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Common(wealth) Knowledge #29: Cases we missed

Updated: Apr 7, 2023

Wrapping up a big year in constitutional law.

2022 has been a busy year for constitutional law, and also for administrative law. Among the important topics from this year were the implied freedom of political communication, the secret ministries of Scott Morrison, and discussion about the Indigenous Voice to Parliament in the lead-up to the referendum on it next year.

And, in the final days of the year, Attorney-General Mark Dreyfus has announced that the Administrative Appeals Tribunal will be disbanded, with a new body to be created in 2023, in response to over 80 appointments made by the Liberal Party to the supposedly independent body based on party allegiance. The High Court of Australia is no exception to the busyness of this year.

So, as the year comes to a close, let's take a look back at three important or controversial decisions by the High Court on constitutional or administrative law matters that didn’t make it into Common(wealth) Knowledge articles this year.

2022 has been a busy year for the implied freedom of political communication, a constitutional principle that protects free discussion about political and governmental matters from government regulation. Among the cases on this topic this year have been a successful challenge to Victorian laws requiring a permit for corflute signs for election candidates before the election date has been announced, covered in Common(wealth) Knowledge #21, and an unsuccessful challenge to New South Wales legislation preventing the publication of names of children involved child protective services hearings, covered in Common(wealth) Knowledge #26.

In the lead up to the May 2022 federal election, the Commonwealth government amended the Commonwealth Electoral Act 1918 (Cth) to increase the number of party members required for party registration from 500 to 1500, and to prevent parties from having similar names. The Liberal Democrats, represented by John Ruddick, challenged the latter amendment, alleging that it violated the implied freedom of political communication. This was because the Australian Electoral Commission had required the party to change its name because it was too similar to the Liberal Party.

Prior to this case, former Liberal Democrats Senator David Leyonhjelm had admitted that he was elected thanks to the Liberal Democrats appearing before the Liberals on the ballot paper, and people voting for the Liberal Democrats because of the confusion. However, Ruddick argued that Sections 7 and 24 of the Australian Constitution enshrined the right to make an informed choice at the ballot box, which would require the party to keep its name as it was, and because it was important to open political discourse.

The High Court split 4:3 in this case. The plurality judgment of Gordon, Edelman and Gleeson JJ, three of the four judges who sided with the Commonwealth government, said that there was no ‘burden’ implied freedom of political communication. They relied on the decision in Mulholland v Australian Electoral Commission (2004), where the High Court ruled that the requirement to have a certain number of party members before being registered was an administrative matter only. Furthermore, they said that the Constitution left electoral procedures up to Parliament to decide, giving Parliament considerable “leeway.” The fourth member of the majority, Steward J, dismissed the implied freedom altogether, standing in stark contrast to the dissenting judgment of Gageler J, a public law expert, which discussed the implied freedom at length. Kiefel CJ and Keane J, in a joint judgment, also found that the law was invalid.

For a discussion of this case and its implications, check out ‘What’s in Name? Political Party Names and Ruddick v Commonwealth’ by Graeme Orr.

As a general rule, migration cases are usually administrative law matters, where a migrant has had their visa or entry permit denied or revoked, and they resort to the court system to challenge that decision by either a Minister, usually the Minister for Home Affairs or Minister for Immigration, or a someone employed in the relevant department, such as a customs officer. They are usually pretty easy to pick out, as instead of giving a name to the plaintiff (the migrant), a combination of numbers and/or letters is used, sometimes with the year the case started. This may be done for privacy or security reasons.

This case involved a decision to revoke the visa of a migrant who had been convicted of two charges of assault, and had been placed in detention custody for a period of twelve months. The plaintiff sought to challenge that decision. However, this case didn’t just involve administrative law, international law was also involved. The plaintiff was a citizen of South Sudan, a country ruined by conflict with Sudan, prior to its independence, and ongoing conflict today, much of it fueled by ethnic tension. The plaintiff claimed that if he was deported he would be tortured and killed because of his ethnicity. A directive issued under the Migration Act 1958 (Cth) listed a number of considerations that may be taken into account when revoking a visa, and one such consideration was Australia’s ‘international non-refoulement obligations.’ Australia is a signatory to treaties like the Convention Relating to the Status of Refugees that seek to prevent countries from deporting people if that deportation would put them at risk of suffering serious harm. This is why a category of visas known as ‘protection visas’ exists.

There is a natural justice requirement under administrative law that a decision-maker must give ‘proper, genuine and realistic’ consideration to all relevant information. This was explained in Common(wealth) Knowledge #20. In this case, the delegate of the Minister informed the plaintiff that they were aware of the risk of harm, but that it was not relevant here. The plaintiff was challenging the decision to revoke their visa, not a decision to not issue a protection visa. A protection visa can be issued after the previous visa was issued. According to the majority, the delegate had considered the risk, but deemed it not relevant here for the question of revoking the existing visa, instead deferring it to be considered later, when the question of whether to issue a protection visa arose.

This case is important because it overturned the reasoning of around two dozen previous Federal Court decisions that had said the non-refoulement obligation was relevant. Edelman J, in his dissent, pointed this out at [53], remarking that “the High Court should pause for serious thought before concluding that such a large swathe of decisions of the Federal Court should be overturned.” Instead, he argued that the delegate had not considered the issue of non-refoulement, and that the decision of the majority and the delegate was a “sentence of death.”

Okay, including this case might be stretching the boundaries a bit, as this case was referred to in a tweet used in Common(wealth) Knowledge #28. But I personally believe its the second-most important High Court constitutional law case this year, only beaten by Garlett v Western Australia [2022], which was the focus of Common(wealth) Knowledge #14, so I’m going to include it anyway. After all, this is my series.

In Common(wealth) Knowledge #28, we looked at the case of Chu Kheng Lim v Minister for Immigration, Local Government and Ethnic Affairs (1992). In that case, a majority of the High Court held that neither the executive nor the legislative branch of government had the power to detain Australian citizens as a criminal punishment. This principle dates back to the work of the great British lawyer and judge Sir William Blackstone, whose Commentaries are arguably the most impressive legal work in British history. Writing in 1765, he said that if either the executive or legislative branch had judicial power then the “public liberty” of the citizens “cannot subsist long in any state.”

However, for a long time, Lim’s main use had been to defend detaining migrants without trial, as they were not citizens. However, in Alexander v Minister for Home Affairs, it was successfully used to strike down legislation that allowed the government to revoke the citizenship of Australians.

The plaintiff had Australian citizenship by birth and Turkish citizenship by descent. In 2013 he traveled to the Middle East to join ISIS. He was punished under Syrian law in 2018, and although he was later pardoned, he remained in detention, with the Syrian government allegedly keeping him in detention because they could not deport him to Australia, as he was no longer an Australian citizen. The Australian government had previously revoked his citizenship in 2020 because he had joined ISIS, under the new Section 36B of the Australian Citizenship Act 2007 (Cth). Because he remained in detention, without any contact with his family or lawyer, his mother was appointed to appear on his behalf in the High Court.

The High Court, with only Steward J dissenting, ruled that Section 36B was allowed under Section 51(xix) of the Constitution, which authorises Parliament to make laws with regard to “naturalization and aliens.” However, the plaintiff’s citizenship had been revoked without a trial. The revocation of citizenship was intended to operate as a punishment for the plaintiff breaking their allegiance to Australia by joining ISIS.

Much of the court’s time was spent discussing the concept of allegiance, and whether it is an outdated concept in a 21st-century liberal democracy, which Helen Irving did a good job of explaining in her article ‘Alexander v Minister for Home Affairs: Existential Citizenship and Metaphorical Allegiance.” However, this article is long enough as it is, so I won’t go into that. Nonetheless, it is safe to say that Alexander has given new legs to the Lim principle.

This is the first in a three-part mini-series to wrap up 2022. Next week, we will take a look at what topics could dominate these fields of law in 2023. The final article, which will be released on New Year’s Eve, will conclude the year by looking at the High Court in 2023.

Stuart Jeffery is the host of Between Parkes Place and Capital Hill on 6 News. His views on personal social media pages are his & his only, and do not reflect the views of 6 News or our journalists. He abides by 6 News' editorial standards relating to fairness & accuracy.

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