JACK WATERFORD. The judiciary is a part of government too (Canberra Times 27-9-19)

Oct 1, 2019

Australian politicians given to complaining that unelected judges are usurping the functions of ministers and of parliament would do very well to study this week’s British Supreme Court ruling holding the prorogation of the British Parliament by the Queen at the prime minister’s request to be null and void.

This is not because the issue would be likely to occur in the same way in Australia. It’s a bit hard to imagine us having a boofhead prime minister willing to do or say almost anything to get or keep power. Or an Australian parliament with the gumption to revolt against years of domination by ministers. One which insisted on close control, and an ultimate veto, over what ministers, and particularly the prime minister did. A parliament which could revolt after a succession of tricky political manoeuvres to say we, parliament, not you, the prime minister will decide when elections will be held, when parliament meets and how we will hold government to account.

All a bit far-fetched here, even when we are only a death, resignation or revolt away from minority government. Ministers are so used to complete control of parliament that they forget that it is the result of a parliamentary majority and a completely tamed backbench, not a constitutional prerogative. And, perhaps, so used to a habit of deference from the courts that they do not realise the power that the courts – the third arm of government – have, particularly when there are perceptions of power being used for the wrong purposes. Power being accumulated in ways that are upsetting old ideas of political and constitutional checks and balances. Power being abused.

In the British case, old men are stroking their beards and suggesting that the new British Supreme Court (which once operated as the judicial committee of the House of Lords) has gone too far. Has exceeded its constitutional role. Has created a dangerous situation which could lead to rule by lawyers and unelected judges rather than rule of law. Has interfered with old notions of the supremacy of parliament.

On another look, the Supreme Court stepped in to assert the primacy of parliament over the executive. It has been parliament which has gained power, at the expense of executive government, not the courts. The courts may have resolved this brawl between parliament and the Queen, as the representative of executive government, and the person who does as she is asked by the prime minister. In doing so the court may have been asserting a new role – as a body which practises judicial review as well as acts as a forum of appeal. But that new role has existed for more than 50 years, not least after Britain adopted human rights developed by the European Community.

Britain will retain human rights law if or after it leaves the European Community. That will mean that Australia will be the only common law country in the world without constitutional protections for the individual against an overreaching state – one which, under recent governments, has used terrorism, paedophilia and the vilification of people fleeing from war to remove rights, reduce transparency and accountability, and weaken the traditional role of courts and parliament to prevent ministers and bureaucrats from going too far.

At the heart of the decision of the British court has seemed to be a new concept of justiciability – cases of the sort that judges will take up, provided that there are at least two parties with an interest in the outcome and a genuine dispute about how the law is to be interpreted or applied. The courts have long held that some cases are non-justiciable. Particularly if they are intrinsically ‘political’ in nature. Courts do not tell parliament what to do. Nor do they tell ministers how to act, provided that they have the power to act, and provided they go about it in a proper, rather than an improper way.

We have often heard the word ‘non-justiciable’ in Australian political crises. In the political and constitutional confrontations of 1975, the Governor-General, Sir John Kerr, ultimately sacked prime minister Gough Whitlam, who had continuing majority support in the House of Representatives. Kerr had consulted the Chief Justice, Sir Garfield Barwick, a former Liberal minister who seemed to continue being the partisan, and others, including a future Chief Justice, Sir Anthony Mason, to confirm his opinion that he had the power, and possibly the duty to sack Whitlam.

Barwick said he felt free to offer Kerr advice, because the decision Kerr was proposing to make was ‘non-justiciable’. What he meant was that a challenge to Kerr’s power to sack Whitlam could not possibly come before him as an issue in the High Court. (I think this is true under Australia’s constitutional system, but it is possible that one could propound a case, based on the British decision, that had the effect of putting in issue whether the sacking was within Kerr’s power in the circumstances. In my view, it would fail, but it might depend on how many High Court judges got out of bed feeling frisky on the day.)

And Australian judges, like British and American ones, have frequently refused to enter some controversies about the validity of ministerial actions, saying that the decision was essentially political in nature, and that the remedy for those unhappy about its exercise was in parliament or at a further election. In this it follows the US Supreme Court tradition, which classes cases as justiciable or political. Political cases include those that ‘lack judicially discoverable and manageable standards for resolving them’.’

But this does not mean that the 11 most senior judges in England had a rush of blood to the head that Australian judges would never emulate.

In fact, Australian courts were long ahead of British courts in asserting that the (in our case) written constitution gave the courts the power of judicial review. This means that courts had more than the traditional power to decide how the law should be interpreted. They could also look at whether the constitution gave power to the parliament to make such a law, given that the constitution carefully divided powers between different layers of government (in a federal system, which Britain does not have) and with the three branches of government at each level. Indeed judges could go further, to look at whether a minister or official, in exercising a power given to him by a law passed within parliament’s powers, had exercised powers for proper purposes, whether they had taken into account all the matters they should have considered, and whether they had taken into account matters they should not have considered. All of these could be reasons why the courts could intervene to render a decision null and void.

In exercising this power of judicial review, Australian courts have long had a policy of at least token deference to ministerial or bureaucratic discretion, and the ‘non-justiciability’ of essentially political judgments about the right thing to do.

When reviewing an immigration decision, for example, a court will not substitute its own view of the ‘right’ or proper decision should have been. Rather it will look at how the decision maker went about the decision, asking if all the right factors were taken into account, whether wrong or impermissible considerations affected the decision, whether the person was accorded natural justice and so on. If the court sees deficiencies in the process, it will not decide what it thinks is the best result. It will send the case back to the decision maker, telling him, or her, to make a decision again, this time by proper procedures and considerations.

The problem is, as critics such as Peter Dutton have complained, that there is a good deal of overlap between the ‘merits’ of a decision (in the zone belonging to ministerial discretion) and the ‘process’ – which courts can and will examine. Some judges are accused of being ‘liberal’ or inclined to interventionism (perhaps because they will accord higher weight to Australia’s human rights obligations, or our duties as an international citizen). Some are accused of shaping their decision so as to significantly meddle with the ‘merits’ while pretending only to be concerned with the process.

This is one of the reasons why immigration ministers and bush lawyers from Home Affairs have been, for decades, seeking ways of restricting the power of courts and tribunals to review the thousands of routine decisions made over visas, settlement, refugee status and treatment, and deportations. Their efforts have been generally unavailing because courts have the constitutional power and the duty to determine whether executive acts are lawful. Frustration with this, no doubt, is one of the reasons for the way that successive governments, but particularly the governments of the past six years, have been blatantly stacking the Administrative Appeals Tribunal, and other tribunals, with former Liberal Party members, staffers and donors, as well as any number of friends and relations of ministers.

The stacking has reached the point where even Ian Callinan, who was once on the High Court chosen, according to the deputy prime minister of the day primarily because he was a ‘Capital C conservative’ – has commented critically on the quality of appointments, and its impact on the reputation, including for impartiality, of tribunals.

Down the track, I expect, a bad reputation for the open partisanship shown in making AAT appointments will end up being the chief legacy for which Christian Porter will be remembered. He may aspire to be prime minister one day, but I wonder if that could happen if the chickens, including the integrity chickens, come home to roost on what, in my opinion, has been a move from good process to pure partisan patronage. It would make for an interesting study for a fair-dinkum integrity commission, of the sort he and his department are so fiercely resisting, no doubt by complete coincidence.

Naturally, Labor is unable to make much political capital from this cancer in the Australian body politic, given its own penchant for similar patronage, if not on anything like the same scale.

The British Supreme Court held back from wanting to examine Boris Johnson’s direct oral advice for the Queen, content merely to look at the written materials. It was, of course, at pains to emphasise, first that it had no view of the wisdom of leaving Europe, and that it was merely supporting, on constitutional grounds, parliament’s demand to be involved in a momentous constitutional matter. Leaving, on whatever terms, or staying, perhaps after a second referendum, won’t be for the courts, but for parliament and (probably) the people.

Australia may have already gone past deciding that there is, in appropriate circumstances, a power for a judge to examine what the prime minister told the queen. A 1981 case, R v Toohey; ex parte NLC involved nefarious schemes and tricks by which the Northern Territory government of the day was trying to defeat the Aboriginal Land Rights Act.

Discovering that allocating land for urban expansion or a township amounted to alienation of land sufficient to prevent Aborigines being able to claim it, the NT Administrator, on the advice of the NT Chief Minister and Cabinet, declared large sections of land surrounding Darwin, Katherine, Tennant Creek and Alice Springs to be a part of a town. Claimants for the Cox Peninsula, across the bay from Darwin, challenged the proclamation, but the land commissioner held that he could not ‘impugn’ the motives of the ‘Crown’ (the Administrator) or examine the ‘real’ – as opposed to ostensible – reasons for the decision.

The High Court disagreed, saying that an attack on a legislative act, such as a proclamation, as an exercise of a legitimate power for improper purposes could go right into the office of the administrator. By clear implication this meant that a similar attack on federal legislation could look at the advice tendered the Governor-General, and at the least, determine that he had been given false advice. (It was only last year that this case ended, with Aborigines getting land they had first claimed in 1975, 43 years before. It must have been one of Australia’s longest running pieces of litigation, in the zone of Jarndyce v Jarndyce in Charles Dickens’ novel Bleak House.)

British courts have been for some time striking out ministerial decisions as beyond their powers, including for bad motives. The only startling thing about this week was the court’s direct entry into relations between parliament and the executive government, over a decision signed by the queen on the recommendation of the prime minister. The court was at pains to say that it was not entering the field of parliament’s own privileges, and capacity to control its own proceedings. These privileges were focused primarily on protecting free speech in parliament. In any event, prorogation of parliament is not a parliamentary procedure, but an executive act.

In both Australia and Britain, whatever happens, there will still be lots of room for ministerial discretion, answerable only to parliament and not to the courts. Obvious examples would be over management of a war, the conduct of diplomatic relations and treaty making (although our constitution gives the court the right to say what treaties mean), the amount of money appropriated to one function or another, or the deployment of resources around the nation.

That said, no one could guarantee that courts would refuse to intervene if a credible case were presented to it suggesting that the prime minister was making executive decisions, say about the suspension of aid to a certain country, in an effort to bully that country into investigating allegations of corrupt behaviour on the part of a domestic political opponent of the prime minister. That might be an abuse of power, and, as such, beyond power. Just saying.

Jack Waterford is a former editor of The Canberra Times

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