there because the new judge, like him, was a solicitor.

I have considered Mr Walsh’s claims about what I said to him at the morning tea but I am unable to agree that I used the words attributed to me, apart perhaps from greeting him on the basis that he was appearing for another paedophile, something that he then confirmed. That greeting was a friendly one. I am absolutely certain I did not tell him that I had a view that all paedophiles should be put on an island and starved to death.

It is my memory that some years ago, during the hearing of the paedophile reference at the Royal Commission into the New South Wales Police service, a psychologist was asked by the Commissioner, Wood J, what he thought could be done to rehabilitate paedophiles. My recollection is that he expressed the view that they should all be placed on an island. I have no memory that he considered the island should be a desert island or that they should be starved to death. My memory may be an imperfect one and I have not had access to any Royal Commission transcript to refresh my memory.

This view, understandably enough, was rejected by the Commissioner. I did not take this man to be making a serious suggestion that paedophiles should be exiled. Rather, it seemed to me that he was expressing a view that rehabilitation was very difficult. He was engaging in a form of hyperbole. I feel confident that Wood J did not have a view that the witness had a literal view that paedophiles should be marooned.

It may be that I recounted to Mr Walsh something of what this man had said but I cannot ever recollect this man talking about starving them to death. That is what makes me confident that I did not at any point express such a view, which I would regard as abhorrent.

I think I may have said, “Greg, I heard someone say that what should be done with paedophiles is to put them all on an island”, but I doubt that I said this as the second thing I said to him when I met him. It seems probable to me that we said more to one another than what he has deposed to, because my experience of social occasions is that there is a great deal of small talk in even the briefest of conversations.

I also have never expressed an opinion to Mr Walsh that all persons charged with paedophile offences are guilty. It is perfectly obvious that many of those who are charged are found not guilty and in the case of SKA v the Queen (reported in [2009] NSWCCA 186; [2011]HCA11), I expressed the view that the accused should not have been convicted at all. This view was rejected by the Court of Criminal Appeal and the sentence I imposed on SKA was doubled.

I do not know how Mr Walsh came to the conclusion that I made the comments he attributes to me. I also do not understand how he could possibly believe that I had a personal view that pedophiles should be put on a desert island and starved to death. Whatever was said by me to him was said in passing at a noisy social function. It was not a considered statement of opinion, such as might be expressed by someone at a seminar or in a newspaper article.

It seems probable to me that he has misunderstood what I did say. It seems clear that he did not at any time during this brief conversation ask me what I meant or whether I was serious in what I said. At no point did he raise with me my views on sentencing. If he was really concerned by what I said, I would have expected him to have raised it with me.

As far as I can see, the psychologist expert witness’s alleged opinion about paedophiles’ rehabilitation prospects seems a little more pessimistic than the research would justify.  Even if correct, most people would probably regard His Honour’s proposed punitive regime as reported by Walsh as a tad harsh.  Surely a parachute drop of dry bread and water every couple of days would need to be part of the sentence.  Anyway, whoever’s recollection of the morning tea is correct, we can be very confident that CUR24 isn’t looking forward to being tried before Finnane J.  In fact one suspects an appeal may now have been filed.

In any event that seems to be ancient history now.  Rafe even graciously apologised, while I’ve restored his commenting access here at Troppo (a magnanimous impulse I may live to regret next time we host a global warming thread).

While I was over there, I noticed that some of the Catallaxians seem to have a bee in their collective bonnet about the constitutional validity of the Gillard government’s appointment of former Treasury head Ken Henry as a special adviser to the Prime Minister under Constitution s 67.  See this post by Sinclair Davidson and this one and this one by Samuel J.

I’m not at all sure why they’re worried about it.  Presumably Henry is seen as a class traitor for taking a job with Juliar.

In any event the discussion provoked my interest because I’d never looked closely at s 67 before. Samuel J’s argument appears to be that s 67 should be regarded as a transitional provision whose effect was spent once the first Public Service Act was enacted in 1902.  He appears to rest that argument mostly on the introductory words “Until the Parliament otherwise provides, …” .  However those words also appear in s 96 (Financial assistance to States) and no-one argues that the Commonwealth no longer enjoys the power to make grants to the States under it.  It’s certainly true that section 41 (Right of electors of States) was held to be a transitional provision whose effect was spent once the Commonwealth Parliament met and enacted the first comprehensive electoral legislation to provide for the franchise for federal elections.  But that’s essentially because it was clear that that was the Founding Fathers intention.

By contrast, it is abundantly clear that the Founding Fathers did NOT intend s 67 to be a mere transitional provision.  See the relevant part of the 1897 Convention Debates starting at page 916. As the ANU publication Public Sector Employment in the Twenty-First Century relevantly observes:

The earliest appointments to the APS, apart from those State public servants transferred to the national government under the Australian Constitution when the Commonwealth was formed on 1 January 1901, were made under s 67 of the Australian Constitution:

Section 67 is still occasionally used, but it was not very long before the inaugural government of the Commonwealth introduced a Public Service Bill which was adopted in 1902. It was overtaken by another Act in 1922. As already noted, Australia’s third and latest Public Service Act dates from 1999 …

Samuel J attempts to enlist s 6 of the Public Service Act 1999 to support his argument.  It relevantly reads:

(1)  All persons engaged on behalf of the Commonwealth as employees to perform functions in a Department or Executive Agency must be engaged under this Act, or under the authority of another Act.

             (2)  Subsection (1) does not apply to:

                     (a)  persons engaged on an honorary basis; or

                     (b)  persons engaged to perform services in the Australian Secret Intelligence Servic

Samuel J argues:

Well the Parliament has otherwise provided, firstly with the Public Service Act 1922 and presently with the Public Service Act 1999.

However the problem with that argument is that on its face s 6 does not purport to provide exhaustively for the appointment of all officers of the Executive Government.  It only provides for those employed “to perform functions in a Department or Executive Agency“.  Manifestly that doesn’t include someone like Dr Henry who is being employed to work directly for the Prime Minister and not within any Department or Agency.

You would normally have expected someone in Dr Henry’s position to have been employed as a Ministerial Consultant under Part II of the Members of Parliament (Staff) Act 1984.  However, s 4 of that Act simply provides that a Minister “may” engage consultants under it.  It does not oblige a Minister to do so (in contrast to the situation with people being employed to work within a Department or Agency).  I don’t know why the government chose to rely on its constitutional power under s 67 to employ Dr Henry rather than employ him under the Members of Parliament (Staff) Act 1984.  If I was to take a guess, I suspect it has something to do with superannuation implications, which might have been adverse had Dr Henry been employed under the Members of Parliament (Staff) Act 1984.

Whatever the specific reason, there is no basis for concluding that it is something sinister, nor for a persuasive argument that appointment under Constitution s 67 is constitutionally invalid.  The High Court would be most unlikely to accept an argument that the multifarious Acts of Parliament authorising the employment of officers of the Executive Government in various capacities somehow together impliedly manifest an intention to cover the field exhaustively such that the direct constitutional executive power of appointment by the Governor-General in Council should be regarded as spent.

Refugee advocates mounted a somewhat similar argument  during the Tampa crisis in 2001. They argued that the Migration Act should be regarded as an exhaustive code regulating immigration, such that the previous constitutional/prerogative executive power to deal with aliens should be regarded as spent or in abeyance.  Refugee advocates argued that the Migration Act should be held to be an exhaustive code governing immigration.  It did not provide a power to refuse entry and send the Tampa asylum seekers to Nauru, and therefore no such power existed.  The Full Court of the Federal Court rejected the argument in Ruddock v Vadarlis and the High Court refused leave to appeal.  French J (as he then was – now Chief Justice of Australia) held:

The executive power can be abrogated, modified or regulated by laws of the Commonwealth. Its common law ancestor, the Royal Prerogative, was similarly subject to abrogation, modification or regulation by statute. …

The question is whether the Act operates to abrogate the executive power under s 61 to prevent aliens from entering into Australia. There are no express words to that effect. It is necessary then to look to whether by implication it has that effect. It is not necessary for this purpose either to determine the full extent of the executive power or the full effect of the Act upon it. It is sufficient to ask whether the Act evinces a clear and unambiguous intention to deprive the Executive of the power to prevent entry into Australian territorial waters of a vessel carrying non-citizens apparently intending to land on Australian territory and the power to prevent such a vessel from proceeding further towards Australian territory and to prevent non-citizens on it from landing upon Australian territory.

In considering what is the implied intention of the Act and in particular the provisions referred to earlier, it is necessary to have regard not only to the general approach, supported by authority, to the question whether executive power is taken to be abrogated by statute, but also the importance to national sovereignty of the particular power in question. In my opinion the Act, by its creation of facultative provisions, which may yield a like result to the exercise of executive power, in this particular application of it cannot be taken as intending to deprive the Executive of the power necessary to do what it has done in this case. The Act confers power. It does not in the specific area evidence an intention to take it away. …

It is no more likely that the High Court would decide that legislation governing public sector employment somehow impliedly manifests an intention to abrogate executive power conferred on the Governor-General by the Constitution itself.

NB Australian Financial Review arguably has the best coverage and has no paywall for the weekend.

AequoEtBonoAngus M-a-c-i-n-n-is

by CDUlawschool

@

@gavinrebetzke Yes, grounding was said to be to permit lockout to occur safely. Difficult for a court go behind that.

7 hours ago

KJBarKaren Barlow

by CDUlawschool

@

Right then RT @leigh_howard No decision till tomorrow arvo it seems folks. #Qantas

5 hours ago

leigh_howardleigh_howard

by CDUlawschool

There are at least 15 people appearing. This will go all night. #Qantas

7 hours ago

leigh_howardleigh_howard

by CDUlawschool

Appln under s 424(d). Never been used in history. Govt could have jumped this step by declaring grounding void under s 431. #Qantas

8 hours ago

AequoEtBonoAngus M-a-c-i-n-n-is

by CDUlawschool

So Qantas’ go-to silk, Harry Dixon SC, was in Melbourne today? What a lucky coincidence!

7 hours ago

leigh_howardleigh_howard

by CDUlawschool

Minister: seeks to terminate ALL industrial action, not just lockout. #Qantas #ausunions

7 hours ago

sallysaraABCSally Sara

by CDUlawschool

3 Australian soldiers killed, 7 wounded in shooting by attacker dressed in Afghan National Army uniform. Shah Wali Kot, Kandahar province.

6 hours ago

CDUlawschoolCDU Law School

Meanwhile: “Microsoft buys Skype, attacks reverse engineer with bogus takedown notices and florid language” tiny.cc/ki6ii >

10 hours ago

CDUlawschoolCDU Law School

tiny.cc/shggd “no one at Qantas to blame, not workers or management..faced with horrid reality of competitive global airline business

10 hours ago

CDUlawschoolCDU Law School

FWA s424 tiny.cc/y4y3j – would end union action as well as lockout. Probably that’s what Joyce was aiming at – high stakes poker

11 hours ago

profsarahjSarah Joseph

by CDUlawschool

Govt applying under s424 to FWA to terminate all industrial action at #Qantas. #Albanese

11 hours ago

CDUlawschoolCDU Law School

From 8pm AEDT on 31/10 Qantas will lock out all employees covered by the new ALAEA, TWU and AIPA agreement. bit.ly/23SFRn

11 hours ago

CDUlawschoolCDU Law School

Qantas: total chaos and massive self-inflicted losses. For the latest, check Crikey’s aviation guru Ben Sandilands bit.ly/sjQkNu

11 hours ago

peterjblackPeter Black

by CDUlawschool

qantas media release about the lock-out bit.ly/tESBh6

11 hours ago

AequoEtBonoAngus M-a-c-i-n-n-is

by CDUlawschool

And while I’m tweeting FWA sections, this is why you can’t sue #qantas for any loss you suffer: bit.ly/t0eEG3

11 hours ago

I was discussing this with my CDU Law School colleague Geoff James over lunch a couple of days ago when he mentioned a corporate regulatory policy idea that I hadn’t heard before.  Given that the corporation is a “fictitious legal person”, Geoff said, why not take the analogy to its logical conclusion and legislate a mandatory corporate lifespan?  After (say) three score years and ten all corporations would be compulsorily liquidated and their assets and business undertaking sold.

Apparently this was a policy of the old Australia Party founded in the 1970s by eccentric transport tycoon Gordon Barton.  Be that as it may, it’s an interesting if fairly radical idea.  I’d be interested in the reactions of the diverse Troppo readership, especially the economists among us.

In a sense, it would bring the corporate structure more in line with that of trusts, which once had a maximum life span (perpetuity period aka rule against remoteness of vesting) delightfully defined as a “life in being and twenty one years”.  That equitable description gave rise to the equally quaint drafting convention of maximising the duration of any trust instrument by providing for vesting on the death of the “last currently living heir of Her Majesty Queen Elizabeth II”.  Sadly, most states and territories have now legislated for a more prosaic perpetuity period of 80 years or thereabouts.

Legislating for a maximum corporate life span might also be argued to enhance the prospects for business growth and productivity through harnessing Schumpeter’s notion of “creative destruction” as the principal engine of capitalist growth and renewal.  However it may be a bit more complex than that, as Arthur Diamond discusses (extract over the fold).

Schumpeter’s central message is that the process of creative destruction describes the form of competition in capitalism that is capable of dramatic improvements in the quantity and quality of our lives (Diamond, 2004). …

In Capitalism, Socialism, and Democracy, Schumpeter had a lot to say about his process of “creative destruction,” not all of which is given equal emphasis by those using the phrase today. Here, I will distinguish two accounts of the process of creative destruction: Schumpeter’s original ‘big-is-better’ account, and a more recent ‘small-is-better’ account. The process of creative destruction, in both Schumpeter’s original, and in the more recent account, is a process in which technological advance is the main source of economic growth and improvements in the quality of life. In both accounts, a significant part of the incentive to produce leapfrogging innovations is the prospect of achieving monopoly profits. Traditionally the main source of monopoly profits would have been through patent rights. But currently a full account of monopoly profits would also include network externalities as a source (as with eBay and Microsoft).

Beyond what the two accounts share, Schumpeter’s original ‘big-is-better’ account also claimed that large, monopoly firms are the most able and the most likely to produce new, leapfrogging innovations. This version is the one usually, but not always1, associated with Schumpeter’s own views. The ‘small-is-better’ account identifies smaller, often start-up, firms as the most likely source of new leapfrog innovation. I argue elsewhere (2004) that the ‘small-is-better’ account is what the vast majority of authors have in mind when they apply the phrase “creative destruction” to competition among computer and internet related firms.

Schumpeter’s claim was that the new process or product that results from a dynamic leapfrogging innovative competition, is more important in understanding capitalism, than the static standard model of price competition that emphasizes unconcentrated markets as the means to lowering prices, where the goods and the technologies are assumed constant. If one set of rules (standard price competition) maximized one good result (lower prices for consumers); and another set of rules (creative destruction) maximized another good result (new products), then we would have to measure the utility produced by each of the good results, which is very hard to do. What if the creative destruction is not only best at producing new products, but also, in creating new processes, is also best at lowering prices for consumers? Then we would know the essential fact about capitalism, without having to decide whether consumers benefit more from lower prices for a constant set of goods, or from a set of goods of higher price, but of increasing variety and quality.

Celebrity lawyer Chris Murphy

Twitter is a much more useful social media tool than I had imagined. I’ve been using it for several weeks now to produce the daily links to interesting legal stories here at CDU Law and Business Online. Contrary to previous impressions, I’ve discovered that you can conduct a reasonably effective conversation despite the 140 character limit on any one “tweet”.

One example is an exchange I had yesterday with Sydney celebrity lawyer Chris Murphy. Readers may recall that I wrote a slightly equivocal (though mostly positive) article some weeks ago about Murphy and his noble fight against alleged ongoing police harassment of Muslim lawyer Adam Houda.

After clearing the air on that front we discussed a more general legal issue: the effect on juries of the Internet and the propensity of some jurors to use Google to do some amateur sleuthing into the case before them:

CDUlawschool
@chrismurphys Said I may have misjudged and indeed think I have from reading your tweets for a few weeks. It was a hook to a story

CDUlawschool
@chrismurphys Although I still find Cunneen events disturbing.

chrismurphys
@CDUlawschool Cuneen? Known ID gives evidence for thug footballer gets u a drink, pulls out a chair, wouldn’t be a sexual assaulter!!!

chrismurphys
@CDUlawschool she talked in a public speech about a man who later won his appeal. Crown should shut up & roll out the evidence.

CDUlawschool
@chrismurphys Appellate judges resist prej effect of public discussion even if juries cant. Why prosecutor silence rule but def lawyers not?

Keep reading at CDU Law and Business Online>>

First a declaration of interest. I’ve known Allan Asher, thought only really to say ‘hello’ to, since the mid 1990s. I liked him and, at least from my limited vantage point think he was shaping up to be a good Commonwealth Ombudsman. He’d also invited me to the Ombudsman’s annual conference which had been thoughtfully put together, but has now been shelved in the light of his resignation yesterday.

It was  certainly a highly embarrassing and a stupid thing for Asher to have been caught scripting self-interested questions for the Greens to ask him in a Senate Committee. Yet, without wishing to criticise those who urged his resignation or his decision to offer it, it’s worth noting that in some ways (apart from his breach of the Eleventh Commandment) this is standard operating procedure in Canberra – and has been for generations.

And that’s not necessarily a tawdry truth. It often been a noble one. Alf Rattigan – one of Australia’s great countercultural bureaucrats helped build the institutions of micro-economic policy transparency – today represented by the Productivity Commission – by cultivating sympathetic politicians within the partisan politics of the day.

Senior officials in the Tariff Board in the late 1960s and early 70s may not have scripted questions for the likes of Bert Kelly, but they were running talking points to the opponents of government policy, often meeting discretely (I know of, but can’t vouch for the accuracy of a story of one of Rattigan’s deputies passing a dossier to a politician through the hedges in the rose garden of the old Parliament House).  Had Bert Kelly asked for help writing a parliamentary question it’s hard to imagine some of Alf’s deputies refusing.

Stephen Bartos disagrees, and perhaps he is right, stressing the role of the Ombudsman as an integrity organisation and also pointing out – quite rightly – that Asher had plenty of other options.  Indeed, given Asher’s ability, indeed duty to publish his views and findings via reports, speeches, and media appearances, and particularly given that these avenues had not been tried, his actual choice in the circumstances does seem particularly ill-judged – indeed frivolous.

Finally in his contrite media release (pdf) on the matter Asher sincerely apologises for his mistake. For me there’s a kind of post-mo0dern twist in it all.  The media release is not a direct statement by Asher. As has become commonplace, it is in the third person form of a pre-written media story.

Mr Asher said he was especially proud of his office’s investigations into systemic issues, citing as examples the school chaplaincy program, the use of interpreters for Indigenous Australians, tax file number compromises, how agencies engage with people suffering from a mental illness, and review rights for people under income management.

But Mr Asher didn’t actually “say” any of it. And he is being criticised by people almost all of whom are complicit in the system which has developed similar and in some ways even more bizarre daily duplicities such as ‘doors duty’ where politicians pretend to arrive at Parliament House in order to offer some carefully scripted one liner to awaiting media hoping to tempt some of them to run it as a ‘grab’ on the nightly news.

Is it any wonder that people sometimes make what they end up conceding are “errors of judgement” in an environment such as this.

Moreover, yesterday’s behaviour by Murdoch’s Brisbane Courier-Mail of publishing edited extracts of a Liberal-National “dirt” file on Queensland Labor MPs rather suggests that it is high time for media behaviour to be placed under the microscope of public scrutiny.  The “Fourth Estate” has been defecating in its own nest for too long and is unlikely to receive much sympathy from the general community if government seeks to bring it to account. …

However, [Jonathan] Holmes implicitly assumes that formal government regulation and heavy-handed bureaucratic oversight are the only available alternatives to the current system of self-regulation of the print media by the Press Council, which Holmes himself (and just about everyone else) concedes is “slow and toothless”.   In fact there a range of possible options for achieving more effective oversight of media behaviour without undermining democratic freedoms.

PS I was tempted to use this image in the post at the official CDU site/blog but I resisted. I’m not quite ready for compulsory retirement.

However, what the MSM doesn’t seem to have yet registered is that the newest allegations, to the effect that Thomson and current HSU National President Michael Williamson both secretly received credit cards from a preferred HSU supplier and used those cards for their own private benefit (in Williamson’s case quite blatantly), may well be potentially both more serious and easier to prove than the original call-girl allegations.  As I commented about the original allegations against Thomson:

What may make charges tricky is that the existence and extent of legal (as opposed to moral) authority to incur personal expenses on a corporate credit card can be unclear in such situations. It is very common for executives to be permitted to use corporate cards for personal expenses while travelling on corporate business. While it is undoubtedly clear in a moral sense that this should not include using it for call-girls, if the formal rules (if any) are unclear about what is allowed and what isn’t then establishing criminal guilt might become problematic.

Similarly with donations to ALP campaigning. Affiliated trade unions make donations to the ALP frequently and always have. The extent to which union executives have express or implied authority to do so without a formal resolution of the union executive committee (or whatever) in advance may vary from union to union and time to time. The fact that a later and hostile Union Secretary seeks to impugn the legitimacy of such donations does not of itself establish criminality. There may well be a conflict of interest given that it is alleged that Thomson was in part donating to campaign costs in his own seat, but again conflict of interest is a civil not criminal concept. If there is a history of union secretaries making donations to ALP campaigns on their own authority (as may conceivably be the case) then it could be very difficult to establish criminal guilt.

Ultimately it appears that it was precisely those problems that caused the NSW Police to decide that no formal investigation was warranted.  However, those problems of evidence and proof mostly don’t apply to the latest allegations, which are in the nature of receiving secret corrupt commissions as an agent from a third party.

Very likely that’s why the Police are actively investigating these latest allegations. While I’m not a criminal law specialist, it seems to me that there is a very real risk that Thomson and Williamson may have breached s 249B of the Crimes Act 1900 (NSW), a section titled “corrupt commissions or rewards” if the allegations so far published are substantiated.   It’s fair to speculate that senior ALP figures have reached similar conclusions, hence Williamson’s sudden resignation today as ALP national vice-president and NSW senior vice-president.  Even if Thomson didn’t  exploit supplier John Gilleland’s credit card quite as ruthlessly as Williamson is alleged to have done, that is unlikely to assist him much in terms of criminal liability.¹1. KP: The Fairfax story which first broke the latest allegations says that: “At an HSU function this year Mr Gilleland’s wife, Carron, privately complained to senior union officials that Mr Williamson had ”run amok” with the credit card. According to one official, Mrs Gilleland said, ”He even paid his private school fees on it” and ”this was not part of the deal”.” [↩]  Nor is the fact that Gilleland himself might not be the world’s most compelling witness.  If it can be established on the evidence that both were given credit cards, used them for their own benefit and failed to make disclosure of those facts to the HSU, then it may well be that a breach of s 249B is made out even if the Prosecution can’t establish that Gilleland’s business actually received favourable treatment on HSU contracts (see subsection (1)(b)).  The offence potentially carries 7 years imprisonment, more than enough to give rise to disqualification from Parliament under s 44 of Australia’s Constitution.

Nor is it necessarily the case that Thomson’s lawyers would easily be able to delay any criminal proceedings well beyond the next election due towards the end of 2013, a proposition that most media pundits happily accepted without question.  It’s certainly true that a competent defence lawyer would be able to engineer at least some delay, but I suggest it would be quite difficult to prevent the matter from coming to trial within 12 months or so. Liberal Senator Mary Jo Fisher’s alleged shoplifting offence occurred in December 2010 and has already been tried. It’s unlikely that her lawyers eschewed delaying tactics. A similar timetable in Thomson’s case would potentially result in the Gillard government’s term of office being reduced by at least 6-9 months, even allowing for the necessary by-election after disqualification and then a House of Reps motion of no confidence.

PS I’d be most interested in the evaluations of readers who are criminal law specialists, either as to substantive offences and issues of evidence and proof, or estimates of likely timing of any trial and the potential for delays.  But please be aware of potential defamation issues and the possibility of prejudicing a fair trial (not that the latter is probably a huge risk at this early stage).

By a 6:1 majority (Heydon J dissenting) the Court held that the Minister lacked legal power to send the 42 asylum seekers (and by extension any future asylum seekers) to Malaysia for refugee assessment and processing. It was a decision based on administrative law and statutory interpretation grounds rather than constitutional law issues.  Four Justices (Gummow, Hayne, Crennan and Bell JJ) adopted asylum seeker senior counsel Debbie Mortimer’s most audacious position, namely that:

1. the question of whether Malaysia was a “safe third country” for the purpose of the Migration Act 1958 was a “jurisdictional fact” i.e. a factual situation which must exist prior to any power in the Minister to send asylum seekers there for assessment;
2. this jurisdictional fact could not exist unless the country concerned was legally bound under its own domestic laws and/or international law to provide protection in a Refugee Convention sense, to provide proper assessment of refugee claims, and to protect basic human rights standards for all returned asylum seekers; and
3. the existence of the  jurisdictional fact of safety also requires that the actual practices and procedures of the country in question are effective in securing that safety.

Factual preconditions 1 and 2 to Ministerial power at least did not exist in Malaysia, and indeed the Minister did not even claim that they did (nor could he given that the Arrangement with Malaysia expressly stated that it was not legally binding on Malaysia).

French CJ and Kiefel J denied that the factors above could be regarded as jurisdictional facts, but held that nevertheless their absence meant that the Minister had made a “jurisdictional error of law”  in concluding that Malaysia was a safe third country.  He had misconceived the legal question he was required to address, namely whether Malaysia could be regarded in law as a safe third country.  At least as the issues and reasoning were applied in this case, it made no real difference whether the Minister’s error was classified as one  of fundamental fact or of law.

The Court also held for the asylum seekers on the guardianship issue relating to unaccompanied minors, but that was almost irrelevant given the major premise.

The big long term question is whether the Court’s decision renders any plausibly deterrent form of offshore processing effectively impossible in future.  Gummow, Hayne, Crennan and Bell JJ adverted expressly to the Howard government’s Pacific Solution:

Second, even assuming them to be in some way relevant, the arrangements made with Nauru were very different from those that are now in issue. Not least is that so because Australia, not Nauru as the receiving country, was to provide or secure the provision of the assessment and other steps that had to be taken, as well as the maintenance in the meantime of those who claimed to be seeking protection. Thus it was Australia, not the receiving country, that was to provide the access and protections in question. Further, although the arrangement between Australia and Nauru was recorded in a very short document, the better view of that document may be that it created obligations between the signatory states. But whether or not the arrangements with Nauru had the various features that have been identified, the question of statutory construction should be resolved in the manner indicated.

No doubt Tony Abbott will point to that passage as a vindication of the Pacific Solution and (by contrast) a judicial condemnation of Gillard government incompetence.  In a short term political sense he’s right.  But that begs the question of whether any version of the Pacific Solution that would be likely to deter asylum seekers could be re-instituted following yesterday’s Court decision.  The practical reason why the Pacific Solution successfully deterred asylum seekers for a number of years was that it created the illusion that reaching Australia by boat would provide no assurance of a visa even if found to be a refugee.  That illusion was underpinned by keeping even successful asylum seekers “garaged” on Nauru for a number of years after they’d been found to be refugees, before eventually quietly granting them visas and allowing them into Australia.  In view of yesterday’s finding that both the domestic laws and actual practices of any “safe third country” must broadly honour Convention obligations and basic human rights standards, it is highly unlikely that any regime on Nauru or elsewhere that permitted persons found to be refugees to be nevertheless kept in detention for years thereafter would be held to comply with either Convention obligations or general human rights standards.  Without that deterrent effect it is highly unlikely that offshore processing on Nauru or anywhere else will have any measurable effect on the number of asylum seekers arriving by boat.  Who cares whether you’re detained on Christmas Island, Nauru, Manus Island or Darwin if the end result is the same in all cases?  If found to be a refugee you will get an Australian protection visa.

The Gillard government should now accept the inevitability of its forthcoming election defeat and concentrate on putting in place asylum seeker processes that are as sound as possible from a policy (rather than short term populist) perspective.  As I’ve argued previously, a policy based on community accommodation, rather than mandatory detention, of asylum seekers once initial health and security clearances have been passed, is clearly preferable from a policy viewpoint.  It will almost certainly result in a measurable upsurge in arrival numbers, but that is unlikely to result in total numbers that Australia will be unable effectively to absorb. It will however ensure that Abbott and shills like Alan Jones will have a lovely time driving the last few nails into the coffin containing the twitching political corpse of Julia Gillard.  Alternatively it might provide the trigger for a decisive move to restore Kevin Rudd to the leadership as I suggested in a comment posted early yesterday:

I should also note that if the High Court rules against the Malaysia Solution to any significant extent later today (as is possible), that would provide added impetus for a transition to Rudd. Rudd has made it as clear as he could from the moment of his demise that he demurred on moral grounds from Gillard’s re-embrace of punitive Howardism on asylum seekers. The closing off even partially by the High Court of the Malaysia Solution (which would simultaneously render the Pacific Solution either unconstitutional or demonstrably ineffective) would provide a plausible reason of principle and policy for Labor re-embracing Rudd, just as (in a rather more cynical, negative sense) rejection of carbon tax was the policy/”principle” aspect of Abbott’s replacement of Turnbull.

People like Howard, Ruddock and Downer are interviewed along with an anti-terrorist security analyst. They make it clear that there are some inconsistencies in Hick’s story concerning what he knew when and also the degree to which he supported Islam, although nothing very substantial emerges from this. Howard, Downer and Ruddock say things like that the Australian diplomat who went to see Hicks said he wasn’t being mistreated. In one extraordinary comment I think it is Downer says that terror suspects who have been detained by the Americans “always claim that they’ve been mistreated”. This is apparently evidence that they have not – or perhaps that some of them are lying – who knows?

Now I’ll admit to the fact that my own dim view of human nature is that people can do some seriously nasty things when encouraged to do so in groups, and when they’re away from the cleansing power of sunlight. Abu Ghraib didn’t surprise me in the slightest. However one doesn’t need to be suspicious.  One doesn’t need the pictures of the tortures at Abu Ghraib. One just has to look at the pictures the Americans circulated of hooded suspects, bound on stretchers, isolated in open cages in camps. And yet these kinds of statements  by Downer and co. to the effect that Hicks was not mistreated repeatedly went unchallenged. It illustrated the shabby depths to which ‘he said-she said’ journalism can descend when these spokespeople for the Howard Government were not held to account for the fact that, whether you think Hicks is a stupid and possibly dangerous kid who got himself in way too deep or think he was a horrible terrorist, what happened to him was a gross violation of the rule of law. I’d even be sympathetic to the idea that, in the right circumstances one might want to lock suspects up without being able to prove much against them. But why torture them for years and years?

And it’s true I’m just going on David Hicks’ assertions that he was treated the way he says he was, which I’d call torture. I’m also going on my commonsense all other things considered. And I’m outraged that the other side of this argument – was never really tested.  How do these guys think he spent his days?  Was he in solitary confinement? For how long?  What do the camp records tell us? What was the size of his cell.  Was he in an open cage for weeks? What did the Australian diplomat see? Why was he confident that Hicks wasn’t being mistreated?  How could he have known?

We didn’t get any accountability of that kind out of this program.

In the end the program wasn’t made by people who understood the real principles at stake. David Hicks suffered terribly I’m guessing. But there was a war on.  A lot of other people suffered much more, and were completely innocent of his stupidity. It shouldn’t have been a  he-said she-said drama in which one either sympathises with Hicks or his assailants. It should have been a program which, amongst other things sought to hold our officeholders to account on matters of principle that concern us all .

And good on former Liberal leader in NSW John Dowd for believing in something – like liberalism. Like he said, the disregard for basic principle, the preparedness to sit around while someone to whom you owe a basic duty of protection is tortured for five years, made you ashamed to be Australian.

Frankly, I think any such debate is misconceived at least to the extent that some (e.g. Labor’s Assistant Climate Change Minister Mark Dreyfus QC) seem to be suggesting that Abbott could not abolish carbon pricing without running the risk of incurring a large compensation bill to emitters whose permits were cancelled. My understanding of Labor’s proposal is that a tradeable carbon permits regime would not commence until at least 2015. The regime to commence next year as an interim measure is simply a carbon tax levied at a fixed price per tonne on particular emitters. It isn’t transferable nor does it set any specific limit on permitted emissions. The designated emitters simply pay the fixed price for whatever they emit. On no sensible view could that be regarded as a property right. It would be like suggesting that one’s income tax liability was a property right!

The carbon permits regime to be introduced in 2015 may well be a different matter, but if Abbott wins the next election (which currently looks long odds-on) it will never see the light of day. As far as I know the legislation to be introduced this year will not itself create the tradeable permits regime. In that situation I don’t see any constitutional impediments to Abbott abolishing Labor’s scheme following a 2013 election win.

Nevertheless, the question of whether carbon permits would be property for constitutional purposes is quite an interesting one in a purely abstract sense. I copy a relevant extract from my constitutional law study guide over the fold, followed by my tentative view about the constitutional status of carbon permits.

Purely statutory interests may be distinguishable from property rights and therefore not attract a constitutional requirement for payment of just terms compensation

Important cases on this issue include Health Insurance Commission v Peverill (1994) 179 CLR 226; Bienke v Minister for Primary Industries and Energy (1996) 63 FCR 567; Commonwealth of Australia v WMC Resources Ltd (1998) 152 ALR 1; Georgiadis v Australian and Overseas Telecommunications Corp (1994) 179 CLR 297. Also see Santos Ltd v Chaffey (2007) 231 CLR 651 (which dealt with entitlements under NT workers’ compensation legislation. The Northern Territory (Self-Government) Act contains a just terms guarantee effectively identical to s 51(xxxi) of the Commonwealth Constitution).

Mason CJ, Deane and Gaudron JJ explained the distinction between property rights and mere statutory entitlements in Peverill:

It is significant that the rights that have been terminated or diminished are statutory entitlements to receive payments from consolidated revenue which were not based on antecedent proprietary rights recognised by the general law. Rights of that kind are rights which, as a general rule, are inherently susceptible of variation. That is particularly so in the case of both the nature and quantum of welfare benefits, such as the provision of medicare benefits in respect of medical services.

Clearly government would become almost impossible if statutory entitlements once granted could never be cancelled or reduced without the Commonwealth incurring an obligation to compensate those whose entitlements were reduced or cancelled. However, the distinction between mere statutory rights and “property” rights is not without its conceptual problems. Almost all modern property rights are grounded in statute. Even property rights in land are grounded in Torrens or Strata title-type legislation. Hence the above distinction between mere statutory entitlements and ones “based on antecedent proprietary rights recognised by the general law”. Proprietary interests in land predated their statutory enactment, and were previously creatures of the common law; hence they are proprietary.

However, an argument along those lines failed in Bienke v Minister for Primary Industries and Energy (1996) 63 FCR 567, where the Full Federal Court held that reduction in the catch entitlement of prawn fishermen in the Northern Prawn Fishery was not an acquisition of property, but a variation of entitlements that was inherent in the very nature of the rights as created (i.e. those rights were inherently defeasible):

Mr Bennett argued that the appellant’s right to reap a resource was “analogous” to a profit a prendre or to a cause of action. This submission was primarily directed to the question whether the fishing boat licence could be regarded as property for the purposes of s.51(xxxi). The argument might also be relevant to whether the licence was based on “antecedent proprietary rights recognised by the general law” and therefore not inherently susceptible of variation: Health Insurance Commission v Peverill, at 237. As Georgiadis shows, legislation extinguishing a cause of action against the Commonwealth arising under the general law can constitute an acquisition of property for the purposes of s.51(xxxi), in part because the cause of action is not inherently susceptible of variation. But a fishing boat licence granted under s.9(2) of the Fisheries Act does not vest in the holder a cause of action under the general law, nor does it create an interest based on antecedent rights recognised by the general law. …

Legislation which prohibits the public from exercising a common law right, so as to prevent uncontrolled exploitation of a resource, and confers statutory rights on licensees to exploit that resource to a limited extent, might be regarded in one sense as creating a right analogous to a profit a prendre: Harper, at 335. However, the right is not a common law right, but rather a new species of statutory entitlement, the nature and extent of which depends entirely on the terms of the legislation.

Probably, the critical determining feature between property rights and “mere statutory entitlements” lies not so much in whether they have pre-existing common law equivalents, but whether the legislation itself manifests a sufficient intention that the rights created are proprietary in nature. For example, is statutory right/entitlement just an annually renewable licence or is it granted in perpetuity? Is it cancellable at will or only for cause after a hearing? Can it be used as security for a loan? Is the entitlement transferable as of right?

Would carbon permits be “property” having regard to those principles? It’s impossible to say with any certainty. The question of whether entitlements created by statute are proprietary in nature can only be answered by detailed consideration of the exact bundles of rights, obligations and conditions the legislation creates, and carbon permits legislation does not yet exist. However, my educated guess is that they probably would be held not to be proprietary in nature. They will certainly be tradeable, and that’s a key element of property rights. However, either the number of permits to which a holder will be entitled, or the amount of CO2 each permit will allow to be emitted, will vary from year to year and be progressively reduced over time depending on what carbon reduction targets the government adopts from time to time and what international agreements they may enter. Permits or licences that are created purely by statute and whose attached rights may vary from year to year at the whim of the government do not look at all like property rights. They’re much more like the “inherently defeasible” fishing licence catch entitlements considered in Bienke and held not to be property.

Update – See especially Tim Macknay’s comment at #5 below and my response.

Grattan begins with a perfectly reasonable observation:

The High Court has agreed the case against it should be heard – but it has not pronounced on the issues.

But she then instantly segues without even a semblance of analysis into regurgitating the current Press Gallery spin on anything the Gillard government does:

It’s a shambles. When, with the Commonwealth Solicitor-General floundering over his paperwork yesterday, Justice Hayne said that it was ”unsatisfactory that this matter proceed in this half-baked manner”, he could have been summing up the Gillard asylum seeker policy.

What does Grattan mean by this? That Hayne J was somehow passing judgment on the Gillard government’s competence? In fact his remark is the sort of theatrical “grumpy judge” schtick that judges inflict on counsel on a daily basis in our courts, as any experienced journalist well knows.

That the mere fact that refugee advocates have launched a High Court challenge of itself somehow proves that the government’s Malaysia Solution is a “shambles”? In fact, just about every policy initiative relating to asylum seekers over the last 20 years, under the Hawke, Keating, Howard, Rudd and now Gillard governments has been challenged through the courts. You wouldn’t expect anything else. These are desperate people with little to lose and everything to gain from a successful challenge, and with refugee advocates ever willing to provide free representation. Some challenges succeed but most lose. This latest challenge will probably fail, although it isn’t completely hopeless (as I discuss below).

Is Grattan instead suggesting that the government should be taking some other policy approach? If so, what might it be? Abandoning mandatory detention of asylum seekers and adopting an open door policy, as most refugee advocates seem to assert? That might make sense in an abstract policy sense, but in the real world it would be a recipe for certain political suicide. Reverting to the Howard government’s Pacific Solution, as Tony Abbott mindlessly repeats as the sure-fire solution to “stop the boats”? In fact, as I’ve pointed out previously, the Pacific Solution has had its day. The people smugglers and their clientele now know very well that Australia ultimately had (and will have in the future if the policy is reinstated) no practical choice but to grant protection visas to most of the genuine asylum seekers sent to Nauru.

Moreover, the judicial review grounds now being advanced against Gillard’s Malaysia Solution will, if successful, almost certainly invalidate any attempt at revival of the Nauru Pacific Solution as well. This is a point that doesn’t seem so far to have dawned on any of our Press Gallery luminaries (although a commenter to Grattan’s article pointed it out). Exactly like Howard’s Pacific Solution, the legislative basis for the Malaysia Solution lies in the “safe third country” provisions found in s 198A of the Migration Act 1958 (Cth).

Section 198A empowers a Commonwealth officer to “take an offshore entry person from Australia to a country in respect of which a declaration is in force under subsection (3)”, which provides:

(3) The Minister may:

(a) declare in writing that a specified country:

(i) provides access, for persons seeking asylum, to effective procedures for assessing their need for protection; and

(ii) provides protection for persons seeking asylum, pending determination of their refugee status; and

(iii) provides protection to persons who are given refugee status, pending their voluntary repatriation to their country of origin or resettlement in another country; and

(iv) meets relevant human rights standards in providing that protection …

The arguments being deployed in the current challenge (as outlined in yesterday’s injunction application before Hayne J) mostly also apply to the Pacific Solution. The key arguments by Debbie Mortimer SC for the asylum seekers are:

That the Minister’s declaration under s 198A(3) is a legislative instrument within the meaning of the Legislative Instruments Act 2003 (Cth)

If the declaration is a legislative instrument (like regulations, rules, general orders, by-laws, ordinances etc) then it would have to be tabled in Parliament within 6 sitting days and would then be subject to Parliamentary disallowance. With the Greens opposed to Gillard’s policy on principle and Abbott opposing anything at all that Labor proposes, the declaration would almost certainly be disallowed if it had to be tabled in Parliament. This argument was never mounted against the Pacific Solution as far as I know, probably for the pragmatic reason that the Labor Opposition up until 2004 would have voted with the Howard government to support it anyway, while Howard had a majority in both Houses between 2004 and 2007. However, if the High Court were now to rule that a s 198A declaration is a legislative instrument, then any attempt by a future Abbott government to revive the Pacific Solution would almost certainly be blocked “tit for tat” by the combination of Greens and an embittered Labor Opposition in the Senate.

However I don’t think this review ground has much chance of success. The general definition of a “legislative instrument” is found in s 5:

(1) Subject to sections 6, 7 and 9, a legislative instrument is an instrument in writing:

(a) that is of a legislative character; and

(b) that is or was made in the exercise of a power delegated by the Parliament.

(2) Without limiting the generality of subsection (1), an instrument is taken to be of a legislative character if:

(a) it determines the law or alters the content of the law, rather than applying the law in a particular case; and

(b) it has the direct or indirect effect of affecting a privilege or interest, imposing an obligation, creating a right, or varying or removing an obligation or right. …

A s 198A declaration does not of itself determine or alter the content of the law, it merely effects a factual determination which empowers a discretionary exercise of power which may then affect a privilege or interest etc. I doubt that such an instrument would be held of itself to have the ”indirect effect” of affecting a privilege or interest etc., although it’s an arguable point (and no doubt one reason why Hayne J decided that there was a sufficiently serious question to be tried to justify the grant of an interlocutory injunction).

The listed subjects of the Minister’s s 198A(3) declaration are “jurisdictional facts” (or at least facts of whose existence the Minister must be “satisfied”)

As the High Court explained in Corporation of the City of Enfield v Development Assessment Commission (2000) 199 CLR 135:

The term ” jurisdictional fact ” (which may be a complex of elements) is often used to identify that criterion, satisfaction of which enlivens the power of the decision-maker to exercise a discretion.

Judicial review is usually concerned only with errors of law committed by the executive government. Factual determinations are generally matters to be determined solely by the administrator in whom a discretionary power is reposed. However, the “jurisdictional fact” doctrine is an exception to that general principle, justified by the proposition that Parliament has conferred the power only if the factual preconditions for its exercise exist, and Parliament is unlikely to have intended that the administrator have an unreviewable ability to determine the existence or otherwise of his own power. There is a plausible but by no means compelling argument that the factors listed in s 198A(3) are jurisdictional facts. The practical significance of the “jurisdictional fact” doctrine is that a court on judicial review is not obliged to accept the Minister’s factual determination as to the existence or otherwise of a jurisdictional fact. The court is free to determine the question for itself and might well disagree with aspects of the Minister’s conclusion that Malaysia (or Nauru) is a safe third country, in which case the statutory pre-condition for exercise of the power of removal to Malaysia (or Nauru) would not exist. Even if the facts are expressed as ones of which the Minister must merely be subjectively satisfied, the court may still reject the Minister’s determination if it holds that “satisfaction” as to the required state of affairs was not reasonably open on the evidence.

However, French J (as he then was – he’s now the Chief Justice of the High Court) rejected the argument that the s 198A(3) factors could be regarded as jurisdictional facts in a 2007 challenge to the Pacific Solution:

So far as the ministerial declaration under s 198A(3) is concerned, the form of that subsection does not in terms condition the power to make a declaration upon satisfaction of the standards which are its subject matter. The form of the section suggests a legislative intention that the subject matter of the declaration is for ministerial judgment. It does not appear to provide a basis upon which a court could determine whether the standards to which it refers are met. Their very character is evaluative and polycentric and not readily amenable to judicial review. That is not to say that such a declaration might not be invalid if a case of bad faith or jurisdictional error could be made out. In my opinion, however, the argument against the validity of the declaration faces a significant threshold difficulty. It does not support the view that there is a seriously arguable case.

Hayne J appears to be slightly less dismissive of Mortimer’s jurisdictional fact argument, and even appeared to flirt with her most audacious version of it, namely that on a proper construction s 198A(3) should only be regarded as satisfied where the “safe” third country was legally rather than just politically and practically obliged to provide protection to returned asylum seekers. If that argument were accepted it would be fatal to the Malaysia Solution, because clause 16 of the agreement/arrangement expressly states:

This Arrangement represents a record of the Participants’ intentions and political commitments but is not legally binding on the Participants.

The following is the key exchange betweeen Hayne J and Solicitor-General Stephen Gageler SC:

HIS HONOUR: Is that, to adopt a reading of 198A(3), that would leave the Minister at large in determining the questions apparently presented by paragraphs (i) to(iv)?

MR GAGELER: No, not at all. The only jurisdictional addition that is read into the provision is that the Minister act bona fide or in good faith but the Minister – - -

HIS HONOUR: Not even reasonably? That, I think, was Liversidge v Anderson, is it not?

MR GAGELER: The Minister would be required, your Honour to understand and correctly apply the criteria, error of law, clearly would vitiate a decision of the Minister but there is no element of a jurisdictional fact in the sense of reasonable satisfaction that is required of the Minister under that provision, contrast, for example, the language used elsewhere in the Act of which your Honour is familiar. Where the Act requires satisfaction, it says satisfaction. That construction that struck his Honour the Chief Justice as clear, your Honour, really flows from the nature of the power being vested in the Minister.

The object of the power, that is, the specified country the Minister is required to evaluate, to some extent, circumstances in another country, and it is consistent with the purpose of the provision as identified in the second reading speech which your Honour will no doubt have seen in the past, it was said in that second reading speech by the then Minister for Immigration, this Bill, dealing specifically with section 198A, provides strength and powers to deal with people who arrive unlawfully at one of the territories beyond the migration zone. These include powers to move the person to another country where their claims, if any, for refugee status may be dealt with.

Your Honour, in relation to the point of construction we say this, that to read the criteria in section 198A(3)(a) as confined to what is provided or required by international law or by domestic law is a construction not required by the language. It is a construction which, in our submission, is indeed inconsistent with the language. The language naturally is read as looking to what the country does or perhaps is likely to do during the life of the declaration, not what is required as a matter of law within the country or as a matter of international law and the reality is, your Honour, that they may be two quite different things.

It would not be consistent – and this is our third point – it would not be consistent with the purpose of section 198A which is really to allow the Minister to designate a safe third country, for the Minister to be confined to looking only to the legal regime applicable in and to that country. There are many countries that have pristine laws that are not necessarily applied in practice.

HIS HONOUR: But is it necessary to look at all to the legal regime, be it international obligation or domestic obligation? I understand why you say that looking at the letter of the law may not suffice, but is it necessary to look at whether, when this Act speaks of “provides protection”, it is referring to protection that is obliged to be provided as distinct from protection which either in the past has been or by some exercise in prognostication is assumed may be, will be, probably will be, possibly will be in the future.

MR GAGELER: It is looking at what occurs in practice and it is not a matter of prognostication, it is a matter of the taking into account the available information, which will include the applicable international and domestic legal standards. That is not ruled out, your Honour. The point is simply that it is not only not required by the language but inconsistent with the purpose of section 198A(3) to confine those criteria to questions of international and domestic law. That is the point.

HIS HONOUR: The question is provoked because the arrangement which has been struck with Malaysia is expressly said not to be legally binding but to be a record of the participants’ intentions and political commitments, is that right? See clause 16 of the arrangement between the Government of Australia and the Government of Malaysia on transfer and resettlement.

MR GAGELER: That is correct.

HIS HONOUR: What inference, if any, may be drawn from the fact that this intergovernmental arrangement contains that clause?

MR GAGELER: No inference adverse to the judgment made by the Minister that the political assurances contained in that arrangement read against the background of the assessment made by the UNHCR and the Department of Foreign Affairs and Trade was sufficient to give a level of satisfaction that the criteria set out in section 198A(3)(a) would be likely to be met in practice. There is simply no doubt, your Honour, simply no doubt.

HIS HONOUR: So you say sufficient that it would be likely to be provided in practice? Do I understand the proposition right or have I misheard it or misunderstood it?

MR GAGELER: No, your Honour heard it correctly.

HIS HONOUR: So when the Act speaks of “provides protection”, “provides access”, that is speaking of something that is likely to occur, is it?

MR GAGELER: Your Honour, clearly enough a declaration under section 198A(3) is a declaration that will remain in force until revoked. It is not a one-off moment in time.

HIS HONOUR: I understand that.

MR GAGELER: In speaking in the present tense, it is clearly speaking continuously in the present tense during the life of the declaration. So when the Minister makes the declaration, the Minister is necessarily looking prospectively, not just at a moment in time and not simply historically. I am being repetitive, your Honour, but to confine the criteria to legal constraints is really to undermine its purpose.

My best guess is that French CJ’s view of the nature of s 198A(3) will probably prevail and therefore the Gillard government will win, but the asylum seekers at least have a reasonably arguable point. Moreover, as I noted above, it’s an argument which if successful would probably prove equally fatal to any attempt at reviving the Pacific Solution. It’s a nerve-racking time for both the Gillard government and the affected asylum seekers, but heaven on a stick for academic public lawyers like me.

PS I should note for completeness that Mortimer also advances a natural justice argument. However it’s impossible to evaluate its chances of success without access to the affidavit material detailing exactly what opportunities the asylum seekers were afforded to advance submissions on why they should not be deported to Malaysia for refugee assessment.

In Norway they will deal with the killer no doubt, but are ignoring him – as we have come to largely ignore our own monster of Port Arthur – and  focusing on more important things, which is healthier methinks. Here’s the Norwegian PM’s speech.

Strangely though, it didn’t even mention in passing the fact that there is significant doubt as to whether the Commonwealth Parliament even has constitutional power to legislate for gay marriages.

The Commonwealth only has power to enact laws on areas of activity listed in the Constitution itself.  One of those is “marriage” (Constitution s 51(xxi)).  But what does “marriage” actually mean?  There’s no doubt what the vast majority of the “Founders” understood when they used the expression way back before 1901.  They meant a union for life between a man and a woman.  They didn’t mean a union between two blokes or two women.  They would have agreed emphatically with Paul Keating’s trenchant observation that “two jokers and a cocker spaniel don’t make a family”.

But does that mean the Commonwealth doesn’t have power to legislate for gay marriage?  It depends how the High Court majority end up viewing their task of constitutional interpretation.  Is it simply to decide what the drafters intended (which would clearly preclude gay marriage)?  Or is the task more complex than that?  The predominant High Court view is that it is strictly bound by the central or core meaning of constitutional expressions, often referred to as the “connotation” or “concept”, but has some flexibility in relation to the peripheral or expanded meanings, sometimes referred to as the “denotation” or “conception”.  But what the hell does than mean?  Certainly the dominant High Court approach seeks to avoid Justice Michael Kirby’s Humpty Dumpty or “living tree” approach to constitutional meaning:

‘When I use a word,’ Humpty Dumpty said, in rather a scornful tone, ‘it means just what I choose it to mean — neither more nor less.’

‘The question is,’ said Alice, ‘whether you can make words mean so many different things.’

‘The question is,’ said Humpty Dumpty, ‘which is to be master — that’s all.’

Justice Michael McHugh mused about the scope of the Commonwealth’s marriage power at some length in Re Wakim in 1999, and precisely in the context of gay marriage:

Where the interpretation of individual words or phrases of the Constitution is in issue, the current doctrine of the Court draws a distinction between connotation and denotation or, in other words, between meaning and application. Thus, in Ex parte Professional Engineers’ Association Windeyer J said:

“We must not, in interpreting the Constitution, restrict the denotation of its terms to the things they denoted in 1900. The denotation of words becomes enlarged as new things falling within their connotations come into existence or become known. But in the interpretation of the Constitution the connotation or connotations of its words should remain constant. We are not to give words a meaning different from any meaning which they could have borne in 1900. Law is to be accommodated to changing facts. It is not to be changed as language changes.”

Philosophers are now said to regard the distinction between connotation and denotation as outdated. And in R v Federal Court of Australia; Ex parte WA National Football League, Mason J said that “[t]he distinction between meaning and denotation is not without its difficulties.” But whether criticism of the distinction is or is not valid should not be seen as decisive. What is decisive is that, with perhaps only two exceptions, the Court has never hesitated to apply particular words and phrases to facts and circumstances that were or may have been outside the contemplation of the makers of the Constitution. That is because, with the striking exception of s 92 – which has an historical meaning – the words of the Constitution, for the most part, describe concepts and purposes that are stated at a sufficiently high level of abstraction to enable events and matters falling within the current understanding of those concepts and purposes to be taken into account. In the words of an earlier work of Professor Dworkin, the Constitution draws a distinction between concepts and conceptions. That being so, once we have identified the concepts, express and implied, that the makers of our Constitution intended to apply, we can give effect to the present day conceptions of those concepts.

Indeed, many words and phrases of the Constitution are expressed at such a level of generality that the most sensible conclusion to be drawn from their use in a Constitution is that the makers of the Constitution intended that they should apply to whatever facts and circumstances succeeding generations thought they covered. Examples can be found in the powers conferred on the Parliament of the Commonwealth to make laws with respect to “trade and commerce with other countries, and among the States”, “trading or financial corporations formed within the limits of the Commonwealth”, “external affairs” and “conciliation and arbitration for the prevention and settlement of industrial disputes extending beyond the limits of any one State”. In these and other cases, the test is simply: what do these words mean to us as late 20th century Australians? Such an approach accords with the recognition of Isaacs J in The Commonwealth v Kreglinger & Fernau Ltd and Bardsley that our Constitution was “made, not for a single occasion, but for the continued life and progress of the community”.

The level of abstraction for some terms of the Constitution is, however, much harder to identify than that of those set out above. Thus, in 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.

But even if we continue to hold, as Windeyer J asserted in Ex parte Professional Engineers’ Association, that the meanings of the words in the Constitution do not change as language changes, the meanings that we now place on the Constitution may not entirely coincide with the meanings placed on it by those who drafted, approved or enacted that document. That is because a Constitution contains implications, inferences and propositions as well as words, phrases and clauses. Experience derived from the events that have occurred since its enactment may enable us to see more in the combination of particular words, phrases or clauses or in the document as a whole than would have occurred to those who participated in the making of the Constitution.

Does that mean McHugh J would have ruled that the Commonwealth has power to legislate for gay marriage?  Your guess is as good as mine.  But he’s retired now anyway!  What would the current majority now rule?  I have no idea.  However it is impossible sensibly simply to assume that the Commonwealth does have that power.  If it ends up legislating there will certainly be a constitutional challenge.  That’s the only way we’ll discover the answer.  If the answer is in the negative then the States could legislate piecemeal, but it may well remain the case that the Commonwealth’s power would nevertheless extend to prohibiting the States from calling any gay union a “marriage”.  The sensible solution in a policy sense (if one leaves aside the deep objections of many religious people, which neither major party is likely to do) would be for the States to refer whatever powers they possess in relation to gay marriage to the Commonwealth under Constitution s 51(xxxvii) and for the Commonwealth then to legislate to legalise gay marriage.  However I can’t see that happening in the foreseeable future.  Moreover, the practical significance of any such legislation would be minimal.  Contrary to the uncontested assertions of the gay butchers interviewed on the 7:30 Report, gay couples can leave their property to each other by will and are not subject to greater legal disadvantages in that respect than a married heterosexual couple.  Indeed there are now very few practical legal distinctions between gay and heterosexual married couples (apart for the fact that the former can’t call their union a “marriage”).  I’m not suggesting that this symbolism is completely meaningless, but it’s not really a first order social justice issue.

The current situation with asylum seekers is quite a good example.  How many Australians are aware, for example, that the number of asylum seekers arriving by boat since Julia Gillard announced the “Malaysia Solution” almost 6 weeks ago has fallen by more than fifty percent compared with last year?¹1. KP: Compare last year’s total of 6,879 with the 300 or so who have arrived since Gillard’s announcement. [↩] Of course Tony Abbott is claiming that the deterrent effect flows from the SIEV sinking tragedy at Christmas Island late last year and no doubt that is a factor.  But at the very least you’d expect that such a large drop in arrival numbers might have dampened media enthusiasm for the simplistic “government in crisis on asylum seekers” line. Announcing the Malaysia Solution before a final deal had been done might have been a high risk strategy for Gillard, but it’s a strategy that so far has actually worked!

An even more egregious example of media groupthink is provided by MSM coverage of Twiggy Forrest’s threat to launch a High Court constitutional challenge to the government’s mining tax legislation.  As Adele Ferguson breathlessly informed us in the Fairfax press:

The Gillard government’s credibility is about to take another battering as one of its more complex and ad hoc tax reforms – the minerals and resources rent tax – faces the threat of a constitutional challenge in the High Court.

But why would the government’s “credibility” take a battering merely because a disgruntled businessman takes a case to court?  Just about every law ever passed by Parliament creates winners and losers, and the losers frequently take it to court if they have enough money.  Forrest’s antics would only pose a threat to the government’s “credibility” if credible legal analysis suggested that a legal challenge had a significant prospect of success.  But Ferguson made no effort to obtain any expert commentary on that question.  Nor did the ABC’s Chris Uhlmann on last night’s 7:30, although at least his questioning of Forrest was less credulous than Ferguson’s frankly silly article.

In fact Twiggy’s own utterances on the supposed constitutional question have been just as silly as Ferguson’s article to the point of being almost incoherent:

ANDREW FORREST: If it’s unconstitutional, if it’s unfair, if it discriminates against Australian companies and favours multinationals, I think, on behalf of so many other companies, and really, all Australians, that’s a precedent too dangerous not to challenge.

CHRIS UHLMANN: You must have tested that with your lawyers, what are the answers to those questions?

ANDREW FORREST: At this stage it looks highly unconstitutional, but clearly Canberra has different lawyers.

CHRIS UHLMANN: On what grounds though, because it’s not unfair if it’s just being better for one company than another?

ANDREW FORREST: Certainly. But if it discriminates against the States, if a State is taxed more heavily against another State, then that goes straight against the Constitution. Western Australia recently, as is of course their right, increased their royalties, we immediately have discrimination now.

CHRIS UHLMANN: Why didn’t you complain about that?

ANDREW FORREST: Well simply because it’s their sovereign right. They own the metals in the grounds, we don’t, it’s been under the Constitution, owned by the people of the State. So they have every right to put it up.

But further, schools, hospitals, police, etc, are getting paid. We’re not funding a great big dinosaur called the NBN (National Broadband Network), where we’re going to waste a good $30 billion.

CHRIS UHLMANN: But that really has nothing to do with it, the Federal Government, does have a right to raise taxes, it raises company taxes, against you for example, so it can raise another tax …

ANDREW FORREST: And it can do it again, and I’ll happily pay it. And I’ll happily pay this tax as well, no problem, provided of course that it doesn’t let multinationals off and just penalise Australians.

But the problem for Twiggy is that the taxation power (Constitution s 51(ii)) prohibits discrimination “between States or parts of States” not between Australian companies and multinationals (assuming for present purposes that Forrest’s claim about multinationals is actually correct).  And the fact that the WA State government has increased its mineral royalty tax cannot as a matter of law or logic make the Commonwealth’s MRRT discriminatory (as Uhlmann gently pointed out).

Even if the Commonwealth MRRT had a differential impact on some States or parts of States as opposed to others (which Forrest does not seem to be claiming anyway), that would not make it discriminatory for taxation power purposes.  In R v Barger ²2. KP: (1908) 6 CLR 41 [↩] the High Court ruled that a Federal excise duty requiring manufacturers to obtain a license to produce agricultural implements, including a requirement on licensees to provide specific employment conditions in factories where agricultural implements were produced was not a discriminatory tax for constitutional purposes. Although the excise duty might in practice have a differential or unequal operation depending on the locality of the taxpayer, this did not arise “from anything done by the Parliament”. The law was not discriminatory on its face, and therefore did not offend section 51 (ii).

Conroy v Carter ³3. KP: (1968) 118 CLR 90 [↩] concerned a Federal law regulating the egg industry contained provisions requiring owners of hens kept for commercial purposes to file particular information with the Egg and Egg Pulp Marketing Board. However, the law also empowered the Commonwealth to enter into arrangements with a particular State for the collection of levies and the regulation of the poultry industry generally. Clearly, this carried with it the potential for differential and thus discriminatory regulatory regimes. Nevertheless, a statutory majority of the High Court held that the law was not discriminatory within the meaning of section 51 (ii)).   A law will only be “discriminatory” for the purpose of section 51(ii) if it expressly discriminates against States or parts of States on the basis of locality. The fact that it may in practice have a differential or discriminatory effect is irrelevant.

It is highly unlikely that any challenge to the MRRT based on its being a “discriminatory” tax would succeed.

The other argument that Forrest seems to be flagging (though not clearly) is that the MRRT might infringe Constitution s 114, which prohibits the Commonwealth from imposing “any tax on property of any kind belonging to a State”.  Generally speaking, minerals within the boundaries of a State are the property of the Crown in right of that State (i.e. the State government).  A mineral lease gives the holder the right to dig up minerals within the lease area, process them, sell them and keep the sale proceeds less mineral royalty.  However the minerals themselves remain the property of the State until sold by the miner. Accordingly the Gillard government will need to be careful how it drafts the MRRT.  The tax will need to attach to the miner’s estate or interest in the minerals rather than to the minerals themselves, but drafting the legislation to avoid any problem with s 114 is hardly rocket science.

So why is the fact that Forrest is mouthing off about a High Court challenge a threat to the Gillard government’s credibility?  Because it fits the media’s current groupthink meme and apparently for no other reason.

However, Mike Pepperday’s objection does not relate to whether governance arrangements revised in that way would work better, but to what he sees as a fundamental democratic principle that the suggestion offends:

I do not think we should reason that because Australians won’t pass referendums, their will should be by-passed by using those sections. The two major parties have become tight, closed, little power corporations. It is undemocratic for them to be arranging constitutional power transfers through elite bargaining.

But is this in fact a fundamental democratic principle?  And even if it is, does State referral of powers offend it?  Surely this would only be so if there was some reasonably universal principle that significant changes in public governance arrangements should only be made by popular vote, or that this was the evolved Australian political tradition/culture, or that it was what the Founders who wrote our Constitution actually intended.

On the first point, it is very common for western democratic constitutional systems to provide for constitutional amendment by ordinary legislation enacted by Parliament (rather than by popular vote).   Britain and New Zealand are examples of Westminster systems which employ that method.  Indeed all the Australian States can and do amend their own constitutions by that method (Queensland adopted a brand new constitution as recently as 2001). In federations, it is common for the constitution to provide for amendment by majority vote of the State or provincial parliaments (rather than by popular vote).  That is the case with Canada and the US.  The referral provision in Constitution s 51(xxxvii) effectively provides just such a mechanism.  It provides for the Commonwealth to have law-making power over “matters referred to the Parliament of the Commonwealth by the Parliament or Parliaments of any State or States, but so that the law shall extend only to States by whose Parliaments the matter is referred, or which afterwards adopt the law“.

On the second point, use of the referral power is very much part of the evolved Australian political tradition/culture.  Recent examples of referral  include powers to allow the Commonwealth to enact uniform national corporations law and family law regimes and to supplement anti-terrorism laws in the wake of 9/11.

The third point is in many ways the most interesting.  Did the Founders who drafted the Constitution intend that State referral of powers be used in the way I’m suggesting?  I used the Australian Parliament’s excellent ParlInfo advanced search function to find out.¹1. KP: It allows easy searching of a huge range of resources, including the transcripts of Constitutional Convention debates of the 1890s and Hansard going right back to 1901. [↩]

I discovered that a couple of delegates to the 1897-8 Convention, notably Dr John Quick, did share similar concerns to those of Mike Pepperday, as the Convention transcript for Thursday 27 January 1898 shows:

Dr. QUICK (Victoria).-I think the point taken by my honorable friend (Mr. Deakin) is one well worthy of the consideration of the Drafting Committee, and probably the difficulty to which he has drawn attention could be obviated by some such provision as that which he suggested. But this matter has struck me also from another point of view, and it seems to me that the provision affords an easy method of amending the Federal Constitution, without referring such amendments to the people of the various states for their assent. Now, either when the state Parliaments have referred these matters to the Federal Parliament, and the Federal Parliament has dealt with such matters, that becomes a federal law, and cannot afterwards be repealed or revoked by the State Parliaments-that is one position, and in that case, of course, the reference once made [start page 218] is a reference for all time, and cannot be revoked, so that to that extent it becomes an amendment of the states’ Constitution, incorporated in and engrafted on the Federal Constitution without the consent of the people of the various states . On the other hand, if that be not so, and the states can, after making such reference, repeal such reference, what is the result? You have a constant state of change-no guarantee for continuity or permanence-in this class of laws, and this might lead to a great deal of confusion and a most unsatisfactory state of things. My principal objection to the provision is that it affords a free and easy method of amending the Federal Constitution without such amendments being carried into effect in the manner provided by this Constitution.

Mr. BARTON.-I cannot understand how it gives an opportunity of amending the Federal Constitution.

Dr. QUICK.-In this way. At present clause 52, which we are now discussing, deals with the powers of the Federal Parliament. It defines those powers in specific terms, in specific paragraphs. Very well. Then, if under this sub-section power be given to the state Parliaments to refer other matters to the Federal Parliament, to that extent the powers of the Federal Parliament are enlarged, and therefore there is an enlargement of the Constitution. This enlarges the power of the Federal Parliament, and when a law is passed by the Federal Parliament, it becomes binding on the citizens of the states the Parliaments of which have made reference; and if these laws are binding, I say they become federal laws, and those federal laws may be administered by federal courts. Consequently, these referred powers become federal powers, and to that extent this becomes a means of amending the Federal Constitution.

An HONORABLE MEMBER.-The state Parliaments may refer some subjects to the Federal Parliament without the consent of the people.

Dr. QUICK.-True, the state Parliaments may refer some subjects to the Federal Parliament without the consent of the people of the states -that is my point-and to that extent the powers become grafted on the Federal Constitution in a manner directly different from the mode provided by this Constitution.

Mr. BARTON.-You can make amendments in your Constitution without referring to the people.

Dr. QUICK.-That is so, but there is a distinct provision here that there is to be no amendment of the Constitution without first such amendment being passed by the Federal Parliament, and then submitted to the people of the states , and there must be a majority of the people and a majority of the states before such amendment can become law.

However, Quick’s concerns were discussed and resolved by this subsequent exchange:

Sir JOHN DOWNER (South Australia). ²2. KP: Yes, it really IS Dolly’s forebear. [↩]-I cannot see any of the difficulties which Mr. Deakin, Mr. Symon, and Dr. Quick anticipate in connexion with this sub-section. This, of course, is to be an inelastic Constitution, which can only be altered after great thought and with much trouble. We define what are to be the boundaries of the Constitution of the Commonwealth. We leave everything else to the states . It may be that questions may afterwards arise which concern one, two, or three states , but which are not sufficiently great to require a complete revision of the whole Constitution, with all the troublesome proceedings that have to be taken to bring about a reform. It would much facilitate matters if these questions could be referred to the Federal Parliament.

Mr. DEAKIN.-It would not be an easy process. You know how hard it is to get even two colonies to agree to anything.

Sir JOHN DOWNER.-It would be easy compared with an alteration of the Constitution.

Mr. DEAKIN.-It would not be too easy.

Sir JOHN DOWNER.-Nothing should be too easy. We have the power to alter the Constitution, but it is a power that can only be exercised with great difficulty. We also have a power of quasi-arbitration, which the Commonwealth Parliament can exercise in an easier way, although not without some difficulty, at the request of one or more states . Now, is not that a good principle? I do not think many honorable members will say it is not. It is suggested that we are allowing the states to throw upon the Federal Parliament a responsibility they ought to take themselves. My answer is that every state wants to aggrandize itself, to increase its authority, and it will only be in very extreme cases that the states will resort to this means of getting rid of a difficulty. In an extreme case, is there any harm in having a comparatively easy method of reference, not to troublesome negotiations, nor to the Imperial Parliament, but to the Federal Parliament.

Mr. BARTON.-It might be impossible to dispose of the matter excepting in that particular way.

Sir JOHN DOWNER.-Yes.

Mr. O’CONNOR.-Take a case of dispute regarding a boundary.

Sir JOHN DOWNER.-Yes, the cases might be infinite. Take a question of disputed territory, for instance. What could be more proper than that Victoria, if she became reasonable for once, should say-”Look here, we know we promised to do it; we know we have broken our promises; we acknowledge our transgressions, and will refer the matter at once to the Federal Parliament”? Who would blame her? Certainly not South Australia. Even in connexion with the question of rivers some point might arise that might concern two or three colonies, and that could not concern all the colonies. That, again, might be a proper matter for reference, but it could not be a common matter of legislation in respect of every state. …

Placitum thirty-seven (the referral power) was then adopted unanimously on the voices.  One striking aspect of the debate, however, is that there seemed to be a common assumption that referrals under s 51(xxxvii) would only be by one or a few States.  Perhaps they intended or assumed that adjustments of power involving all States and therefore of universal/national concern should be affected only by referendum?  However they certainly didn’t say so in the text of the Constitution.  The prevailing High Court approach to questions of the Founders’ intentions is that the interpretive task starts with reading the text itself but extends to divining purpose or intention if necessary through examining sources external to the text (e.g. the Convention debates).  But generally the Court says that it does not heed the Founders’ “hopes and aspirations” for a provision in the face of clear words that don’t express that hope or aspiration.  There’s lots of room for argument in those propositions, however.  Is the intended scope of referrals a question of mere “hopes and aspirations” or is it the fundamental intention or mischief which gives the provision its meaning?  And to what extent should we regard the intentions of some of those who drafted the Constitution as necessarily determinative?  Recently retired High Court Justice Michael Kirby, for one, rejects the notion of the “dead hand of the Founders” as the predominant factor and argues we should adopt a “living tree” approach to interpreting the Constitution.  Is that just trendy post-modern relativism?  What we can say with certainty is that most referrals over the last few decades have involved all States and have been held valid by the High Court.

But will Big Tobacco’s legal arguments succeed?  Probably not.  Senior UNSW constitutional academic George Williams says probably not, and I agree.  However Williams does not clearly explain the key reason why Big Tobacco will probably fail.

First, there’s no doubt that Big Tobacco’s trademarks are “property” for constitutional purposes.  And there’s at least a respectable argument that completely prohibiting any use of those trademarks would effectively extinguish those property rights, particularly in a context where just about all other forms of advertising and display have already been banned.

But extinguishment or cancellation of property rights without more will generally not be an “acquisition”. Someone (but not necessarily the Commonwealth) must obtain a real benefit flowing directly from the Commonwealth action, although that benefit need not be the same in kind as the extinguished property e.g. it might be removal of a contingent liability that the Commonwealth or someone else previously had. See Georgiadis and Mewett.

This is evident in a series of cases on the extinction of debts owed by the Commonwealth. There is no doubt that a debt should be treated as property, but does the Commonwealth acquire property as a result of extinguishing its debts? In Georgiadis v Australian and Overseas Telecommunications Corporation, Mason CJ, Deane & Gaudron JJ stated that ‘“acquisition” in section 51(xxxi) extends to the extinguishment of a vested cause of action, at least where the extinguishment results in a direct benefit or financial gain (which, of course, includes liability being brought to an end without payment or other satisfaction)’. In Mutual Pools and Staff Pty Ltd v The Commonwealth of Australia, McHugh J put it in general terms, as he said that a s 51(xxxi) acquisition of property occurs if the Commonwealth obtains ‘a corresponding benefit of commensurate value’ from a deprivation of the plaintiff’s property.

It would be drawing a long bow to argue that the Commonwealth or any other specific person or entity obtains a direct benefit or financial gain from banning branded cigarette packaging.  Any reduction in smoking and associated health benefit to the community would be general gains to the public interest not gains flowing to the Commonwealth itself or indeed any particular person.

Nevertheless, as Williams observes, the law in this area is not absolutely clear and Big Tobacco will be making as much noise as it can.

The draft NT State Constitution I’ve posted on the wiki adopts the very strong provisions of the Queensland Constitution recognising and protecting local government.  It also further strengthens those provisions by requiring the executive government and legislature to take account of the principle of  “subsidiarity” when enacting laws or making administrative decisions. This principle holds that “an organizing principle that matters ought to be handled by the smallest, lowest or least centralized competent authority, and indeed that a central authority should have a subsidiary function, performing only those tasks which cannot be performed effectively at a more immediate or local level” should be the main guiding principle in allocating functions and powers between tiers of government.

In a very real sense this principle is the antithesis of the centralising tendency that is dominant in modern Australian political discourse. More than a century of rule by a remote “colonial” power, first SA and then the Commonwealth, has taught Territorians (at least those who have lived here for a long time) that even a very mediocre local government is better than a remote one. Direct Canberra rule (from 1911 to 1978) tended to oscillate between complete disinterest and heavy-handed, dictatorial interference, usually involving imposition of inappropriate measures through failure to consult locals.

Also see A J Brown, ‘Subsidiarity or Subterfuge? Resolving the Future of Local Government in the Australian Federal System’ (2002) 61 Australian Journal of Public Administration 24. The article includes discussion of public opinion about local government reform, constitutional recognition thereof and the role of the States. It makes the rather surprising finding that around 50% of respondents appear to favour abolition of existing States in favour of a 2 tiered system consisting of  just the Commonwealth and local government.  Brown concludes that there has been “a slump, if not collapse, in the presumed legitimacy of the ‘state’ as a unit of self-determination within the federation”.

I disagree strongly with abolition of existing States.  Apart from anything else, local government lacks the size and clout to stand up to the federal government when needed.  Having just two tiers of government where the lower one consists of smallish local government bodies would be a weakening of the democratic checks and balances which help to “keep the bastards honest”.

But how would a “beefed up” local government sector fit into Australia’s federal structure?  That’s potentially a really interesting question whose answer could help reshape Australian federalism in a fairly fundamental way (albeit picking up and formalising developments that are already happening).

For a start, although subsidiarity suggests that local decisions should be taken at a local level (cf the environmentalist slogan “Think global act local”), longstanding experience  in Australia indicates that local councils are sometimes drastically corrupt or incompetent and need to be dismissed and a temporary administrator appointed.

Moreover, financial prudential supervision and quality assurance/maintenance of standards need to be undertaken from a higher tier of government.  In our system that can only be the State or Federal government.  Similarly, overarching policies may need to be set at a State or national level.

Finally, I would regard local school and hospital boards, which are part of the Rudd/Gillard government’s national health and education reforms, as part of this localised subsidiarity governance model.  Readers will recall that they are intended to be funded on a needs basis, in the case of local hospital boards under a funding model adapted from Victoria’s ‘case mix” system.

The overall picture under a sophisticated subsidiarity model in the Australian context would be one where the Federal government sets national policy directions and provides a significant portion of funding directly to local government (including school and hospital boards), while State governments would also provide some funding and act as local government’s operational “line management”.

This sort of clear role differentiation would, I think, go a long way towards resolving the confusion, blame-shifting and cost-shifting that have characterised Australian federalism for a long time and contributed to the public disillusionment reflected in AJ Brown’s research.  Importantly, the federal role of delivering tied grant funding to local service delivery entities on an objectively assessed needs basis would inhibit state governments from shifting funding from areas of greatest need to areas of greatest electoral advantage.  That phenomenon is not confined to the Northern Territory.  I strongly suspect that it was no coincidence that the hospitals that attracted the most adverse publicity for poor facilities under the recently defeated NSW Labor government were Hornsby Hospital and Royal North Shore Hospital.  Both are situated on Sydney’s north shore, an area never likely to vote Labor.

What is really needed to achieve this sort of structure, it seems to me, is a fundamental restructuring of the federal division of powers in Australia’s constitutional system.  However, the chances of achieving this through a constitutional referendum are slight.  Only eight referenda out of 44 have succeeded since Federation in 1901.

Fortunately there is another possible solution.  States could refer a reasonably extensive agreed set of State powers to the Commonwealth under the referral power in the Commonwealth Constitution (s 51(xxxvii).  Those powers would certainly include control of river waters (especially the Murray-Darling basin) and some other key environmental powers that need a national approach.  They might also include health and education, but on condition that day-to-day operational control remain with the States and local government.  It is reasonably clear that a State can set conditions and limitations on any referral of power,  including limiting a referral to policy and prudential oversight functions.   See R v Public Vehicles Licensing Tribunal (Tas); Ex parte Australian National Airways Pty Ltd (1964) 113 CLR 207, 226.

But why should the States refer powers to the Commonwealth and thereby further reduce their already severely disempowered constitutional position?  My answer is because the key reason for the States’ disempowerment is their fiscal dependence on the Commonwealth. A century of political history and High Court jurisprudence have proven that Alfred Deakin was clairvoyant when he said in 1902:

The rights of self-government of the States have been fondly supposed to be safeguarded by the Constitution. It left them legally free, but financially bound to the chariot-wheels of the central government. Their need will be its opportunity.

My admittedly utopian idea is that the States could negotiate with the Commonwealth for referral of State powers that the Commonwealth needs in the national interest (including policy and prudential oversight of health and education), in exchange for a guaranteed share of income tax and CGT revenue (the major growth taxes) calculated as sufficient to meet their genuine needs on an ongoing basis as untied grants (less the needs-based tied grants to local government already discussed). If a deal like that could be brokered, it would certainly solve the vertical fiscal imbalance, blame-shifting and cost-shifting behaviours that have bedevilled Australian federalism for many years.

Of course, the reason why the concept is utopian is that the Commonwealth can already exercise effective power over most areas, albeit indirectly,  through the terms of tied grants under Constitution s 96.  Accordingly, why would the Commonwealth surrender complete control of revenue when it has no need to do so? That revenue control allows it to play Santa Claus with impunity and nearly always win the blame game with the States.  Still, it’s a neat idea IMO.

For a more detailed discussion of unresolved aspects of the referral power, see Andrew Lynch, ‘After a referral : the amendment and termination of Commonwealth laws relying on s 51(xxxvii)’ (2010) 32 Sydney Law Review 363.

PS Some of the issues I discuss here (though not my proposed solution) are traversed by George Williams in an essay in the excellent anthology Re-Imagining Australia (full text of the essays linked from this page – click on “essays” towards the bottom of the page).  From memory, former econo-blogger and now federal Labor politician Andrew Leigh was one of the editors.