Basal Questions :: Simon Evans

Constitutional Court of South Africa on Criminal Forfeiture Laws and the Property Guarantee

Mohunram and Another v National Director of Public Prosecutions and Another (Case CCT 19/06, 26 March 2007), demonstrating just the kind of proprortionality reasoning rejected out of hand in Australia in Theophanous.

Supreme Court of Canada Upholds Election Blackout Law

The Supreme Court of Canada upheld s 329 of the Canada Elections Act in R v Bryan 2007 SCC 12 (15 March 2007) by a 5:4 majority and over spirited dissent. Section 329 effectively prohibits publication (in this case, on a website) of election results from eastern provinces until the polls close in the west. According to the majority judgment, "Section 329, by virtue of its objective of ensuring informational equality among voters, is a reasonable limit on s. 2(b) of the Charter." According to the minority, "As an excessive response to an insufficiently proven harm in light of the implementation of staggered voting hours, the publication ban in s. 329 of the Canada Elections Act is therefore a violation of s. 2(b) of the Charter that is not justified under s. 1."

Same-sex rights in the Supreme Court of Canada

Last Friday, the Supreme Court of Canada decided Canada (Attorney General) v. Hislop, which upheld in part and invalidated in part the legislation that restricted access to pension benefits for the surviving partner of a same sex relationship. (The legislation in question had amended earlier legislation that was found invalid in 1999.) One interesting point is the discussion of remedies. Just as in the previous week's security certificates case (where the effect of the invalidity was delayed for a year), the Court reasons its way towards a remedy in a way that at present is beyond the pale in Australia (where unlike Canada is there is no explicit constitutional recognition of the rule of law as a constitutional value). The Canadian court openly acknowledges that the 1999 decision changed the law and that it would therefore be inappropriate to grant a remedy in relation to pre-1999 conduct that imposed a burden on government (absent unusual circumstances). Bastarache J disagrees. Although judicial decisions make and remake the common law,

142 The same cannot be said for judicial decisions which interpret and apply the Constitution. The Constitution exists independently of judicial decisions. Judges do not “make” the Constitution every time they interpret its provisions. Interpretations of what the Constitution requires may change, but the underlying rights and freedoms endure. Charter rights are not created every time that a court expressly overrules or implicitly repudiates a prior decision or gives “content to broad, but previously undefined, rights, principles or norms” (LeBel and Rothstein JJ. at para. 99). The rights and freedoms in the Charter were guaranteed to all Canadians from the moment the Charter came into force.

143 By justifying the denial of retroactive  relief in part on the existence of a “substantial change in the law”, my colleagues give Charter rights an uncertain status. I cannot accept an approach that, for remedial purposes, implies that Charter rights can be here one day and gone the next or, conversely, that they depend on judicial recognition of “a new or newly recognized technological or social environment” (para. 99) for their genesis. Such reasoning represents a watering down of the promise made to all Canadians when the Charter was enacted. By attaching importance to changing social conditions, it makes Charter rights dependent on how the majority of Canadians perceive the claimants’ rights.  With respect, I cannot see why society’s views of Charter claimants — especially in the context of vulnerable minorities — should be a factor for determining whether a Charter right was part of the Constitution in 1985, or whether it sprung into existence later and thereby be a basis for denying retroactive relief.

 144 I should note that I am not advocating for a view of the Constitution that says that it is frozen in time. The “living tree” metaphor aptly describes how through time our Constitution may change to correspond to new realities. But that does not mean that every time a new constitutional interpretation is adopted or a previous decision is overturned that the fundamental rights and freedoms guaranteed in our Charter have changed or that new ones have been created. There is a difference between changes in constitutional interpretation and actual constitutional change. Furthermore, the “living tree” doctrine is a doctrine of “progressive interpretation”(Reference re Same‑Sex Marriage, [2004] 3 S.C.R. 698, 2004 SCC 79, at paras. 22-23 (emphasis added)), necessary to ensure that our Constitution does not become rigid and unresponsive to Canadian society. It should not be used as a justification for denying relief to a particular group of Charter claimants.

Supreme Court of Canada - Decisions - Security Certificate Case - Charkaoui v. Canada (Citizenship and Immigration)

The Supreme Court of Canada has declared the key elements of the security certificate system invalid in  Charkaoui v. Canada (Citizenship and Immigration). This is the system under which Ministers may declare that a foreign national or permanent resident may not be admitted to Canada because of security concerns. The person is then detained, subject to limited review rights (the limits include restrictions on disclosure of the information that led to the issuing of the certificate or the decision to detain). The procedures for detention and review differ as between foreign nationals and permanent residents.

Charter violations were found in the failure to provide a fair hearing; failure to provide timely review of detention of foreign nationals. Extended periods of detention do not per se constitute a Charter breach, so long as there are regular opportunities for review of the detention taking into account all relevant factors. The differential treatment of citizens and non-citizens did not constitute a Charter breach, because (at least in the present cases) the detention of non-citizens remained linked to their eventual deportation. The unwritten constitutional principle of the rule of law does not (at least, not in any case yet postulated) provide a basis for review of legislation based on its content.

Supreme Court of Canada on restitution of invalid taxes

I've just caught up with the Supreme Court of Canada's decision in Kingstreet Investments Ltd. v. New Brunswick (Department of Finance) [2007] SCC 1 (11 January 2007) which decides:

• A remedy for payment of ultra vires taxes is available as of constitutional right, rather than under the law of unjust enrichment.
• The right to restitution is a matter of fundamental constitutional principle. "The
  action for recovery of taxes is firmly grounded, as a public law remedy in a
  constitutional principle stemming from democracy’s earliest attempts to circumscribe
  government’s power within the rule of law."
• The passing‑on defence is not available.
• The protest and compulsion doctrine is not applicable.
• Limitation periods may be valid.

Victorian Charter of Human Rights Jurisprudence - R v Williams [2007] VSC 2 (15 January 2007)

R v Williams [2007] VSC 2 (15 January 2007) has appeared on AustLII. Worth reading.

New Fordham Synposium "A New Constitutional Order"

In (2006) 75:2 (November) Fordham Law Review with articles by many of the usual suspects including Bruce Ackerman, Jack Balkin and Sandy Levinson, Robert Post and Reva Siegel, Louis Michael Seidman, Martha Minow, Mark Tushnet, Vicki Jackson and so on, and so on, and so on. The articles are up on Lexis but not Hein as of 19 December. Article titles below the fold.

(Update: There's also a new issue of the UPaJConLaw with a symposium on unenumerated rights worth looking out for.)

• Keynote Address:  Terrorism and the New Constitution
• The Processes of Constitutional Change:  From Partisan Entrenchment
  to the National Surveillance State
• The New Constitutional Order and the Heartening of Conservative
  Constitutional Aspirations
• Originalism as a Political Practice:  The Right’s
  Living Constitution
• Critical Constitutionalism Now
• The Constitution as Black Box During Times of National Emergencies: 
  Comment on Bruce Ackerman’s Before the Next Attack: 
  Preserving Civil Liberties in an Age of Terrorism
• We Are All Post-9/11 Now
• Self-Defeating Proposals:  Ackerman on Emergency Powers
• Fallacies of Negative Constitutionalism
• Restoring the Lost Constitution, Not the Constitution in Exile
• Does It Really Matter?  Conservative Courts in a Conservative Era
• Constitutional Chicken Soup
• The New Constitutionalism and the Judicialization of
  Pure Politics Worldwide
• Political Power and Judicial Power:  Some Observations on
  Their Relation
• Federalism as Westphalian Liberalism
• From States’ Rights Blues to Blue States’ Rights:  Federalism After the Rehnquist Court
• Families, Associations, and Political Pluralism
• Family Constitutions and the (New) Constitution of the Family
• Constitutional Politics and Text in the New Iraq:  An Experiment in Islamic Democracy
• Constitutions as “Living Trees”?  Comparative Constitutional Law
  and Interpretive Metaphors

Constitutional Change in the Phillipines - Or Not

An interesting news brief from Economist.com on a failed attempt to sidestep the constitutional procedures for constitutional change (the usual story of an upper house unwilling to abolish itself and a government hell-bent on doing so and willing to do what it takes ... almost).

Just published: The Meaning of Constitutional Terms: Essential Features, Family Resemblance and Theory-Based Approaches

My article, ‘The Meaning of Constitutional Terms: Essential Features, Family Resemblance and Theory-Based Approaches’ has just been published in the UNSW Law Journal (vol 29:3, 207-237).

I draw on an extensive literature in psychology and cognitive science to challenge elements of the connotation-denotation model for determining the meaning of constitutional terms. I argue, first, that the emphasis on ‘essential features’ or ‘essential characteristics’ of constitutional terms is misplaced and, second, that the meaning of terms can better be stabilised by identifying a theory or explanation for such terms in their constitutional context

.

Graeme Hill has also got an important article on private law actions against the government in this issue.

Rights culture/legal culture

Hurst v State of Queensland [2006] FCAFC 100 (28 July 2006) is an interesting illustration of Australian legal culture (in particular judicial culture) at work. 

The underlying facts concerned a young hearing impaired girl who would suffer serious education disadvantage if the Queensland Education Department inisted on teaching her according to its policies (which involved signed English) rather than Auslan.

But the court insisted that the case was about the meaning of section 6 of the Disability Discrimination Act, in particular the italicised words below:

"For the purposes of this Act, a person (discriminator) discriminates against another person (aggrieved person) on the ground of a disability of the aggrieved person if the discriminator requires the aggrieved person to comply with a requirement or condition:

(a) with which a substantially higher proportion of persons without the disability comply or are able to comply; and
(b) which is not reasonable having regard to the circumstances of the case; and
(c) with which the aggrieved person does not or is not able to comply."

Ryan, Finn and Weinberg JJ made the formal, legal, focus quite clear:

131 Finally, in order to avoid any misunderstanding, it should be stressed that Tiahna’s case is not a test case.  The judgment of this Court does not establish that educational authorities must make provision for Auslan teaching or interpreting for any deaf child who desires it.  It does not establish that Auslan is better than signed English as a method of teaching deaf children.  It does not determine that an educational authority necessarily acts unreasonably if it declines to provide Auslan assistance. 

132 As with all proceedings of this type, Tiahna’s case is highly fact specific.  It depends upon the circumstances unique to her case and, importantly, upon the primary facts found by the primary judge, none of which were challenged before us.  It also reflects the way in which the case was conducted at trial and on appeal.  The observations of Sackville and Stone JJ in Clarke FC at [136] are equally apposite to this case.

133 It is unfortunate that Tiahna’s case, as with others of a similar nature, appears to have engendered a great deal of passion.  It is, in the end, a case about a single litigant, which turns upon a narrow question of construction.  The resolution of this case is not assisted by the involvement of various interest groups, each with its own agenda, which seek to politicise what is, at bottom, a legal issue.

Farewell to a 'beautiful mind' - New Zealand news on Stuff.co.nz

Robin Cooke has died: Farewell to a 'beautiful mind' - New Zealand news on Stuff.co.nz. He certainly was a remarkable figure.

Legislatures and the Protection of Human Rights Conference Papers and Presentations

The conference seems to have been very well received. For those who weren't able to come, most of the papers and presentations are available from the CCCS website.

XYZ v The Commonwealth [2006] HCA 25 (13 June 2006)

The reasons in XYZ v The Commonwealth [2006] HCA 25 (13 June 2006) have at last been published. Polyukovich  (1991) 172 CLR 501 survives - geographical externality suffices to support legislation under s 51(xxix). Kirby J flagged a possible future narrowing of the geographical externality limb but decided this case on the basis of the international concern limb (not considered by the other majority justices).

But what is really striking about the judgment is the joint dissent of Callinan and Heydon JJ. Their approach to s 51(xxix) is ostensibly originalist - but with a new and rather bizarre twist. They draw on comments made by the Justices in the 1935 decision in R v Burgess; Ex parte Henry on the basis that some of the Justices were (or were almost but not quite!) contemporaries of federation, whose views in 1935 therefore bore on the meaning of the Constitution in 1901:

One lawyer whose early career was contemporary with federation - he was studying law when the Constitution was enacted - was Latham CJ. His language in R v Burgess; Ex parte Henry is significant.  He could "draw no distinction" between the terms "external or foreign affairs or relations". ...

Another contemporary of federation was Starke J - then a barrister in possession of a good practice, and destined to appear in many constitutional cases early in the life of this Court. ...

 

The adult life of Dixon J began after federation, but his legal education and early professional life commenced only a short time later. ...

Evatt and McTiernan JJ were in the same position as Dixon J, although a little younger. ...

Callinan and Heydon JJ endorse the Cole v Whitfield orthodoxy and add:

These inquiries [allowd by Cole v Whitfield] seem pointless unless, in general, the meaning of an expression in the Constitution like "external affairs" comprises the meanings which skilled lawyers and other informed observers of the federation period would have attributed to it, and, where the expression was subject to "dynamism", the meanings which those observers would reasonably have considered it might bear in future. What individual participants in the Convention debates said it was intended to mean, or meant, either during those debates or later, is no doubt immaterial, save to the extent that their linguistic usages are the primary sources from which a conclusion about the meaning of the words in question can be drawn. Further, no doubt the mere fact that a particular instance of the expression "external affairs" was not foreseen, or could not have been foreseen, in 1900, does not conclusively indicate that the instance in question could not now fall within it. But, subject to considerations of those kinds, it might be asked whether it is not legitimate to seek to measure the ambit of the power by reference to the meaning which, in 1900, that expression bore or might reasonably have been envisaged as bearing in the future.

The 1935 statements are thus being used as evidence of the "meanings which skilled lawyers and other informed observers of the federation period would have attributed to [the Constitution]" in 1901. Can it it be any more than the weakest evidence, given the separation in time between 1901 and 1935 (and the lack of any opportunity for contemporary [1901] refutation of the statements) and the functional context of the 1935 statements (dicta written as part of an argument for a particular conclusion about s 51(xxix))?

It will be interesting to see how this line of thought - and the federal concerns of these justices and Kirby J - play out in the WorkChoices challenge.

Another reason why students need to understand the jurisdictional limits of the ADJR Act

They could wind up paying the Commonwealth's costs of a futile application. In Ex Christmas Islanders Association Inc v The Attorney-General for the Commonwealth [2006] FCA 671 (31 May 2006), the applicant's solicitor commenced proceedings seeking judicial review of the Commonwealth's decision not to provide legal assistance under a Public Interest and Test Cases Scheme administered by the Attorney-General's Department. The claim was hopeless: "the administration of the Scheme was not amenable to review under the   Administrative Decisions (Judicial Review) Act 1977 (Cth) (the ADJR Act) as it was not done pursuant to any statute or delegated legislation. Its statutory source was an Appropriation Act under which any of a variety of legal assistance schemes, or none, could have been set up. Mandamus was not available because there was no relevant legal duty to be enforced."

French J concluded:

 

1 When a legal practitioner, whether solicitor or counsel or both, fails in his or her duty to a client and the Court by serious incompetence in framing an application and claims for relief and in its presentation, the Court may order that the practitioner pay the costs of a party to the proceedings.  This is not a power to be exercised lightly but only in clear cases of a serious breach of duty. 

 

2 The present is such a case.  ... The preparation and
presentation of the application for judicial review was done at such a poor
level of competence as to amount to a significant breach of duty by the
practitioner and warrants the making of an order for costs against him
personally.

 

Huscroft and Allan on US Rights Internationalism

Jim Allan and Grant Huscroft's "Constitutional Rights Coming Home to Roost? Rights Internationalism in American Courts" in (2006) 43 San Diego Law Review 1 has just appeared on Lexis. From their conclusion:

It is widely assumed that the influence of rights-based internationalism is wholly benign and a force for good.

  We have argued that this assumption, however widespread, is a dubious one. Americans have more reasons than others to be especially wary about rights-based internationalism.

...

... the three main reasons we have given for counseling wariness on the part of Americans when it comes to rights-based internationalism are these: First, quite apart from differences in bills of rights and understandings of rights across various countries and internationally, the very basics of American constitutionalism - the conception of the state and its role, the relevance of institutional checks and balances, and so on - are not shared internationally, and sometimes differ greatly. ...

Our second reason for wariness is that bill of rights adjudication takes place against the backdrop of the countermajoritarian difficulty. ... we have argued that no justifications, alone or together, exist to justify American judges making use of comparative and international rights-based law to trump the American democratic process.

The third and last main reason for wariness is the likelihood, the strong likelihood, of a ratcheting-up effect accompanying any shift to greater reliance on foreign precedents. We think the former will certainly attend the latter, and cause an overall diminution of the scope for democratic decisionmaking in the United States.

Acquisition of property and forfeiture

Graeme Hill reminds me to mention Theophanous v Commonwealth of Australia [2006] HCA 18 (11 May 2006) (the link isn't working yet but presumably will work eventually). The short story: Theophanous loses his superannuation. The joint judgment of five justices endorses the 'irrelevant or inconsistent or incongruous' test for whether a law that effects an acquisition of property attracts the requirement of just terms at [60]:

"The taking of property under a federal law is not removed from "acquisition" merely because of the statutory description given to the action. It may be complained that the boundary marked to the "just terms" requirement of s 51(xxxi) by reference to its application being "inconsistent" or "incongruous" states a criterion that may require difficult questions of judgment. But to mark the boundary to the application of the "just terms" requirement in this way is grounded in the realisation that to characterise certain exactions of government (such as levying of taxation, imposition of fines, exaction of penalties or forfeitures, or enforcement of a statutory lien) as an acquisition of property would be incompatible with the very nature of the exaction. Such exactions are, and long before the Commonwealth were, regular features of the law in England, the Australian colonies and now of the Commonwealth. It cannot therefore have been the purpose of s 51(xxxi) to apply to such exactions an obligation to provide "just terms". There may, in some cases, be room for difference about the characterisation of the exaction and the application of considerations of inconsistency or incongruity. The present is not such a borderline case."

Gleeson CJ rightly (IMHO) doubts the usefulness of that test at [11]:

"To say that s 51(xxxi) is irrelevant to such a law is correct, but it is to state a conclusion rather than a reason for the conclusion. Similarly, to observe that a requirement of just terms in such a context is incongruous is fair comment, but it is an observation about a step in a process of constitutional interpretation."

The joint judgment also appears to reject the use of a proportionality test at [70] but then comments that the forfeiture of the superannuation was not a disproportionate consequence of Theophanous' convictions (at [71]).

A clear and principled approach to s 51(xxxi) seems no closer than usual.

Victorian Charter of Human Rights and Responsibilities Introduced into Parliament

On a very quick first read through the Bill, when compared with the Consultation Committee's Draft:

• The definition of public authority has been clarified and expanded.
• The right to life is not limited to apply to a person from the time of birth (cf the Consultation Committee's draft).
• An obligation to present a statement of compatibility now lies on all members introducing a Bill; and for government Bills the obligation lies on the particular Minister introducing the Bill, not the Attorney-General.
• In the interpretation provision, there is no longer a definition of "reading and giving effect to a statutory provision".
• The Scrutiny of Acts and Regulations Committee is not renamed the Human Rights Scrutiny Committee.
• Declarations of incompatibility are now declarations of inconsistent interpretation. There is no longer an obligation to lay the declaration before each House within 6 sitting days nor an obligation to publish it in the Gazette. There is no provision for the Scrutiny of Acts and Regulations Committee to review and report on declarations.
• The remedies provision has been redrafted but its operation remains obscure.
• The Equal Opportunities Commission is renamed as the Equal Opportunity and Human Rights Commission - there is no longer a separate Victorian Human Rights Commissioner.

More as I continue to read the thing.

UPDATE: The Attorney-General's second reading speech is available on the Parliament site.

UPDATE 2:Apropos of the change to the right to life - proposed s 48 provides "Nothing in this Charter affects any law applicable to abortion or child destruction, whether before or after the commencement of Part 2."

Another implied freedom case: PEEK v CHANNEL SEVEN ADELAIDE PTY LTD [2006] SASC 63 (7 March 2006)

Peek v Channel Seven Adelaide Pty Ltd [2006] SASC 63 (7 March 2006) is an appeal in a strike out application. The South Australian Full Court considers the extent to which the extended Lange qualified privilege defence applies to communications about courts and judges (answer: not any great extent).

Others (including Graeme Hill and Adrienne Stone in (2004) 24 Adelaide Law Review) have written before about how the Constitution was relevant to the decision in Lange - as one of my Advanced Con students summarised their argument this week, perhaps the constitutional arguments can be seen as giving the court "dutch courage" to extend a common law doctrine, an extension that absent the constitutional imperative might have been beyond the legitimate creative role of the courts.

I wonder if the constitutional arguments in Lange may have a converse influence on some lower courts called on to apply Lange. McHugh J may well be right in APLA that the Lange reasoning cannot embrace communications about courts and judges. Before APLA and since, lower courts have minutely parsed Lange and its reasoning to attempt to work out the answer. I wonder if all that constitutional heavylifting may distract some courts from noting (i) Lange extended a common law doctrine; (ii) that common law doctrine provides a level of protection that meets the minimum standards required by the Constitution; (iii) Lange emphasised that legislatures could provide additional protection; but (iv) there is no reason that the courts (perhaps even intermediate appellate courts) could not similarly develop the common law to provide additional protection; (v) there are good (but not overwhelming) arguments for extending the common law qualified privilege doctrine so that it covers communications about the courts and judges. (I emphasise this is conjecture about overall trends and influences, not a blanket characterisation of the judges and courts who have considered whether the Lange defence extends to discussion of courts and judges - some of the judgments, pre and post APLA, do appear to be alive at least to the theoretical possibility of the common law defence being further developed.)

Of course, if courts were to take step (v) above, they would not have the "dutch courage" afforded by the Constitution and (adapting the words of one of my students) commentators might "hang it on" (trans: robustly criticise) the court (particularly if it were an intermediate appellate court) for being too creative - in circumstances where the court isn't able to say "Don't blame us - it was the Constitution wot dun it"!

Does "the laws of the Commonwealth" mean "a law of the Commonwealth"?

No, said the judge at first instance:

‘The key to the resolution of the construction question depends upon the meaning of the words "the laws of the Commonwealth or a State" in para (c) of the definition. A person or authority can only be a law enforcement agency if it is responsible for the enforcement of those laws. The definite article "the" is used as an identifier. In general, use of the definite article as an identifier presupposes the existence of the thing (an entity, set or quantity) to be identified. When a quantity is being identified that quantity is maximal. The Cambridge Grammar of the English Language (2003) at 369-370, gives as an example of this the following question: "Where did you put the keys?" It notes that we are here concerned with the totality of the keys. Thus if there are five keys, a subset of say two, three or four is irrelevant: it is the set as a whole that is presented as identifiable in the example. Similarly, that is the only meaning that can be given to the words "the laws" in the definition. It follows that because the ATO is not responsible for the enforcement of "the laws", that is "all the laws", of the Commonwealth or of any State or Territory, the ATO cannot be a law enforcement agency as defined. On the other hand, because the ATO (technically the Commissioner of Taxation) may be authorised by "a law" to prosecute a relevant offence, there may, in an appropriate case, be an obligation under s 12(1)(c) for the CEO to give evidence to the ATO.’

Yes, said the Full Court of the Federal Court on appeal in Australian Crime Commission v AA Pty Ltd [2006] FCAFC 30 (20 March 2006), principally for reasons of history and context, but also following close analysis of what 'the' signified:

Section 23 of the Acts Interpretation Act 1901 (Cth) directs that, unless the contrary intention appears, words in the plural include the singular. The use of the definite article in the term ‘the laws of the Commonwealth or of the States’ in subpara (c) of the definition of ‘law enforcement agency’ does not, in our view, indicate an intention contrary to s 23 of that Act.  The ordinary and natural meaning of the relevant words may encompass one or more of the laws of the Commonwealth or of a State.  The definite article preceding the word ‘laws’ is equally apt to describe collectively a group of laws for which the relevant agency may be responsible only for a subset.  The Cambridge Australian English Style Guide, describes the definite article as signalling ‘that a noun is to follow, and it very often implies that the noun is one with which the reader is already acquainted’ so that ‘the says:  "You know which one I mean", and reminds us of an earlier reference to the same thing in the text’:  P Peters, The Cambridge Australian English Style Guide, Cambridge University Press, Cambridge, 1995, pp 747-8.  The definition operates as a cohesive device to ensure continuity of reference, but as pointed out above should be understood as part of the whole enactment.  More specifically, the Macquarie Dictionary also refers to the usage of ‘the’ as marking a noun indicating something well known; and as marking a plural noun as indicating an area typified by a particular type of geographical feature (e.g. ‘the hills’).  Reference to going to ‘the hills’ does not mean going to all the hills.  Consistent with such usage, reference to ‘the laws’ in context may indicate a class of enforcement responsibilities of which one or more may be the particular focus of attention in particular circumstances.  That is consistent also with a further usage given by the Macquarie Dictionary for ‘the’ as used ‘distributively, to denote any one separately’:  Macquarie Dictionary (4^th ed, 2005) p 1459.

Shades of 'past participle as part of an adjectival phrase which is without temporal significance'.

Executive detention of citizens is coming back before the High Court

... this time in the extradition context with a challenge to Part II of the Extradition Act 1988 (Cth): directions hearing at Vasiljkovic v Commonwealth of Australia & Ors [2006] HCATrans 149 (15 March 2006), set down for argument on 13 April 2006.

I've got a short note coming out in ICON later this year on the last lot of challenges to executive detention (in particular the quartet of migration detention cases from 2004) - I can send a draft version to any interested readers, just drop me a line.

Bargaric and McConvill argue for an Australian Senate Judiciary Committee to consider complaints against judges

The two main prongs of the argument seem to be:

"If it is important for the Parliament, comprised of the people's representatives, to be vested with the power to remove federal judges for misbehaviour or incapacity, Parliament should also have the power to investigate complaints. There is nothing wrong with a one-stop shop."

and, analogously with their argument for a Senate committee to be involved in the nominations and appointments process, that it would enhance public awareness of the federal judiciary:

"The committee would be based on the successful US model, with the objective being to inject transparency and rigour into the nomination process, and give Australians a sense of ownership and connectedness with the federal judiciary. ... Would the proposed committee inject some life into the third arm of government - the judiciary - and generate community interest in federal judges and the judicial process? Absolutely. ... Critics of our proposal will inevitably wheel out the Lionel Murphy affair to highlight the perceived "dangers" of politicising the investigation of complaints against federal judges. But in response we ask: apart from the Murphy incident, and the Aboriginal woman dancing outside the High Court after the Wik decision, what else do Australians recall about the federal judiciary? Not much."

More at Senate best to probe complaints [The Australian, March 03, 2006].

ALRC gets sedition reference

The AG has referred the sedition provisions of the Criminal Code Act and the Crimes Act to the Australian Law Reform Commission for report by 30 May 2006.

Nominee to Canadian Supreme Court to be Questioned by Parliamentary Committee

Globeandmail.com reports:

Prime Minister Stephen Harper announced a historic change yesterday in how judges are appointed to the Supreme Court of Canada, saying the nominee to be announced Thursday will have to submit to a three-hour televised grilling next week by an all-party parliamentary committee.

Mr. Harper said the new process is intended to ensure greater openness in the selection of Canada's top judges, although the final decision remains with the prime minister and justice minister. [The Committee will not vote on the nominee.] He said he does not expect objections from the as-yet-unidentified nominee. ...

York University has a press release out that states that former Osgoode Dean Peter Hogg is to deliver the opening and closing remarks for the public hearing. It goes on:

[Another Osgoode Dean, Professor Patrick] Monahan
and Hogg made a joint presentation to the House of Commons Justice
Committee in April 2004 in which they called for a non-partisan review
committee to evaluate Supreme Court appointments and a review protocol
to govern the proceedings of the review committee. In addition, they
recommended that the review committee should retain independent and
well-respected legal counsel to assist the committee in its proceedings
and to resolve any issues that may arise in relation to the
implementation or observance of the review protocol by the committee.

It will be interesting to see how the process turns out next week; but as the retired Major J points out in the globeandmail.com piece, parliamentarians are likely to be on their best behaviour this time round, particularly as the shortlist for this appointment was prepared under the previous Liberal government.

Scrutiny, the rule of law and student allowances

Yesterday's debate on the Student Legislation Amendment Bill 2005 (Cth) provides interesting discussion of how modern approaches to governance can limit parliamentary control and scrutiny of government action. Jenny Macklin commented in particular

1. on how the government had been able to close a student loan scheme by failing to renew the private funding arrangements for the scheme (rather than by repealing the legislation establishing the scheme); and
2. on how proposed amendments could have the effect that non-legislative departmental documents that were merely referred to in delegated legislation could create new offences (escaping the scrutiny that is possible when offences are created by delegated legislation itself, and undermining the rule of law ideal that law is publicly accessible).

http://parlinfoweb.aph.gov.au/piweb/TranslateWIPILink.aspx?Folder=HANSARDR&Criteria=DOC_DATE:2006-02-09%3BSEQ_NUM:20%3B

Section 100 and the Snowy

The Australian reports constitutional doubts about the plans to float the Snowy Hydro scheme:

VICTORIA is poised to join the public float of the Snowy Hydro scheme despite top-level legal advice that the plan breaches the constitution and is vulnerable to costly compensation and native title claims.

Investment bankers yesterday predicted the sale could be the biggest deal since AMP's 2003 demerger capital raising, and worth as much as $3 billion.

But it also emerged yesterday that the state Government was warned in 2000 by a senior barrister commissioned to provide advice that it was "quite likely" the scheme breached section 100 of the constitution and could face damages claims from disaffected landholders.

The barrister, David Habersberger, now a Supreme Court judge, told Victorian Attorney-General Rob Hulls the scheme was on shaky constitutional ground because it removed the right of Gippsland landholders to "reasonable use" of the river.

Section 100 provides:

 

 The Commonwealth shall not, by any law or regulation of trade or commerce,
abridge the right of a State or of the residents therein to the reasonable use
of the waters of rivers for conservation or irrigation.

NSW seems to think that there will be no problems:

A spokesman for NSW Special Minister of State
John Della Bosca said the constitutional doubts were no longer valid
after the bill to corporatise the Snowy scheme was passed in 2002.

"It's a blast from the past that has no effect today," he said.

Defence Legislation Amendment (Aid to Civilian Authorities) Bill 2005 - Expedited Call-Out Powers

Crikey today points to a story in Rob Chalmers' Inside Canberra newsletter: The provisions of this Bill allow for expedited call out of the armed forces by the Prime Minister alone (rather than the PM, AG and defence minister acting together to request the GG to make the order as at present) if "a sudden and extraordinary emergency exists": s 51CA(1). (The AG and defence minister can exercise the same power if the PM is uncontactable: s 51CA(2).) And such an order need not be in writing: s 51CA(4). The Bill has been referred to the Legal and Constitutional Legislation Committee for report by 7 February 2006.

[Disclosure: Crikey recently started sending me (and I gather other Australian bloggers) a copy of their daily email, on the basis that I would acknowledge them if I sourced material or ideas from the email.]

McLachlin urges judges to go beyond letter of law

McLachlin urges judges to go beyond letter of law:

Judges should feel "emboldened" to trump the written word of the constitution when protecting fundamental, unwritten principles and rights, says Canada's chief justice.

Beverley McLachlin, in a speech delivered in New Zealand, took on critics who say judges have no business going beyond the strict letter of the constitution to strike down laws and enforce rights.

"The rule of law requires judges to uphold unwritten constitutional norms, even in the face of clearly enacted laws or hostile public opinion," said a prepared text of the lecture Chief Justice McLachlin gave to law students at Victoria University of Wellington late last week.

"There is certainly no guarantee or presumption that a given list of constitutional principles is complete, even assuming the good faith intention of the drafters to provide such a catalogue."

More here and here. Unsurprisingly, the occasion seems to have been the Lord Cooke of Thorndon Annual Lecture.

Noise regulation and freedom of expression in Canada: Montreal (City) v. 2952-1366 Quebec Inc., 2005 SCC 62 (CanLII)

The Supreme Court decided Montreal (City) v 2952-1366 Quebec Inc [2005] SCC 62 last month, upholding noise regulations that prohibited the use on private property of sound equipment that produced noises that could be heard outside.

One issue was whether the impact of this regulation on the ability of passersby on public property (the public street outside) engaged the protection of the Charter. The approach of the Supreme Court to freedom of expression on public property was notoriously divided in Committee for the Commonwealth of Canada. It wasn't necessary to resolve the issue in the present case, but the majority essayed the following extended dicta (briefly - put all relevant factors in a pot and stir):

72    Expressive activity should be excluded from the protective scope of s. 2(b) only if its method or location clearly undermines the values that underlie the guarantee.  Violent expression, which falls outside the scope of s. 2(b) by reason of its method, provides a useful analogy. Violent expression may be a means of political expression and may serve to enhance the self-fulfillment of the perpetrator.  However, it is not protected by s. 2(b) because violent means and methods undermine the values that s. 2(b) seeks to protect. Violence prevents dialogue rather than fostering it.  Violence prevents the self-fulfillment of the victim rather than enhancing it.  And violence stands in the way of finding the truth rather than furthering it.  Similarly, in determining what public spaces fall outside s. 2(b) protection, we must ask whether free expression in a given place undermines the values underlying s. 2(b).

73 We therefore propose the following test for the application of s. 2(b) to public property; it adopts a principled basis for method or location-based exclusion from s. 2(b) and combines elements of the tests of Lamer C.J. and McLachlin J. in Committee for the Commonwealth of Canada.  The onus of satisfying this test rests on the claimant.

74    The basic question with respect to expression on government-owned property is  whether the place is a public place where one would expect constitutional protection for free expression on the basis that expression in that place does not conflict with the purposes which s. 2(b) is intended to serve, namely (1) democratic discourse, (2) truth finding and (3) self-fulfillment.  To answer this question, the following factors should be considered:

(a)   the historical or actual function of the place; and

(b)   whether other aspects of the place suggest that expression within it would undermine the values underlying free expression

75 The historical function of a place for public discourse is an indicator that expression in that place is consistent with the purposes of s. 2(b). In places where free expression has traditionally occurred, it is unlikely that protecting expression undermines the values underlying the freedom. As a result, where historical use for free expression is made out, the location of the expression as it relates to public property will be protected. 

 

76 Actual function is also important. Is the space in fact essentially private, despite being government-owned, or is it public?  Is the function of the space – the activity going on there – compatible with open public expression?  Or is the activity one that requires privacy and limited access? Would an open right to intrude and present one’s message by word or action be consistent with what is done in the space?  Or would it hamper the activity? Many government functions, from cabinet meetings to minor clerical functions, require privacy.  To extend a right of free expression to such venues might well undermine democracy and efficient governance.

77 Historical and actual functions serve as markers for places where free expression would have the effect of undermining the values underlying the freedom of expression.  The ultimate question, however, will always be whether free expression in the place at issue would undermine the values the guarantee is designed to promote.  Most cases will be resolved on the basis of historical or actual function.  However, we cannot discount the possibility that other factors may be relevant.  Changes in society and technology may affect the spaces where expression should be protected having regard to the values that underlie the guarantee. The proposed test reflects this, by permitting factors other than historical or actual function to be considered where relevant.

78 The markers of historical and actual functions will provide ready answers in most cases.  However, we must accept that, on the difficult issue of whether free expression is protected in a given location, some imprecision is inevitable.  As some scholars point out, the public-private divide cannot be precisely defined in a way that will provide an advance answer for all possible situations: see, e.g. R. Moon, The Constitutional Protection of Freedom of Expression (2000), at pp. 148 et seq.  This said, the historical and actual functions of a place is something that can be established by evidence. As courts rule on what types of spaces are inherently public, a central core of certainty may be expected to evolve with respect to when expression in a public place will undermine the values underlying the freedom of expression.

79 Another concern is whether the proposed test screens out expression which merits protection, on the one hand, or admits too much clearly unprotected expression on the other.  Our jurisprudence requires broad protection at the s. 2(b) stage, on the understanding that governments can limit that protection if they can justify the limits under s. 1 of the Canadian Charter.  The proposed test reflects this.  However, it also reflects the reality that some places must remain outside the protected sphere of s. 2(b). People must know where they can and cannot express themselves and governments should not be required to justify every exclusion or regulation of expression under s. 1.  As six of seven judges of this Court agreed in Committee for the Commonwealth of Canada, the test must provide a preliminary screening process.  Otherwise, uncertainty will prevail and governments will be continually forced to justify restrictions which, viewed from the perspective of history and common sense, are entirely appropriate.  Restricted access to many government-owned venues is part of our history and our constitutional tradition.  The Canadian Charter was not intended to turn this state of affairs on its head.

80 A final concern is whether the proposed test is flexible enough to accommodate future developments.  Changes in society will inevitably alter the specifics of the debate about the venues in which the guarantee of free expression will apply.  Some say, for example, that the increasing privatization of government space will shift the debate to the private sector. Others say that the new spaces for communication created by electronic communication through the Internet will raise new questions on the issue of where the right to free speech applies.  We do not suggest how the problems of the future will be answered.  But it seems to us that a test that focuses on historical and actual functions as markers for public and private domains, adapted as necessary to accord with new situations and the values underlying the s. 2(b) guarantees, will be sufficiently flexible to meet the problems of the future.

(Hat tip to the monthly Interights Human Rights in the Commonwealth email.)

Thoburn and implied repeal in NZ

Also new on Lexis this week, Rebecca Prebble, "Constitutional Statutes and Implied Repeal: the Thoburn Decision and the Consequences for New Zealand" (2005) 36 VUWLR 291. Worth a look.

Comparative Constitutional Law in 119(1) Harvard Law Review

The first issue of volume 119 of the Harvard Law Review (now available on Lexis; UPDATE: also now available in pdf at the Harvard Law Review site) contains a set of interesting comments on comparative constitutional law, reviewing "THE DEBATE OVER FOREIGN LAW IN ROPER V. SIMMONS" (the juvenile death penalty case, decided last term):

• Vicki C. Jackson, "CONSTITUTIONAL COMPARISONS: CONVERGENCE, RESISTANCE, ENGAGEMENT" 119 Harv. L. Rev. 109 (2005), 9328 words
• Jeremy Waldron, "FOREIGN LAW AND THE MODERN IUS GENTIUM" 119 Harv. L. Rev. 129 (2005)
• Ernest A Young, "FOREIGN LAW AND THE DENOMINATOR PROBLEM" 119 Harv. L. Rev. 148

From the introduction to the set of comments:

In Constitutional Comparisons: Convergence, Resistance, Engagement, Professor Jackson proposes a framework for understanding how courts treat transnational legal norms in interpreting their own constitutions: courts can incorporate them, resist them, or engage with them. Professor Jackson praises engagement, arguing that it has been traditionally embraced in Eighth Amendment jurisprudence and more generally offers "modest benefits" to constitutional interpretation, especially given the inevitability of comparison. She proposes tentative standards of inquiry for the Court in considering foreign or international law and concludes that the Court appropriately considered the international consensus against juvenile execution in its Roper decision.

In Foreign Law and the Modern Ius Gentium, Professor Waldron revives the ancient idea of the law of nations, or ius gentium, to justify turning to foreign law when deciding domestic cases. Tracing the ius gentium's origins to Rome, Professor Waldron argues that it was not originally confined to what we now call international law, but instead constituted a repository of wisdom for governance in all matters international and domestic. Early jurists relied on the ius gentium much as scientists rely on the experiments of their peers worldwide, and nothing in modern jurisprudence should prevent courts from doing the same today.

In Foreign Law and the Denominator Problem, Professor Young argues that Roper's use of foreign law is more determinative than most commentators let on. Although domestic courts could use foreign law to determine the consequences of a particular policy or to discern arguments as yet unarticulated domestically, Professor Young argues that the Roper Court instead used foreign consensus to expand the "denominator" - the community that defines mainstream opinion - of the Eighth Amendment inquiry into whether a consensus views juvenile execution as cruel and unusual. Comparing this inquiry to assessing community standards under First Amendment obscenity doctrine, he cautions that expanding the denominator by relying on foreign law may have profound and troubling consequences for adjudication. especially given the inevitability of comparison.

Richard Posner's Foreword on the 2004 Supreme Court term also enters the debate. A taste:

these foreign decisions are being used as authorities, and there are a number of objections to using them as such, as they were used in Lawrence and Roper, rather than merely for the information they may contain or because a treaty or a choice-of-law provision in a contract has made foreign law the rule of decision in a particular case. That is, the objections are to counting foreign judicial noses in an effort to determine the existence of a global consensus on an issue. The search for such a consensus is an effort to ground controversial Supreme Court judgments in something more objective than the Justices' political preferences and thus to make the Court's political decisions seem less political. Natural law is, in principle, suprapolitical. The problem is that there is pervasive disagreement on its actual content, on how to ascertain it, and on how to resolve disagreements over it.

Proposed changes to Australian Citizenship Law

"On 9 November 2005, the Minister for Citizenship and Multicultural Affairs, the Hon John Cobb MP, introduced to the Parliament the Australian Citizenship Bill 2005.  The Bill, if passed by the Parliament, will replace the existing Australian Citizenship Act 1948." (link, thanks to Kim Rubenstein for the pointer)

No sign yet that it's been referred to any House or Joint Committees (check here for updates and here to see if has been referred to any Senate Committees).

Justice McHugh's last HCA judgment - Hwang v Commonwealth of Australia & Anor; Fu v Commonwealth of Australia & Anor [2005] HCATrans 893 (27 October 2005)

This seems to be McHugh J's last judgment in the High Court: Hwang v Commonwealth of Australia & Anor; Fu v Commonwealth of Australia & Anor [2005] HCATrans 893 (27 October 2005). It was a strike out application on facts assumed to be the same as those in Singh v The Commonwealth (2004) 78 ALJR 1383; 209 ALR 355, that is, an application by an Australian-born non-citizen to resist deportation under the Migration Act. To resist the strike out, counsel for Hwang had to argue that the Commonwealth had no power to make laws in relation to citizenship or that its power was constrained by international law. McHugh J concludes that this argument must fail:

Contrary to the submission of counsel for the plaintiffs, however, the power of the Parliament to make laws with respect to citizenship does not depend upon international law.  If it arises simply from the emergence of Australia as an independent nation, it is because of the fact that it is an independent sovereign nation and that other nations recognise it as such.  Hence, if the power of the Parliament to make laws with respect to citizenship arises only from its status as an independent sovereign nation, it is the fact of independent sovereignty and not the whole body of international law that authorises the Parliament to make such laws.

The indisputable fact that Australia has emerged as an independent sovereign nation is itself sufficient to authorise the Parliament to make laws with respect to citizenship.  This Court has long recognised that, in addition to the legislative powers specifically conferred on the Parliament of the Commonwealth, it has legislative powers that arise from its nature and status as a polity. ...

Since the adoption of the Statute of Westminster in 1942 at the latest, the power of the Parliament of the Commonwealth, arising from its status and existence as a national polity, has extended to making laws with respect to citizenship because Australia is a sovereign independent nation.

However, it is a mistake to think that the power of the Parliament of the Commonwealth to make laws with respect to citizenship did not exist at federation.  For many years, the existence of United Kingdom legislation may have made it impossible, as a practical matter, for the Parliament to enact citizenship legislation.  But, independently of Australia’s emergence as a sovereign nation, the Parliament has and always has had the power to make laws with respect to citizenship.  That power arises from the express and implied powers of the Parliament of the Commonwealth to declare who are the persons who are members of the Australian community.  It arises partly by implication out of the Parliament’s status as the national Parliament and its entitlement to define who are “the people” who make up the Australian community.  And it arises partly out of its express power to make laws with respect to immigration, naturalisation and aliens.

Perhaps most interestingly McHugh J also asserts that citizenship is a constitutional (and not purely statutory) concept, albeit one whose scope is subject to some measure of regulation by the Parliament:

Throughout the Constitution, there is frequent reference to “the people” of the Commonwealth.  In its context, it is a synonym for citizenship of the Commonwealth. ... the concept of “the people of the Commonwealth” – the citizens of the Commonwealth – was critical to the operation of the Constitution.  Sections 25 and 127 of the Constitution made it plain that certain persons were excluded from membership of the Australian community.  And it is not open to doubt that the power of the Parliament to make laws with respect to immigration (s 51(xxvii)) and aliens (s 51(xix)) enabled it to exclude certain persons from becoming members of the Australian community.  Conversely, the power of the Parliament to make laws with respect to naturalisation (s 51(xix)) enabled the Parliament to include certain persons among “the people of the Commonwealth”. Why then should it be thought that at federation the Parliament of the Commonwealth had no power to declare the conditions upon which other persons who are not aliens or immigrants are to be numbered among the people of the Commonwealth?  That is to say, to declare the conditions upon which persons living in or connected to the Australian community were citizens of Australia. It is not lightly to be supposed that at federation the national Parliament of Australia did not have the power to declare to the world who were the citizens of Australia.

The limits on the Parliament's power to define the scope of the concept are woolly:

  No doubt the Parliament does not have unlimited power to declare the conditions on which citizenship or membership of the Australian community depends.  It could not declare that persons who were among “the people of the Commonwealth” were not “people of the Commonwealth” for any legal purpose.  But it can declare, for example, in exercising the power conferred by s 30 concerning the qualification of electors of members of the House of Representatives, that persons such as infants are not “people of the Commonwealth” for the purpose of s 24 of the Constitution.  And, as long as it does not exclude from citizenship, those persons who are undoubtedly among “the people of the Commonwealth”, nothing in the Constitution prevents the Parliament from declaring who are the citizens of the Commonwealth, which is simply another name for the Constitutional expression, “people of the Commonwealth”.

 

APLA Applied - Direct Factory Outlets Homebush Pty Ltd v Property Council of Australia Ltd [2005] FCA 1438 (20 October 2005)

In Direct Factory Outlets Homebush Pty Ltd v Property Council of Australia Ltd [2005] FCA 1438 (20 October 2005), Sackville J concludes that  "a communication with a local government planning authority concerning a proposed local planning decision (such as an amendment to a local environmental plan or a development approval), [does not] without more ... relate to the system of representative and responsible government established by the Constitution". The "without more" should be a strong hint to parties and their advocates about the material that will be required to support claims based on the implied freedom post-Coleman and APLA.

It wasn't necessary and/or appropriate to decide whether s 45 of the TPA (which prohibits the making and implementation of anti-competitive agreements) applies (and if so whether it does so validly) to to prohibit the making or implementation of an agreement that obliges its parties "to attempt to persuade a judicial, administrative or legislative body to make a lawful determination which, in turn, might result in the substantial lessening of competition":

[48] In my view, it is arguable that s 45(2)(a)(ii) of the TP Act is not intended to prohibit the making of an arrangement or understanding requiring the parties to attempt to persuade a judicial, administrative or legislative body to make a lawful determination which, in turn, might result in the substantial lessening of competition.  Similarly it is arguable that conduct giving effect to such an arrangement or understanding (or a provision of such an arrangement or understanding) is not within the prohibition in s 45(2)(b)(ii).  The argument does not depend on the issues raised by the separate questions.  Rather it involves what can be described as a question of characterisation.  If, for example, a group of traders agree to institute legal proceedings against a large competitor seeking orders closing down its allegedly illegal commercial activities, does any provision of the agreement have the purpose or likely effect of substantially lessening competition?  Or is the purpose of the agreement, in the absence of any allegation of bad faith against the parties, simply to commence and maintain legal proceedings in order to enforce the law? Are the two alternatives mutually exclusive?

Naomi Campbell wins again in the House of Lords

Naomi Campbell wins again in the House of Lords: The House of Lords held in Campbell v. MGN Ltd [2005] UKHL 61 (20 October 2005) that success fees in conditional fee agreements in defamation and privacy cases against media defendants are not necessarily inconsistent with Art 10 of the ECHR, notwithstanding the potential chilling effect on the media. The scheme under which conditional fee agreements were allowed was "a proportionate measure to provide ... other litigants with access to justice". 

The story may not be over: MGN may challenge the particular application of the scheme on the facts; and Lord Hoffman suggests that the wider chilling effect of conditional fee agreements in defamation cases, particularly where the plaintiff is impecunious and cannot meet a costs order should he or she lose, may require a legislative solution to ensure compatibility with article 10.

Finally, Naomi Campbell's lawyers' actual costs (including 95%-100% success fees in the House of Lords) are worth noting: £377,070.07 for the trial, £114,755.40 for the appeal to the Court of Appeal and £594,470.00 for the appeal to the House of Lords. Damages were only £3,500. Even the (untaxed) profit costs (without the success fee) incurred in the House of Lords were huge: £288,468, more than twice MGN's costs.

Reading the entrails: workplace law advertisements/appropriations decision

Here are the Court's orders:

“The questions stated by the parties in the Special Case for the opinion of the Full Court are answered as follows:
(1) Q. Do the plaintiffs, or either of them, have standing to seek the relief sought in the statement of claim in the further amended writ of summons?

A. It is unnecessary to answer this question.

(2) Q. If yes to (1), is the withdrawal of money from the Treasury of the Commonwealth to pay for the government's advertisements authorised by the departmental appropriation?

A. It is not appropriate to answer this question.

(3) Q. If no to (2), have the plaintiffs established a basis for any, and if so which, of the relief sought in the amended statement of claim?

A. The plaintiffs have not established a basis for any of the relief sought in the amended statement of claim or the alternative relief foreshadowed at the hearing of the Special Case, namely, declarations concerning payments to meet expenses incurred by the Commonwealth under contracts and arrangements for and in relation to certain past advertisements.

(4) Q. If yes to (3), should any such relief be refused on discretionary grounds?

A. It is unnecessary to answer this question.

(5) Q. Who should pay the costs of the proceedings?

A. The plaintiffs.”

We shouldn't try to read too much into the orders, especially as the reasons must follow within a month, given McHugh J's retirement. Nonetheless the Court's repeated willingness to defer questions of standing is in some tension with repeated suggestions that there is a direct connection, if not a complete overlap, between questions of standing and the existence of a matter.

Comments on the substantive questions will have to wait the reasons.

HCA decision on the workplace law advertisements/appropriations due today

... according to ABC Asia Pacific. More when the judgments appear on AustLII. [UPDATE: It was only listed for pronouncement of orders today; not for delivery of reasons.] [UPDATE 2: The challenge failed, by majority.]

More free speech

Hot on the heels of last week's decision from the High Court in APLA Limited v Legal Services Commissioner (NSW) [2005] HCA 44 (1 September 2005), Dan Meagher points out a Northern Territory free speech case where the issues lie in a much smaller compass: Meyerhoff v Darwin City Council [2005] NTSC 19. (It's not on AustLII yet but the link should eventually work; meanwhile it's available on Butterworths/LexisNexis.)

New Australian Free Speech Case - Holland v The Queen

Adrienne Stone recently drew my attention to Holland v The Queen [2005] WASCA 140 (3 August 2005) - a case rejecting a challenge to the prohibitions on importing child pornography into Australia. Surely that prohibition represents a legitimate governmental objective if ever there was one. But perhaps the court could have considered more closely whether the prohibition was overbroad (at least in the form in which it stood at the time of the offences). Some other questions that the judgment throws up, in most cases indirectly rather than directly:

• Is it right that the plaintiff's own communication must fall within the domain of the implied freedom of political communication? Or is for a plaintiff whose own communication is non-political to challenge a law as overbroad?
• Is it right that material that describes or depicts a person under 16 years of age who is involved in a sexual pose or sexual activity and that is likely to cause offence to a reasonable adult can never "be part of a discourse or debate on political or governmental matters"? Suppose that the Abu Ghraib abuse photos included child prisoners. Prior to the amendments (that added s 233BAB(4A)(c)) such photos might have been caught by the prohibition yet (at least arguably) could have been relevant to matters of political debate. At the very least, the implied freedom could have been relevant to reading the provision down to exclude such non-prurient/non-titillating but offensive-for-other-reasons material.
• When, if ever, does fiction fall within the scope of the implied freedom? Will its political content always/usually/often be too remote from political discourse?
• How does the availability of alternative avenues of communication affect the implied freedom? Will this be a matter for evidence and balancing? Or judicial impression?
  

New s 92 case: CROSS v BARNES TOWING AND SALVAGE (QLD) PTY LTD & ORS [2005] NSWCA 273

CROSS v BARNES TOWING AND SALVAGE (QLD) PTY LTD & ORS [2005] NSWCA 273. (Thanks to Graeme Hill for pointing this one out.)

FOI Conclusive Certiicates: McKinnon v Secretary, Department of Treasury [2005] FCAFC 142 (2 August 2005)

McKinnon v Secretary, Department of Treasury [2005] FCAFC 142 (2 August 2005) (Tamberlin and Jacobson JJ; Conti J dissenting): in short, where the Minister gives a conclusive certificate under s 36 of the FOI Act that the disclosure of a document (an internal working document) would be contrary to the public interest, the AAT on appeal has the limited function of considering whether there existed reasonable grounds for the Minister's claim - and that function does not require the AAT to consider conflicting aspects of the public interest and reach its own conclusion in light of those aspects of the public interest whether a reasonable person could have reached the required state of satisfaction.

Maybe the majority is right that the alternative construction does water down the intended operation of the conclusive certificate provisions. But if so, the conclusive certificate provisions are fundamentally inconsistent with the principle of open and accountable government. The Canberra Times editorial is only mildy hyperbolic when it says:

the decisio