Political donations restrictions ruled to be unconstitutional

Today the High Court delivered judgment in Unions NSW v State of New South Wales [2013] HCA 58 in which the Court unanimously held that reforms to the Election Funding, Expenditure and Disclosures Act 1981 (NSW) introduced by the O’Farrell government are invalid because they impermissibly burden the implied freedom of communication on governmental and political matters, contrary to the Commonwealth Constitution.

Section 96D of the Act purported to prohibit the making of a political donation to a political party, elected member, group, candidate or third-party campaigner, unless the donor was an individual enrolled on the electoral roll for State, federal or local government elections.  The Act also purported to cap the total expenditure that political parties, candidates and third-party campaigners could incur for political advertising and related election material.  For the purposes of this cap, section 95G(6) of the Act aggregated the amount spent on electoral communication by a political party and by any “affiliated organization” of that party, ie a body or organization “that is authorized under the rules of that party to appoint delegates to the governing body of that party or to participate in pre-selection of candidates for that party (or both)”.

The High Court unanimously held that sections 96D and 95G(6) burdened the implied freedom of communication on governmental and political matters. Although the implied freedom of political communication arises by way of implication from the system of representative and responsible government provided for by the Commonwealth Constitution, nonetheless the freedom also applied to restrictions on political communication arising in the course of a State election. This was because there is an overlap in the discussion of political and governmental matters at a State and federal level and that it may be difficult to separate those kinds of issues.  The Court accepted that the Act had general anti-corruption purposes.  However, the Court was not satisfied that the impugned provisions were sufficiently directed towards those anti-corruption purposes. 

New grants of special leave to appeal to the High Court of Australia

Last Friday, 13 December 2013, the High Court granted special leave to appeal in three cases.

The first is Commonwealth Bank of Australia v Barker.  In that case Mr Barker was employed by the Bank as an executive manager.  His contract of employment entitled the Bank to terminate his employment without cause on four weeks’ written notice.  His position became redundant.  In the letter informing him of this redundancy, the Bank told Mr Barker its preference was to redeploy him to a suitable position within the Bank. Ultimately, however, the Bank terminated his employment.  Mr Barker sued the Bank for breach of contract, and for misleading and deceptive conduct.  He argued that certain written policies of the Bank dealing with redundancy were incorporated into his contract of employment, and that the Bank had breached those policies. The primary judge held that the policies were not incorporated into his contract of employment.  However, the primary judge found that the contract of employment contained an implied term of mutual trust and confidence.  His Honour also found that the Bank had been almost totally inactive in complying with its redundancy policies in relation to Mr Barker, and that this was a serious breach of the implied term of mutual trust and confidence which sounded in damages. His Honour awarded Mr Barker damages of $317,000 for loss of the opportunity to be redeployed to a suitable position within the Bank.  The main issue in the appeal is whether or not the implied term of mutual trust and confidence forms part of the common law of Australia.

The second case is Lee v The Queeen.  The appellants in this appeal were the unsuccessful appellants in Lee v The Queen, in which the High Court upheld orders made in favour of the NSW Crime Commission that the appellants be compulsorily examined under the Criminal Assets Recovery Act 1990, even though the subject matter of the examinations overlapped with the subject matter of the criminal proceedings.  In this latest appeal, the Lees challenge the dismissal of their appeals against conviction by the NSW Court of Criminal Appeal.  The main ground of general importance is the question of whether or not there had been a miscarriage of justice because a transcript of the evidence given before the Crime Commission had been released, unlawfully, to the DPP prior to the trial.

The third case is Sidhu v Van Dyke.  In this case Van Dyke claimed that Sidhu, with whom she was in a romantic and sexual relationship over several years, made clear and unambiguous promises to her on several occasions that a property known as Oaks Cottage was her home and that he would transfer it to her (or procure its transfer to her). She also claimed that she acted reasonably in reliance on those promises to her detriment, including by performing certain tasks for the benefit of Sidhu and by remaining in part-time employment. Van Dyke commenced proceedings claiming an order that Oaks Cottage be transferred to her, or a declaration recognising her interest in Oaks Cottage by way of constructive trust or charge, or an order for the payment of equitable compensation to her. The primary judge held that the effect of the evidence given by Van Dyke during cross-examination was that it was entirely possible that Van Dyke would have remained living on the property, carrying out tasks on the property (even if not to the extent of the work she in fact carried out) and working part-time, whether or not the promises had been made. According to the primary judge, that made it impossible to find that she was acting in reliance on the promises to her detriment. The NSW Court of Appeal, applying a number of English decisions, held that there was a presumption of reliance which had not been displaced by Van Dyke’s evidence, and that it was not necessary for the plaintiff to prove that “but for” the promises she would not have acted in the way she did; it was sufficient that it was a cause, even if not the sole cause. In addition, the Court of Appeal held that the measure of compensation was not the detriment suffered by Van Dyke, rather it was the value of the unfulfilled promises.  Both of those issues fall for determination in the appeal to the High Court.

Judgments this week in the High Court of Australia

On Wednesday, 18 December 2013 the High Court will end the year by delivering judgment in four cases.

The first is Clark v Macourt.  In this case Clark and a company known as St George Fertility Clinic Pty Ltd carried on business providing assisted reproduction technology services in Sydney.  The appellant and St George entered into a deed in which the appellant purchased the business carried on by St George, along with various assets of the business.  Macourt was a party to the deed as guarantor of the obligations of St George.  The assets of the business that were sold to Clark included frozen sperm.  Of the 3,513 straws of sperm only 504 were useable.  Because of her inability to use the majority of the sperm supplied by St George, Clark ceased making payments due under the deed.  St George commenced proceedings for the balance of the purchase price, and Clark cross-claimed for damages for breach of contract relating to the unsuitability of the sperm sold by St George. St George (and Macourt) ultimately conceded the breach of contract.  At issue in the proceedings is how damages are to be assessed. This raises important issues as to the relevance of the regulatory regime in which assisted reproductive technology services are provided, whether damages are to be assessed by reference to the cost of replacement sperm or alternatively the value of the St George sperm had she been able to use it, and the extent to which payments made by patients mitigated her loss.

Next is Reeves v The Queen.  Reeves was infamously dubbed “The Butcher of Bega” by the press.  The main issue on appeal arises out of his conviction for the offence of maliciously inflicting grievous bodily harm with intent, contrary to section 33 of the Crimes Act 1900 (NSW). This charge arose out of the performance of a vulvectomy.  The applicant had been prosecuted for the offence of female genital mutilation (section 45) but the jury had been unable to reach a verdict.  The alternative charge gave rise to the issue of whether or not the patient had consented to the operation (or more accurately, whether the applicant did not have an honest belief that the patient had so consented).  One question on the appeal is what is the correct test for consent in a criminal medical assault case, and in particular does it involve any of the ingredients of “informed consent” as applied in civil cases.  There is also a question of whether the CCA erred in applying the proviso, as well as a challenge to the sentence imposed by the CCA.

Judgment will also be delivered in Unions NSW v State of New South Wales. This is a challenge to laws enacted by the O’Farrell Government restricting funding and expenditure of political parties, candidates for and members of the NSW Parliament, and third party campaigners.  Section 96D of the Election Funding, Expenditure and Disclosures Act 1981 (NSW) now prohibits any such person or body from accepting political donations unless the donor is an individual who is enrolled to vote (previously, political donations could also be made by any entity with an Australian Business Number). Section 95F prescribes caps on the amounts of “electoral communication expenditure” that can be made by parties, candidates and third party campaigners for a State election campaign.  Where the expenditure of a party is less than or equal to the cap, section 95G operates to add any electoral communication expenditure made by “affiliated organisations”, namely bodies authorized by a party’s rules to participate in the pre-selection of candidates, or to appoint delegates to the party’s governing body. The vast majority (in dollar terms) of political donations made to the major parties in NSW have been made by organisations and associations rather than by individuals. The party with the highest proportion of non-individual donations is the NSW branch of the ALP.  The plaintiff in these proceedings challenges the validity of the new funding provisions on the grounds that they impermissibly burden the implied freedom of communication on governmental and political matters, or a freedom of association, contrary to the Commonwealth Constitution, or alternatively contrary to the NSW Constitution.

Finally, judgment will be delivered in Commonwealth Minister for Justice v Adamas.  This case considers the interaction between the extradition treaty with Indonesia, and the Extradition Act 1988 (Cth).  In particular, it will consider the proper role of a court undertaking judicial review of the decision of the Attorney-General to determine that it would not be “unjust, oppressive or incompatible with humanitarian considerations” to surrender the respondent to Indonesia. 

Summary of High Court decision in same-sex marriage challenge

The High Court of Australia has unanimously today upheld the Commonwealth’s challenge to the validity of the ACT’s same-sex marriage laws.

The suggestion made in this blog yesterday that the Court would only make orders with reasons to follow at a later date was too pessimistic an assessment of the Court’s capacity to provide a reasoned judgment.

In those reasons for judgment, the Court agreed with the consensus position submitted by the Commonwealth and the ACT that the reference to “marriage” in the Constitution includes same-sex marriage, thus confirming that the Commonwealth could, if it chose to do so, legislate with respect to same-sex marriage.

However, ultimately the Court held that the ACT’s Marriage Equality (Same Sex) Act 2013 could not operate concurrently with the Commonwealth Marriage Act 1961.  The ACT law was therefore inoperative.  Their reasons for so holding are commendably clear and concise:

It is necessary to bear steadily in mind that the federal Parliament has power under s 51(xxi) to make a national law with respect to same sex marriage. (The Parliament’s power under s 122 of the Constitution to make laws for the government of any Territory need not be considered.) The federal Parliament has not made a law permitting same sex marriage. But the absence of a provision permitting same sex marriage does not mean that the Territory legislature may make such a provision. It does not mean that a Territory law permitting same sex marriage can operate concurrently with the federal law. The question of concurrent operation depends upon the proper construction of the relevant laws. In particular, there cannot be concurrent operation of the federal and Territory laws if, on its true construction, the Marriage Act is to be read as providing that the only form of marriage permitted shall be a marriage formed or recognised in accordance with that Act.

The Marriage Act regulates the creation and recognition of the legal status of marriage throughout Australia. The Act's definition of marriage sets the bounds of that legal status within the topic of juristic classification with which the Act deals. Read as a whole, the Marriage Act, at least in the form in which it now stands, makes the provisions which it does about marriage as a comprehensive and exhaustive statement of the law with respect to the creation and recognition of the legal status of marriage. Why otherwise was the Marriage Act amended, as it was in 2004, by introducing a definition of marriage in the form which now appears, except for the purpose of demonstrating that the federal law on marriage was to be complete and exhaustive?

The 2004 amendments to the Marriage Act made plain (if it was not already plain) that the federal marriage law is a comprehensive and exhaustive statement of the law of marriage. Those amendments applied the newly introduced definition of marriage to the provisions governing solemnisation of marriage and gave effect to that definition in the provisions governing the recognition of marriages solemnised outside Australia. Section 88EA of the Marriage Act (inserted by the 2004 amendments) provides expressly that a union solemnised in a foreign country between persons of the same sex must not be recognised as a marriage in Australia.

These particular provisions of the Marriage Act, read in the context of the whole Act, necessarily contain the implicit negative proposition that the kind of marriage provided for by the Act is the only kind of marriage that may be formed or recognised in Australia. It follows that the provisions of the ACT Act which provide for marriage under that Act cannot operate concurrently with the Marriage Act and accordingly are inoperative. Giving effect to those provisions of the ACT Act would alter, impair or detract from the Marriage Act. Within the Commonwealth, the Marriage Act determines the capacity of a person to enter the union that creates the status of marriage with its attendant rights and obligations of mutual support and advancement. Under the Marriage Act, a person has no legal capacity to attain that status, with the rights and obligations attendant on it, by entry into a union with a person of the same sex.

The full text of the judgment is available here.

Indefinite immigration detention survives another day

The High Court today upheld a challenge to the failure by the Minister for Immigration and Citizenship to consider whether or not to grant a protection visa to an asylum seeker to whom Australia owes protection obligations, but who is the subject of an adverse security assessment by ASIO. The decision in Plaintiff M76/2013 v Minister for Immigration, Multicultural Affairs and Citizenship, however, did not reconsider the broader question of whether the earlier decision in Al-Kateb v Godwin in which the Court upheld the Commonwealth's power to indefinitely detain asylum seekers, even though they were not to be granted a visa and could not be removed from Australia, had been wrongly decided.

The plaintiff, a Tamil from Sri Lanka, arrived in Australia by boat in May 2010.  She was detained at Christmas Island, in reliance upon section 189(3) of the Migration Act 1958 (Cth).  As an “offshore entry” person, section 46A(1) of the Act prevented the plaintiff from making a valid application for a protection visa.  In July 2010 the plaintiff applied for protection as a refugee under the Refugee Status Assessment process.  That process involved an assessment by the Department of Immigration as to whether or not the plaintiff was a person to whom Australia owed protection obligations.  

In March 2011 the Minister made a “residence determination” which allowed the plaintiff (and her two sons) to live in “community detention”.

In September 2011 an officer of the Department found that the plaintiff was a person to whom Australia owed protection obligations.  The Department proceeded to complete health, identity and security checks.  In April 2012 ASIO provided the Department with an “Adverse Security Assessment” in relation to the plaintiff, assessing the plaintiff as likely to engage in acts prejudicial to Australia’s security if she were granted a protection visa.  Under Ministerial Guidelines that had been issued in March 2012, the plaintiff was not referred to the Minister for consideration of the possible exercise of power under section 46A(2), to lift the bar preventing the plaintiff from making an application for a protection visa.  This was because the plaintiff did not satisfy Public Interest Criterion (PIC) 4002 (as it then stood), and because she had an adverse security assessment issued by ASIO. 

In May 2012, the Minister revoked the residence determination and the plaintiff and her two sons were transferred to detention in New South Wales.  In July 2012 the plaintiff’s spouse was granted a protection visa and became an Australian permanent resident.  They married in October 2012 and her third son was born in January 2013.  He is an Australian resident.  In May 2013 the Minister exercised his power under s 46A(2) of the Act to allow the plaintiff’s two eldest children to lodge an application for a protection visa.  In June 2013 those children were granted protection visas and became Australian permanent residents.  At the request of the plaintiff and her husband, all 3 children live with her in detention as “visitors”, in order not to be separated from their mother.

In October 2012 the Commonwealth announced terms of reference to an Independent Review of Adverse Security Assessments and the Honourable Margaret Stone was appointed as the Independent Reviewer.  The plaintiff was invited to apply for review of the Adverse Security Assessment, which she did in December 2012.  Detailed written submissions were made on her behalf.  The Independent Reviewer concluded that the Adverse Security Assessment was an appropriate outcome, but recommended that it be reviewed again in 12 months’ time.  The plaintiff disputes the correctness of the ASIO conclusions and of the Independent Reviewer’s opinion. 

The plaintiff has no present right to enter and remain in any country other than Sri Lanka.  Despite efforts by the Department to resettle her (and others like her), at present there is no other country to which she can be sent.  The Minister does not propose to remove the plaintiff to Sri Lanka against her will, nor has the plaintiff asked the Minister to remove her to Sri Lanka.

Relying upon its earlier decision in Plaintiff M47, delivered on 5 October 2012, the High Court held that the failure to refer the plaintiff’s case to the Minister for consideration of whether or not to lift the bar imposed by section 46A was infected by an error of law.  The decision not to refer the plaintiff’s case to the Minister proceeded upon an assumption as to the validity of PIC 4200.  That assumption, as was held in Plaintiff M47, was incorrect, and the decision was therefore affected by an error of law. 

As a result, there had been no valid determination of whether or not to consider lifting the bar under section 46A, and the plaintiff’s application for the lifting of that bar remained undetermined.  Accordingly, the plaintiff’s present detention was authorized under section 189 and 196 of the Act, as it was for the purpose of completing statutory processes which will result in a determination of whether or not she is granted permission to remain in Australia.

As the statutory processes remain incomplete, the broader question of whether or not the Court’s earlier decision in Al-Kateb should be overruled did not arise for determination.  French CJ, and Crennan, Bell and Gageler JJ held that it was unnecessary and therefore inappropriate to revisit Al-Kateb.  Bell J therefore declined the opportunity to repeat the views her Honour had expressed in Plaintiff M47 to the effect that Al-Kateb was wrongly decided. 

Hayne J emphatically stated that there was no proper basis for reconsidering Al-Kateb, and in any event expressed the view that it was correct (unsurprisingly, given his Honour was the author of the lead judgment for the majority).  Kiefel and Keane JJ expressed views strongly supportive of the reasoning in Al-Kateb, but in any event held that it should not be re-opened because the decision had “decisively quelled the controversy as to the interpretation of the Act” and had subsequently been regarded as such by subsequent statutory amendments.  That, with respect, is hardly an attractive basis for refusing to revisit an issue that relates not only to the proper construction of the Act, but more fundamentally the Constitutional validity of the Act if that construction be correct.

The continuing authority of Al-Kateb therefore remains up in the air.  There would seem to be a clear three judges (Hayne, Keifel and Keane JJ) who consider that decision to be correct.  Bell J has already expressed the view in M47 that Al-Kateb is incorrect, and the dissenting reasoning of Gleeson CJ to be correct.  The position of French CJ, Crennan and Gageler JJ is judicially unknown.