Common(wealth) Knowledge #30: Constitutional issues in the New Year

The major issues we'll be seeing in 2023.

2022 has been a big year for Common(wealth) Knowledge. Since the series’ start on 9 July, we have explored many important issues over 29 articles this year. These include the secret ministries of Scott Morrison, Labor Ministers not declaring their financial interests, a controversial High Court decision in Garlett v Western Australia [2022] that this author has very strong feelings about, Sino-Australian relations, and the implied freedom of political communication. So now, as the year comes to a close, let's look forward at some of big issues that will, or at least may, show up in 2023.

Straight off the bat is the Indigenous Voice to Parliament. With a referendum on this proposal likely to be held in Spring 2023, the Voice will dominate constitutional discussions well into the second half of the year. Given that the Commonwealth government currently plans to pass more detailed legislation to establish the Voice after the referendum, that discussion will continue until at least the end of the year.

The conversations about the Voice raise a second constitutional issue, the implied freedom of political communication. It was already likely that a couple of cases involving this subject would arise early next year, prior to the New South Wales election in March, as electoral laws are often subject to challenge in the lead up to the election. We have already seen two such cases, Badger v Bayside City Council [2022] and Ruddick v Commonwealth [2022]. this year, covered in Common(wealth) Knowledge #21 and Common(wealth) Knowledge #29, respectively. The former challenged Victorian legislation, while the latter involved Commonwealth laws. However, the Voice will take this up a notch, with likely challenges to laws regulating how the ‘Yes’ and ‘No’ campaigns can operate, including fundraising and donation limits. The government is also considering amending the Commonwealth Electoral Act 1918 (Cth) to remove the requirement to send a pamphlet to all voters outlining the two sides of the argument. This may be challenged too.

On the Parliamentary side of things, the implied freedom of political communication will show up in a way that hasn’t yet been discussed in Common(wealth) Knowledge. Greens Senator David Shoebridge has announced that he will introduce legislation to Parliament in 2023 to protect the right to protest, in light of the arrest and sentencing of climate change protestor Deanna ‘Violet’ Coco. This is based on Brown v Tasmania [2017], when the High Court struck down Tasmanian legislation that prevented anti-logging protests, after the legislation was challenged by former Greens Senator and Tasmanian resident Bob Brown. Senator Shoebridge’s proposal would cement this constitutional principle in statute, rather than relying on common law protection by the courts.

Although it is unlikely that 2023 will see much legislation involving indefinite detention, it is likely to return to the courts by 2024, and perhaps as soon as next year. The decision in Garlett affirmed existing state-level statutory schemes that allow for the indefinite detention of convicted criminals after their sentence expires if they are a threat to ‘public safety.’ It is likely that further cases will be brought to test the scope of this new decision, given that it received significant pushback from the legal community when it was handed down by the court.

Since Koowarta v Bjelke-Petersen (1982) and Commonwealth v Tasmania (1983) (‘Tasmanian Dams Case, the latter also involving Bob Brown, it has been accepted that the external affairs power of the Australian Constitution, found in Section 51(xxix), allowed for international treaties to be adopted into Australian law. This may be used in 2023 to adopt any international treaties on environmental issues, especially emissions reduction, into Australian law.

Section 51(xx) of the Constitution allows Parliament to pass laws to regulate, and with respect to, “foreign corporations.” Two events from 2022 indicate that this may be used in 2024. The first of these is Elon Musk’s takeover of Twitter, and the flow-on effects from that. The second is Barilaro v Google LLC [2022], where the Federal Court found Google liable for the defamatory remarks made by Jordan Shanks, aka FriendlyJordies, on YouTube, when Google was made aware of the remarks and did not take action. These two events suggest that 2023 may see further regulation of foreign corporations like Google, Apple, Twitter, and Meta by the Commonwealth government.

While it is impossible to predict what will happen in 2023, it is certain that at least some of these issues, especially the Voice and the implied freedom of political communication, will be major issues 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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Sources:

Badger v Bayside City Council [2022] VSC 140.

Barilaro v Google LLC [2022] FCA 650.

Brown v Tasmania [2017] HCA 43.

Commonwealth Electoral Act 1918 (Cth).

Commonwealth of Australia Constitution Act 1900 (Imp) 63 & 64 Vict, c 12.

Commonwealth v Tasmania (1983) 158 CLR 1; [1983] HCA 21. Garlett v Western Australia [2022] HCA 30.

Koowarta v Bjelke-Petersen (1982) 153 CLR 168; [1982] HCA 27.

Ruddick v Commonwealth [2022] HCA 9.

Elijah Granet’s ‘Better AustLII’ web extension.