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My latest post argues that the Australian Parliament has principled grounds for the expulsion of fascist members, and that such expulsion is a constitutional imperative

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Why was Faruqi v Latham heard in the Federal Court?

I, like many legally-minded people in Australia, was last week transfixed by the interlocutory judgment delivered by Wigney J in Faruqi v Latham [2018] FCA 1328 (‘Faruqi’). That judgment is worth reading, in its entirety, even if you have no interest in defamation law or Australian politics. I extract one of my favourite portions below (from [32]-[34]):

Mr Latham’s defence is, on just about any view, an extraordinary document. In order to address Mr Faruqi’s strike out application, it is necessary to attempt to come to grips with it. That is no mean feat.

There are 12 “parts” to the defence. There are also nine schedules.

Part A of the defence purports to deal with the interpretation of the defence. It needs to be read in conjunction with Schedule I, which is said to be a “dictionary” of words and expressions used in the defence. … One example from the dictionary will perhaps suffice to give a general flavour of what is under consideration. The expression “the Bowdlerization” is defined in the dictionary as follows:

the expression, referred to in subparagraph 65(b)(ii) of this pleading:

•    which Latham used in lieu of the word “fucked”;

•    comprising the name of the letter “F” followed by the past participial suffix “-ed”; and

•    sounding roughly like “effed”.

However, this is a constitutional law blog that takes no interest in the law of defamation. And so I came away from this judgment with just one question: ‘why on earth is an action in defamation being heard in the Federal Court?’ Defamation being, as you will all know, probably most fairly characterised as a common law claim with such statutory influence as the particular State (or Territory – this is foreshadowing) has exerted. What business does a Commonwealth court have hearing such a matter?

Well there must be some claim within federal jurisdiction or something…

Alas, no (well sort of) – as far as I can tell from this (interlocutory) judgment, neither party has pleaded anything resembling a claim falling within the traditional ‘heads of federal jurisdiction’ that are statutorily conferred on the Federal Court. The Federal Court’s jurisdiction is effectively whatever is conferred on it by statute (see section 19 of the Federal Court of Australia Act 1976). The Judiciary Act 1903 goes one better and actually specifies some jurisdiction, providing in section 39B(1A):

The original jurisdiction of the Federal Court of Australia also includes jurisdiction in any matter:

                    (a)  in which the Commonwealth is seeking an injunction or a declaration; or

                    (b)  arising under the Constitution, or involving its interpretation; or

                    (c)  arising under any laws made by the Parliament, other than a matter in respect of which a criminal prosecution is instituted or any other criminal matter.

Now the ‘also’ is a reference to the preceding subsection (1) which confers jurisdiction with respect to writs of Mandamus, prohibition or injunctions sought against officers of the Commonwealth (subject to certain exceptions). Now, neither Faruqi or Latham are officers of the Commonwealth so it’s not that one. The Commonwealth is not a party, so paragraph (1A)(a) is out too.

It’s not a matter that arises under a law made by the (Commonwealth) Parliament. Although the headnote at time of writing is incorrect on the Federal Court website and refers to a ‘Defamation Act 2005 (Cth)’, there is of course no such Act. The Act the court deals with is the New South Wales Act.

Now, Latham’s defence did actually plead the constitutional implied freedom of political communication ([75] of the judgment). While pleading a constitutional defence can bring a matter within federal jurisdiction (and Faruqi may have presumed that such a defence would be pleaded, meaning the matter would involve the exercise of federal jurisdiction), there is another all-encompassing answer.

So why is it in the Federal Court then?

Well,  the answer is found in the case of Crosby v Kelly [2012] FCAFC 96 (‘Crosby‘). Crosby concerned a defamation action brought in the Federal Court by Mr Crosby, against Mike Kelly, a Member of the House of Representatives.

Questions about jurisdiction were raised – while it was initially thought that Mr Kelly might rely on the constitutional defence referred to above, or his status as an MP in some fashion, those defences did not materialise in the pleadings (Crosby at [11]-[12]). The jurisdictional question was therefore still a live one. What would be the source of the Federal Court’s jurisdiction to hear and determine the matter?

As it turns out, in the opinion of Robertson J (with whom Perram and Bennett JJ agreed), jurisdiction was conferred by section 9 of the Jurisdiction of Courts (Cross-vesting) Act 1987 (Cth). Subsection (3) of that section provides:

(3) The Federal Court or the Family Court may:

(a) exercise jurisdiction (whether original or appellate) conferred on that court by a provision of this Act or of a law of the Australian Capital Territory or the Northern Territory relating to cross-vesting of jurisdiction; and

(b) hear and determine a proceeding transferred to that court under such a provision.

As can be seen, it is a section conferring jurisdiction on the Federal Court to exercise jurisdiction conferred by ‘a law of the Australian Capital Territory’.

Section 9(3) is a law of the Commonwealth conferring federal jurisdiction on the Federal Court – the jurisdiction being defined by reference to laws of the Australian Capital Territory. One such law of the ACT is the Jurisdiction of Courts (Cross-vesting) Act 1993 (ACT), which confers jurisdiction on the Federal Court in respect of ‘ACT matters’, which are in turn defined as ‘a matter in which the Supreme Court [of the ACT] has jurisdiction otherwise than by reason of a law of the Commonwealth or a law of another State’.

What falls within that gap between Commonwealth laws and State laws? Why, other laws of the Territory of course. Such as the Supreme Court Act 1933 (ACT) which relevantly provides:

20(1) The court has the following jurisdiction:

(a) all original and appellate jurisdiction that is necessary to administer justice in the Territory;

(b) jurisdiction conferred by a Commonwealth Act or a law of the Territory.

The jurisdiction conferred on the Supreme Court of the ACT under that section would naturally extend to hearing and determining a claim under the common law of defamation as supplemented by the Civil Law (Wrongs) Act 2002 (ACT). Tracing it back, the jurisdiction conferred on the Supreme Court of the ACT by a law of the territory is vested as well in the Federal Court, which section 9(3) of the Commonwealth cross-vesting Act picks up as a Commonwealth law and confers the relevant jurisdiction on the Federal Court by force of that law of the Commonwealth (Crosby at [35]).

So, that’s how we get to a defamation claim in the Federal Court. Of course, in the case of Faruqi there is also arguably federal jurisdiction in any constitutional defence that the defendant raises (the previous defence having been struck out).

Now, I have obviously given a fairly abridged account of the decision in Crosby, which while concise is complex and replete with references to High Court authority that I haven’t discussed here. If you’re interested in the details, I’d suggest reviewing the judgment for yourself. If you’re interested in bringing a defamation proceeding (in the Federal Court or otherwise), get some legal advice and good luck to you.

Whereas the People is an Australian constitutional and public law blog.

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Some thoughts on Re Barrow [2017] HCA 47: Renouncing one’s cake and eating it too

On 7 November 2017, the High Court (comprised of Edelman J) issued a judgment of only 12 paragraphs in Re Barrow [2017] HCA 47.

The case concerned an applicant, Mr Barrow, applying to the court for a declaration that certain steps he had engaged in were ‘reasonable’ for the purposes of ensuring he was not incapable of being chosen or sitting as a senator or member of the lower house under section 44(i) of the Constitution.

Section 44(i) is perhaps best known for unseating the Deputy Prime Minister and a handful of Senators - it provides that a person is incapable of being chosen or sitting as a Senator or MP where they are:

under any acknowledgement of allegiance, obedience, or adherence to a foreign power, or is a subject or a citizen or entitled to the rights or privileges of a subject or citizen of a foreign power

Now the name Barrow will likely not strike even the most avid follower of Australian politics as familiar. While Barrow has been in a candidate for the house of representatives in the Victorian electorate of La Trobe and the New South Wales electorate Warringah, he has not been elected.

Mr Barrow was, we are told, a dual citizen of Australia and the United Kingdom - naturally a predicament for a would-be MP. But he was also clearly reluctant to lose the benefit of his dual citizenship. Mr Barrow proceeded as follows:

On 19 July 2010, ten days prior to the close of nominations for the 2010 general election, the applicant made an application to renounce his British citizenship. The applicant nominated for the House of Representatives at that election, in the Victorian Division of La Trobe, but was not elected. After the polling day his application to renounce his British citizenship had not been registered by the Home Department of the United Kingdom. The applicant says that he then "abandoned" his application to renounce his British citizenship.

On 8 June 2016, one day prior to the close of nominations for the 2016 general election, the applicant made another application to renounce his British citizenship. The applicant nominated for the House of Representatives at that election, in the New South Wales Division of Warringah, but was not elected. Again, after the polling day his application to renounce his British citizenship had not been registered by the Home Department of the United Kingdom. Again, he abandoned his application to renounce his British citizenship.

[The applicant seeks a declaration relating to certain steps to be taken by the applicant]

Those steps include sending a letter to Her Majesty's Principal Secretary of State for the Home Department, in which the applicant proposes to explain that (i) his application to renounce his British citizenship is solely because he intends to nominate as a Senate candidate for the Parliament of the Commonwealth of Australia; (ii) if he is not elected as a Senator then he will notify the Home Department, if possible, to immediately withdraw his application to renounce his British citizenship; and (iii) if his application for renunciation has been registered by the Home Department then he will correspond with the Home Secretary to take "such steps as necessary ... to endorse the formal evidence to show that [his] renunciation never took effect".

The question before the court was whether a renunciation of this kind was sufficient to constitute ‘reasonable steps’ by the applicant to divest himself of the dual citizenship. 

The Court rejected the application for reasons going to jurisdiction on the basis that it asked the court for an advisory opinion (which the High Court has held it is unable to provide since at least In re Judiciary and Navigation Acts (1921) 29 CLR 257). 

Now, there are many criticisms to be made of section 44(i), being the blunt instrument that it is. I do not intend to attempt any speculative answer to the question before the court, however Mr Barrow’s proposed course certainly raises interesting considerations from a policy perspective. If the purpose of section 44(i) was thought to be the prevention of an MP from holding loyalties to multiple powers, it would appear contrary to that principle if a person could be validly elected on the basis that they revoked their foreign citizenship if and only if they won their election. 

As an imperfect analogy, consider a scenario where instead section 44(i) required candidates to make a declaration that they would bear true allegiance to Australia. An oath taken in advance of an election to the effect that ‘I swear loyalty to the Commonwealth of Australia, provided that the people thereof elect me as their representative in the electorate of Warringah’ is somewhat dubious. Surely an oath of this kind (which is in any case largely symbolic) should not contain a qualification. It makes it appear that the loyalty exists only insofar as it will benefit the oath taker - and what value is there in loyalty of that kind?

In any case, I express no view of my own on whether the steps proposed are sufficient - I merely say that they are interesting. 

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High Court gives its judgment in SSM challenge

Today the High Court of Australia published its reasons in the matter of Australian Marriage Equality Ltd v Minister for Finance [2017] HCA 40. As discussed on this blog, the High Court previously gave its orders in the case, dismissing the challenge to the government’s same sex marriage postal survey.

The reasons are, to say the least, dull, and were largely already apparent from the nature of the orders. In brief, the legislative provision relied upon by the Minister in funding the survey was constitutionally valid, and the determination issued by the Minister under the provision was also validly made.

This narrow statutory means of disposing of the case is, in my view, of only minor public importance. I note that others have expressed the view the decision erodes parliamentary scrutiny of executive spending. I don’t agree. A provision of the kind in this case has been on the statute book for almost as long as there has been a Commonwealth of Australia. Successive parliaments have sought to retain it. It is clearly necessary for the proper operation of the machinery of government that it be able to spend money in urgent and unforeseen cases.

I should say, so that the dispassionate tone of this analysis is not interpreted as a lack of sympathy for the plaintiffs, that I think approaching an issue such as this by a postal survey is an extremely wrong-headed and cynical approach to a matter of fundamental human dignity. The outsourcing of the legislative process to an opinion poll should be resisted and Parliament ought to have acted on this issue a long time ago (as it was all too willing to do in 2004 when the definition of marriage was changed to exclude same-sex couples).

Standing

The court declined to express any view on the standing of the parties, but did express a view on whether it needed to express a view. As I noted in my previous post, where a court is exercising Commonwealth judicial power (as it was in this case) standing goes to jurisdiction. What I mean by that is that the court derives its jurisdiction, or power to hear and determine a dispute, from there being some ‘matter’ to be resolved between two parties with a sufficient legal interest to bring the issue before a court.

No government policy enjoys unanimous popular support. Standing is the means by which courts are able to control who may challenge what action - a ‘busybody’ (to use the actual legal term of art) is not free to roam at large across the statute book or the realm of executive activity and call into question all that he or she finds there. It’s not an unimportant check box, even setting aside that it is a legally necessary one.

In this case, yes, the court did not consider the matter was fully argued and it is the judicial tradition to only answer what is necessary. The court referred to Combet v The Commonwealth as past practice, also indicating that the parties did not challenge the approach taken there. 

I’m not sure how to feel about this practice - jurisdiction was surely a live issue, and a threshold one. It is not that the court had before it questions, which if answered in a certain way, the proceedings could be disposed of. I would have thought that the court had only one question before it - that of standing - and until that question was answered, nothing more fell for determination. That may be overly formalistic, and I am open to other views, but this practice does not sit well with the well recognised limits on Commonwealth judicial power.

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‘Don’t you worry about that’: Secret evidence, the executive and the courts (a case note on Graham v Minister for Immigration and Border Protection)

It’s a secret, your honour. Don’t you worry about that.

The High Court has been in the spotlight of late, in respect of both the constitutional qualification issues for various members of Parliament as well the same sex marriage postal survey. One decision that has received less media attention is that of Graham v Minister for Immigration and Border Protection; Te Puia v Minister for Immigration and Border Protection [2017] HCA 33 handed down on Wednesday 6 September 2017.

The facts

Graham and Te Puia were citizens of New Zealand who had been in Australia for some time (Graham since 1976 and Te Puia since 2005) each pursuant to a ‘Class TY Subclass 444 Special Category (Temporary)’ visa. Both individuals received letters from the Minister giving them notice that the Minister had decided to cancel their visas under section 501(3) of the Migration Act 1958 (Cth) (‘the Act’).

Without going in to too much detail here, section 501(3) relevantly enables the Minister to cancel a visa where the Minister reasonably suspects that the person does not meet the character test and that the cancellation is in the national interest. Section 501(6) elaborates that a person fails the character test if they have a substantial criminal record (further defined elsewhere) or the Minister reasonably suspects that the person has had association with of a group, organisation or person that has been involved in criminal conduct.

In the letters the Minister stated that in making his decision the Minister had taken account of evidence which was protected from disclosure under section 503A of the Act. Section 503A deals with information the Minister obtains from certain other agencies (usually law enforcement agencies) on a confidential basis and arose out of a reluctance in those agencies to share information where its disclosure might prejudice their sources or methodologies. In each case, that evidence was not disclosed or made available to Graham or Te Puia.

The problem

First, let’s think about this non-disclosure of evidence in the abstract. There are obvious difficulties for a visa holder in this situation. From what you’ve been told, you will be aware that the Minister is of the view (or at least reasonably suspects) that you have a substantial criminal record or other criminal associations, but you won’t necessarily know the detail of that – particularly where that detail is supplied by the evidence provided to the Minister under section 503A of the Act. One can imagine the feeling of confusion, and perhaps a temptation to go through a quick mental review – who do I hang out with? What group are they talking about?

Now, in the case of Graham the Minister’s statement of reasons did outline a connection to a particular outlaw motorcycle gang, as well as some prior offending. In the case of Te Puia, the Minister referred only to the applicant’s membership of a particular group and that decision appeared to be based only on reference to the undisclosed material. In any case, it is not difficult to see how other individuals could be left with very little in the way of reasons presented for the decision made against their interests.

Leaving that to one side however, there’s also a clear problem for the court – the executive has made a decision, based on evidence not made available to the other party. Not only that, but section 503A purports to prevent that evidence being received by the court itself. If a party were to approach the court seeking a review of the decision, say on the basis that the Minister took into account an irrelevant consideration or acted irrationally, how is the court to make a decision?

Of course there is a legitimate interest in an agency preserving its intelligence sources and its intelligence gathering methodologies. All I say, however, is that this secrecy sits in tension with the role of the courts in supervising the executive where it provides the basis for a decision.

As we will see, this difficulty was not lost on the court.

The decision

The court split 6-1 on the matter and a joint judgment was delivered by Kiefel CJ, Bell, Gageler, Keane, Nettle AND Gordon JJ. Edelman J agreed with the majority on what will be called the ‘institutional integrity’ point, but dissented on the question about the Commonwealth Parliament’s ability to restrict judicial review.

The joint judgment

The joint judgment first dismissed an argument by the plaintiff that the scheme impaired the ‘institutional integrity’ of the court in a way that would offend the Kable principle. That argument by the plaintiff appeared to centre on an analogy to public interest immunity under the common law, and the removal of the decision on what was in the public interest from the court to the executive. The Commonwealth argued that there was no constitutional principle that meant the courts had to be the arbiter of the public interest where admissible evidence were to be withheld. The court agreed.

Instead, the matter was determined on the basis of section 75(v) of the Constitution. That section provides that the High Court shall have original jurisdiction in all matters ‘in which a writ of Mandamus or prohibition or an injunction is sought against an officer of the Commonwealth’. This provision is thought to have the effect of ‘entrenching’ a minimum level of judicial review of executive action that is beyond the power of the Parliament to remove. In this way, section 75(v) ‘secures a basic element of the rule of law’ (paragraph 44 of the judgment).

The joint judgment re-affirmed that the Parliament cannot enact a law that denies the High Court (or other courts in some circumstances) ‘the ability to enforce the legislated limits of an officer’s power.’ It went on to say (at paragraph 48) that:

The question whether or not a law transgresses that constitutional limitation is one of substance, and therefore of degree. To answer it requires an examination not only of the legal operation of the law but also of the practical impact of the law on the ability of a court, through the application of judicial process, to discern and declare whether or not the conditions of and constraints on the lawful exercise of the power conferred on an officer have been observed in a particular case.

In the case of the applicant in particular, the court was denied access to the whole of the evidence upon which the Minister’s decision was based. To the extent that section 503A of the Act prevented the court from seeing information that would be relevant to the question of whether or not the Minister had exercised a power according to law, it was invalid.

Edelman J’s dissent

His honour considered that the joint judgment’s approach was overly broad, for two ‘or possibly three’ reasons.

First, history. Edelman J considered that the removal of this information from the court’s grasp was in effect, nothing new. Far more extreme impairments on judicial review had existed and indeed been standard in the 19th century. His honour referred as well to certain legislation allowing the executive to resist the disclosure of ‘State papers’ to a court by the issue of a conclusive certificate stating that such disclosure would be prejudicial to the public service. His honour conceded the Constitution may have involved a break from those traditions, but went on to say that:

it would be difficult to see how the Constitution broke from longstanding, clear, and established legal history by introducing contrary content to a generalised and broad implication which is ultimately founded on the concept of the rule of law, itself a concept the precise content of which is hotly disputed and which, on many accounts, includes notions of certainty and clarity.

Secondly his honour considered that this legislation went no further than other legislation previously upheld by the court, citing Plaintiff M61/2010E v The Commonwealth (2010) 243 CLR 319. To this I would suggest that the High Court should not consider itself bound by the general ‘fit’ of its decisions in a broader jurisprudence created by many judges over many years. The doctrine of precedent is not so inflexible and prior decisions are, on occasion, incorrect.

And finally, and perhaps most interestingly, Edelman J observed that the ‘unreasonableness’ ground of judicial review which was said to be rendered impossible to undertake by section 503A was no more than a presumption of statutory interpretation. If the presumption can be reversed, excluding review entirely, how then was it impermissible to simply take some evidence out of a proceeding that constitutionally does not have to exist? His honour did not elaborate on this point, but I think there are some clear criticisms to be made. I think this point does not fully answer the question – there are surely other grounds for review, and therefore sources of jurisdiction, that a court could be deprived of by a provision such as this from time to time.

His honour’s dissent is far longer and more interesting than can be sufficiently described here and I highly recommend reading it. It even includes a table of contents, which I think would be useful for many judges to consider.

Concluding comments

There can be little doubt of the benefits to the rule of law that flow from a minimum content of judicial review that is beyond Parliamentary disruption. To adapt an old adage, it says to the other arms of government ‘be you ever so high, the court is above you’.

While there is also something to be said for founding restrictions on power such as this ‘minimum content of judicial review’ on the text and structure of the Constitution, I think that the present case is clear example of that approach. The words of section 75(v) could not be given their proper effect if the executive were free to make decisions outside of the bounds of legality only by virtue of the fact that the court was rendered impotent to receive evidence about the decision. The Australian Constitution does not allow for power without limit.

Whereas the People is an Australian constitutional and public law blog.

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Australian Marriage Equality Ltd v Minister for Finance: Orders pronounced

The High Court’s website crashed earlier today after the Court pronounced orders in the matter concerning the government’s same sex marriage postal survey.

By way of an update, the transcript of proceedings is now accessible and provides some insight into the court’s decision. 

The Court appears to have disposed on the matter on a narrow, statutory basis. The decision is unlikely to have legal ramifications beyond section 10 of the Appropriation Act 2017-2018 (No 1) and like provisions in future or previous appropriations acts for the ordinary services of government. However, this remains to be seen from the Court’s full reasons. I will write further on this decision when they are available.

Interestingly, the Court declined to answer the question relating to standing. I say this is interesting because at the Commonwealth level the existence of standing arguably goes to jurisdiction (and the constitutional requirement of ‘a matter’). I am particularly interested to read the Court’s reasoning behind the ‘inappropriate to answer’ answer.

Whereas the People is an Australian constitutional and public law blog.

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High Court makes orders in Australian Marriage Equality Ltd v Minister for Finance

The High Court of Australia has dismissed the legal challenge to the Turnbull government’s same sex marriage postal survey.

The survey was challenged on a technical basis - that the Commonwealth lacked the power to spend money in the way contemplated by the survey.

While orders have been pronounced due to the urgency of the matter, the court has reserved the reasons for its decision.

The decision has apparently been unanimous, meaning the judgment (when it arrives) may have strong implications for either standing in public interest litigation or the justiciability of the Commonwealth’s power to spend. Alternatively, the matter may have been resolved on a narrow statutory basis. In all likelihood we won’t know for a couple of months. 

Whereas the People is an Australian constitutional and public law blog.

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Could it happen here? Pardons and the prerogative of mercy in Australia

On 25 August 2017 it was reported that President of the United States Donald Trump had issued a pardon for former Maripoca County Sheriff Joe Arpaio. Arpaio has been widely criticised for extreme treatment of prisoners, racial profiling and furthering the ‘Birther conspiracy’ centring on the citizenship of former President Barack Obama.

Arpaio was convicted in July of criminal contempt of a federal court after failing to comply with a order that would have prevented Arpaio’s department from engaging in racial profiling. As a result of the pardon, Arpaio will be almost entirely relieved of the consequences of that conviction.

So where does this notion of a pardon come from? And could the same thing play out in Australia? Well, Australia (and the United States, in a historical sense) owes the existence of such an ability to the ancient prerogative powers of the English Crown.

Read the full post