Indigenous Australians have lived in the Northern Territory for at least 40,000 years. In 1863 the Territory came under the control of South Australia which in 1910 passed the Northern Territory Aboriginals Act 1910. The Act claimed to be for the “Protection and Control” of the Aboriginal people of the Territory. Under the Act, the “Chief Protector of Aboriginals” was appointed as the legal guardian of every child whose mother was Aboriginal, and had the power to confine such children to a reserve or Aboriginal institution. That is, indigenous children could be removed by Administrative order, whereas non-Indigenous children at the time could only be removed by order of a Court this policy of removing indigenous children from their family continued when control of the Northern Territory was transferred from South Australia to the federal government. The Aboriginals Ordinance 1918 extended these powers, putting Aboriginal females under the total control of the Chief Protector. Most of the Aboriginal institutions were operated by churches. From 1964 indigenous children could only be removed under the same circumstances as non-Indigenous children, however, the conditions of life for Indigenous people put them at greater risk of having their children removed on the ground of neglect or destitution. In 1971 97% of Territory children in foster care were Indigenous.
In 1997 the Human Rights and Equal Opportunity Commission published the Bringing Them Home report on its inquiry into the separation of Aboriginal and Torres Strait Islander children from their families. The report made a range of recommendations, including apologies from governments, churches and charities involved, the payment of monetary compensation and that the federal government legislates to implement the Genocide Convention with full domestic effect.
The plaintiffs were seeking compensation from the Commonwealth for wrongful imprisonment and deprivation of liberty. For seven of the plaintiffs, Alec Kruger, Hilda Muir, Connie Cole, Peter Hansen, Kim Hill, George Ernest Bray, Janet Zita Wallace and Marjorie Foster, the claim was based on their removal from their families while they were children between 1925 and 1944. The claim of the eighth plaintiff, Rosie Napangardi McClary, was based on her being a mother whose daughter had been removed. One of the barriers for members of the Stolen Generations obtaining compensation was that their removal was authorised by the 1918 Ordinance, a barrier the plaintiffs sought to remove by challenging the legality of the ordinance.
In the High Court the plaintiffs argued that the ordinance was invalid because it
Authority for the second proposition came from Chu Kheng Lim v Minister for Immigration, where Brennan CJ, Deane and Dawson JJ said “The involuntary detention of a citizen in custody by the State is penal or punitive in character and, under our system of government, exists only as an incident of the exclusively judicial function of adjudging and punishing criminal guilt.
All judges dismissed the separation of powers argument, their reasons differed. Brennan CJ, Dawson and McHugh JJ held that the separation of powers doctrine did not apply to the power to make laws for a territory under section 122 of the Constitution and thus did not decide whether detention was a judicial power. Brennan CJ held that the territories were not part of the federal system that involved the distribution of powers between the Commonwealth and the States. Dawson J, McHugh J agreeing, held that section 122 of the Constitution permitted the Parliament to create courts that were not federal courts and not exercising federal jurisdiction. Dawson J doubted that the actions were of a judicial rather than an executive character.
The plaintiffs sought remedies consistent with the dissenting judgements of Deane and Toohey JJ, and Gaudron J in a separate judgment in Leeth v Commonwealth, However, in this case only Toohey J held there was a right of substantive equality; Gaudron J departed from her position in Leeth to support procedural equality only. Gaudron J was accompanied by Dawson, McHugh and Gummow JJ. Brennan CJ did not consider this issue, as he found that such a right could not apply to the territories, as they were creations of parliament.
Per Dawson J, the due process afforded by the existence of Chapter III courts is of a “procedural rather than substantive nature”. As for the existence of discrimination in the Constitution, he disagreed with the notion that because there were provisions protecting the States from discriminatory Commonwealth laws, there should be applicable laws for individuals, on the basis that these protections were founded on different considerations. Furthermore, where the Constitution has prescribed equality, it has done so explicitly, such as the section 92 prohibition against discrimination of a protectionist kind. However, he recognized that Deane and Toohey JJ based their doctrine of equality on “considerations of a more fundamental kind”.
The claim for freedom of movement was not based on the express right such as the freedom of interstate commercial travel, but rather an implied right flowing from the implied freedom of political communication, a freedom that may be subject to limitations that are reasonably appropriate and adapted to serve a legitimate end. Toohey, Gaudron, and McHugh JJ held that association and movement were inherent in political communication such that there was an implied freedom of movement and association. Toohey J held that considering the standards and perceptions prevailing at the time of the 1918 Ordinance, it was not necessarily invalid. McHugh J held that the right was intimately connected with voting, and because the people of the Northern Territory, whether indigenous or not, could not vote at that time, freedom of movement did not apply to people in the Northern Territory. Gaudron J was the only judge to have held that any part of the 1918 Ordinance was invalid, holding that sections 6, 16 and 67(1)(c) were invalid as they were not necessary for the attainment of some overriding purpose. These were the sections that permitted the Chief Protector to take children into custody, and to confine them to a reserve or Aboriginal institution.
Brennan CJ and Dawson J did not decide whether or not there was an implied freedom of movement and association. Brennan CJ held that the provisions were not directed to impeding political communication and so were not invalid. Dawson J held that because people in a Territory did not have the right to vote, there was no right for freedom of movement to attach to. Gummow J took the narrowest interpretation, holding that there was not a right to freedom of movement and familial association, and even if such rights existed, the 1918 Ordinance did not infringe them.
The High Court upheld the validity of the 1918 Ordinance but that removal could only occur if it was considered as being best interests of the Aboriginal child, “judged by the values and standards prevailing at the time”. In this way the Court left open the possibility that the removal of some Aboriginal children may not have been authorised by the 1918 Ordinance. Only one member of the Stolen Generations, Bruce Trevorrow in South Australia, has obtained compensation as a result of litigation. Limited compensation schemes have been implemented in New South Wales and South Australia.
Nationwide news pty ltd vs willis (1992) 177 CLR 1
The Industrial Relations Act 1988 (Cth) made it an offence to bring the Australian Industrial Relations Commission into disrepute. Nationwide News published an article attacking the integrity and independence of the Commission.
Nationwide News argued that the Act infringed the implied freedom of political communications, while the Commonwealth argued that the Act was valid under section 51(xxxv) (conciliation and arbitration power), as well as section 51(xxxix) (express incidental power).
Although it was not a decisive factor, it was argued that freedom of communication falls under freedom of interstate intercourse.
Per Brennan J, the protection in section 92 is given to such things as the movement of people, goods and communications. The essential ingredient is that there is movement across State boundaries, although the movement need not be perceivable. A test can be specified as follows:
Brennan, Deane, Toohey and Gaudron JJ thought that it was within the conciliation head of power, but that it infringed the implied freedom of political communication. Mason CJ, McHugh and Dawson JJ, however, held that it was outside the head of power.
Nationwide News is the key case where the concept of proportionality is discussed. Proportionality is the idea that there should be a reasonable relationship between an end and the means used to achieve that end. It has been used for:
Dawson J rejects the proportionality test as suggested by Mason CJ, arguing that it should be a test of sufficient connection, and not proportionality.
The High Court majority (Brennan, Deane, Toohey and Gaudron JJ) held that the Act was within the conciliation and arbitration head of power, but that it infringed the implied freedom of political communication.
The “doctrine of representative government” is one of the three doctrines found in the Constitution the other two are federal government and the separation of powers.
All citizens who are not under a special disability should be able to share the benefits of the right to political discourse. If not, then the citizenry would not be able to participate in the representative government system which Australia has.
Section 229 of the Industrial Relations Act 1988 (Cth) (the Act) made it an offence to bring the Australian Industrial Relations Commission into disrepute. Nationwide News (Nationwide) was the holding company of the proprietor of “The Australian” newspaper. The Australian published on 14 November 1989 an article headed “Advance Australia Fascist” which had been contributed by a freelance journalist, Mr Maxwell Newton, and which contained an attack on the “Arbitration Commission” and its members.
Thomas V Mowbray (2007)
Thomas had been the first Australian to be convicted under anti-terrorism laws introduced in Australia after the 11 September 2001 attacks in the United States. He was sentenced on 31 March 2006 to five years prison with a non-parole period of two years. The trial was highly controversial, as the evidence used to prosecute Thomas consisted solely of an interview conducted in a Pakistani military prison. Despite claims that the evidence was obtained under duress and that Thomas had been tortured, the judge deemed the interview to be admissible. The conviction was overturned on appeal by the Victorian Court of Appeal in the case of R v Thomas, with the appeals judges ruling that the trial judge should have ruled the evidence inadmissible.
On 27 August 2006, the Federal Magistrates Court (constituted by the first defendant) placed Thomas on an interim control order. The Court’s order was made on the following grounds:
The order placed the following restrictions on Thomas:
Prior to the Federal Magistrates Court confirming the interim order, i.e. making it permanent, Thomas commenced his special case in the High Court. He joined the magistrate, the Australian Federal Police officer that brought the application for the control order and the Commonwealth as defendants in the action. The Attorneys-General for New South Wales, South Australia and Western Australia intervened, largely in support of the Commonwealth. The Federal Magistrates Court proceedings were, therefore, adjourned by consent of the parties.
The special case that eventually came before the High Court posed the following four questions for the Court’s consideration:
Q1 #Is Division 104 of the Criminal Code invalid because it confers on a federal court non-judicial power contrary to Chapter III of the Commonwealth Constitution?
A Subdivision B of Division 104 is valid; otherwise inappropriate to answer
Q2 #Is Division 104 of the Criminal Code invalid because insofar as it confers judicial power on a federal court, it authorizes the exercise of that power in a manner contrary to Chapter III of the Commonwealth Constitution?
A Subdivision B of Division 104 is valid; otherwise inappropriate to answer.
Q3 Is Division 104 of the Criminal Code invalid because it is not supported by one or more express or implied heads of legislative power under the Commonwealth Constitution?
A Subdivision B of Division 104 is valid; otherwise inappropriate to answer
Q4 #Who should pay the costs of the special case?
A The plaintiff should pay the costs of the Commonwealth of the special case.
His appeal was therefore dismissed, and the interim control order upheld.
Thomas v Mowbray, was a decision handed of the High Court of Australia on 2 August 2007 concerning the constitutional validity of “interim control orders” under the Commonwealth Criminal Code. The case was brought by Joseph Terrence Thomas (referred to as “Jihad” Jack Thomas by the media), where he sought to challenge the interim control order that had been placed on him by a Federal Magistrate. The High Court ruled, by a 5:2 majority, that interim control orders were constitutional.
Australian Capital Television V Commonwealth (1992) 177 CLR 106
In 1992, the Government of Australia (“the Commonwealth”) under Prime Minister Bob Hawke passed the Political Broadcasts and Political Disclosures Act 1991, which inserted part IIID into the Broadcasting Act 1942. The changes had a number of effects, the most important of which prohibited the broadcasting of politically related material on electronic media such as radio and television during the period leading up to a State or Federal election (except in news, current affairs or talkback programs). The laws also obliged broadcasters to provide “free time” to political parties to air advertisements. Kim Beazley, then the Minister for Transport and Communications, said that the changes were designed to limit corruption, and prevent donors to political parties from exerting undue influence, by restricting the amount of political advertising that could be broadcast. He said that due to the practical cost of advertising, it was only the major parties and very wealthy individuals who could afford to broadcast advertisements. The Government said they had wanted to avoid a situation such as that in the United States, where it is virtually impossible for anyone but the very rich to participate in the political process.
With some exceptions, the laws prohibited broadcasters from broadcasting matter for or on behalf of the government or government agencies, and from broadcasting political advertisements (“matter intended or likely to affect voting in the election”, or matter explicitly referring to the election) on behalf of themselves or other individuals during an election period. The “free time” would be divided between the parties based on the amount of representation they had in the Parliament, with only five percent available to other groups, who had to apply for an allocation of free time.
The eight plaintiffs in the case were commercial television broadcasters who held broadcasting licences under the Broadcasting Act. They asked the High Court to declare that Part IIID of the act was invalid. In a related action which was heard at the same time, the Government of New South Wales also challenged the laws, particularly their application to by-elections. The Government of South Australia intervened in the case in support of the Commonwealth.
The most important argument made by the plaintiffs was that the new laws interfered with a right to free political speech which was implied in the Constitution. They also argued that the parts of the Act requiring that broadcasters give “free time” to certain people was an unjust acquisition of property. The Government of New South Wales argued that the laws were discriminatory against the states and they interfered with the proper business of State Governments.
The principal argument from the plaintiffs was that the changes to the Broadcasting Act contravened an implied right to freedom of participation and communication in political processes. They argued that this right to free political speech arose from the system of representative government which is provided by the Constitution, or alternatively, it arose from the “common citizenship of the Australian people.” Sir Maurice Byers QC, who acted for the plaintiffs, paraphrasing former Justice Isaac Isaacs argued that the principle that governments are responsible to the citizens who elect them “permeates the Constitution, forming part of the fabric on which the written words of the Constitution are superimposed,” and as such, all voters should be entitled to make comment on political issues.
The plaintiffs argued that since a right to free political communication was recognized in other parliamentary democracies, such as in the United States by the First Amendment to the United States Constitution, and in Canada by the Charter of Rights and Freedoms, it should be recognized in Australia. They said that because the provisions in Part IIID limited the allocation of “free time” to people or groups already represented in the Parliaments, new parties or people not in the Parliament would not be able to express their views.
The Commonwealth argued that the laws enhanced rather than diminished the electoral process, because they prevented corruption, and allowed parties which did not have large amounts of money to have access to radio and television broadcasting. They said that the Parliament has valid powers to protect the integrity of the electoral process under sections 10, 29, 31, 51(36) and 51(39) of the Constitution. Furthermore, they argued that even if there was some implied right to freedom of political communication, this could not override valid legislation. The Commonwealth also pointed out those similar laws operated in countries such as the United Kingdom, France, Norway and Sweden, and those countries such as Canada, Germany, Japan and New Zealand had a system of allocating free broadcasting time for political purposes during election periods.
The Government of South Australia, who intervened in support of the Commonwealth, said that if the framers of the Constitution had intended to include provisions for a right of free speech as in the United States Constitution, they would have done so. They said that although some freedom of communication could reasonably be implied into the Constitution, the parts of the Act in question did not have the effect of preventing “free and meaningful elections” from taking place, and so the laws were not invalid.
The High Court agreed that the new part IIID of the Broadcasting Act had the effect of limiting the freedoms previously enjoyed by citizens to publicly discuss political matters. However, the question remained as to whether there was some sort of Constitutional basis for these freedoms, or whether the Commonwealth was justified in restricting them. While the court agreed that similar laws had been put in place overseas, that did not change the fact that the laws impaired freedom of communication, and privileged those political parties or interest groups who were already represented in the Parliament. The laws would not only disadvantage candidates challenging sitting members, but would severely hinder groups such as trade unions, charities or employers’ groups, who may very well have a legitimate desire to make political statements.
The plaintiffs also argued that to force broadcasters to give portions of “free time” to the represented political parties and members of parliament had the effect of taking away their right to charge money for broadcasting advertisements. They suggested that taking away their advertising time and in effect giving it to the legislators constituted an acquisition of property by the Commonwealth, which according to section 51(xxxi) of the Constitution, has to be done “on just terms.”
The Commonwealth argued that the laws made no unjust acquisition of property, since broadcasting licenses were not immune to being modified by the Parliament. They said that it was fair and just to require broadcasters to provide a limited amount of free service in the public interest. In any event, the Commonwealth suggested that “free time” granted by the Act was not a form of property anyway, since it could not be transferred to other people, one of the essential features of any form of property.
Ultimately the court did not decide on this issue, although Justice Brennan said that he agreed with the Commonwealth’s argument that the “free time” was not a form of property.
The Government of New South Wales, in addition to supporting the claims of the other plaintiffs, also argued that Part IIID of the Broadcasting Act was invalid because it interfered with the executive functions of the States, and contravened sections 106 and 107 of the Constitution which protects the individual State Constitutions. They said that to interfere with the right of State Governments to make political advertisements went far beyond any legitimate power given to the Parliament of Australia by the Constitution. They also said that in any event, the changes to the Act should not apply to by-elections.
The Commonwealth argued that Part IIID of the Act did not single out the States, nor interfere with their proper activities, since State elections were treated in exactly the same way as Federal elections were.
The court decided that a right to freedom of political communication was essential to the system of representative government provided for in the Constitution. The court expressed the view that the reason why Australia does not have a bill of rights is because the framers of the Constitution believed that since Australia had a system of representative government, which gave all voters an equal share in political power, laws to protect rights were simply not necessary. To undermine the system of representative government was contrary to this trust which the people gave to the Parliaments, and was not permitted by the Constitution. Although this right is not an absolute one, it is still a right which allows for free and public political discussion.
The court also decided that the relevant laws, contained in Part IIID of the Broadcasting Act, were invalid because there was no reasonable justification for the way they restricted the freedom of political communication. The court decided that the laws also impaired certain functions of the States in terms of their rights to make political advertisements, and so the laws were also invalid for that reason.
The case was one of the earliest in a series of cases in which the High Court found implied rights in the Constitution. This trend reached a High-point in Theophanous v Herald & Weekly Times Ltd, which found that the implied right to freedom of political communication could be used as a defence in a defamation action. Although that is no longer the case, the limited right to freedom of communication remains. It was emphasized in later cases like Lange v ABC, that political communication was not a personal right, rather a constitutional restriction on legislative power.
In discussing the nature of representative government, Chief Justice Mason expressed the view that although the Constitution originally drew its authority from the British Imperial Parliament, it would indeed be appropriate in modern times to recognize that Australian sovereignty derives its force from the Australian people.