A Comment on Professor Finnis’s Praise of Australia’s High Court

In a recent lecture Judicial Power: Past, Present and Future, leading legal philosopher Professor John Finnis launched a strong critique of the Supreme Court of the United Kingdom, especially the famous decision of its predecessor, the House of Lords, in the Belmarsh case, that a provision permitting the detention of suspected terrorists was incompatible with Europe’s human rights convention. By contrast he was strongly supportive of the High Court, writing:

Australia, which has as a federal nation done entirely without constitutionally stated rights for 115 years, made the choice not to entrust this inappropriate kind of power to judges, but to trust themselves and the legislatures they elect. (Victoria and one small federal territory are the only exceptions and very novel ones.) Australia I would say has done easily as well as countries under judicially enforceable or even judicially declarable human rights, and has kept its legislative and judicial discourse authentic, largely uncluttered with this sort of make-believe and confusion of roles, responsibilities and competences.

Professor Finnis relied upon the High Court’s decision in Al-Kateb v Godwin [2004] HCA 37 (where Court upheld indefinite immigration detention in some circumstances) and reserved particular praise for Justice Heydon’s judgment in Momcilovic v The Queen [2011] HCA 34 (where he would have declared Victoria’s human rights law constitutionally invalid.)

Policy Exchange, which has published the lecture as part of its judicial power project, invited three leading constitutional scholars to comment. Adrienne Stone’s commentary — questioning his reliance on Al-Kateb and Momcilovic — is here: Continue reading

McCloy Symposium: Scott Stephenson on the Complications and Consequences of Constitutional Comparison

By Dr Scott Stephenson

McCloy Case Page

In McCloy v New South Wales [2015] HCA 34 for the first time a majority of the High Court (French CJ, Kiefel, Bell and Keane JJ) endorsed proportionality analysis as the appropriate framework for determining whether a law violates the freedom of political communication, an implication derived from the Australian Constitution. In doing so, the majority turned to comparative materials, especially comparative constitutional scholarship, to explain and justify its decision. In this post, I consider the complications and consequences of the Court’s comparative engagement, examining the difficulties associated with drawing on the scholarship in this field before considering some implications of the Court’s move. I suggest that it gives greater prominence to two dimensions of constitutional adjudication that are typically not accorded priority, namely the value in providing legislatures with clarity about the limits of their powers and making value judgments explicit.

Complications: The necessary yet difficult task of comparatively engaging with proportionality

The decision to endorse proportionality analysis requires careful consideration of comparative case law and scholarship to ascertain what, precisely, proportionality analysis entails. While it may be, as the majority suggest, a ‘uniform analytical framework’ (at [74]), that framework does not have a uniform formulation or application. Some jurisdictions adopt a three-stage test, while others adopt a four-stage test (see [79] fn 100). In some jurisdictions, the majority of laws that fail proportionality analysis do so at the ‘necessity’ (least restrictive means) stage, while in others it is at the ‘adequate in its balance’ (proportionality in the strict sense) stage (Grimm, 2007). Continue reading

McCloy Symposium: Joo-Cheong Tham Sounds a Cautionary Note on Political Equality as a Constitutional Principle

By Dr Joo-Cheong Tham

McCloy Case Page

In its 1974 decision, Buckley v Valeo, 424 US 1 (1975), the United States Supreme Court infamously ruled that:

the concept that government may restrict the speech of some elements of our society in order to enhance the relative voice of others is wholly foreign to the First Amendment.

Decades later, Buckley remains powerfully influential with the Supreme Court in McCutcheon v Federal Election Commission stating last year that:

No matter how desirable it may seem, it is not an acceptable governmental objective to ‘level the playing field’, or to ‘level electoral opportunities’, or to ‘equalize the financial resources of candidates’.

In McCloy v New South Wales [2015] HCA 34, the High Court emphatically rejected the approach of US Supreme Court as to the illegitimacy of political equality or fairness as a legislative objective. On the contrary, under the Commonwealth Constitution, ‘(l)egislative regulation of the electoral process directed to the protection of the integrity of the process is … prima facie legitimate’.

Central to the conclusion that political equality and fairness are legitimate legislative objectives was the High Court’s insistence that political equality was a constitutional principle. Yet, the latter was hardly necessary for the former conclusion. If elections are to be ‘free and fair’, it would seem absurd to deny Parliament the ability to regulate with the view to advancing electoral fairness, regardless of what the Constitution said about political equality. As McLachlin CJ and Major J observed in the Canadian Supreme Court decision in Harper v Canada [2004] SCC 33 — a decision favourably cited by the joint judgment and Gageler J:

Common sense dictates that promoting electoral fairness is a pressing and substantial objective in our liberal democracy.

Not only does logic fail to bind these two aspects of the High Court’s judgment in McCloy, they also carry quite different implications in terms of legislative ability to regulate elections. The High Court’s ruling that political equality and fairness are legitimate legislative objectives permits Parliaments to regulate elections for these purposes; political equality as a constitutional principle, on the other hand, will constrain the ability of Parliaments to regulate elections, even in situations when the purported justification is one of equality and fairness.

This post sounds a cautionary note on the elevation of political equality as a constitutional principle in McCloy. It does so by posing three questions, questions that alert us to the fact that political equality as a constitutional principle does not necessarily result in the realisation of political equality and, in fact, poses risks to the democratic project. Continue reading

McCloy Symposium: Lael Weis on Why Political Communication Isn’t an Individual Right in Australia

By Dr Lael Weis

McCloy Case Page

Much of the commentary about McCloy, the High Court’s recent decision upholding NSW’s ban on donations by property developers, will concern the disagreement among members of the Court about the appropriate method for analysing burdens on the freedom of political communication, and I will look forward to what my colleagues have to say. My own contribution to the blog symposium on this case focuses on a long-standing consensus point: namely, the idea that the freedom is not an ‘individual right’.

Although I imagine members of the public might feel somewhat scandalized if told the right of individuals to communicate political matters is a fake idea in Australia, this is something the Court seems firmly committed to. Each of the four judgments in McCloy affirms this proposition: at [29]–[30] (French CJ, Kiefel, Bell, and Keane JJ); at [119]–[120] (Gageler J); at [219] (Nettle J); at [316]–[319] (Gordon J).

This was also a consensus theme in Unions NSW [2013] HCA 58, the antecedent to McCloy that struck down a wider NSW ban on political contributions by people who are not on the electoral role, such as corporations and unions. In a joint judgment Continue reading