Editor’s Note: Today we publish the 2016 Report on Australian constitutional law, which appears in the larger 44-country Global Review of Constitutional Law, now available here in a smaller file size for downloading and emailing.
—Anne Carter and Anna Dziedzic, Centre for Comparative Constitutional Studies (CCCS), Melbourne Law School, with assistance from CCCS researchers Artemis Kirkinis, Kalia Laycock-Walsh, and Marcus Roberts
2016 witnessed several relatively uncommon political events in Australia, including a double dissolution election, a public dispute between the nation’s two highest Law Officers, and legal proceedings over electoral eligibility and processes. These political developments informed the work of the High Court, which heard cases concerning changes to voting methods, the validity of an Electoral Roll ‘suspension period,’ and the eligibility of two Senators. The Court’s constitutional jurisprudence in 2016 on these and other matters (outlined in Part IV below) confirms that the Court’s approach to interpretation remains firmly tied to the text and structure of the Constitution. Outside the judicial realm, debate over constitutional change to recognise Australia’s Indigenous peoples continued, but with little consensus as to the scope of the proposal to be put to referendum.
II. The Constitution and the Court
The Australian Constitution was created in 1901 when the colonies established by British settlers came together in a federation. The Constitution provides for a parliamentary system of government, broadly based on the Westminster system. It establishes a federal system in which powers are divided between the Commonwealth and six states.
A distinctive feature of the Australian Constitution is that it does not include a Bill of Rights. Rights are instead protected by the constitutional separation of powers, the common law, and the democratic legislative process. While the Constitution contains a few discrete rights-protective provisions – including trial by jury and compensation on just terms for acquisition of property – these provisions are not framed or interpreted in the same manner as civil and political rights in other jurisdictions. Certain rights, such as the freedom of political communication, have been implied into the Constitution by the High Court.
The High Court of Australia is the final court of appeal from all federal and state courts. The High Court also has original jurisdiction in constitutional matters (but no capacity to issue advisory opinions) and special jurisdiction to hear electoral disputes. The High Court has the power to invalidate laws that do not comply with the Constitution. The Court comprises seven judges, who are appointed to serve until the age of 70, subject to removal by a special parliamentary procedure. Final hearings before the High Court involve both detailed written submissions and oral argument. Judges may write their own separate judgments and may join with other judges to write joint reasons. Unanimous decisions are relatively rare.
III. Developments and Controversies in 2016
A. High Court Appointments
In 2016, Chief Justice French announced his retirement from the High Court, effective in January 2017, two months short of the mandatory retirement age of 70. As a result, in November 2016, two new appointments to the bench were announced, both of whom were sworn in in early 2017. Justice Susan Kiefel, who was first appointed to the High Court in 2007, was appointed as the Court’s 13th Chief Justice. She is the first woman to serve as Chief Justice of the Court. After leaving school at the age of 15, Chief Justice Kiefel completed her studies part-time while working as a legal secretary. Before being appointed to the High Court, she served as a judge on the Queensland Supreme Court and the Federal Court of Australia.
The other appointment to the Court was Justice James Edelman. Originally from Western Australia, Justice Edelman was a Professor at Oxford University and practised at both the Western Australian Bar and the Bar of England and Wales before being appointed to the Supreme Court of Western Australia and then the Federal Court of Australia. Aged just 43, Justice Edelman is one of the youngest justices ever to be appointed and he could potentially sit on the Court until 2044.
B. The Solicitor-General’s Role
2016 witnessed a public and protracted dispute between Australia’s first and second Law Officers, the Attorney-General, and the Solicitor-General, respectively. In Australia, the Attorney-General is a member of Parliament and Cabinet, and so holds a largely political office. By contrast, the Solicitor-General is a statutory office-holder who provides legal advice to the government and represents the government in court. While the Solicitor-General has traditionally been considered to be independent of government, the office’s close connection to the government creates the potential for tensions between the two offices.
In 2016, these tensions escalated when the Attorney-General issued a Direction to the Solicitor-General requiring that all persons or bodies seeking an opinion from the Solicitor-General first obtain written consent from the Attorney-General. The Direction changed the previous protocol and raised concerns that it would restrict access to the Solicitor-General’s advice.
The 2016 Direction sparked a public dispute between the Solicitor-General, Mr Justin Gleeson SC, and the Attorney-General, Senator George Brandis QC. This led to an inquiry before a Senate Committee into the nature and scope of consultations that had occurred prior to the making of the Direction. The Committee, which reported in November 2016, recommended that the Senate disallow the Direction and that the Attorney-General be censured for misleading Parliament. Prior to this report, in late October 2016 Mr Gleeson resigned, citing a breakdown in trust and confidence between the two Law Officers. A new Solicitor-General was appointed in December 2016.
C. Federal Elections
Prorogation and Double Dissolution
2016 also witnessed a relatively rare double dissolution federal election, which was engineered by the government’s utilisation of two constitutional provisions.
Under the Constitution, the House of Representatives (lower house) sits for a three-year term, whereas Members of the Senate (upper house) sit for six-year terms, with elections for half of the seats every three years. As such, at an ordinary election, all House of Representative seats, but only half of the Senate seats, are vacated. Section 57 of the Constitution provides for a double dissolution election, whereby both Houses of Parliament are dissolved and all seats vacated, as part of the process to resolve deadlocks between the two Houses on proposed laws.
The 44th Parliament of Australia was elected in 2013. The Liberal-National Coalition held a majority of seats in the House of Representatives but did not command a majority in the Senate. In 2015, the government introduced industrial relations legislation that was passed by the House of Representatives but rejected by the Senate. The House of Representatives again considered the Bill and returned it to the Senate, but due to the timing of the parliamentary sittings and the need to pass the budget, there was insufficient time for the Senate to reconsider the Bill before the deadline for a double dissolution. The government did not have the numbers in the Senate to reschedule the sittings and so the Governor-General, acting on the advice of the Prime Minister, prorogued Parliament on 15 April 2016 and summoned it to sit again on Monday 18 April 2016. This prorogation, while within the Constitution, was unusual. Prior to 2016, the Parliament has been prorogued and recalled only 28 times, and not once since 1977.
At the new sittings, the Senate again rejected the Bill and on 9 May 2016, the Governor-General dissolved both Houses of Parliament. The election held on 2 July 2016 saw the Coalition returned to government with a reduced majority in the House of Representatives and a minority of seats in the Senate, meaning that a group of minor parties and independents continue to hold the balance of power in the Senate.
Disputes over Eligibility
Following the July 2016, election disputes arose over the eligibility of two Senators: Senator Bob Day and Senator Rob Culleton. In both matters, the Senate referred questions to the High Court, sitting as the Court of Disputed Returns. Section 44 of the Constitution provides for certain circumstances in which a person shall be ‘incapable of being chosen or of sitting as a senator or a member of the House of Representatives.’ These include a person who ‘has been convicted and is under sentence, or subject to be sentenced, for any offence punishable under a law of the Commonwealth or of a State by imprisonment for one year or longer’ (s 44(ii)), and a person who ‘has any direct or indirect pecuniary interest in any agreement with the Public Service of the Commonwealth…’ (s 44(v)).
The dispute about Mr Culleton’s election concerned s 44(ii). At the time of the election he had been convicted of larceny in the Local Court of New South Wales, but the conviction was annulled after the election. The High Court heard the matter in December 2016 and in February 2017 held that Mr Culleton was incapable of being elected as a Senator.
The dispute about Mr Day’s election concerned s 44(v) and arose out of the arrangements for the lease by the Commonwealth of his electoral office at a property in which his family trust held an interest. In April 2017, the High Court held that Mr Day was incapable of being elected as a Senator because of his indirect pecuniary interest arising from the lease agreement with the Commonwealth.
D. Constitutional Recognition of Indigenous Australians
The Australian Constitution currently includes no reference to the Indigenous peoples of Australia. Express references to ‘aboriginal people’ were removed from the original text of the Constitution in 1967, but provisions that permit the Commonwealth Parliament to ‘make laws for the people of any race’ (s 51(xxvi)) and a defunct provision that contemplates disqualification from voting on the basis of race (s 25) remain.
There is a long history of advocacy for constitutional change to recognise Indigenous peoples and to better protect and promote Indigenous rights. Unlike other settler states, Australia has no treaty arrangements with Indigenous peoples and no substantive equality provision in the Constitution itself. The current process for constitutional change began in 2010 when the leaders of the two major political parties made commitments to work towards recognition. 2016 saw developments around the process for, and substance of, any constitutional amendment. Although there is notional cross-party support for recognition there has to-date been little consensus on the detail.
In relation to process, political leaders had initially proposed a referendum for May 2017, the 50th anniversary of the landmark 1967 referendum. In 2016, this timeframe was extended to permit greater discussions, including the first of 12 Indigenous-only dialogues. A date for the referendum is yet to be settled.
Also yet to be settled is the substance of the proposed amendments. Two distinct approaches to recognition have emerged. The first approach is largely symbolic. It would insert references to Indigenous peoples and their culture and history in the preamble (which is not legally binding), repeal the defunct s 25 of the Constitution, and reword the ‘races’ power in s 51(xxvi). The second approach supplements symbolic constitutional statements with new substantive rights and procedures, such as a constitutional prohibition on racial discrimination; a representative Indigenous advisory body; protection for Indigenous land rights; and entrenched treaty-making powers.
The Australian Constitution is notoriously difficult to amend. As such, the challenge is to develop proposed amendments which meet the needs and aspirations of Indigenous peoples and are likely to attract the required support at referendum. Frustrated by the limitations of constitutional recognition, there were renewed calls in 2016 among Indigenous peoples for treaties. While treaties do not necessarily involve formal amendments to the text of the Constitution, they are seen as a powerful expression of Indigenous sovereignty and self-determination and a form of constitutional recognition that acknowledges Indigenous peoples as peoples or nations.
IV. Major Cases
In 2016, the High Court handed down 53 judgments covering criminal appeals; taxation, migration, and competition cases under federal legislation; and a range of civil matters arising under federal and state jurisdictions. The focus of this report is the six judgments that raised constitutional issues.
A. Legislative Power
Plaintiff M68/2015 v Minister for Immigration and Border Protection  HCA 1 (3 February 2016)
This case challenged the lawfulness of Australia’s arrangements for dealing with asylum seekers. These include offshore processing arrangements, under which people who arrive in Australia by boat without a valid visa and seek asylum are transferred to detention centres in Nauru and Papua New Guinea. Australia’s asylum seeker policies, which have included mandatory detention on- and offshore, have been the subject of considerable political controversy over the last 15 years and the High Court has examined these policies on a number of occasions. Due to the absence of a constitutional Bill of Rights, the Court approaches these issues through the lens of limitations on Commonwealth legislative power and the separation of powers.
The plaintiff was a woman from Bangladesh whose boat was intercepted in Australian waters, and she was transferred to Nauru. While in Australia to receive medical treatment for her pregnancy, she commenced proceedings in the High Court, seeking orders to prevent the government from returning her to Nauru. The plaintiff argued that her detention was unlawful because it was not authorised by a valid Commonwealth law. The case focused first on whether there was a head of federal legislative power to support the legislation authorising her detention, and secondly, whether the law infringed the principle that detention requires an exercise of judicial (rather than executive) power, except in specific circumstances (called the ‘Lim principle’ after the case in which it was established).
By a majority of 6:1, the High Court upheld the validity of the legislation. The majority held that the detention legislation was supported by the Commonwealth’s power to make laws with respect to aliens and/or the external affairs power. On the issue of executive detention, four judges held that the plaintiff was not detained by the Australian government but rather by the Nauru government, meaning that the Lim principle was not engaged. While the remaining three judges held that the plaintiff was, as a matter of substance, detained on Nauru by Australia, two of these judges (Bell and Gageler JJ) concluded that the detention in this case did not require an exercise of judicial rather than executive power.
Justice Gordon was the sole dissenting judge, holding that the detention was unlawful. She held that the separation of judicial power under the Constitution requires exceptional reasons to justify a law that permits executive detention without judicial order, and that there were no such exceptional reasons in this case.
Following this decision, the Australian government resumed transferring asylum seekers to Nauru, where 380 people, including 45 children, were detained as of December 2016.
B. Rights and Freedoms
Right to vote: Murphy v Electoral Commissioner  HCA 36 (5 September 2016)
This case concerned the validity of provisions of the Commonwealth Electoral Act 1918, which prevented the Electoral Commissioner from amending or updating the Electoral Roll during a ‘suspension period’ before the polling date. The plaintiffs argued that the suspension period was contrary to the requirement in ss 7 and 24 of the Constitution that Members of Parliament be ‘directly chosen by the people’. In particular, the plaintiffs argued that the law was invalid unless the disqualification was for a ‘substantial reason’. Underpinning the plaintiffs’ case was the argument that technological advances and the availability of resources meant there was no substantial reason to suspend the rolls from seven days after the date of the issue of the writs for the election.
All judges of the Court rejected the challenge and held that the impugned provisions were valid. A majority of the Court (French CJ and Bell J, Keane J, and Gordon J) held that the plaintiffs had not established that the provisions amounted to a ‘burden’ on the constitutional mandate of popular choice. All members of the Court agreed that even if there was a relevant burden, that burden was justified by a substantial reason: the orderly conduct of elections, which would produce efficiency and certainty. Various judgments emphasised that limitations on voting prior to an election were longstanding and so did not diminish the constitutional requirement of popular choice.
The major division in the Court’s reasoning concerned the test to determine whether a burden could be justified by a substantial reason. Justice Kiefel followed the approach that had been developed in the 2015 case of McCloy v New South Wales and applied a proportionality test to determine the validity of the impugned provisions. The other six members of the Court rejected a McCloy-style structured proportionality test in the present context. For instance, French CJ and Bell J considered that proportionality testing would invite the Court to undertake a ‘hypothetical exercise of improved legislative design’, and that this was ‘inapposite in this case’. Most forcefully, Gageler J rejected the use of a ‘structured and prescriptive’ form of proportionality reasoning in the Australian context.
Right to vote: Day v Australian Elector Officer (SA)  HCA 20 (13 May 2016)
This case was a different challenge to electoral legislation, this time to amendments to the Commonwealth Electoral Act 1918 that changed the voting requirements for members of the Senate. The new law provided that an elector could vote either ‘above the line’, by numbering at least six party or group tickets in order of preference, or ‘below the line’, by numbering at least 12 individual candidates in order of preference. (Previously there had been a requirement to number all of the candidates if voting ‘below the line’.)
The plaintiffs made three principal arguments:
- The amendments provided for two different voting methods and so were contrary to the requirement in s 9 of the Constitution that there be only one method.
- The method of voting above the line for a party or group contravened the requirement in s 7 that senators be ‘directly chosen by the people’.
- The new ballot paper was misleading, and was therefore a burden on the implied freedom of political communication.
The High Court unanimously dismissed the application. The Court held that the purpose of s 9 is to provide for a uniform method of electing Senators, and that the term ‘method’ can accommodate multiple ways of voting. The Court further held that s 7 prohibits the election of senators by an intermediary, such as an electoral college, but that this was not the effect of the new law. Finally, the Court held that the ballot paper was not misleading and it correctly stated the requirements of the Electoral Act.
Trial by jury: Alqudsi v The Queen  HCA 24 (15 June 2016)
Section 80 of the Constitution requires that ‘trial on indictment of any offence against any law of the Commonwealth shall be by jury’.
The accused was standing trial for Commonwealth offences relating to supporting persons to enter Syria with intent to engage in armed hostilities. The trial was being conducted by the Supreme Court of the State of New South Wales. Alqudsi sought that his trial be heard by judge alone, as is permitted under New South Wales legislation.
A majority of six judges of the High Court (French CJ dissenting) followed previous authority in holding that where Commonwealth legislation determines that there is a trial on indictment, the accused cannot waive trial by jury. The majority rejected the argument, put by the Commonwealth and several States, that the purpose of s 80 of the Constitution is to preserve the public interest, which in this case required the trial to be heard by a judge alone. In doing so, the judges upheld the clear terms of s 80 while emphasising that there are mechanisms to ensure that jury trials are conducted fairly and in the public interest.
Acquisition of property on just terms: Cunningham v Commonwealth  HCA 39 (12 October 2016)
In 2012, the Commonwealth Parliament amended parliamentary entitlements for former Members of Parliament (MPs), reducing their superannuation and travel entitlements. Four former MPs challenged the amendments in the High Court, arguing that the amendments amounted to an acquisition of property by the Commonwealth otherwise than on just terms contrary to s 51(xxxi) of the Constitution. The High Court upheld the amendments, with a majority holding that the entitlements were statutory rights that were inherently liable to variations, and as such the amendments should not be regarded as an acquisition of property.
C. Federal Division of Powers
Bell Group NV (in liq) v Western Australia  HCA 21 (16 May 2016)
Section 109 of the Constitution provides that in the event of an inconsistency between Commonwealth and State laws, the Commonwealth law will prevail.
In this case, the Western Australian Parliament had enacted the Bell Group Companies (Finalisation of Matters and Distribution of Proceeds) Act 2015 (‘Bell Act’) to establish an authority to deal with the dissolution and administration of the property of a group of related companies, all in liquidation. The authority was given absolute discretion to determine the property and liabilities of the companies.
The High Court held that the Bell Act was invalid because it was inconsistent with provisions of Commonwealth taxation legislation. In purporting to give power to the authority to pool property and deal with it at ‘its absolute discretion’, the Bell Act detracted from the rights of the Commonwealth Commissioner for Taxation under Commonwealth tax legislation to have an assessment of the existence, quantification, and recovery of taxation liabilities. The Court declared the Bell Act invalid in its entirety, because it presented a package of interrelated provisions, making severance of only those parts inconsistent with Commonwealth legislation difficult and likely ineffective.
Looking forward to 2017, it is likely that the repercussions of the constitutional developments of 2016 will continue to be felt. The Court’s reasoning in the Day case may provide grounds to challenge the eligibility of other MPs, which may potentially lead to changes in the composition of Parliament. In terms of the High Court’s constitutional jurisprudence, one of the major issues to be resolved in 2017 is the status of proportionality review. Following the 2016 decision in Murphy v Electoral Commissioner there is a question mark over the future of proportionality in Australian constitutional law, and this issue will be squarely before the Court in an upcoming challenge to Tasmania’s anti-protest laws. Finally, 2017 will see continued debate about constitutional recognition of Indigenous peoples, including the prospect of treaties, as Australians rethink the political and legal relationships between governments and Indigenous peoples.
Gabrielle Appleby, The Role of the Solicitor-General: Negotiating Law, Politics and the Public Interest (Hart Publishing, 2016)
Megan Davis and Marcia Langton (eds), It’s Our Country: Indigenous Arguments for Meaningful Constitutional Recognition and Reform (Melbourne University Press, 2016)
Cheryl Saunders, The Constitution of Australia: A Contextual Analysis (Hart Publishing, 2011)
James Stellios, Zines’s The High Court and the Constitution (Federation Press, 6th ed, 2015)
 Constitution ss 80, 51(xxxi).
 Lange v Australian Broadcasting Corporation (1997) 189 CLR 520.
 Constitution ss 75 and 76.
 Commonwealth Electoral Act 1918 (Cth) s 354.
 Constitution s 72; High Court of Australia Act 1979 (Cth) s 5.
 Constitution s 57 provides that a double dissolution cannot take place in the six months prior to the end of the House of Representatives’ three year-term. As such, the latest day in 2016 on which a double dissolution could occur was 11 May 2016.
 E.g. Damien Freeman and Julian Leeser, ‘The Australian Declaration of Recognition: A new proposal for recognising Indigenous Australians’ (2014).
 Joint Select Committee on Constitutional Recognition of Aboriginal and Torres Strait Islander Peoples, Final Report, June 2015.
 Constitution s 128 provides that a constitutional amendment requires the support of a majority of voters in a majority of states at a referendum.
 See Indigenous Law Bulletin (2016) vol 8(24), special edition on Constitutional Recognition http://www.ilc.unsw.edu.au/publications/indigenous-law-bulletin-824.
 Chu Kheng Lim v Minister for Immigration, Local Government and Ethnic Affairs (1992) 176 CLR 1.
 Constitution, s 51(xxix).
 Constitution, s 51(xix).
 Australian Government Department of Immigration and Border Security, Immigration Detention and Community Statistics (31 December 2016) https://www.border.gov.au/about/reports-publications/research-statistics/statistics/live-in-australia/immigration-detention, p 4.
 McCloy v New South Wales (2015) 257 CLR 178.
 Criminal Procedure Act 1986 (NSW) ss 132(1)−132(6).
 Brown v Tasmania is set down for hearing in May 2017.