Separation of powers is an important principle, it stops an individual, or a small group of individuals acting as judge, jury and executioner. Strong separation of power promotes a nation of laws, rather than a nation of men and protects against arbitrary government. I was surprised to read of Frank Browne in Michael Fullilove's collection of speeches. Browne was accused, sentenced and gaoled by the Australian Federal Legislature.

Frank Browne

During the mid-fifties Browne ran the free weekly newspaper, Bankstown Observer . He was also known for printing and distributing a pamphlet called Things I Hear which Fullilove described as muckraking in Drudge Report style. In May 1955 Browne wrote an article titled, "MHR and Immigration Racket". Browne alleged that the member for Reid, Charles Morgan had engaged in immigration racketeering. Morgan claimed that the newspaper article should be referred to the House of Representatives Standing Committee of Privileges for investigation. This committee investigated Morgan's claims, and decided that a breach of privilege had occurred and that Browne, along with the newspaper's owner Raymond Fitzpatrick, should be required to appear infront of the committee.

The House of Representatives heard the charges against Browne and Fitzpatrick and on a motion from Robert Menzies, the house voted that the two men serve ninety days in gaol each. This is the only time that Federal parliament has gaoled an Australian citizen. Though DIMIA has been skating around this recently, if Australian citizens caught in the indefinite detention debacle can be called gaoling. Browne protested his handling at the hands of parliament;

It is considered the right of every Australian citizen charged with an offence that he, first must be charged; and secondly; he must have legal representation. That is denied to me even here. He must have the case against him proved, and he need not answer incriminating questions. There there is the fact that he must have the right to cross-examine his accuser. And lastly, he must have the right to appeal. There is also another inherent right which is always observed in every court in this Commonwealth, and every court where there is any reasonable conception of justice - that he shall present his case in an atmosphere which shall not have had the effect of prejudging him.

Browne continued with a warning to Parliament;

I say that, if this Parliament establishes a precedent and takes the right of punishment into its own hands, the rights that have been fought for since 1215, and even before, are seriously endangered. The right of free speech is endangered. You talk about intimidation, sir. You visit exemplary punishment and what happens? There will not be a journalist in the land, not a newspaper proprietor in the land, who will feel free ...

The High Court backed the legislature using Section 49 of the Constitution. From the case ;

Constitution. The Constitution in s. 49 provides : - "The powers, privileges, and immunities of the Senate and of the House of Representatives, and of the members and the committees of each House, shall be such as are declared by the Parliament, and until declared shall be those of the Commons House of Parliament of the United Kingdom, and of its members and committees, at the establishment of the Commonwealth."

The case goes on to define privilege, contempt and the power of the House of Commons and its relation to the House of Representatives through Privy Council cases.

For s. 49 says that, until the powers, privileges and immunities of the House are declared by Act of Parliament, the powers, privileges and immunities of the House shall be those of the Commons House of Parliament of the United Kingdom at the establishment of the Commonwealth.

The language is such as to be apt to transfer to the House the full powers, privileges and immunities of the House of Commons. As Lord Cairns has said, an essential ingredient, not a mere accident, in those powers, is the protection from the examination of the conclusion of the House expressed by the warrant.

So the legal argument was, the House of Common can do it, and since there is no Australian federal act saying parliament cannot do it, federal parliament were not committing an illegal act. But what of the doctrine of separation of powers?

Then it was argued that this is a constitution which adopts the theory of the separation of powers and places the judicial power exclusively in the judicature as established under the Constitution, the executive power in the executive, and restricts the legislature to legislative powers. It is said that the power exercised by resolving upon the imprisonment of two men and issuing a warrant to carry it into effect belonged to the judicial power and ought therefore not to be conceded under the words of s. 49 to either House of the Parliament.

It is correct that the Constitution is based in its structure upon the separation of powers. It is true that the judicial power of the Commonwealth is reposed exclusively in the courts contemplated by Chap. III.

It is further correct that it is a general principle of construction that the legislative powers should not be interpreted as allowing of the creation of judicial powers or authorities in any body except the courts which are described by Chap. III of the Constitution. Accordingly, it is argued that a strong presumption exists against construing s. 49 in a sense which would enable the particular power we have before us to be exercised by the Senate or the House of Representatives.

It was pointed out that in the case of the Inter-State Commission s. 101 had received a construction which made it impossible to invest the Inter-State Commission with the character of a court and confide to it judicial functions, because it was not a body which fell within Chap. III. That was relied upon as an instance or example of the kind of construction or interpretation which we were urged to adopt in the case of s. 49.

The High Court chose an explicit reading of Section 49, which enabled the House of Representatives to adopt all the powers of the much older, and informal British House of Commons. The constitutional ineptitude of the "Bearded Men" strikes again. The judge writes;

Accordingly, all the arguments which have been advanced for giving to the words of s. 49 a modified meaning, and the particular argument for treating them as not operating, fail. We are therefore in a position of having before us a resolution of the House and two warrants which conclusively show that a breach of privilege has been committed and the two persons who seek release are properly held by the person to whom these proceedings are addressed, Mr. Edward Richards.

It follows that the applications for the writs of habeas corpus should be refused and we accordingly refuse them.

ORDER. Applications refused.

Australia's parliamentary system has weak separation of powers anyway, but in the Browne and Fitzgerald incident it wielded absolute power. The legislature made itself King.

More Information

• national Archives of Australia: Fact Sheet 204

An excise is imposed on producers and their production, as opposed to a sales tax which is imposed on sales by retailers and wholesalers. Section 90 of the Australian Constitution grants the federal government an exclusive right to impose duties of customs, excise and export of goods. Successive High Court decisions have expanded the definition of excise beyond production to the point of sale.

In Ha vs NSW , one of the questions that was required to be answered in the defence of business franchise fees on tobacco sales was; Must local production or manufacture be a discrimen of the application of a tax answering the description of a duty of excise?

The pecuniary liability (other than the fixed fee of $10) imposed by the Act on the sellers of tobacco is calculated on the value of tobacco sold whether or not the tobacco is of Australian production or manufacture.

In fact, as the case stated shows, most tobacco sold in Australia is of local origin, only a small proportion of the value of total Australian sales being imported. But the defendants and the intervening Attorneys-General submit that, so long as the tax is imposed on the sale of tobacco generally, it cannot be said to be a tax on the production or manufacture of tobacco in Australia and therefore it cannot be said to be a duty of excise since duties of excise are taxes on local (that is, Australian) production or manufacture.

The same submission was firmly rejected by Dixon CJ in Dennis Hotels Pty Ltd v Victoria

Since the Dennis Hotels case, the definition of excise has been expanded from an imposition on production, to one of sales. The judges stated;

Once it is accepted that duties of excise are not limited to duties on production or manufacture, we think that it should be accepted that the preferable view is to regard the distinction between duties of customs and duties of excise as dependent on the step which attracts the tax: importation or exportation in the case of customs duties; production, manufacture, sale or distribution - inland taxes - in the case of excise duties.

They determined that the federal government had a monopoly on taxation up to the very point of receipt by the customer;

If there be any rock in the sea of uncertain principle, it is that a tax on a step in the production or distribution of goods to the point of receipt by the consumer is a duty of excise.

The Ha vs NSW decision barely passed with four for it, three against. The three dissenters viewed excise as a tax that could only be levied on production.

Tobacco, alcohol and petrol were three commodities that were most affected by the decision. The constitution requires that the Federal Government apply an excise tax uniformly across the states; and the states had leveraged differing taxes on franchise fees related to those commodities. Consequently we see the unusual situation such as in Queensland where petrol is subsidised y the state to overcome the uniform taxation at the federal level.

The Great Constitutional Swindle contains a quote from Brad Selway;

I suspect that most business people in Australia know the difference between an excise and a sales tax. ... Constitutional lawyers, on the other hand, cannot tell the difference between these taxes.

More Information

• Federalism Up in Smoke? The High Court Decision on State Tobacco Tax
• What is an excise duty? Ha and Hammond v NSW

Senator Andrew Bartlett has an article on why Judges should not be elected . Andrew suggests that a judicature sensitive to re-election will perform for a majority, with the goal of re-election, at the expense of minority rights. Andrew also points out the problem of political donations polluting the judicial process. The idea of an elected judicial brings into tension the balance between specialist, representative and crowd wisdom.

Andrew argues against it from the point of political and legal equality;

Community standards can play a part in determining a reasonable interpretation of same parts of the law and in sentencing. Evolving standards and understanding are part and parcel of the evolution of the common law.

However, this sort of thing should only be at the margins, as it is crucial the law is applied as impartially and consistently as possible. It is crucial that marginalised people or those from minority groups are not treated more harshly or unfairly by a justice system, just because they are from outside the mainstream. Reality will always fall short of the ideal, but these remains ideals worth striving for.

Implicit in Andrew's in statement is that an elected judicial is more likely to follow majority public opinion which is no guarantee of preserving minority rights. A basic function of a representative republican system is that the minority respect the will of the majority while the majority respect the rights of the minority. Representative system cease to function in a liberal democratic sense when that is broken.

Australian High Court judges are appointed by nomination from the Executive Cabinet and after consultation with the State Attorney-Generals (since 1979). There is no qualification for a High Court judge, any joe-bloe can be one, but it is usually a political appointment. There is no confirmation process for High Court judges like there is in the US system, another area where Australia falls down on checks and balances between Executive and Legislature.

A good immediate improvement, that would be cheap and bolster the Senate's legislative independence, would be the creation of a confirmation process in the Senate for judicial appointments.

One of the purposes of an appointed judicature is to fulfil the specialist role. Tenure is intended to raise the judicature above day to day concerns of political retribution and public opinion so that they can make legal decisions without being influenced politically. The goal is a legal specialist that is impervious to political influence.

The Westminster system, as practiced by Australia, minimises the chances of that goal by having no confirmation process to determine the specialist qualifications of the judge. The lack of a confirmation process and a deliberative role from the states enables a politically influenced judicature to be nominated by the Executive Cabinet.

The High Court of Australia is to represent the state's interest, as such it makes sense to have the state's house - the Senate - conduct the confirmation process.

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Central to republican philosophy is that prosperity is impossible without maximum liberty. A central component of maximum liberty is freedom from tyranny and arbitrary government. Responsible government sees the legislative as the dominant branch in government, republicans distrust both the executive and legislative. Republicans see both branches as equally capable of limiting liberty and enabling arbitrary government.

During Federation the likes of Samuel Griffiths, Edmund Barton and Charles Kingston eschewed republican innovations in constitutional government and instead adhered to the principles of responsible government - namely leaving out a Bill of Rights. This enabled High Court justices such as Lionel Murphy to introduce the doctrine of 'constitutional implication'.

The American Republic was essentially a repudiation of responsible government as the most effective form of constitutional order to free individuals from tyranny. The 'irritant cause' for the American Revolution was a tax, something that the legislative, ie British Parliament, leveraged against the American colonists.

It is important not to go overboard in terms of responsible government as it has been an effective form of constitutional government in its various mutations in Australia, Canada, New Zealand etc. However due to poor separation of powers and weak constitutionalism it is less effective than a republican constitution and government. Responsible government was built around a hack, to remove the formal executive power of a monarch without reducing their ceremonial and national power. Due to this original hack, it has become a system of patch on patch, maintained by spaghetti convention layered on top of archaic practice.

The US Bill of Rights protects freedom of political speech with a single line, from the First Amendment;

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances.

This is a restriction on the legislative. Since the legislative can make no law abridging freedom of speech, the executive can enforce no law doing the same. Restriction of speech is inherently restrictive, and ultimately of an arbitrary form. The greater danger to republicans is that restrictions of speech will be used by the legislative and executive to silence dissenters. A constitutional right to freedom of speech becomes a just basis of any political relationship between individual and government.

Americans when faced with situations where government is contemplating the restriction can state quickly and easily, "Congress shall make no law that abridges freedom of speech". Liberty, rights and constitutional order are easily known, easily remembered and expressly available to the individual.

Australians have to wade through recent High Court decisions to find anything similar. And in this the Justices have put together a tangled web of implied suggestions from the constitution, responsible government and the basis of political government. One sentence becomes a hard to understand, not easily accessible, amorphous and intangible set of principles.

Compare this to the concrete and explicit nature of the republican language on freedom of speech. One concrete sentence.

One of the cases that has helped established the principle of 'implied' constitutional freedom of political speech is Australian Capital Television vs the Commonwealth. In this decision the justices argued that the Constitution describes representative government which cannot function correctly without informed voters. The implication of this is that political speech must be protected from legislative abridgment. Justice Michael McHugh writes;

25. The short answer to the Commonwealth's contentions is that the powers

conferred on the Commonwealth by s.51 of the Constitution are conferred "subject to this Constitution" and that the Constitution embodies a system of representative government which involves the conceptions of freedom of participation, association and communication in respect of the election of the representatives of the people.

Under the Constitution of the Commonwealth of

Australia, those freedoms have been elevated to the status of constitutional rights. The powers conferred by s.51 of the Constitution give the Commonwealth no absolute power to exclude electors, candidates, or information from the

federal electoral process. ...

26. The constitutional rights identifiable in ss.7 and 24 of the Constitution - freedom of participation, association and communication - exist so that the people of the Commonwealth can make reasoned and informed choices in respect

of the candidates who offer themselves for election. Laws which interfere with the flow of political information or a category of political information simply because it is political information are an interference with the

constitutional rights conferred by those sections.

However, the rights identifiable in ss.7 and 24 are not absolute rights. They are rights conferred

for the purpose of enabling the electors to make a true choice in a free and democratic society. They may be regulated by other laws which seek to achieve an honest and fair election process. Thus, the power conferred by ss.10, 29, 31 and 51(xxxvi) and (xxxix) of the Constitution to make laws with respect to the federal electoral process may be used to prevent fraud, intimidation, corruption and misleading information in an election without infringing the rights conferred by ss.7 and 24.

This is where I don't understand it. Sections 7 and 24 are procedural stanzas on how the Senate and House conduct their business. They are not enunciations of 'rights' as Justice McHugh is claiming. This is an attempt to graft republican principles into a constitution which does not hold them. The implied 'freedom of speech' in responsible government is a judicial construct, not a constitutional one.

The Justice's argument may be valid that this is necessary for responsible and representative government to function effectively, but it is not republican.

Representative government and its functions are not rights. They are a form of social organisation that individuals have, supposedly, agreed to in order to maintain their affairs under civil order. Representative government is an emergent effect of individuals seeking civil order. It is not intrinsic to the individual.

Justice Anthony Mason tries to explain all the contradictions between responsible government, federation and the doctrine of constitutional implication. On implication he writes;

It may not be right to say that no implication will be made unless it is necessary. In cases where the implication is sought to be derived from the actual terms of the Constitution it may be sufficient that the relevant intention is manifested according to the accepted principles of interpretation.

However, where the implication is structural rather than textual it is no doubt correct to say that the term sought to be implied must be logically or practically necessary for the preservation of the integrity of that structure.

Which is probably as succinct a description of the doctrine as can be found. One of the problems of this doctrine is that it makes the constitution unknowable and opaque to the citizenry by moving its interpretation into a body of judicial decisions rather than a simple constitutional document.

A republican principle is that the form of social organisation be easily and quickly knowable to any, and every, citizen through an easy to understand, and explicit constitution. Republican government is for the people and tries to remove the requirement for specialisation and extreme knowledge for the function, process and constitutional operations of government to be understood.

It is an extremely egalitarian form of constitutional order which attempts to fend off complexity and third order decision making. This is another republican basis for a just relationship between individual and government. Complexity of laws and second-order constitutionalism are a form of arbitrary government by elevating laws and practice beyond the understanding of the citizens.

It is the old saying, make enough laws and everyone becomes a criminal. This can be translated to constitutionalism as well; with the doctrine of constitutional implication contributing to that result.

The counter argument is that the judicial does not make laws, they only interpret the constitutionality of them, but this process invariably means that the legislative has their future room to legislate in, either restricted or expanded. It does not help that the Legislative branch often uses their powers to expand their own influence and use the judicial as a back-stop - effectively offloading the political repercussions to the judicature.

Mason continues;

The adoption by the framers of the Constitution of the principle of responsible government was perhaps the major reason for their disinclination to incorporate in the Constitution comprehensive guarantees of individual rights

"The Constitution is built upon confidence in a
system of parliamentary Government with ministerial responsibility"

They refused to adopt a counterpart to the

Fourteenth Amendment to the Constitution of the United States. Sir Owen Dixon said Sir Owen Dixon, "Two Constitutions Compared";

"(they) were not prepared to place fetters upon legislative action, except and in so far as it might be necessary for the purpose of distributing between the States and the central government the full content of legislative power. The history of their country had not taught them
the need of provisions directed to control of the legislature itself."

The framers of the Constitution accepted, in accordance with prevailing English thinking, that the citizen's rights were best left to the protection of the common law in association with the doctrine of parliamentary supremacy

Mason is correct in quoting Owens on that issue, but Owens is disingenuous. Ballarat had seen the rise of Chartist Revolt, known as Eureka, in the 1850s. Civil unrest in Northern Queensland during the 1890s prompted Horace Tozer to pass legislation that enabled strikers to be shot on site. The military was also used for civil enforcement and strike breaking. In the 1880s Australian Republicans also came under executive and legislative tyranny during the Republican Riots in which Henry Parkes suspended freedom of speech.

The difference between the Australian and American constitutional drafters was that the Americans had been on the sharp end of executive and legislative arbitrary government from England, while the Australian drafters had been the ones wielding the stick over the prior fifty years.

Mason, despite continuing on with responsible government and the decision by the framers of the Constitution not to incorporate explicit individual rights - which he writes the court is bound to uphold - continues with the structural issue of representative government. And here Mason argues that freedom of communication is protected through the structural implication of the Constitution;

Indispensable to that accountability and that responsibility is freedom

of communication, at least in relation to public affairs and political discussion. Only by exercising that freedom can the citizen communicate his or her views on the wide range of matters that may call for, or are relevant to,

political action or decision.

Only by exercising that freedom can the citizen criticize government decisions and actions, seek to bring about change, call for action where none has been taken and in this way influence the elected representatives.

and;

Freedom of communication in relation to public affairs and political

discussion cannot be confined to communications between elected representatives and candidates for election on the one hand and the electorate

on the other. The efficacy of representative government depends also upon free communication on such matters between all persons, groups and other bodies in the community.

That is because individual judgment, whether that of the elector, the representative or the candidate, on so many issues turns upon free public discussion in the media of the views of all interested persons, groups and bodies and on public participation in, and access to, that discussion

I believe that speech and communication needs to be constitutionally protected from arbitrary government. I do not like it being done in this manner, it should be done through a 'crack your ribs' explicit constitutional statement of absolute protection from executive, legislative and judicial encroachment on communication.

That Australia is having to protect communication in this manner is an example of the inefficiency in the constitutional monarchical form of organisation and the responsible government doctrine which informs it. Our current system is an invitation to spaghetti organisation, increasing the complexity of our constitutional system and removing government, its processes, and its constitutional basis further from quick and simple citizen's understanding.

This is another path for tyranny and arbitrary government. Republicanism protects against this eventuality.

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