Remembering the Rule of Law

by Melissa Castan

Remembrance Day is commemorated on 11 November; on that day, we recall those who fell in the Great War fighting for their country. Some also recall it as ‘Dismissal Day,’ marking one of the most turbulent political events in Australian history. In Australia this year we also celebrated a ‘Rule of Law’ day on 11 November, as the High Court handed down decisions in three important cases that reflected the fundamentals of fairness, natural justice and equality before the law.

The first case (Plaintiff M61/2010E v Commonwealth, and Plaintiff M69/2010 v Commonwealth [2010] HCA 41) centered on the laws and policies that deal with claims of asylum seekers. The Justices unanimously found that when the government is reviewing a refugee status assessment as part of an ‘offshore processing regime’, it is an error of law to fail to treat provisions of the Migration Act 1958 (Cth) and the decisions of Australian courts as binding. It held that two Sri Lankan (Tamil) citizens who arrived at Christmas Island claiming refugee status were also denied procedural fairness in the review of the assessment of their claims. This came about because the Australian policy has been that, when refugees are processed as ‘offshore entry persons’ (ie arriving by boat), the government and non government assessors of the claim for refugee status proceed to make their decisions as a ‘non statutory’ exercise of executive power, without any obligation to accord procedural fairness, or observe Australian law.

The High Court found that these decision-making processes were flawed; the Minister for Immigration and Citizenship acts under the Migration Act, and thus the administrative decisions made by and for his department must observe that Act, and also accord procedural fairness, natural justice and accord with the law. Thus the Commonwealth law and policy which sought to exclude refugees from accessing their legal rights was impugned. The Migration Act itself, and the Minister’s power to exercise his discretion was upheld. But it is no longer plausible for the executive to treat the claims of refugees arriving by sea to a lesser standard of legal process than those arriving any other way.

The second major case handed down on the same day was the decision on South Australia’s anti-organised crime laws enacted in 2008 in response to bikie gang violence. In South Australia v Totani [2010] HCA 39, the High Court found (with Justice Heydon in dissent) that control orders made under the Act were invalid, due to a Kable (1997) style ‘incompatibility’ with the Magistrates Court’s ‘institutional integrity’.

The High Court found that s 14(1) of the Serious and Organised Crime (Control) Act 2008 (SA) obliged the Magistrates Court to impose serious restraints on a person’s liberty by reason only of being a member of a ‘declared’ organisation, whether or not that person had committed (or was ever likely to commit) a criminal offence. Kable incompatibility arose as the impugned section enlisted the Court to carry out the decisions of the executive, and undermined the state court’s reality and appearance of independence and impartiality. It is consistent with the other recent application of Kable incompatibility, International Finance Trust Co v NSW Crimes Commission (2009). It is also consistent with some other recent cases that refer to Ch III of the Commonwealth Constitution as a source of limitation on government action.

The real sting in the tail for the Commonwealth government came with the less well known case of Commissioner of Taxation v Anstis [2010] HCA 40, which dealt with a commonly used provision of the Income Tax Assessment Act 1997 (Cth), s 8-1, on allowable deductions on assessable incomes. Ms Anstis, a student on youth allowance (under ss540-567F of the Social Security Act 1991 (Cth)), sought to deduct her various education expenses such as the depreciation in value of her computer, her textbooks and stationery, student administration fees, supplies needed for her teaching rounds, and her non-university travel expenses; she argued these all were incurred in gaining her ‘assessable income’ for s 8-1 purposes. The High Court agreed, and found against the Tax Commissioner, as the entitlement to youth allowance is dependent on the student undertaking full-time study. The Tax Commissioner has until now always rejected claims for deductible education expenses against welfare income, although others regularly claim for such expenses. Tax cases usually involve plaintiffs with deep pockets, but this one involved a student making a claim for some $920 worth of expenses. Her solicitor father represented her before all the various decision-makers and courts, including the High Court.

The case opens the way for thousands of students to claim back their self-education expenses, as all those studying while on Youth Allowance, ABSTUDY, and Austudy may be able to rely on this authority if they are earning enough part-time income to generate a tax liability. It has been suggested that other welfare recipients may also be able to make similar claims for deductions, where they are required to undertake certain tasks in order to remain entitled to allowances. Treasury and the Tax Office are now considering the implications, and whether revenue foregone will be displaced to other taxpayers.

No-one has immunity from the law, not even the government. On November 11 the High Court reminded the executive governments of the states and Commonwealth that everyone is equal before the law, no one can be punished other than for a breach of law proved in court, and arbitrariness in the law should be avoided. All of these are concepts worthy of Remembrance Day.

Melissa Castan, Deputy Director, Castan Centre for Human Rights Law,  Law Faculty, Monash University.

This is based upon a Brief forthcoming in the Alternative Law Journal, 34(4) 2010 available at

5 responses to “Remembering the Rule of Law”

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