Bryan Palmer has an article on ozpolitics that what is deemed constitutional is ultimately in the hands of the Judicial and not legislative fiat. The High Court under the doctrine of separation of powers is the highest authority to interpret the Australian constitution. But our Westminster style of constitutional law makes government complex and unknowable from the citizen's point of view. It is a fair expectation, in my opinion, that a constitutional system can be read explicitly by a citizen to understand the limits of their government.

Overreach

I recently made a quick comment on Polemica about the report from the Department of Education on establishing an Australian Certificate of Education. In that comment I pointed out that Part V of the Australian Constitution contains no explicit language on education.

While I think an Australian Certificate of Education is a good example of rampant anti-federalism; demanding compliance from the states, without explicit authority, and most likely without funding; there is warning in there for the constitution to move so far from its concrete bounds that it isn't easily understandable.

The constitution acts as the citizens contract with government. It places distinct limits on the actions of the executive, legislative, judicial and government. If the weight of legislation that has been judged by the high court is sufficiently outside of an explicit reading of the constitution it becomes not readily knowable to the citizenry.

Government evolves into an arcane area of complexity and specialisation beyond the general understanding of the citizenry. Since government is drawn from the people, this is a barrier to civic participation and understanding.

In analogy to the principle of make enough laws and everyone is a criminal; a poorly written constitution that is not explicit, will ultimately result in nearly everything being constitutional.

If a citizen is trying to understand whether education is a valid area of federal authority, then they will look to the constitution for that word. I think it is fair that they would expect to find it.

Judicial Doctrines

It does not help that differing doctrines have been followed by the Australian High Court since its inception. From Samuel Griffiths' highly states' rights denial of the constitution he helped write, to Lionel Murphy's doctrine of the constitution being a living and breathing document that the judicature can breath life into - if the referendum process cannot.

We give the Judicial branch tenure with the goal of making them non-political positions, presumably populated by specialists. Yet most of the appointments are highly political and judges are more likely to be drawn from the political ranks than the heights of legal achievement.

This structure provides an entropy of growth that is incapable of contracting. The only possible outcomes are the stasis or expansion of constitutional law- not contraction.

Conclusion

Australia does have a Westminster tradition where constitutional law can be embodied across many acts and court decisions. This is an ineffective way to reign in expansive central government; a particular problem in federal systems where the central government will vie for tax and policy authority with the states.

Possible solutions;

• A tight and inflexible constitution at the federal level
• An energetic executive arm that can force bills to be tested by the judicial for constitutionality before they are signed into law (Think workchoices, if it is over-turned it will cause problems for employers having to return to the state systems. If there was doubt, it should have been tested before becoming law)
• A bicameral judicature with a lower jury chosen from the citizenry to actively review executive actions and legislative bills. (I know of one CFC entry being written with a highly innovative approach to the judicature!)
• Periodically rejuvenate the constitution to collapse it to a single bill/document (Canada and Queensland recently did this)

With globalisation moving activity from small arcane groups of the elite to the wider citizenry, the tight industrial structures are starting to collapse and fray under the pressure.

Westminster government is an industrial structure. It will have to introduce ratification, sortitionist and spontaneous citizen involvement in government itself. This is necessary just to remain relevant, let alone strengthening the civic, social, cultural and economic health of Australia.

One of the best examples of group wisdom is the economy. It is a highly decentralised structure. Mutual funds, index funds and spyders are examples of trader simplifying the system for citizens. Like any good market, the mountain came to Muhammad, and not the opposite.

Australian constitutional government will have to do the same, and come to its citizens.

Issues and commentary, condensed and written for an international audience .

The High Court passed judgement on the state-based challenge to the federal Workchoices legislation - a statutory behemoth of 1000 pages plus several hundred more of amendments designed to make the federal government the sole authority on industrial matters.

The federal government has no explicit authority in the area of industrial matters, and has tried to pass referendums in the past to gain control over these areas. The referendums failed. However in 2006 the federal government legislated into this area.

The Labor Party does not like it as the Workchoices legislation effectively bans collective bargaining of any sort. The Australian states are all headed by Labor governments, so in the principle of federation, hands-off, and party-machine "oh god!" they headed to court. The Australian Worker's Union joined them.

The argument for hinged on the Corporations Power ;

51.The Parliament shall, subject to this Constitution, have power to make laws for the peace, order, and good government of the Commonwealth with respect to: -

(xx.) Foreign corporations, and trading or financial corporations formed within the limits of the Commonwealth:

This clause, s51xx, has been expanded mightily by past constitution decisions, so much so, that it cannot be read explicitly and understood. It has got to the point that Corporation's Power is often used as a term for federal expansion.

The Workchoices legislation defines an employer as a 'constitutional corporation'. This is language that appears in past decisions on this clause and has been approved as being inside the realm of federal power. So it hinges on prior court decisions rather than explicit constitutionality. There was also a statement by a judge in a previous case, Pacific Coal, that the corporations power included the authority to regulate industrial matters.

Commentary

I have discussed the issue on South Sea Republic from the referendum viewpoint but there has been no shortage of discussion. This is a quick round up of the commentary on the decision as it was discussed widely and voraciously soon after being passed out, partly because the austlii database published the decision so quickly too, enabling immediate dissemination (congrats austlii).

Tim Dunlop; The states are dead . Tim writes;

No matter what you think of the IR laws that were the basis of the High Court case decided today, the ruling is a blow to anyone who believes in the Australian Federation and the liberal principle that government power should be as dispersed as possible.

The problem is Federation has been out of vogue since Isaac Isaacs ran the High Court (after Griffith retired). The Parliament has constantly coveted state responsibilities since 1901. In the 1960s John Gorton was comfortable claiming that the federal government should raise all moneys, determine all policy and the state can act as administrative offices to disburse funds in pursuit of those policies.

In the last federal election the Greens and Democrats had formal policies of abolishing the states. Labor has an informal policy in that respect, and John Howard was quoted as saying that if he did Australia over again we wouldn't have the states.

One of the arguments for a homogenous federal government over the states is that Australian's discovered nationalism, I suspect it was the High Court that did - the decisions in constantly expanding central power, starting the Engineers case - is an activist form of judicial nationalism. Federalism was dead in Australia long before this case.

Ken Parish, a lawyer, discusses the case and then warns that the death of federalism are over-stated . He is right that the States often don't want to assert themselves federally as it is politically convenient to blame Canberra, as it is for Canberra to constantly blame the states. But it has been a two way process, weak states and an aggressive federal government backed by the High Court.

For instance the 1992 case when NSW aggressively saw an opportunity with a new High Court bench to redefine excise into its accepted meaning, a tax on production, the High Court passed a judgement that made the constitutional definition of excise something just short of a sales tax - effectively expanding its meaning in favour of the federal government. It is likely that the GST, an anti-federalist policy, was a response to this.

Ken's discussion of the case is a good run-down ;

Nevertheless, although the judgments are long, their essence can be summarised in short detail. The majority (Gleeson CJ, Gummow, Hayne, Heydon and Crennan JJ) essentially adopted the reasoning of Justice Gaudron in Re Pacific Coal as to the ambit of the corporations power* :

I have no doubt that the power conferred by s 51(xx) of the Constitution extends to the regulation of the activities, functions, relationships and the business of a corporation described in that sub-section, the creation of rights, and privileges belonging to such a corporation, the imposition of obligations on it and, in respect of those matters, to the regulation of the conduct of those through whom it acts, its employees and shareholders and, also, the regulation of those whose conduct is or is capable of affecting its activities, functions, relationships or business.

Hence the Work Choices legislation is constitutionally valid in directly regulating the employment terms and conditions of employees of foreign, trading and financial corporations. That doesn't come as any surprise to most constitutional lawyers. Like many others, it's exactly what I predicted here at Troppo.

As he mentioned, that middle paragraph popped up in a previous court decision, which is probably why the federal government felt confident legislating in this area and that they would be backed up by the High Court.

Andrew Leigh commented on the decision with ;

Bottom line: the corporations power in the Constitution (section 51(xx)) is now broad enough to drive a truck through.

The Australian Constitution is getting to the point, between convention and High Court expansion of constitutional meaning, that it cannot be read explicitly or cleanly for Australians to understand how their federal government operates.

cam

The Australasian Legal Information Institute has the decision for the Thomas vs Mowbray up on its website. This is over control orders and whether they are constitutional under Defence Powers. The other arguments against the control order is that it gives a non-judicial power to a court and it is not supported under the heads of power in the Constitution.

Firstly IANAL, so hopefully I am not reading or summarising the decision incorrectly. Gleeson writes:

I agree with Gummow and Crennan JJ that, subject to questions 1 and 2, the legislation is supported by the defence power and the external affairs power. It is therefore unnecessary to deal with the arguments concerning the references of matters by the States.

The extent, if any, to which other anti-terrorist provisions of the Criminal Code depend upon the references by the States does not arise for consideration. I also agree with the reasons given by Gummow and Crennan JJ for their conclusion as to question 3, and would add only some brief points on that topic.

By making terrorism a 'defence' and 'external affairs' power it now becomes the domain of the national government and potentially one that can have martial responses - not civil ones. This potentially paves the way for the militarization of terror responses domestically. This is basically the High Court agreeing with the Government's military responses in this area such as the ADF having a terror response group and the use of the military in Iraq as a claimed extension to a war on terror.

It might be wise to compare how our northern neighbour - who has had two significant terror attacks on its soil - dealt with the problem. Indonesia did so through police work and then the judicial system. It was totally above board and appears to have quelled that type of activity. It is doubly remarkable as under Suharto there was no police force, only the military police.

I don't think Australia will militarise totally of course, but it gives this government and future governments - or more accurately the executive - the option of doing so where it suits their purpose.

Gleeson continues:

The power to make laws with respect to the naval and military defence of the Commonwealth and of the several States, and the control of the forces to execute and maintain the laws of the Commonwealth, is not limited to defence against aggression from a foreign nation; it is not limited to external threats; it is not confined to waging war in a conventional sense of combat between forces of nations; and it is not limited to protection of bodies politic as distinct from the public, or sections of the public.

So defence as a head of power is now redefined as any violence against the public. Defence has become domestically oriented such that violence in Australia can now have a martial response. This line has been blurred for a while; for instance we use 500 million dollar battle Frigates to pick up refugees. Prior to the use of the Frigates for this work, classes of RAN Patrol Boats were built specifically for that function.

The ADF is one of the few bodies that maintains a constant long-haul and logistical capacity, so it is often used for supply and specialist skills support. For instance ADF personnel were deployed in the recent Indigenous issues emergency - not trigger pullers, but support staff. Rather than just helping with Bush Fires, the ADF is being used more and more by the Executive in domestic policy.

The definition of terrorism as per the act is:

The object of Div 104 is to allow obligations, prohibitions and restrictions to be imposed on a person by a control order for the purpose of protecting the public from a terrorist act (s 104.1).

The definition of terrorist act (s 100.1) requires three elements for an action or threat of action to be a terrorist act. First, the action must fall within a certain description, and must not be of a kind excluded by another description. The inclusory aspect of the definition is that the action must (to put it briefly) cause death, serious physical harm, or serious damage to property, endanger life, create a serious risk to public health or safety, or seriously interfere with or disrupt certain vital systems. The exclusory aspect of the definition excludes advocacy, protest, dissent or industrial action that is (to put it briefly) not intended to cause death or serious injury, or endanger life or public safety.

The second necessary element is that the action is done, or the threat of action is made, with the intention of advancing a political, religious or ideological cause. The third necessary element is that the action is done, or the threat of action is made, with the intention of coercing, or influencing by intimidation (to put it briefly), a government, or of intimidating the public or a section of the public.

This is why it was not necessary to claim the authority for the control order through the defence or external affairs head of power. Violence in this manner is a criminal act - not a martial one. When I say that terrorism is a civil matter I mean non-martial. There is no need to bring in a potential military reading into what is a constitutional decision that has the effect of expanding allowable national constitutional practice.

It is just flat-out unnecessary.

If a control order is necessary to protect against civil disorder from someone who has admitted to Al Queda training then it should be argued as constitutional under criminal or civil law; not defence powers.

To jump outside of the constitutional issues for a minute: on the issue of the control order, I am comfortable with it personally if it is issued by the Attorney-General (executive) and approved by the Judicial (federal court) with a sunsetting period of three months. The other check and balance I would add in there is that the individual under the control order can sue the executive to have it over-turned or removed. I think the judicial is an effective apolitical and impartial arbiter in this area and combined with a sunsetting on the order will stop permanent suspension of liberties.

The problem is that it may be used for political purposes to vilify individuals, smear them through the power of government and restrict their liberties unreasonably. Simply because of the political nature of terrorism this is always going to be an issue. However, we recognise as a reasonable society that sometimes specific control orders are necessary, such as in domestic violence , where maybe there isn't enough evidence for a criminal conviction.

Other than the misreading of control orders being justified constitutionally as defence and external affairs powers I don't have too much of an issue with the decision.

It looks like Kerby and Heydon wrote opinions in addition to Gleeson's. I will try and go through them in other posts.

Robert McCloskey writes on the Marshall Supreme Court: "It is hardly surprising that the Supreme Court, an intrinsically national institution, should be drawn to the doctrine of nationalism."

Andrew Ingliss-Clark used the American experience of federalism by mixing the national and federal character together in the Australian Constitution to place checks and balances such that pure nationalism and absolutist state rights could not dominate the other. However, like the US system, the High Court in Australia is a purely national institution. It has no federal character.

Could that be why it is so centralist?

The federal character of Parliament is predominantly the Senate, yet government has continued to centralise and the Senate has not inhibited that growth away from federalism.

The American innovation on English Constitutionalism was that there is fundamental law - expressed in the constitution - that cannot be ignored by the executive and cannot be statutorily pasted over by the legislative. The Americans called them natural rights and entrenched those political rights in their federal and state constitutions.

Where an English judicial had to be activist, the American judicature could be constructionist. The English judicial established Habeas Corpus as accepted practice through activism two hundred years before it was legislated in 1679. The American judicial had a series of ongoing and increasing 'rights' laid out in fundamental law for them to protect from executive and legislative over-reach.

Despite having 130 years to digest and deliberate on the American innovation Australia did it half-arsed. Ingliss-Clark had a bill of rights in the first draft of his Washminster constitution, but this was taken out apart from a protection for religious freedom. Consequently the constitution has not been able to inform judicial doctrine like it has in the United States. So we get a half-arsed and often seemingly arbitrary judicial doctrine that gives tips of the hat to the English style of executive/legislative dominance and at other times the American style of fundamental law.

In the past the High Court has adopted the American style and argued that political speech is protected as fundamental law as the constitution is a democratic one and without freedom of political speech the constitution is non-functioning. However;

THE High Court today overturned changes to federal government legislation made last year which bars prison inmates from voting. However, the court upheld earlier legislation which stipulated any prisoners serving a jail term of three years or longer could not vote.

Is enfranchisement protected as fundamental law or not? By that ruling it kinda is and kinda isn't. That is half-arsed and goes back to the basic problem with the Australian Constitution. It is not one or the other. Is it based on English Constitutionalism or American Constitutionalism? It is not an Australian innovation, so it can't be that. Civics matter and our constitution is a half-arsed mess by bearded men that were incurious to constitutional philosophy.

Fortunately it is an easy fix. A constitutionally entrenched Bill of Rights would stop this judicial doctrine confusion.