By Sarah Joseph
In coming months, the High Court – the highest court in Australia and the final arbiter on the meaning of the Constitution – will decide several high-profile cases.
These decisions, which may result in the striking down of legislation passed by parliaments across Australia, will reverberate both politically and socially throughout the country. Here are the cases worth keeping an eye on.
Same-sex marriage in the ACT
First up will be a hearing in early December about the constitutionality of the new same-sex marriage law in the ACT. While this issue evokes strong emotions – and concerns key human rights issues such as equality and dignity – the case will be decided on more prosaic grounds.
The federal government, which is opposing the law, is arguing that the ACT law is inconsistent with federal law and therefore breaches Section 28 of the Australia Capital Territory (Self-Government) Act 1988 (Cth).
Under Section 109 of the Constitution, federal law prevails over state law in cases of inconsistency. Perhaps it may be assumed that the same principles as have been developed over decades regarding Section 109 will apply in this case. However, one argument will concern the extent to which Section 28 mirrors Section 109.
If the ACT law is found to be so inconsistent, it will be invalid. If any marriages have been performed under it, they will be void. Depending on how the decision is made, whether in favour of or against the ACT law, the case could signal the death knell for further proposed state laws on marriage equality, or it could open the way for a proliferation of such laws.
The resolution of constitutional inconsistency cases is notoriously unpredictable. My best guess is that the ACT law will be found to be inconsistent with the federal law, and therefore invalid.
Queensland bikie laws
The states have a mixed record on shepherding their bikie laws through the High Court. South Australia failed in 2010 in the Totani case and NSW failed in 2011 in the Wainohu case. An earlier iteration of Queensland’s laws passed muster in 2013 in the Pompano case.
Some of the criticism of Queensland’s laws concern the doctrine of “separation of powers”, which denotes that the three branches of government (the parliament, the executive and the judiciary) should be quarantined from each other to avoid dangerous concentrations of power.
However, in Australia – and indeed in all countries with “Westminster” systems of government – the separation between the parliament and the executive is incomplete. After all, key members of the latter (like the prime minister or premier) are simultaneously members of the former. In contrast, in the US the legislature (Congress) is institutionally separate from the executive, led by the president.
The strongest component of separation of powers in Australia is that the judiciary – the courts – is institutionally separate from the political arms of government. Judicial power must be exclusively exercised by the judiciary. This principle has a beneficial effect for civil liberties, as it ensures (for example) that people are convicted and sentenced by courts, which are characterised by independence and impartiality, rather than politicians or bureaucrats.
Further, non-judicial powers must not be exercised by the judiciary: they are the constitutional preserve of the other arms of government.
The “separation of judicial power” principle is very strong, constitutionally, at the federal level in Australia. Since the Kable decision in 1996, a weaker constitutional doctrine of separation of powers at the state level has existed.
In recent times, due in large part to bikie cases, the principle regarding the states has grown stronger. Queensland premier Campbell Newman was utterly wrong to dismiss the notion of the separation of powers as “more of an American thing”.
The new Queensland laws will likely be challenged on the basis that they have improperly allocated powers as between the executive and the judiciary. However, I suspect the Queensland bikie laws will survive the High Court challenge. While the doctrine of separation of powers has occasionally been deployed to undo restrictions on civil liberties, it is not a substitute for broad ranging civil liberties protections.
So far, the state cases have focused on the powers exercised by courts rather than general draconian powers. A finding of unconstitutionality would involve a significant extension of the current separation of powers doctrine at the state level. However, an extension is not impossible. The doctrine was extended in the Wainohu case in 2011 to strike down NSW bikie laws.
Arguments may also be made that the Queensland bikie laws (and probably other state bikie laws) breach implied constitutional rights to freedom of association. After all, a key effect of the laws is to stop bikies from associating with each other. Similar challenges in previous bikie cases have been unsuccessful.
Political donations in NSW
Under the law, only individuals can donate to political parties, while corporations, trade unions and other non-humans may not. The challenge will be based on the notion that the laws breach the implied freedom of political communication in the Constitution.
This case will be fascinating, and, unlike the cases above, I am incapable of making a prediction as to the outcome. The issues that will be raised reflect some of those in the notorious 2010 US case of Citizens United v Federal Election Commission. In that case, the US Supreme Court split 5:4 to hold that corporations and trade unions have rights of free speech – just like individuals – under the US Constitution.
The Citizens United case cleared the way for unlimited political spending and electioneering by such entities. The consequence was clear in the 2012 US elections, with advertising by wealthy political action committees (“Super-PACs”) dwarfing that of the official political parties.
However, the constitutional question in Citizens United was different to that which will arise in the upcoming High Court case. The NSW legislation targets donations to political parties rather than direct political advertising. Indeed, restrictions on political advertising were struck down in Australia as long ago as 1992, in the very first case to uncover the implied right of political communication.
We do not yet know if “political speech” in Australian constitutional law extends to donations. If it does, the further question of whether the limits on such “speech” are proportionate and reasonable arises.
A key argument in favour of the law is that it helps to remove the influence of money from politics, reducing the scope for corruption. Political parties might divorce their interests from those of rich patrons, so that they pay more attention to the interests of the less powerful. The law arguably protects shareholders and individual union members, who may not wish that their contributions be spent on support for a particular party.
Arguments against include the libertarian view that it is not for the state to restrict the freedom of entities to donate money to the political parties of their choosing.
The unequal impact of the law is also of concern. The law has a much bigger impact on the NSW Labor Party than on the conservative parties, given the ALP party’s historical dependence on union donations.
Reportedly, ALP donors will shrink by 98% compared to 75% for the Liberal Party. The disproportionate effect on the ALP is underscored by the fact that Unions NSW is the entity bringing the case, and by the support of the NSW law by all conservative Australian governments.
University of Melbourne legal academic Joo Cheong Tham has raised an alternative argument against the law, stating that it attacks the structure of the ALP. After all, many trade unions are actual members (“affiliates”) of the Labor Party, reflecting its long-standing collectivist traditions (whereas the Liberal Party traditionally focuses on individual freedoms).
A ban on donations by a member of a political party strikes at freedom of association, meaning in effect that the ALP can no longer collect fees from affiliated unions.
It may be that there is an implied freedom of political association within the Constitution as a corollary to the implied right of political expression. This case may be the one which finally decides upon that issue.
Plus ça change?
The High Court will be unusually prominent in Australian political and social life over the next few months.
Politicians can throw gratuitous insults about “out of touch” judges “in ivory towers”. However, they have little choice but to abide by adverse High Court constitutional decisions. The only alternative is to seek constitutional change at a referendum. Yet Australia has formally changed its Constitution eight times in 113 years – the strike rate is very low.
This article was originally published at The Conversation. Read the original article. Sarah Joseph does not work for, consult to, own shares in or receive funding from any company or organisation that would benefit from this article, and has no relevant affiliations.
Sarah discussed this article on Radio Adelaide on the morning of 19/11. A podcast of that conversation is available here.