A A C L Australian Association of Constitutional Law ABN 11 727 363 928

STATE CONVENORS’ REPORT TO THE ANNUAL GENERAL MEETING 2014 NSW Details of 2014 Events The NSW Chapter has hosted the following events that have been well attended: 1. Thursday,13 February 2014, 6-7.30pm ‘Judges As Royal Commissioners’ Reprised: The Involvement Of Australian Judges In Extra– Judicial Work’ Presenter: Professor Fiona Wheeler, ANU College of Law Venue: Supreme Court of NSW, Queens Square, Sydney, Banco Court (Level 13) The late George Winterton, published ‘Judges as Royal Commissioners’ in 1987. In this paper, he claimed there was ‘overwhelming’ justification for the view ‘that judges should generally decline to undertake extra-judicial governmental duties’. This was because the use of judges in such roles ‘can endanger public confidence in the independence, impartiality and competence of the judiciary’. At the same time, he argued that the Boilermakers Case ‘should be overruled’ and replaced by a more flexible principle preventing federal courts from exercising functions at odds with their role as repositories of judicial power. Over 25 years later, this lecture reprises the themes — notably the need for judges to avoid controversy arising from contact with political matters — that Winterton explored in this characteristically incisive essay. Drawing on archival research undertaken by the speaker, the lecture will provide a window into the rich, though neglected, history of the involvement of Australian judges in extra-judicial work and explore the reasons why Winterton’s arguments remain valid today. This joint event was organised by Sydney Law School, AACL and the University of Western Australia. 2. Thursday, 1 May 2014, 5.30-7pm ‘Panel On The Unions Of NSW Political Finance Case’ Panel: Professor Adrienne Stone, Melbourne Law School; Associate Professor Joo–Cheong Tham, Melbourne Law School and Dr Anika Gauja, Department of Government and International Relations, University of Sydney Chair: Mr Ian Temby AO QC, St James Hall Chambers Venue: Federal Court, Queens Square, Sydney, Court 18B

Australian Association of Constitutional Law Secretariat Melbourne Law School 185 Pelham Street University of Melbourne Vic 3010 Telephone: 03-8344 1011 Fax: 03-8344 1013 Email: [email protected]

A A C L Australian Association of Constitutional Law ABN 11 727 363 928

In Unions of NSW v NSW [2013] HCA 58, the High Court found two sections of the Election Funding, Expenditure and Disclosures Act 1981 (NSW) invalid for impermissibly burdening the freedom of political communication implied by the Australian Constitution. In doing so, the Court affirmed its acceptance of ‘anti-corruption’ as a legitimate object of electoral reform but found these laws invalid as having no relation to such an object. In this seminar, the members of the panel will explore the significance of the case for constitutional law, election law and law reform. This event is hosted by AACL in conjunction with the Electoral Regulation Research Network. 3. Tuesday, 9 September 2014, 5.30-7pm ‘Current Experiments in Australian Constitutional Criminal Law’ Presenter: Professor Jeremy Gans, Melbourne Law School Commentators: Mr Robert Bromwich SC, Commonwealth Director of Public Prosecutions; Mr Timothy Game SC, Forbes Chambers and Dr Gabrielle Appleby, Adelaide Law School Chair: The Hon. Justice Margaret Beazley AO (President, NSW Court of Appeal) Venue: Federal Court, Queens Square, Sydney, Court 18B Last year, Dr Gabrielle Appleby examined the past, present and future of state law and order regimes and concluded that the High Court’s Kable doctrine may have killed off State experiments in criminal justice in favour of constitutionally ‘safe’ court–based schemes that appealed to no-one (AACL, Sydney, 23 October 2013). The same examination just one year later yields a different conclusion. State parliaments have started experimenting with laws that give powers to decide guilt and punishment to non–court bodies. Indeed, Victoria has enacted the nation’s first one–person detention statute in two decades. This paper looks at the High Court’s possible role in prompting these developments and its potential role in stopping them. Forthcoming Events: •

Wednesday 5 November 2014, 5.30-7pm The Principle of Legality Presenters: Mr Brendan Lim, Wentworth Chambers Chair: The Hon. Murray Gleeson AC QC Commentators: The Hon Justice Nye Perram, Federal Court of Australia andAssociate Professor Dan Meagher, (Deakin University Venue: Federal Court, Queens Square, Sydney, Court 18B, 5:30 pm In accordance with the "principle of legality" or "clear statement principle", courts will not construe statutes to abrogate certain common law rights unless very clear words require them to do so. Why? Is it because of fidelity to legislative intention? Is it because substantive legal values recommend the course regardless of legislative intention? The answer matters because the principle of legality should not be extended beyond its rationale. The rationale for the principle of legality will tell us which rights engage the principle, and it will tell us what kind of legislative clarity is needed to displace the principle. On one view, rights are called 2

A A C L Australian Association of Constitutional Law ABN 11 727 363 928

'fundamental' because they are rights that the parliament does not in fact intend to abrogate. On another view, rights are 'fundamental' in a more objective sense, because they are recognised to be 'important', or perhaps because they are 'vulnerable' in the sense that the ordinary political process is inherently inapt to protect them. The paper will explore these themes in the context of recent cases, building on the author's work in "The Normativity of the Principle of Legality" (2013) 37 Melbourne University Law Review 372. •

Tuesday 9 December 2014, 5.30-7pm ‘Comparative Constitutional Law – Final Courts Round–Up 2014’ Speakers: Professor Mark Tushnet , Harvard Law School, other international visitors speaking will be announced later in the year. Chair: Professor Rosalind Dixon, University of New South Wales Venue: Federal Court, Queens Square, Sydney, Court 18B This annual seminar will provide an outline of recent constitutional developments in several overseas jurisdictions that are of key interest to Australian constitutional lawyers. Experts from each jurisdiction will report on three of four major constitutional cases argued or decided over the last year; changes in the composition and politics of each country’s highest court; and flag the state of debate over constitutional reform. Together, the panellists will also discuss the potential relevance of these comparative developments for current issues in Australian constitutional law.

Dr Christos Mantziaris NSW Convenor VIC Details of 2014 Event The VIC Chapter held the following seminar: Tuesday, 5 August 2014 – 5.45-7pm ‘Commonwealth spending power, from Williams (No 1) to Williams (No. 2)’ Speaker: Mr Nick Wood, Victorian Bar Commentators: M Professor Michael Crommelin AO, Zelman Cowan Professor of Law, University of Melbourne and Mr Graeme Hill (Senior Fellow, University of Melbourne; member of the Victorian Bar) Chair: Professor Cheryl Saunders AO, Laureate Professor, University of Melbourne Venue: Courtroom 1, Level 8, Owen Dixon Commonwealth Law Courts Address: 305 Williams Street, Melbourne Angel Aleksov Acting VIC convenor ACT 3

A A C L Australian Association of Constitutional Law ABN 11 727 363 928

Details of 2014 Event The ACT Chapter held the following seminar: Tuesday, 1 July 2014, 12.30-2pm ‘Indigenous Recognition in the Constitution’ Speakers: Professor Megan Davis and Mr Henry Burmester AO QC Venue: Ground Floor, 4 National Circuit, Barton ACT In January 2012 the Expert Panel on Constitutional Recognition of Indigenous Australians presented its report Recognising Aboriginal and Torres Strait Islander Peoples in the Constitution to the Prime Minister. The Panel recommended that Australians should vote in a referendum to among other things insert a new section SlA to recognise Aboriginal and Torres Strait Islander peoples and to preserve the Australian Government's ability to pass laws for the benefit of Aboriginal and Torres Strait Islander peoples. In response to the Expert Panel's Report,Parliament established a Joint Select Committee on Constitutional Recognition of Aboriginal and Torres Strait Islander Peoples. That Committee has been asked to consult further on the model,and to help to ensure secure and strong cross-party support so that a proposal can be put to the Australian people at a referendum. The Committee has yet to release its report. Professor Megan Davis is from Queensland and has Aboriginal and South Sea Islander background. She is an Expert Member of the United Nations Permanent Forum on Indigenous Issues, the Director of the Indigenous Law Centre, Faculty of Law at the University of NSW,and an Australian member of the International Law Association's Indigenous Rights Committee.She was a member of the Expert Panel. Mr Henry Burmester AO QC was Chief General Counsel in the Australian Government Solicitor for over a decade and before that head of the Office of International Law in the Attorney-General's Department. He was a member of the Expert Panel. Ms Megan Caristo Acting ACT Convenor QLD Details of 2014 Events The QLD Chapter held the following seminars: 1. Wednesday, 19 March 2014 5.30-7pm: ‘The Territory of Marriage: Constitutional law, marriage law and family policy in the ACT Same Sex Marriage Case’ Speaker: Professor Patrick Parkinson AM, Sydney Law School Commentator: Walter Sofronoff QC, Solicitor-General of Queensland Venue: Library Conference Room Address: Level 12, Queen Elizabeth II Courts of Law, 415 George Street, Brisbane 4

A A C L Australian Association of Constitutional Law ABN 11 727 363 928

In Commonwealth v Australian Capital Territory [2013] HCA 55 (12 December 2013) the High Court unanimously held that the whole of the Marriage Equality (Same Sex) Act 2013 (ACT) was inconsistent with the Marriage Act 1961 (Cth) within the meaning of s 28(1) of the Australian Capital Territory (Self-Government) Act 1988 (Cth). The result was that the provision for same sex marriage enacted by the Legislature of the Australian Capital Territory was of no effect. In the course of its reasoning, the Court considered the scope of the Commonwealth Parliament’s power to legislate with respect to marriage pursuant to s 51(xxi) of the Constitution and stated that marriage is a consensual union formed between natural persons in accordance with legally prescribed requirements which is not only a union the law recognises as intended to endure and be terminable only in accordance with law but also a union to which the law accords a status affecting and defining mutual rights and obligations. 2. Tuesday, 19 August 2014 5.30-7.30pm: ‘Williams Mark II: Commonwealth Spending, Benefits to Students and School Chaplaincy’ Speaker: Professor Andrew Lynch, UNSW Commentators: Peter Dunning QC, Solicitor General of Queensland and Peter James, CEO of Scripture Union Queensland and former Partner at Allens Linklaters Venue: The Conference Centre Address: Level 12, Queen Elizabeth II Courts of Law, 415 George Street, Brisbane In June 2014 the High Court handed down its decision in Williams v Commonwealth of Australia [2014] HCA 23 (19 June 2014) ('Williams (No 2)'). The Court unanimously struck down the funding agreement between the Commonwealth Government and Scripture Union Queensland (SU QLD), which allowed SU QLD to provide chaplaincy services in public schools. The decision revisited the High Court's previous findings in Williams (No 1), a decision that dramatically evolved legal principles relating to Commonwealth spending capacities, and touched on core issues of federal-state relations. The High Court’s decision in Williams (No 2) also involves important interpretations of the federal power to make laws with respect to 'benefits to students' under section 51 (xxiiiA) of the Constitution. Professor Nicholas Aroney QLD Convenor SA The SA Chapter held the following seminars: 1. Friday, 28 March 2014 1-2pm: ‘Commonwealth v Australian Capital Territory: The High Court Steps into the Marriage Debate’ Speakers: Dr Gabrielle Appleby, Adelaide Law School and Stephen McDonald, Hanson Chambers Venue: Pilgrim Hall, 12 Flinders Street

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A A C L Australian Association of Constitutional Law ABN 11 727 363 928

In December 2013, the High Court decided that same-sex marriage legislation enacted by the ACT Legislative Assembly was inconsistent with the federal Marriage Act, and therefore inoperative. In the course of answering the question of inconsistency, the High Court held that the Commonwealth Parliament’s power to make laws with respect to marriage extended to laws providing for same-sex marriage. The decision puts to bed one of the arguments that have been advanced by those opposed to the enactment of Commonwealth legislation that would enable same-sex marriage. This seminar examines the decision and its political implications at both the federal and State level. 2. Wednesday, 4 June 2014 5.30-7pm: ‘Election Bonanza: An Exploration of Recent Electoral Issues’ Speakers: Damian O’Leary (Crown Solicitor’s Office), Stephan McDonald (Hanson Chambers), Mike Wait (Crown Solicitor’s Office) and Professor Clement Macintyre (University of Adelaide Venue: Moot Court, Ligertwood Building, University of Adelaide Law School This seminar brought tales from the many electoral issues raised in the past 12 months. Our speakers presented on four compelling topics. Damian O’Leary spoke on the missing ballot papers in the Western Australian senate election and the subsequent action in the Court of Disputed Returns. Mike Wait spoke on the recent decision of the High Court in Unions NSW v New South Wales, which upheld challenge to restrictions on political donations. Stephen McDonald spoke on the controversy regarding electoral boundaries and the primary vote following the recent State election. Sarah Mitchell, SA Committee Member Mike Wait, SA Convenor WA Details of 2014 Events The WA Chapter held the following seminars: 1. Saturday, 22 February 2014: Half Day Conference- ‘Sentencing and the Criminal Process- Emerging Dimensions’ Chair: The Hon. Justice John McKechnie (Supreme Court of WA) Session 1: ‘Recent cases - Bugmy and Munda’ Speaker - Anthony Eyers (Francis Burt Chambers) Commentator- The Hon. Justice Robert Mazza (Supreme Court of WA) Session 2: ‘Recent cases - X7 and Lee’ Speaker - Richard Hooker (Francis Burt Chambers) Commentator- Amy Preston-Samson (State Solicitor’s Office, WA) Session 3: ‘Putting Sentencing in a Broader and Comparative Perspective’ Speaker: Dr Hilde Tubex (UWA, ARC Future Fellow) 6

A A C L Australian Association of Constitutional Law ABN 11 727 363 928

2. Thursday, 6 March 2014 6pm: ‘Elections and Money: Legislative Regulation of Political Donations – The High Court Decision’ Speakers: • Grant Donaldson SC, Solicitor General for WA • Dr Martin Drum, University of Notre Dame Chair: Justin Harbord (WA Electoral Commission) 3. Wednesday, 30 April 2014, 6pm: ‘Emmerson: The High Court, Kable and Criminal Property Confiscation Laws’ Speakers: • Dr Peter Johnston, UWA, Monash University, Barrister (Stone Chambers) • Dr Natalie Skead, UWA Chair: Richard Hooker, Barrister (John Toohey Chambers), UWA Adjunct Professor Planned Events: • Saturday, 18 October 2014: Half day Conference: ‘Dividing the GST Pie: WA’s Slice’ •

Thursday, 6 November 2014, 6pm: ‘Can judges have legal opinions? Recusal and pre-judicial legal advice’ Speaker: Dr Gabrielle Appleby (Adelaide University) Commentator: The Hon. Justice James Edelman (Supreme Court of WA) Chair: The Hon. Wayne Martin AC (Chief Justice of Western Australia)

Associate Professor Sarah Murray WA Convenor

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