Aliens: The Outsiders in the Constitution · And yet, aliens are not 'outlaws'.All categories of...

Belinda Wells LLB (Adel), LLM (Lond), Lecturer in Law, Flinders University.

A Lester and G Bindman, Race and Law (Hammondsworth: Penguin, 1972), 13-14.Section 51(xix) confers power to make laws with respect to 'naturalisation and aliens'.Cunliffe v Commonwealth (1994) 124 ALR 120 ('Cunliffe').Chu Kheng Lim v Minister for Immigration, Local Government and Ethnic Affairs (1992) 176 CLR 1 ('Lim').Leeth v Commonwealth (1992) 174 CLR 455 ('Leeth') per Brennan, Deane and Toohey JJ.Sir Owen Dixon, 'The Common Law as an Ultimate Constitutional Foundation' (1957) 31 Australian law Joumal240, reprinted in Jesting Pilate (Melbourne: Law Book Company, 1965).Cheatle v R (1993) 177 CLR 541, 552 per the Court (and footnote 65 thereto), as cited in Theophanous v Heraldand Weekly Times (1994) 124 ALR 1 ('Theophanous'), 27 per Brennan 1.

The law ... has two faces. One face confronts the stranger at the gate; the other is turned towardsthe stranger within . .. .1

These evocative words were written to emphasise the different messages conveyed toimmigrants by hostile British immigration laws on the one hand, and 'friendly' racediscrimination laws on the other. In Australia, much the same dichotomy can be observed.Our legislation authorising the detention of illegal immigrants reflects an attitude that thesepeople have not been permitted entry to the Australian community, and so are not entitledto the protections that it offers. Once permitted entry to the Australian community,however, legal immigrants may avail themselves of protective race discriminationlegislation and social services.

However, so long as the immigrants fail to take out Australian citizenship, they willhave fewer legal rights than a citizen. This is because they remain 'aliens'. As such, theCommonwealth parliament may enact special, discriminatory laws about them, pursuantto s 51 (xix) of the Constitution.2 Their speech is 'not protected by the constitutionalimplication of freedom of political communication.3 And they are not entitled to the samelevel of constitutional protection against lengthy executive detention.4

The High Court has accepted that certain constitutional doctrines protect citizens butnot aliens. It may of course be possible to justify some discrimination on this basis.However, the issue has never been squarely addressed. The constitutional principle of legalequality - endorsed by three members of the Court in Leeth5 - has not been utilised inthis context. No reference has been made to equality as a contemporary value, as anaspiration of Australian society which is reinforced by international instruments whichAustralia has ratified. Instead, predominant emphasis is placed upon the common lawbackground to the constitutional doctrines.

And so, such discrimination against aliens raises wider issues of judicial technique andconstitutional interpretation. In particular, it highlights the respective roles of the commonlaw and of contemporary values in constitutional adjudication. As to the fIrst of these, theHigh Court has to some extent in recent cases been forced to confront the question ofwhat is meant by the aphorism 'the common law as an ultimate constitutional foundation'.6The Court has been clear on the general principle here: without doubt the nineteenthcentury common law background to the Constitution provides an important guide to itsinterpretation. The Court has said, for example, that the interpretation of the Constitution'is necessarily influenced by the fact that its provisions are framed in the language of theEnglish common law, and are to be read in the light of the common law's history'.7

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However, what is left unclear is the question of '[w]hether the interpretation andoperation of the Constitution might be affected by the development of common lawdoctrines' ,8 or by contemporary social and political attitudes and circumstances. Certainly,it appears that a majority of the Court in Theophanous9 rejected the idea that the contentof implied constitutional principles is constrained by 'what the framers of the Constitutionthought . .. 100 years ago'. 10 In that case, however, only Deane J stated his positionopenly.ll Deane J said that he regarded the Constitution as a 'living instrument' whichwas intended to be adaptable 'to serve succeeding generations' of Australians (whoseacceptance of it gave it continued legitimacy).12 As such, the scope of its fundamentaldoctrines could, in his view, only be ascertained by taking 'full account of contemporarysocial and political circumstances and perceptions'. 13

The composition of the High Court has changed since Theophanous was decided. 14

After the recent case of McGinty,15 it is clear that a majority of the Court sees itself ashaving considerably less scope to draw upon its perceptions of contemporary values. Inany event, even before this - as the cases on aliens indicate - the contemporary andinternational law value of equality had had little impact upon the content of constitutionaldoctrines. In this article, I argue that common law-derived constitutional principles suchas representative government and judicial power (and the constitutional provisions whichimplement them) should be set free from the discriminatory background which hastraditionally narrowed the scope of their protection.

The outsider and the community

The Australian Constitution confers a power to legislate with respect to 'aliens'. 'Alien'is a term of ancient origin, which connotes 'belonging to another person or place'. 16 Theterm is regarded by the High Court as synonymous with the term 'non-citizen',I? yet itcarries with it far more sinister overtones. Referring to a person as an alien 'calls attentionto their "otherness", and even associates them with non-human invaders from outerspace' .18

An alien is not a member of 'the community constituting the Australian body politic' .19

These days (now that the category of 'British subject' has been abolished), the criterion

8 Theophanous (1994) 124 ALR 1, 27, Brennan 1 raises this question, but leaves it unanswered (my emphasis ofthe word 'development').

9 (1994) 124 ALR 1.10 Id 16 per Mason CJ, Toohey and Gaudron 11, 50-52 per Deane 1.11 As George Williams points out, Mason CJ, Toohey and Gaudron IJ were 'implicit' in their 'use of modem social

and political circumstances': see G Williams, 'Engineers is Dead, Long Live the Engineers!' (1995) 17 SydneyLaw Review 62, 83.

12 Theophanous (1994) 124 ALR 1, 50; see also McGinty v Western Australia (1996) 134 ALR 289, 319 perToohey J, 'The Constitution must be construed as a living force ...'.

13 Id 52. Such an approach has been termed 'progressivism' and has been sharply criticised by Greg Craven. Onthe use of this approach in the interpretation of constitutional provisions generally, see G Craven, 'The Crisis ofConstitutional Literalism in Australia' in H P Lee and G Winterton (eds), Australian Constitutional Perspectives(Melbourne: Law Book Co, 1992), 16-20.

14 Mason Cl and Deane 1 have retired, and Gummow and Kirby 11 have been appointed.15 McGinty v Western Australia (1996) 134 ALR 289 ('McGinty').16 In Nolan v Minister for Immigration and Ethnic Affairs (1988) 165 CLR 178 ('Nolan'), 183, the High Court in

a joint judgment said: 'As a matter of etymology, "alien" from the Latin alienus through the old French, meansbelonging to another person or place. Used as a descriptive word to describe a person's lack of relationship witha country, the word means, as a matter of ordinary language, "nothing more than a citizen or subject of a foreignstate": Milne v Huber [(1843) Fed Cas 403, 406 (US)]'.

17 CWlliffe (1994) 124 ALR 120, 191 per Toohey 1.18 G L Neuman, 'Aliens as Outlaws: Government Services, Proposition 187, and the Structure of Equal Protection

Doctrine'(1995) 42 UClA Law Review 1425, 1428.19 Lim (1992) 176 CLR 1, 53 per Gaudron 1.

1

20 Ibid21 Perhaps some analogy can be drawn between the way that society and the law has traditionally perceived aliens,

and the way that the outsider Meursault perceived himself in Albert Camus, L'Etranger (London: Methuen'sEducation, 1970).

22 Lim (1992) 176 CLR 1, 19 per Brennan, Deane and Dawson JJ.23 Ibid and the cases cited at footnote 38 therein; C Vincenzi, 'Aliens and the Judicial Review of Immigration Law'

(1985) Public lAw 93, 98-99.24 This is the case so long as there is no 'legislative provision to the contrary': Lim (1992) 176 CLR 1, 19 and the

cases cited at footnote 39 therein.25 The Australian Citizenship Act 1948 (Cth) sets out various statutory criteria for citizenship, namely (in general

terms) descent from an Australian citizen, birth in Australia, adoption by Australian citizen(s), and the grant of acertificate of Australian citizenship: ss 10, lOA, lOB, 10C, 11 and 13. See also Lim (1992) 176 CLR 1, 54 perGaudron J, 'Citizenship . . . originat[ed] as recently as 1948 with the enactment of what was then styled theNationality and Citizenship Act 1948 (Cth)'.

26 Cunliffe (1994) 124 ALR 120, 191 per Toohey J, referring to the decision of the High Court in Nolan (1988)165 CLR 178, 183-185. The courts have not accepted the argument that an alien immigrant ceases to be an alienonce he or she is 'absorbed into the Australian community': Pochi v Macphee (1982) 151 CLR 101, 111 perGibbs CJ (with whom Mason and Wilson JJ agreed). The person will, however, no longer be encompassed by alaw supported by the immigration power in s 51 (xxvii) of the Constitution: Nolan (1988) 165 CLR 178, 194195 per Gaudron J.

27 Nolan (1988) 165 CLR 178, 190 per Mason CJ, Wilson, Brennan, Deane, Dawson and Toohey J1.28 See Pochi v Macphee (1982) 151 CLR 101, 109 per Gibbs CJ.29 Compare the jurisprudence of the United States Supreme Court, as described in Neuman, supra note 18.

for membership of that community is citizenship.2o Through failure to swear allegiance tothe country or its head of state, the alien remains an 'outsider' - regarded in some waysas 'outside society'.21

And yet, aliens are not 'outlaws'. All categories of aliens - whether legal or illegal,resident or non-resident - are subject to the general law and derive some protection fromit.22 For example aliens, like citizens, have a common law right not to be detained exceptupon statutory authority.23 They may bring proceedings before a court to challenge thelegality of any detention.24

In the late twentieth century it is a simple matter to determine who in the Australiancommunity is a citizen, and who is an alien. Citizenship, a concept of relatively recentorigin in Australia, is a term which is statutorily defined.25 Subjective feelings ofattachment to Australia, and duration of residence here, are irrelevant. The converse tenn,'alien', has been held to mean (in general) 'a person born out of Australia of parents whowere not Australian citizens and who has not been naturalised under Australian law or aperson who has ceased to be a citizen by an act of process of denaturalisation' .26 The HighCourt has said that the meaning of the term 'alien' in s 51(xix) of the Constitution is'constant' ,27 and so cannot be modified by Parliament.28

It is more difficult to determine what legal rights and entitlements should accompanythe status of 'alien'. Aliens come in many guises - from permanent residents who haveadopted mainstream Australian values, to illegal immigrants from very different culturalbackgrounds. Section 51(xix) of the Constitution does not distinguish between them. Itsoriginal purpose was largely discriminatory - to enable the new Commonwealthgovernment to deal with the perceived threat of an influx into Australia of Chineseimmigrants and other 'foreign' races. In contrast to the US Supreme Court, the High Courthas not found it necessary to develop a complex jurisprudence on aliens whichdistinguishes between the types of rights accorded to the various categories of alien.29

There is of course one type of disability which clearly distinguishes alien status fromcitizen status. Since an alien has not sworn allegiance to the country, he or she is preventedfrom participating in 'the making of community decisions' such as 'voting and office

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48 Belinda Wells

holding'.3O Such disabilities are widely accepted as associated with alien statuS.31 Inaddition, in Australia alien status means preclusion from public employment.32 On theother hand, the scope of an alien's right to receive public benefits may depend uponwhether he or she is legally within the country, and the period of his or her residence inthe country.33

An inability to vote at elections casts aliens into the 'role of a particularly powerlessgroup. It is worthwhile to recall this at a time when much attention - both in the mediaand in academic circles - is focused on the general theme of citizenship. Fuelled by thearguments of some republicans, such debate has often assumed that all citizens - allmembers of the Australian community - should have certain minimum entitlements: toparticipation in public life, to a reasonable standard of living, and so on. The terminologyused - citizenship - excludes aliens from the purview of such entitlements.

In the courts, the judiciary has not paid close attention to the justifications advancedfor State discrimination against aliens. It has rarely questioned government motivation. Inparticular, it has not addressed the question of whether legislation which is presented underthe cover of the aliens power is sometimes in fact designed to deal with public (orperceived public) xenophobia against a particular racial group.34

The High Court may not at present have the tools to uncover charges of racialdiscrimination in such circumstances. However the application of a legal equality principleof some type (preventing unjustified discrimination against aliens) could have considerableimpact. I tum now to consider the scope and possible application of such a principle.

Equality in law

The common law has long recognised a doctrine of legal equality. As Deane and TooheyJJ recount in Leeth v Commonwealth (lLeeth'),35 the doctrine 'has two distinct but relatedaspects' .

The first is the subjection of all persons to the law: 'every man, whatever be his rank or condition,is subject to the ordinary law ... and amenable to the jurisdiction of the ordinary tribunals' 36.

The second involves the underlying or inherent theoretical equality of all persons under the law

30 M McDougal, H Lasswell and L Chen, Human Rights and World Public Order (Yale University Press, 1980),767. In Australia, the Commonwealth Constitution precludes aliens from holding office as a member of the Houseof Representatives (s 34) or senator (s 16), but not from voting for such representatives (ss 7, 8, 24, 25 and 30).However, the Commonwealth Electoral Act 1918 (Cth) provides that only Australian citizens, and some Britishsubjects who were on the roll prior to 1984, may vote: s 93(l)(b)(i) and (ii). (Incidentally, it has recently beensuggested that the provision of voting rights to certain British non-citizens, but not to other non-citizens, may becontrary to the Racial Discrimination Act: 'Court bid on British vote rights', The Australian, 16 September 1996.)For details of the disabilities attached to alien status prior to 1981, see M Pryles, Australian Citizenship lmv(Sydney: Law Book Co Ltd, 1981), 62-65.

31 For example, no state in the United States 'has permitted aliens to vote in statewide or federal elections since the19208': Neuman, supra note 18, 1428.

32 Australian citizenship is necessary for appointment to the public service except in exceptional circumstances ('inaccordance with arrangements approved by the Prime Minister'): Public Service Act 1922 (Cth), ss 47(2)(a) and(10).

33 Various qualification provisions apply to the social security payments set out in the Social Security Act 1991(Cth). The qualifications necessary to obtain an age pension and a job search allowance, for example, involverequirements of a specified period of Australian residence and/or a permanent or other appropriate visa: see SocialSecurity Act, ss 43(l)(b), 7(6), 541B(l), 7(1), Schedule 1 Item 1127, 541B(2), 541(C)(3). In the United Kingdom,an Asylum Bill has recently been enacted, which 'removes [welfare] benefit from asylum seekers who do notmake an application when they arrive in the country or while an appeal against refusal is being processed': TheWeekly Telegraph, issue 262. In relation to the United States position, see Neuman, supra note 18, 1437-1438.

34 See Neuman, supra note 18, 1429: 'the discourse of legal status permits coded discussions in which listeners willunderstand that reference is being made, not to aliens in the abstract, but to the particular foreign group that isthe principal focus of current hostility'.

35 (1992) 174 CLR 455,485.36 A Dicey, Introduction to the Study of the lAw of the Constitution (10th ed, London: McMillan, 1959), 193.

37 See for example, W Holdsworth, A History of English Law (London: McMillan, 1938), vol 10,649.38 See Lester and Bindman, supra note 1, 24-26.39 J S Mill, 'Utilitarianism', in M Warnock (eel), Utilitarianism, On liberty, Essay on Bentham (London: Collins,

1962), 301, as cited in W Sadurski, 'Equality before the Law: A Conceptual Analysis' (1986) 60 Australian LawJournal 131, 131.

40 (1994) 69 ALJR Ill.41 Id 113.42 Sadurski, supra note 39, 131.43 Ibid44 Id 133.45 Id 134.46 Id 134-138.

and before the COUrts.37 The common law may [only] discriminate between individuals byreference to relevant diffemces and distinctions.

The first aspect of the common law doctrine is that of equality before the law. Thisprinciple directs a court to enforce all laws and grant all remedies with equal strictness. Itis a 'formal concept'38 in a number of senses. The Courts have generally failed to inquirewhether the parties in fact have equal access to a court's powers of enforcement. Nor doesthe principle of equality before the law take into account the content of the laws whichare being equally enforced.

As J S Mill pointed out:

The justice of giving equal protection to the rights of all, is maintained by those who support themost outrageous inequality in the rights themselves . .. .39

And, as the recent case of Walker v New South Wales ('Walker')40 illustrates, thereappears to be no room within the principle for an argument that 'the same law should notbe applied to a particular category of people because they are different in a relevant sense' .In Walker, Mason CJ dismissed any possibility that customary Aboriginal criminal law,rather than criminal statutes, might apply to particular criminal conduct by an Aboriginalperson. In doing so, he invoked the 'basic principle that all people should stand equalbefore the law', and said that such a principle would be offended by any construction ofa statute which resulted in 'different criminal sanctions applying to different persons forthe same conduct' .41 No consideration was given to the idea that substantive equality equality of outcome - might be achieved if different criminal laws were applied to personswho were different in a relevant sense (for example, Aboriginal in culture).

This idea of equality of outcome can, of course, be picked up by the second strand ofthe legal equality doctrine. This second principle is one of equality in or under law that is, in 'the content of legal rules'.42 Its corollary is the principle of 'unequal treatmentof unequals' .43 However, all people are equal in some ways, and unequal in others.Therefore the principle can only be applied after determining the relevant criteria ofsameness or difference. Sadurski explains:

As it is impossible to treat people equally in one respect without at the same time treating themunequally in other respects, 'equality in the law' concerns the appropriateness of the criteria bywhich one chooses to classify people by legal norms.44

In other words, we will regard the principle of equality in law as satisfied if we acceptthe law's 'choice of particular properties as relevant to differentiated treatment' .45

Sadurski argues that a law which imposes differential treatment on the basis of animmutable characteristic such as race or sex (or on the basis of nationality) is notnecessarily discriminatory. We should only regard it as discriminatory if the differentialtreatment is not justified by a benign purpose, resulting in a just law.46 In deciding whethera common law principle or a statutory provision has a benign purpose, the courts willinevitably be involved in value judgments.

Secondly, in Australia there is, in addition to the common law principle of equality,


50 Belinda Wells

Commonwealth and State legislation proscribing discrimination on a number of grounds.The three main Commonwealth statutes purport to implement the provisions ofinternational instruments. Of these, the Racial Discrimination Act 1975 (Cth) prohibitsdiscrimination on the grounds of race, colour, descent, and national or ethnic origin.47

However it does not prohibit discrimination against non-citizens.48

In construing and applying our anti-discrimination legislation, Australian courts havenot in fact taken the integrated approach suggested by Sadurski. That is, they have notchosen to consider the issue of whether the purpose of the impugned legislation is benignor harmful as part of the test of whether the legislation is discriminatory. In Gerhardy vBrown,49 for example, various members of the High Court held that s 19 of thePitjantjatjara Land Rights Act 1981 (SA) discriminated on the ground of race. Section 19conferred a benefit on Pitjantjatjara people which was not available to non-Pitjantjatjarapeople, and so was held to be inconsistent with 'the human right to equality before thelaw' .50 The provision was only upheld as consistent with the Racial Discrimination Act,1975 (Cth) because it could be regarded as a 'special measure' for the purposes of s 8(1)of the Act.

A constitutional principle?

Thirdly, there may be a constitutional principle of legal equality. In Leeth, Deane andToohey 11 argued that the Australian Constitution reveals an intention to adopt both aspectsof the common law doctrine 'as a matter of necessary implication' .51 In their view, thedoctrine is one of the 'fundamental common law principles' upon which the Constitutionis 'structured' ,52 and therefore it is appropriate to apply the oft-quoted statement made byIsaacs 1 in The Commonwealth v Kreglinger & Fernau Ltd and Bardsley.53 There, IsaacsI said that:

. . . it is the duty of this Court, as the chief judicial organ of the Commonwealth, to take judicialnotice, in interpreting the Australian Constitution, of every fundamental constitutional doctrineexisting and fully recognised at the time the Constitution was passed.54

In support of their view, Deane and Toohey 11 offered a number of arguments. One ofthese is based on the 'people as beneficiaries' approach to constitutional interpretation,which I will consider shortly. A second regards specific provisions of the Constitution as'manifestations' of the doctrine of legal equality, rather than as operating to exclude it.55

Thirdly, Deane and Toohey JJ point to the preamble and s 3 of the Constitution asindicating that the 'conceptual basis' of the Constitution was the 'free agreement of "thepeople" - all the people - of the federating Colonies to unite in the Commonwealthunder the Constitution'.56 'Implicit in that free agreement', they say, 'was the notion ofthe inherent equality of the people as parties to the compact'.57

In this third argument, Deane and Toohey JI reason from a textual base, but arrive ata conclusion which is by no means obvious. Nonetheless, it is a conclusion whichBrennan 1 in Leeth also appears to have drawn from the preamble to the Constitution.

47 Racial Discrimination Act 1975 (Cth), ss 9 and 10.48 See articles 1.2 and 1.3 of the Intemational Convention on the Elimination ofAll Forms ofRacial Discrimination,

which is set out in the Schedule to the Racial Discrimination Act 1975 (Cth).49 (1985) 159 CLR 70; (1985) 59 AUR 311.50 (1985) 59 AUR 311, 377 per Brennan J as cited by Sadurski, supra note 39, 136.51 (1992) 174 CLR 455, 486.52 Ibid53 (1926) 37 CLR 393.54 Id 411-412.55 Id 484, 487.56 ld 486.57 Ibid

58 ld 475.59 ld 487.60 ld 501.61 (1992) 176 CLR 1. See text following note 233 below.62 (1992) 174 CLR 455, 487.63 See Nationwide News Pty Ltd v Wills (1992) 177 CLR 1, 71-72 per Deane and Toohey JJ.64 (1992) 177 CLR 1.65 ld 69 per Deane and Toohey J1.

'Fundamental common law principles'

In Leeth, Deane and Toohey JJ declare that the legal eqLality doctrine is one of the'fundamental common law principles' which make up the structure of the Constitution.62

It appears that they would extend to the doctrine the same status as they accord to thedoctrines of representative government, separation of powers, and federalism.63 However,in the case of Nationwide News Pty Ltd v Wills,64 which was heard and decided at muchthe same time as Leeth, Deane and Toohey JJ in fact distinguish between several types ofconstitutional implications. In their view, the three (or possibly four) 'main generaldoctrines of government ... upon which the Constitution as a whole is structured' are tobe distinguished from the 'more particular implications' which are either 'to be discernedin particular provisions of the Constitution or which flow from the fundamental rights andprinciples recognised by the common law at the time the Constitution was adopted as thecompact of the Federation' .65

There has been little support - judicial or academic - for the idea of elevating'ordinary' common law rights to the status of constitutional principles. Amongst recentHigh Court judges, Mason CJ, Dawson, McHugh, and Brennan JJ have all made pointedremarks about the need to confine the source of constitutional implications.

Mason CJ, Dawson and McHugh JJ have each emphasised the premise upon which the

Brennan J says little about the basis for the non-discrimination principle applied by him,except that certain discrimination would 'be offensive to the constitutional unity of theAustralian people "in one indissoluble Federal Commonwealth" recited in the firstpreamble' to the Constitution.58

Finally, Deane and Toohey JJ in Leeth also fmd support in the nature of Commonwealthjudicial power exercisable by courts designated by Chapter III of the Constitution. In theirview, such courts are obliged to 'act judicially', and so must treat the individuals beforethem 'as equals before the law', and refrain from discriminating against them 'on irrelevantor irrational grounds'.59 In Leeth, Gaudron J also takes this approach. She confines herreasoning to the exercise of judicial power conferred under s 71 of the Constitution, andso fmds it unnecessary to decide whether Commonwealth legislative power conferred bys 51 'is subject to an implied general limitation forbidding laws which discriminate' on acertain basis.60

To summarise, four of the seven judges in Leeth applied a principle of legal equality.Three of them relied in part or full upon the common law-supplied content of the conceptof 'judicial power'. The interaction of the two principles of judicial power and equalitywill be examined further below, in the context of the case of Lim.61 However, I tum nowto examine the general premise from which Deane and Toohey JJ proceed in Leeth that common law rights may be regarded as 'fundamental' and therefore as candidates forentrenchment in the Constitution (despite the presence in the Constitution of other, expressrights). I then cc;.>nsider the 'people-based' reasoning which Deane and Toohey JJ use tosupport their conclusion. I do so in order to gauge whether any of the bases relied uponhave received sufficient judicial support to make likely the continued existence of anindependent legal equality principle.

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52 Belinda Wells

Australian Constitution was founded: that the protection of fundamental rights andfreedoms was to be entrusted to the 'democratic process' - that is, 'to Parliament, ratherthan to the Constitution and hence the courts'.66 As a result, there is said to be no basisfor concluding that common law rights are as a general rule to be implied into theConstitution. Implications are to be drawn only from the text and structure of theConstitution, 'not from extrinsic circumstances'.67 Brennan J adds to this the observationthat '(i)n the interpretation of the Constitution, judicial policy has no role to play' .68 Bycontrast with its role in developing the common law, the court has 'no jurisdiction to fillin what might be thought to be lacunae left by the Constitution'.69

That is not to say that common law principles cannot be used 'to interpret particularprovisions of the Constitution' .70 All members of the High Court would endorse the pointmade by Latham CJ - that 'the Commonwealth of Australia was _not born into avacuum'.71 It was 'created against the background of a system of constitutional conventionsand common law rules and principles', ... and these are 'the source of the legalconceptions that govern us in determining [the Constitution's] effect' .72 I will return to thispoint in due course, to examine the question of whether the content of this common lawfoundation could and should change over time to meet the contemporary needs and valuesof Australians.

However I remain for the moment on the issue of the justifications which have beenadvanced for casting the equality principle in the role of a constitutional implication. Asto the general contention that common law doctrines existing at the time of federation maybe implied into the Constitution, I make one further point. The point is one that wasacknowledged, at least in part, by Deane and Toohey JI in Leeth,73 and which has beenadmirably summarised by Geoffrey Kennett as follows:

... the common law may not be an appropriate source for the implication of individual rights.Its basis is the customary law of a heavily class-bound, patriarchal society in which most peoplehad no right to vote, religious difference was not tolerated and radical political debate wasroutinely limited by persecution and imprisonment.14 -

It follows that the High Court may not be prepared to countenance all parts of acommon law principle as it existed in 1901. If this is the case, the Court will be forcedto choose between the parts of the principle that it wishes to adopt, and those that it wantsto reject. Its choice will be based upon policy and values which lie outside the Constitution.

A similar attack could be mounted against any attempt to identify constitutional rights

66 Cunliffe (1994) 124 ALR 120, 181 per Dawson J. See also Australian Capital Television Pty Ltd v Commonwealth(No 2) (1992) 177 CLR 106 ('AC1V'), 135-136 per Mason CJ, and Theophanous (1994) 124 ALR 1, 67 perMcHugh J; cf Justice Toohey, 'A Government of Laws, and Not of Men' (1993) 4 Public lAw Review 158,170-171.

67 Theophanous (1994) 124 ALR I, 71 per McHugh J.68 Id 28.69 Ibid70 Id 71. McHugh J would, however, restrict their use for this purpose to circumstances in which 'there are grounds

for concluding that the meaning of the constitutional provision was intended to be understood by reference to a... [theory of federalism, politics or economics] or ... [common law] principle'.

71 Re Foreman and Sons Pty Ltd; Uther v FCT (1947) 74 CLR 508, 521 per Latham CJ, as cited by McHugh inTheophanous (1994) 124 ALR 1, 71.

72 Ibid. The latter passage is taken from Dixon, supra note 6, 241.73 'The common law ... may have failed adequately to acknowledge or address the fact that, in some circumstances,

theoretical equality under the law sustains rather than alleviates the practical reality of social and economic inequality. Nonetheless, and putting to one side the position of the Crown and some past anomalies notably,discriminatory treatment of women, the essential or underlying theoretical equality of all persons under the lawand before the courts is and has been a fundamental and generally beneficial doctrine of the common law ...':Leeth (1992) 174 CLR 455, 486 (my emphasis).

74 G Kennett, 'Individual Rights, the High Court and the Constitution' (1994) 19 Melbourne University Law Review581, 611.

II['

and freedoms from vague concepts such as the 'free and democratic society'75

contemplated by the Constitution or its founders. As pointed out above, a number ofmembers of the High Court have eschewed reliance upon such a broad foundation for theimplication of constitutional guarantees.76

The 'people' as a guide to constitutional interpretation

Secondly, Leeth is evidence of the fact that for a time at least there existed a new forcein constitutional interpretation: 'the people'.77 This development took various fonns. !

One of these was the idea of the 'people as beneficiaries of the Constitution'. It wasencapsulated by Deane 1 in University of Wollongong v Metwally ('Metwally's case') asfollows:

[T]he provisions of the constitution should properly be viewed as ultimately concerned with thegovernance and protection of the people from whom the artificial entities called Commonwealthand States derive their authority.78

In Metwally's case this approach led Deane to ascribe a particular 'people's rights'interpretation to s 109 of the Constitution. In Leeth, this focus on the people behind theentities resulted in the argument - put by Deane and Toohey 11 - that an implicationof non-discrimination as between entities (by the Commonwealth against Stategovernments) must be matched by a non-discrimination principle as between theCommonwealth and the Australian people.79

A second, equally novel approach to constitutional interpretation was also identified.The second idea is that the Constitution now 'owes its legal force' to the continued supportof the Australian people, rather than to 'its character as a statute of the Imperial Parliamentenacted in the exercise of its lt~gal sovereignty'.80 As a result, 'ultimate sovereigntyreside[s] in the Australian people' .81 This approach probably enjoys greater support thanthe frrst amongst members of the High COurt.82 It is more concerned with the source ofthe Constitution's authority, rather than with the implications for constitutionalinterpretation which flow from recognition of that source. It has led various members ofthe Court to adopt a particular conception of what representative government entails.83

However it may not, on its own, offer much further scope for development of the idea ofa 'people-focused' Constitution.

Professor Detmold has taken the idea of the sovereignty of the Australian people onestep further. In his view, not only do the people 'own the Constitution'; they own it


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See AC1V (1992) 177 CLR 106, 210-211 per Gaudron J. The basis on which Gaudron J relies has the potentialto support a wide range of rights and freedoms including at least some of those supported by Murphy J; seeKennett, supra note 74, 599.Cunliffe (1994) 124 ALR 120, 181 per Dawson J; see also AC1V (1992) 177 CLR 106, 135-136 per Mason CJ,186 per Dawson J; Theophanous (1994) 124 ALR 1, 28 per Brennan J, 67, 71 per McHugh J; cf Toohey, supranote 66, 170-171.This development has been discussed by various commentators. See, in particular, M J Detmold, 'The NewConstitutional Law' (1994) 16 Sydney lAw Review 228; J Doyle, 'Courts Unmaking the Laws' in Courts in aRepresentative Democracy (Canberra: Australian Institute of Judicial Administration Incorporated, 1995), 143.(1984) 158 CLR 447, 477 per Deane J.Leeth (1992) 174 CLR 455, 484.AC1V (1992) 177 CLR 106, 138 per Mason CJ.IbidHowever, Dawson J clearly does not accept this approach: see id 181, and see McGinty (1996) 134 ALR 289,343-344 per McHugh J, and 378-379 per Gummow J. The views of the newest member of the Court, Kirby J,is as yet untested.Id 137-138 per Mason CJ; Nationwide News (1992) 177-CLR 1,70 per Deane and Toohey JJ.

54 Belinda Wells

equally.84 In Leeth, of course, Deane and Toohey II argued that this equal ownership stemsfrom the free agreement of all the people 'of the federating Colonies to unite in theCommonwealth under the Constitution' .85 Detmold describes their analysis as based onthe question of 'what is implicit in the having of a constitution', rather than on 'what isimplicit in the words of the constitution'.86 It is, he says, 'a creative act of understandingthe nature of constitutions'.87

This may be so. However, such analysis cannot escape the criticism that on this basiseach judge, unconstrained by text or historical principle, could place on the Constitutionhis or her own unique 'understanding [of] the nature of constitutions'.88

The High Court, as presently composed, has rejected the use of creative reasoning ofthis type.89 The most recent appointee - Kirby I - has not yet had an opportunity toexpress his view on these particular questions of constitutional interpretation, nor on theexistence or otherwise of a constitutional principle of legal equality. Nonetheless, supportfor the existence of the equality principle would seem to be weak. The principle has notbeen applied with any effect since its fIrst appearance in Leeth. In McGinty it was notregarded as bolstering the plaintiffs argument that 'voting equality'90 ('one vote, onevalue') is a necessary requirement in our system of representative democracy.

It seems unlikely, therefore, that the Leeth equality principle will have any impact onthe Court's decision in the case of Kruger,91 which was heard earlier this year. Nor wouldthere seem to be any future for the idea of substantive legal equality as an element in theexercise of judicial power. I will examine the latter issue further in the context of adiscussion of Lim's case.92

A constitutional equality principle - content

In view of the recent lack of support for the principle, I now tum, relatively briefly, toconsider the possible content of any constitutional principle of equality under the law.

As we have seen, at common law the principle does not prevent all differential treatmentby the law. It allows differential treatment of people who are 'relevantly different' .93LikeWIse, the converse principle of discrimination has been held in specific constitutionalcontexts (such as in relation to s 92 of the Constitution) to mean 'the different treatmentof persons or things that are not relevantly different' .94 Further, even where there is a'relevant' difference, 'different treatment will constitute discrimination if it is notreasonably capable of being seen as appropriate and adapted to that difference' .95

84 Professor Detmold in fact discusses the equal ownership of the Constitution by 'the citizens', rather than by 'thepeople'. However he is obviously using the tenn 'citizen' in a particular, idiosyncratic sense, rather than in alegal sense: supra note 77, 229.

85 (1992) 174 CLR 455, 486. See text accompanying supra notes 56-58.86 Detmold, supra note 77, 229.87 Ibid88 Ibid89 In McGinty (1996) 134 ALR 289, 349, McHugh J says explicitly: 'Under the Constitution, ... individual

Australians do not have an equal share in the sovereignty of Australia'. More generally see, for example, the textaccompanying notes 163 and 164 below.

90 McGinty (1996) 134 ALR 289,324 per Toohey J. Gummow J considered the application of the Leeth principle,but rejected it out of hand - presumably in the face of the express words of the Constitution, 387.

91 In Kruger v Commonwealth (heard by six members of the High Court (excluding Kirby J) in February 1996),the plaintiffs argued that the Aboriginals Ordinance 1918-1953 (NT), in authorising the removal and detentionof 'aboriginals' and 'half-castes', was contrary to the implied constitutional doctrine of legal equality, and to therequirements of the judicial power of the Commonwealth conferred in accordance with Chapter III of theConstitution.

92 (1992) 176 CLR 1. See text accompanying notes 251-254 below.93 See text accompanying supra notes 44 and 45.94 Leeth (1992) 174 CLR 455, 498 per Gaudron J (my emphasis).95 Ibid

As mentioned above, in Leeth, Deane, Toohey and Gaudron JJ held that the judicialpower conferred under s 71 of the Constitution contains, as 'an essential feature', a nondiscrimination principle of this kind.96 Gaudron J held that the impugned law, whichprovided that Commonwealth offenders would receive different treatment (as to eligibilityfor parole) according to the State or Territory in which they were sentenced, could not'reasonably be viewed as appropriate and adapted to that consideration' .97

Secondly, in Leeth Deane, Toohey and Brennan JJ recognised the existence of anindependent constitutional doctrine of legal equality - one which was not reliant uponthe conferral of judicial power under the Constitution. They held that the doctrine wouldnot be infringed by a law which provided differential treatment if it did so on a 'rational'basis98 (or was 'capable of being seen as providing a rational and relevant basis for the[difference in] treatment'.)99 In each case, the idea of rationality was used to describe thereasonableness of imposing some sort of different treatment, rather than thereasonableness - the proportionality - of the means chosen by parliament to implementthe different treatment.

However, Deane and Toohey JJ went on to indicate that in at least some cases, theproportionality of a measure will be scrutinised. In their view, the Constitution at timesauthorises legislation wmch would otherwise be regarded as discriminatory (because itdifferentiates on a non-rational basis). For example, the aliens power and the 'race' powerauthorise discriminatory laws. However they do so only if the laws are 'proportionate':

... [A] legislative power to make special laws with respect to a particular class of persons, suchas aliens (... s 51(xix» or persons of a particular race (s 51(xxvi» necessarily authorisesdiscriminatory treatment of members of that class to the extent which is reasonably capable ofbeing seen as appropriate and adapted to the circumstances of that membership. tOO

It is evident from Leeth that judicial opinion will vary on whether a particular differencein treatment is 'rational' (or reasonably capable of being seen as such). The Commonwealthprovision in question there directed State and Territory courts to sentence federal offendersin a manner consistent with the sentencing process that would be applied to State offendersin the same State or Territory.IOt Since federal offenders serve their sentences in the sameprisons as those who have committed offences under State and Territory law, the purposeof the provision was presumably to ensure that all prisoners serving sentences in the sameprison were subject to the same parole regime. 102 However, the other consequence of thelegislation was that a federal offender could potentially receive different minimum termsof imprisonment depending on the State or Territory in which the sentencing took place.

Brennan J regarded such differential treatment of federal offenders as 'rational' indeed 'necessary'. He held that such treatment will remain necessary so long as therecontinues to be a system - 'contemplated by section 120 of the Constitution'103 - of'incarcerating Commonwealth prisoners in the same prisons as State prisoners'.104

Deane and Toohey JJ - applying the same test - took the opposite view. 105


96 ld 486-487 per Deane and Toohey JJ, 502-503 per Gaudron J. See text accompanying supra notes 59 and 60.97 ld 500.98 ld 479 per Brennan J.99 ld 488 per Deane and Toohey JJ.100 ld 489.101 Commonwealth Prisoners Act 1967 (Cth), s 4(1).102 Or at least this is what Brennan J took to be the purpose of the provision.103 Section 120 of the Constitution 'requires each State to make provision for the detention in its prisons of persons

accused or convicted of offences against the laws of the Commonwealth, and for the punishment of personsconvicted of such offences': Leeth (1992) 174 CLR 455, 490 per Deane and Toohey JJ.

104 ld 479 per Brennan J.105 ld 492, they pointed out, for example, that there was 'no certainty that a federal offender would be held in a

prison of the State or Territory where he or she was convicted'.

56 Belinda Wells

One conclusion that could be drawn from Leeth is that the nature of the discriminationtest employed by the judges is not a matter of great significance, since the concept of'rational' discrimination is so indeterminate. It could certainly be argued that the outcomein such a case will depend more on what values a judge places highest in his or herhierarchy of values. 106

In Australia, therefore, any constitutional principle of legal equality based on Leeth may(depending on its application) offer little protection to aliens. The general principleendorsed there by Deane, Toohey and Brennan JJ would operate subject to other provisionsin the Constitution which are said to authorise discrimination. Deane and Toohey JJ haveheld that the aliens and race powers are two such provisions.

,'~

United States

In the United States, by contrast, considerable protection for aliens is provided by the equal'protection clause in the Fourteenth Amendment to the United States Bill ofRights. 107 TheUnited States Supreme Court has developed a sophisticated multi-layered jurisprudence,which accords various levels of protection to aliens. The degree of protection provideddepends upon factors such as the source of the impugned legislation (federal or State), thelegality of the alien's presence, whether the alien is a resident, and whether thediscrimination would exclude the alien from the exercise of a 'political function'. 108

The starting point from which the Supreme Court proceeds is that the equal protectionclause applies to all aliens, whether lawfully or unlawfully present in the United States.The guarantee is said to apply 'to all within a State's boundaries, and to all upon whomthe State would impose the obligations of its laws' .109 Nonetheless, governmentdiscrimination against aliens will attract varying levels of judicial scrutiny, depending onthe particular combination of the factors mentioned above.

For example, the Court has held that State discrimination against permanent residentaliens will be subjected to its 'strict scrutiny' test (except where the discrimination'excludes the alien from the exercise of a "political function" " but that non-residentaliens will only receive the benefit of a low level scrutiny 'rational relation' test.1lO Nonresident aliens are, in effect, less subject to State obligations, and therefore less protected. I II

It might be expected that illegal aliens in the United States would receive acomparatively low level of protection. However this is not necessarily the case. The UnitedStates Supreme Court treats with great deference all alienage discrimination byCongress.112 (Discrimination by Congress is subject only to a 'rational basis' test.)However in the significant case of Plyler v Doe,1l3 which concerned state discriminationagainst illegal alien children, a majority of the Court applied a level of 'scrutiny morestringent than the rational basis test'. 114

There appear to be several means by which a future Court could confme Plyler v Doe

106 See Sadurski, supra note 39, 134.107 The equal protection clause provides that '[n]o State shall ... deny to any person within its jurisdiction the equal

protection of the laws'.108 In relation to the 'political function' test, see Bernal v Fainter (1984) 467 US 216 and Cabell v Chavez-Salido

(1982) 454 US 432, as cited in Neuman, supra note 18, 1426, footnote 4. The various levels of protection foraliens are described by Neuman.

109 Plyler v Doe (1982) 457 US 202, 214.110 Neuman, supra note 18, 1426, 1437.111 Id 1438, footnote 60: 'Aliens who do not reside in the United States differ from permanent residents in the degree

to which they are subjected to taxation, conscription and the legal regime of the state'.112 Id 1426.113 (1982) 457 US 202, 214. Here, the Supreme Court held that 'Texas's exclusion of illegal alien children from its

public schools' violated the equal protection clause, Neuman, supra note 18, 1442.114 Id 1443.

115 Id 1444-1445, 1449.116 Id 1448.117 Id 1449.118 Ibid. See also supra note 33.119 (1992) 176 CLR 1.120 Theophanous (1994) 124 ALR 1, 29.121 In relation to the doctrine of separation of judicial power see, for example, Lim (1992) 176 CLR 1, 26 per

Brennan, Deane and Dawson JJ. In relation to the doctrine of federalism, see for example, AC1V (1992) 177CLR 106, 134 per Mason CJ.

Influence of contemporary values and international law

In any event, there is another possible avenue for incorporating equality principles intoconstitutional adjudication. This is by allowing the interpretation of existing constitutionalprovisions and constitutional doctrines to be influenced by contemporary values, includingthose values advocated by international human rights law. In this way, a document draftednearly one hundred years ago may be made to respond to societal changes which occurduring the course of its life. It may be possible for it to comply with Brennan J's statementthat:

The Constitution speaks continually to the present and it operates in and upon contemporaryconditions.120

As mentioned earlier, I intend to consider the impact of equality principles on twoparticular constitutional doctrines: those of representative government and judicial power.Of these, only the latter may be regarded by the High Court as an 'independent'principle - independent of (or at least, a great deal more detailed than) the constitutionalprovisions which implement it. Judicial power - or at least the larger doctrine ofseparation of judicial power from executive and legislative powers - is generallyconsidered to form part of the structure on which the Constitution is built. Like the generaldoctrine of federalism, the principles of judicial power (what it is, and what safeguards itsupplies) are both incorporated in the Constitution (to some extent) and form part of itsstructural underpinnings.121

57Aliens.' The Outsiders in the Constitution

to its facts. IIS However, as Gerald Neuman has argued, the majority decision nonethelessstands for a general proposition: that illegal aliens are not 'de facto outlaws, persons beyondthe effective protection of the law' .1l6 As is the case in Australia, illegal aliens are subjectto the general obligations imposed by the law, and are therefore entitled to some protectionfrom it.

Neuman argues that aliens as a group are particularly vulnerable to hostilediscrimination. They are unrepresented in parliament, and are frequently viewedunsympathetically by the public because of their foreignness. 1l7 There is little political willto enact protective legislation - and insufficient public interest in protesting against anydiscriminatory State action. In such a context, the protection that may be extended by aconstitutional guarantee of equality is particularly important. According to Neuman, theequal protection clause in the United States Constitution must therefore impose on theState some obligation to provide to illegal aliens a 'minimal level of governmentservices' .118

In Australia, an illegal alien could not hope to be successful in pursuing such anargument. In the case of Lim,119 the High Court showed little interest in the proportionalityof legislation which authorised lengthy periods of executive detention for illegal aliens.The equality principle was not mentioned at all. It is clear that the principle described inLeeth will have little, if any, impact on legislation relating to aliens who are susceptibleto deportation. It is a constitutional implication which 'lacks teeth' - perhaps because itrests on somewhat unstable foundations.

58 Belinda Wells

Prior to the recent case of McGinty,122 a majority of the High Court appeared to acceptthat the Constitution also contains an 'independent' principle of representativegovernment.123 In McGinty, however, it became clear that a majority of the current Courtregard the content of the principle as confined to its limited implementation in the text ofthe Constitution - in particular, in ss 7 and 24. The scope for judicial creativity here hasbeen correspondingly reduced. Nonetheless, the principle of representative governmentcontinues to share with the judicial power principle the essential feature of all commonlaw based constitutional doctrines: flexibility. In each case the full content of the doctrineis not detailed in the Constitution, yet is used to interpret constitutional provisions. 124

In my view, whilst the essential features of these doctrines remain unaltered sincefederation, their application (the details of their content) cannot remain unchanged.125 Andthe same point must apply to the interpretation of constitutional provisions. In 'changingconditions, the Constitution [must] ... have a changing effect' .126 Thus, in McGinty forexample, a number of the judges pointed out that the application of the concept ofrepresentative government has changed during the course of this century. As a result, alaw which failed to provide universal suffrage to all adult Australian citizens - men andwomen, regardless of race - could once have been deemed consistent with our systemof representative government, but could no longer be considered SO.127

The question of the permissible scope of judicial law-making in such areas remains acontentious one.128 However it is argued that the High Court should not disregard theimpact of contemporary values such as legal equality. Non-discrimination as a principle isnow entrenched in statutory form as an important value of the Australian community. Inaddition, there is some indication that international law (particularly the InternationalCovenant on Civil and Political Rights ('ICCPR')),129 may be accepted by our courts assupplying evidence of '[t]he contemporary values which justify judicial development ofthe law' .130

Certainly, international law is now regarded as a 'legitimate and important influence'on the development of the common law. 131 As is well known, in Mabo v Queensland

122 (1996) 134 ALR 289.123 See, for example, Nationwide News (1992) 177 CLR 1, 69-70 per Deane and Toohey JJ and 47-48 per Brennan

J; ACTV (1992) 177 CLR 106, 209-210 per Gaudron J; Theophanous (1994) 124 ALR 1, 11 per Mason CJ,Toohey and Gaudron JJ, cf 71-73 per McHugh J and 54 per Dawson J (constitutional protection extends only tothe 'minimal' requirements of representative government which the Constitution lays down in ss 7 and 24);C.unliffe (1994) 124 ALR 120, 180 per Dawson J. Like the principle of responsible government, representativegovernment was considered to be 'part of the fabric on which the written words of the Constitution aresuperimposed': see Nationwide News (1992) 177 CLR 1, 69-70 per Deane and Toohey JJ; AC1V (1992) 177CLR 106, 135-136 per Mason CJ. It was described by Deane and Toohey JJ as one of the 'three main generaldoctrines of government which underlie the Constitution and are implemented by its provisions': Nationwide News(1992) 177 CLR I, 69-70 per Deane and 'Toohey JJ and see 71, footnote 25 where Deane and Toohey JJ arguethat the doctrine of responsible government can be seen as a fourth 'main general doctrine underlying theConstitution as a whole'; see also AC1V (1992) 177 CLR 106, 135 per Mason CJ.

124 See AC7V (1992) 177 CLR 106, 209-210 per Gaudron J.125 See McGinty (1996) 134 ALR 289, where Toohey J applies the 'connotation/denotation distinction' to

constitutional concepts; see also note 214 and accompanying text below.126 Theophanous (1994) 124 ALR 1,28 per Brennan J. See, for example, Cheatle v R (1993) 177 CLR 541 in which

it is acknowledged that non-essential features of the 'common law institution of trial by jury' guaranteed by s 80of the Constitution may be 'adjusted' so as to 'conform with contemporary standards': 599, 560 per the Court.

127 See notes 215 and 216 below, and accompanying text.128 See, for example, Kennett, supra note 74, 608 ('[a]t the very least the Court has arrogated to itself the function

of determining what are the essential attributes of representative democracy ...'), the references mentioned atfootnote 185 therein, and 609-610; see also McGinty (1996) 134 ALR 289, 295-296 per Brennan CJ, 307, 310per Dawson J, 345 per McHugh J and cf 318-320 per Toohey J.

129 Intemational Covenant on Civil and Political Rights, adopted 16 December 1966, entered into force 23 March1976, GA Res 2200, UN GAOR, 21st Sess, Supp No 16, at 62, UN Doc A/6316 (1966).

130 See Dietrich v R (1992) 177 CLR 292, 319 per Brennan J.131 Mabo v Queensland (No 2) (1992) 175 CLR 1,42 per Brennan J (with whom Mason CJ and McHugh J agreed).

(No 2) Brennan J declared that this is particularly so 'when international law declares theexistence of universal human rights'.132 He added: '[a] common law doctrine founded onunjust discrimination in the enjoyment of civil and political rights demandsreconsideration' .133 Although such statements have been made outside the context ofconstitutional common law doctrine, international law has on occasion been regarded asrelevant within that sphere. 134 There is no reason why its influence should not increase.

In due course, as I have said, I will consider whether the constitutional principles ofrepresentative democracy and judicial power are areas in need of a dose of equality. I willexamine the cases of Cunliffe and Lim to see how those principles have been applied to

,aliens. However, before doing so, it is worthwhile to examine the position that internationallaw has taken towards aliens. I will focus on the extent to which international law (bothhistorically and currently) has regarded discrimination against aliens as justified (or'rational').

International law and aliens

By the early part of this century, international law had formulated certain rules on thetreatment of aliens.135 There were, and remain, two main areas in which international lawcountenanced differential treatment of aliens.

The fIrst of these involved rights to participate in the election of parliamentaryrepresentatives, and to hold public office and employment. Since the time of ancient Greeceand Rome, through revolutionary France, to 20th century United States, such rights havebeen regarded as the exclusive rights of citizens.136 The alien has been precluded fromvoting and holding public office - and thus has been unable to participate in decisionmaking about the fate of the community in which he or she lives.137

International law has not sought to remove this disability. Indeed, in more recent times,the ICCPR has affrrmed the distinction. Article 25 of the Covenant is expressly addressedto citizens only:

Every citizen shall have the right and opportunity . . . without unreasonable restrictions:(a) To take part in the conduct of public affairs, directly or through freely chosenrepresentatives;

(b) To vote and to be elected at genuine periodic elections ...;(c) To have access, on general terms of equality, to public service in his country.

The second area of differentiation stems from the State's right to exclude and expelaliens. Around the turn of the century, municipal courts relied upon international law,including the writings of the theorist Vattel, to support an absolute State power to excludeand expel aliens. 138 Courts in the United States and in the common law world were unitedin upholding legislation directed against Chinese (and, to a lesser extent, Japanese)( "

I,

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)

t

I

(~; ,

132 Ibid133 Ibid134 See, for example, Polyukhovich v The Commonwealth (1991) 172 CLR 501, 687-689 per Toohey J; Dietrich v

R (1992) 177 CLR 292, 334, 337 per Deane I, 373 per Gaudron I. '135 However there remained disagreement amongst States as to the standard of treatment that could be expected: see

D I Harris, Cases and Materials on International Law (4th ed, London: Sweet and Maxwell, 1991),493-494. Aviolation could only be pursued by one State against another. A State could assert 'its right to ensure' that therules of intemationallaw were applied to its nationals: Mavrommatis Palestine Concessions case (Jurisdiction):Greece v UK (1924) PCU Reports, Series A, No 2, 12, as cited in Harris, 494-495. If it failed to do so, the alienhad no individual right of recourse.

136 W Tarnopolsky, Discrimination and Law in Canada (Toronto: Richard de Boo Ltd, 1982), 168.137 McDougal, Lasswell and Chen, supra note 30, 767-768.138 Many commentators have since pointed out that there was not in fact consensus about the matter at the time: for

example, R Plender, International Migration Law (2nd ed, Dortrecht: Martinus Nijhoff, 1988), 2, 6 (footnote 16).

60 Belinda Wells

immigration. 139 The general tenor of the times is caught in the emotive phrases of theUnited States Supreme Court in the case of Chae Chan Ping v United States. l40 There,the Court spoke of the State's need to guard equally against 'foreign oppression'141 (forexample, by means of 'military assault,)!42 and against 'encroachment by vast hordes' ofpeople from foreign nations. 143

The characteristic approach of the municipal courts was to emphasise the powersassociated with State sovereignty. In Attorney-General for Canada v Cain ('Cain'), forexample, Lord Atkinson said:

. . . one of the rights possessed by the supreme power in every State is the right to refuse topennit an alien to enter that State, to annex what conditions it pleases to the permission to enterit, and to expel or deport from the State, at pleasure, even a friendly alien, especially if it considershis presence in the State opposed to its peace, order and good government, or to its social ormaterial interests: Vattel, Law of Nations, book 1, s 231; book 2, s 125.144

In Lim, some eighty-six years later, three members of the High Court approved thispassage without further comment.145 In doing so, they apparently failed to appreciate thatthe international law position on aliens has changed significantly since the tum of thecentury. Whether or not the statement made in Cain accurately represented the state ofinternational law in the early part of the twentieth century,146 it no longer does so.

Modem international law focuses not only on the rights of States (the exercise of Statesovereignty), but also on the rights of individuals. As a consequence, it no longer acceptsthat States have an unqualified right to exclude, impose conditions of entry, expel anddeport aliens.

There are now specific international instruments which demonstrate the change offocus - the new emphasis on the individual rights of aliens - which has occurred duringthe latter part of the twentieth century. The 1951 UN Convention Relating to the Status

139 For example, the Immigration Restriction Act 1901 (Cth) had been enacted in response to the threat of widespreademigration from China, just as the Chinese Exclusion Act 1882 (US) had constituted the American reaction tothe same 'threat'. Parallels may be drawn between this turn of the century legislation - directed, as it was,against the large-scale movement of a particular nationality - and the harsh provisions of the Alien Act 1793(Imp), which had been enacted as a result of the flight to England of refugees from the French revolution: Plender,supra note 138, 64-65, 68-69. In a similar vein, in 1992 the Australian government responded to the arrival ofthe Indo-Chinese 'boat-people' by amending the Migration Act 1958 (Cth) to include a new category of asylumseekers. Division 4B of the Act was designed to ensure that the new category of 'designated persons' (noncitizens who had arrived by boat in Australia without documentAtion) would be held in custody, and only releasedif provided with 'an entry pennit or if removed from Australia: Migration Act 1958 (Cth), ss 54K, 54L, 54N,54R. Division 4B was introduced into the Migration Act 1958 by the Migration Amendment Act 1992, whichwas given royal assent and became operative on 6 May 1992. These provisions were considered by the HighCourt in Lim's case (1992) 176 CLR 1.

140 (1889) 130 US 581.141 ld 606.142 D H N Johnson, 'Refugees, Deportees and Illegal Migrants' (1979-80) 9 Sydney lAw Review 11, 24.143 (1889) 130 US 581. This passage was affinned by the US Supreme Court in Fong Yue Ting v United States

(1892) 149 US 698, and was cited with apparent approval by Griffith CJ in Robtelmes v Brenan (1906) 4 CLR395, 401-402.

144 [1906] AC 542, 546 (my italics). See also Nishimura Ekiu v United States (1892) 142 US 651,659 per Mr JusticeGray; 'It is an accepted maxim of international law, that every sovereign nation has the power, as inherent insovereignty, and essential to self-preservation, to forbid the entrance of foreigners within its dominions, or toadmit them only in such cases and upon such conditions as it may see fit to prescribe'. The decision of the PrivyCouncirin Musgrove v Chun Teeong Toy [1891] AC 272 did not specifically address the question of whetherthere existed absolute State sovereignty to exclude aliens.

145 Lim (1992) 176 CLR 1, 29-30 per Brennan, Deane and Dawson JJ; see also Robtelmes v Brenan (1906) 4 CLR395, 400 per Griffith CJ, 411-412 per Barton J, and 419 per O'Connor J; and Koon Wing lAu v Calwell (1949)80 CLR 533.

146 See supra note 138.

147 1951 Convention: UKTS 39 (1954), Cmd 9171; 189 UNTS 137. Entered into force in 1954. 1967 Protocol:UKTS 15 (1969), Cmnd 3906, 606 UNTS 267. Entered into force in 1967. For example, see N Poynder, 'RecentImplementation of the Refugee Convention in Australia and the Law of Accomodations to International RightsTreaties: Have we gone too far?' (1995) 2 Australian Journal of Human Rights 75.

148 G A Resn 144 (XL), GAOR, 40th Sess, Supp 53, 253. Harris reports on the background to the adoption of theDeclaration: supra note 135,523, footnote 1. Article 5 of the Declaration provides that aliens shall enjoy a numberof specified rights including rights to 'life and security of person', to not be subjected to arbitrary arrest ordetention, to 'be equal before the courts, tribunals, and all other ... authorities administering justice', and therights to liberty of movement and freedom of expression. (See the text of article 5 as set out in Harris, supranote 135, 520-522 including the permissable restrictions which may be imposed on such rights.)

149 Harris, supra note 135, 523, footnote 1.150 Supra note 50. On the applicability of the Covenant provisions to aliens, see General Comment 15(27)c, 'The

position of aliens under the covenant', adopted by the Human Rights Committee on 22 July 1986; B Lillich, TheHuman Rights of Aliens in Contemporary International Law (Manchester: Manchester University Press, 1984),45-47; McDougal, Lasswell and Chen, supra note 30, 737-738; and G Goodwin-Gill, Internatio'nal Law and theMovement ofPersons between States (Oxford: Clarendon Press, 1978). See also A Dummett and A Nicol, Subjects,Citizens, Aliens and Others (London: Weidenfeld and Nicolson, 1990), ch 14.

151 Plender, supra note 138, 460.152 There is some support for this view: see Plender, supra note 138, 471-472.153 General Comment 15(27)c, supra note 150, para 5.154 Id para 6 and 7.

ofRefugees, and the 1967 Protocol to that Convention, are well known. 147 Their provisionsare, however, only as powerful as the interpretations placed upon them by municipal courts.An instrument which is less well known, and whose genesis stretched over more than adecade, is the 1985 Declaration on the Human Rights ofIndividuals who are not Nationalsof the Country in which they live. 148 There are, however, apparently 'no plans for aconvention' on the rights of aliens. 149

Secondly, there are the more general provisions of the ICCPR. l50 Article 12(4) of theCovenant only confers a 'right to enter' upon a citizen of a country, and not upon an alien.However, once the alien has entered the territory, he or she may not be expelled'arbitrarily' ,151 and may possibly be entitled, as a matter of customary law, to a judicialreview of the legality of the executive order to expel.152 (Article 13 of the Covenant onlyextends this protection to aliens who are 'lawfully in the territory'.)

More significantly, all articles in the Covenant, with the exceptions of articles 12(1)and (4), 13 and 25, are clearly addressed to 'everyone', regardless of their status. Article2(1) provides that each State party must respect and ensure the rights in the Covenant to'all individuals in its territory and subject to its jurisdiction'. The Human RightsCommittee, which oversees the implementation of the Covenant, has provided a GeneralComment entitled 'The position of aliens under the Covenant'; here, it has stated that evena country's discretion to exclude aliens must be exercised in accordance with the provisionsof the Covenant:

The Covenant does not recognise the rights of aliens to enter or reside in the territory of a Stateparty. It is in principle a matter for the State to decide who it will admit to its territory. However,in certain circumstances an alien may enjoy the protection of the Covenant even in relation toentry or residence, for example, when considerations of non-discrimination, prohibition ofinhuman treatment and respect for family life arises. 153

In relation to aliens who have been 'allowed to enter the territory of a State party', theHuman Rights Committee has said in its General Comment that 'they are entitled to therights set out in the Covenant' , including 'the full right to liberty and security of the person'and 'equal protection by the law' .154 This passage in the General Comment could beconstrued as applicable only to 'lawful aliens' (that is, those who have been givenpennission to enter). However, it is unlikely that either article 2(1) of the Covenant or theHuman Rights Committee intend to impose such a limitation. Indeed, the Committeeconcludes the passage in the Comment by declaring:


62 Belinda Wells

There shall be no discrimination between aliens and citizens in the application of these rights.Those rights of aliens may be qualified only by such limitations as may be lawfully imposedunder the Covenant. 155

The practical force of such statements will be tested when the Human Rights Committeedelivers its views on a communication against Australia which is currently before it. Theauthor of the communication is a Cambodian national who was at the time of lodging thecommunication detained at Port Hedland Detention Centre in Western Australia, pursuantto Division 4B of the Migration Act 1958 (Cth).156 The author has claimed that hisprolonged detention and his lack of access to the courts and to legal facilities contravenearticles 9.1, 9.4, 9.5, 14.1 and 14.3 (in conjunction with article 2.1) of the Covenant. Heis challenging not only the administrative arrangements to which he has been subjected,but also the legislation authorising his detention. This legislation has already been upheldas valid by the High Court in Lim's case.151 However, the High Court did not considerthat the Covenant had any impact on the questions before it.

To summarise, we have seen that with limited exceptions, aliens are regarded as entitledto the full complement of the civil and political rights set out in the ICCPR. In addition,the Covenant can also be seen as embodying the general norm of non-discrimination,which is regarded by some commentators as a rule of customary intemationallaw.158 Thisprinciple of equal enjoyment of rights regards a difference in treatment as discriminatoryunless the State party can establish that the difference (in its legislation or administrativepractice) pursues a legitimate aim 'regard being had to the principles which normallyprevail in democratic societies', and is reasonably proportionate to that aim. 159

The principle does not contain the inner sophistication of the equal protection modelformulated by the US Supreme Court. However it does serve as a reminder thatinternational law now places an onus on States to justify any differences in the rightsaccorded to persons within their jurisdiction.

I turn now to a consideration of two areas in which members of the Australian HighCourt have determined that aliens may not or need not be accorded the same rights asAustralian citizens. These are the areas of representative governmen~ and judicial power(specifically, the power of the executive to detain persons). I will focus particularly on thejustifications given for the differential treatment.

Representative government/democracy

As mentioned earlier, most members of the High Court who heard the fITst five 'freespeech' cases accepted that the Constitution contained an 'independent' principle ofrepresentative govemment. l60 McHugh and Dawson JJ, however, did not. They regardedthe principle as only incorporated into the Constitution to a limited extent: to the extentthat aspects of the concept are implemented by specific provisions in the Constitution(such as sections 7 and 24). After McGinty's case, it appears that two other members ofthe Court - Brennan CJ and Gummow J - also take this view.

In due course I will examine a particular feature of this more limited conception of

155 Id para 7.156 The communication to the Human Rights Committee dated 20 June 1993 was lodged by an Australian lawyer,

N Poynder, on behalf of the author of the communication. The communication has been accepted as admissible.157 (1992) 176 CLR l.158 See Lillich, supra note 150, 48 and 88; Goodwin-Gill, supra note 150, 95-96.159 Belgian linguistics case (Merits) Eur Court HR, Series A, vol 6, judgment of 23 July 1968, as cited in Goodwin

Gill, supra note 150, 82. See also General Comment 18, 'Non-discrimination', adopted by the Human RightsCommittee on 9 November 1989.

160 See supra note 123, and the accompanying text.

,

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constitutionally protected representative government. I will consider whether contemporaryvalues are relevant when determining its scope.

161 AC1V (1992) 177 CLR 106, 135 per Mason CJ as cited in McGinty (1996) 134 ALR 289,345 per McHugh J,295-296 per Brennan CJ, and 379 per Gummow J and cf Dawson J who suggests that the distinction betweentextual and structual implications may not be helpful, 307.

162 See AC1V (1992) 177 CLR 106, 135 per Mason C1.163 McGinty (1996) 134 ALR 289, 345, 295-296 per Brennan CJ, 307, 310 per Dawson 1.164 ld 310 per Dawson J.165 ld 374 per Gummow J.

Constitutional implications - the 'necessity' requirement

However the approach taken by a majority of the Court in McGinty is also of interest forwhat it says about the source and content of constitutional implications generally. It isclear that such implications may only be drawn either directly from the text of theConstitution, or from its structure, if they are 'logically or practically necessary for thepreservation of the integrity of that structure' .161 Such an approach does not in itself marka departure from that employed by Mason CJ in the earlier cases. 162 The change is insteadfelt in the emphasis that the Court now places on the requirement that the implication(including its content) be necessary.

In McGinty, the majority were particularly concerned to dispel any notion that the Courthas a choice about drawing an implication, and in defming its scope. McHugh J, forexample, said that 'it is not legitimate to construe the Constitution by reference to politicalprinciples or theories that are not anchored in the text of the Constitution or are notnecessary implications from its structure' .163 Dawson J made the point particularlyforcefully. He said:

It is fallacious reasoning to posit a system of representative government for which the Constitutiondoes not provide and to read the requirements of that system into the Constitution by implication.An implication of that kind is drawn from an extrinsic source and not from the text of theConstitution. It imports into the Constitution values which the Constitution does not adoptnotwithstanding that it is capable of accommodating them. 164

Clearly, this cannot mean that the Court must eschew reliance on all 'extrinsic sources'.In determining the scope of the principle of representative government, the majority hadregard to the political and common law background against which the Constitution wasdrafted. And, as I will illustrate, a majority of the Court indicated that the content of theprinciple, or of the provisions implementing it, will change over time in line with changesin social attitudes. Evidently questions remain about the extent to which morecontemporary material may influence the content of implications of representativegovernment, a federal system, and separation of judicial power - and, indeed, theinterpretation of constitutional provisions generally. I will return to this theme in duecourse.

It may, of course, be argued that the High Court's words of caution apply withparticular force to the implication of representative government. This, so the argumentruns, is because the concept of representative government or democracy is so peculiarly'indeterminate'165 - capable, unless tied very tightly to the text, of importing into theConstitution a wide variety of values.

Mindful of this, both McHugh and Dawson II have chosen to confine themselves to alimited concept of representative government, rather than one of representative democracy.In Theophanous, McHugh J took the view that whilst the essence of representativegovernment is in the direct election of representatives by the people, representativedemocracy is a 'wider concept ... descriptive of a wide spectrum of political institutions


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and processes' .166 The term, he said, 'is commonly used to describe a society whichprovides for equality of rights and privileges' .167 Dawson J agreed. Representativegovernment, he said, 'is the more precise and accurate term, because democracy, likebeauty, tends to be in the eye of the beholder' .168

This determination to confine the scope of the implication is to be contrasted with theposition taken by a majority of the Court in the cases which preceded McGinty: Cunliffe169

and Theophanous. In Cunliffe, it was evident that at least four of the judges170 were relyingon an expansive notion of representative government or democracy - not one, it is true,which provided for 'equality of rights and privileges',171 but one which provided foreffective participation by citizens in the administration of governmental functions.

It is likely that such a conception of representative government has not survived thechange in composition of the High Court.172 However, it is worthwhile to examine thejudgements in Cunliffe for other reasons: for what they tell us about the Court's attitudeto the protection of aliens under the Constitution - and the role of aliens, if any, in thevarious conceptions of representative government.

Aliens and representative government

In Cunliffe, the High Court was considering the validity of legislation which bothprescribed a system for registering migration agents, and placed restrictions on nonregistered persons providing migration advice ('immigration assistance' and 'immigrationrepresentations') to 'entrance applicants' .173 'Entrance applicants' were defmed asapplicants for a visa or entry permit or a determination of refugee statuS.174 The objectiveof the legislation, as stated in the Minister's second reading speech for the Bill, was saidto be to protect entrance applicants from exploitation by 'incompetent and unscrupulousmigration agents'. 175

So, the legislation purported to regulate the provision of migration advice to aliens forthe purpose of their protection. All members of the High Court regarded the legislation asprima facie supported by s 51(xix), the aliens power. Some, however, considered that therestrictions which the legislation imposed on the communications of migrant advisersinfringed the implied freedom of political communication necessary to sustainrepresentative govemment.176

Several members of the Court made the point that 'an alien who is within (Australia). . . enjoys the protection of the ordinary law, including the protection of some of theConstitution's guarantees, directives and prohibitions' .177 However, only Mason CJregarded aliens as capable of invoking the protection of the implied constitutional freedomof political communication.178 As Deane J put it: an alien 'stands outside the people of the

166 (1994) 124 ALR 1, 72.167 Ibid168 Id 64, footnote 204.169 (1994) 124 ALR 120.170 Mason CJ, Deane, Toohey and Gaudron JJ.171 Theophanous (1994) 124 ALR 1, 72 per McHugh J.172 However, it is not possible to predict this with any accuracy since neither of the two new appointments

Gummow and Kirby JJ - have expressed a view on the matter.173 The relevant provisions of Part 2A of the Migration Act 1958 (Cth) are described in the judgments in Cunliffe

(1994) 124 ALR 120, 123-127 per Mason CJ, 140-142 per Brennan J.174 The definition is set out in s 114A of the Act: see Cunliffe (1994) 124 ALR 120, 141 per Brennan J.175 Id 143 per Brennan J, and see footnotes 81 and 82 therein.176 A minority of the Court - Mason CJ, Deane and Gaudron JJ - held that for this reason, parts of the legislation

were invalid.177 Cunliffe (1994) 124 ALR 120, 161 per Deane J, citing in support Re Bolton; Ex parte Beane (1987) 162 CLR

514 at 521-522, 528-529; see also 132 per Mason CJ, and 194 per Toohey J.178 Id 132 per Mason CJ.

179 Id 161 per Deane 1.180 Id 183 per Dawson 1.181 Mason Cl, Deane, Toohey and Gaudron 11. The other three judges - Brennan, Dawson and McHugh 11

adopted a more confined version of the freedom of political communication implication. Brennan Cl regardedthe constitutionally protected area of political discussion as encompassing general public discussion about themerits of government policies and the exercise of governmental power, but not communications about specificcases or particular exercises of power: Id 155-156, see also 183 per Dawson 1. For more recent discussion bythe Court of the scope of the implied freedom of communication, see Langer v Commonwealth of Australia(1996) 134 ALR 400 and Muldowney v South Australia (1996) 136 ALR 18.

182 L McDonald, 'The Denizens of Democracy: the High Court and the 'Free Speech' Cases' (1994) 5 Public LawReview 160, 192-193.

183 ' ... [N]on citizens actually within this country are entitled to invoke the implied freedom of communication,particularly when they are exercising that freedom for the purpose, or in the course, of establishing their statusas entrants or refugees or asserting a claim against government or seeking the protection of government': Cunliffe(1994) 124 ALR 120, 132.

184 Toohey and Gaudron 11 do not explicitly state their position on this issue. Deane 1 says that an effective systemof representative government entails a 'broad national environment' of political discussion, in, which the freedomof communication of non-citizens (whether corporations or aliens) is protected 'to the extent neCessary to [protect]... the freedom of citizens to engage in discussion and obtain information about political matters': Cunliffe (1994)124 ALR 120, 161. Whilst such a position could be given a broad application, it is difficult to predict whether adirect communication between an alien and a government officer or Minister would attract constitutionalprotection.

185 For a similar critique of the AC1V case (1992) 177 CLR 106, see D Z Cass, 'Through the Looking Glass: TheHigh Court and the Right to Speech' (1993) 3 Public Law Review 229, 239-242.

Commonwealth whose freedom of political communication and discussion is a necessaryincident of the Constitution's doctrine of representative government' .179

Such a conclusion is not surprising where the starting premise is a relatively narrowconception of representative government. Where the Constitution is seen as protecting onlycertain limited aspects of representative government, such as direct election by the people,the scope of the freedom of communication is similiarly linked to the election process.Adult citizens are regarded as having a need to communicate with each other and withmembers of parliament (and to receive such communications) in order to cast an informedvote on election day. Aliens, on the other hand, are not regarded as 'participants in thedemocratic process of the country' .180

In Cunliffe, however, four members of the Court expressed the view that in arepresentative democracy the electors must also be guaranteed sufficient freedom tocommunicate about the administration of legislation and governmental functions moregenerally. 181 McDonald has pointed out that such a view is based on a belief that theConstitution protects 'actual participation (in the exercise of governmental power) by thegoverned~ .182

It is not obvious why such an expanded concept of representative government - andof the freedom of communication necessary to sustain it - should not embrace aliens aswell as citizens. For although aliens do not possess sovereignty and so cannot vote andbe 'represented', they are nonetheless 'governed' - subject to the exercise of governmentpower.

However, only Mason CJ expressly stated that communications between an alien anda government officer or Minister would receive constitutional protection in their ownright.183 He appeared to be saying that in a representative democracy all communicationsabout the exercise of governmental power must be protected.184

Nonetheless, Mason CJ's emphasis is on a formal concept (however wide) of freedomof political communication, rather than on its substantive achievement by the meansspecified by parliament. In other words, in Cunliffe Mason CJ placed greater value on theabstract idea of more open, less restricted communication between migrant advisers andentrance applicants, than on the government's objective of achieving higher quality advicefor entrance applicants. 185 In his view, unrestricted communication between legal advisers


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and entrance applicants was obviously better and constitutionally protected, unless thegovernment actually proved otherwise. Mere assertion to the contrary by the governmentwas not sufficient.186

By contrast, the other members of the Court in Cunliffe accepted the government'sexplanation of the purpose of the migration agent registration legislation. Several of themalluded to the vulnerability and powerlessness of the group - the aliens - whom thelegislation sought to protect. I87 In view of the objectives of the legislation, the restrictionsthat it imposed on political communication were, either in full or in part, said to be'justified as necessary in the public interest',188 'within power' ,189 'not disproportionate tothe legitimate aim to be achieved',190 and 'reasonably appropriate and adapted to the statedpurpose of Part 2A'.191

Nonetheless, such (partial) deference to parliament's stated purpose does not overcomethe fact that the value which is regarded as constitutionally protected in Cunliffe is that ofthe citizen's ability to communicate about political matters, rather than that of a politicallypowerless minority group to receive special protection. No judge in the 'free speech' caseshas ever expressed a view that our system of representative government/democracyrequires the protection of minority interests. Some, like Dawson J, have explicitly said theopposite.192

The common law background

On the other hand, the High Court has consistently regarded freedom of politicalcommunication as a necessary concomitant of our system of representative government.In part, the judges have no doubt arrived at this conclusion through an independent processof reasoning based on the centrality of the election process in such a system. However, itis evident from the judgments that such reasoning is also informed and fed by earliercommon law cases which emphasised the importance of freedom of speech in modemrepresentative democracies.193 In addition, in the earlier cases several judges indicated thatthe common law would provide an appropriable guide to the limits which other interestsmay impose on the scope of freedom of political communication.194 The latter view didnot command majority support in the subsequent case of Theophanous. 195 There, thisissue - the role of the common law background in shaping the scope of a constitutionalprinciple - was central in deciding the case. Four members of the Court - Mason CJ,Toohey, Gaudron and Deane JJ - decided that where 'the Constitution, expressly or byimplication, is at variance with a doctrine of the common law, the latter must yield to theformer' .196 The common law and statutory law of defamation must be modified untilconsistent with the constitutional freedom of political communication.

In Theophanous, the three dissentients - Brennan, Dawson and McHugh JJ - didnot consider that there was any overlap, any common territory occupied by the common

186 Cunliffe (1994) 124 ALR 120, 136.187 Id 166 per Deane J, 204 per Gaudron J.188 Id per Deane J.189 ld 156 per Brennan J, 179 per Dawson J, 206-207 per McHugh J.190 Id 198 per Toohey J.191 Id 204 per Gaudron J.192 ld 181 per Dawson J.193 See, for example ACN (1992) 177 CLR 106, 139-140 per Mason CJ.194 See Nationwide News (1992) 177 CLR 1,52 per Brennan J; and AC1V (1992) 177 CLR 106,217 per Gaudron J:

'As the implied freedom is one that depends substantially on the general law, its limits are also marked out bythe general law'; but cf Theophanous (1994) 124 ALR 1, 15-17 per Mason CJ, Toohey and Gaudron JJ.

195 (1994) 124 ALR 1, which was decided at the same time as Cunliffe (1994) 124 ALR 120, and Stephens v WesternAustralian Newspapers (1994) 124 ALR 80 - two years after the decisions were handed down in AC1V (1992)177 CLR 106, and Nationwide News (1992) 177 CLR 1.

196 Theophanous (1994) 124 ALR I, 15 per Mason CJ, Toohey and Gaudron JJ.

law of defamation on the one hand and the requirement of political discussion found inthe Constitution, on the other. Brennan J, for example, drew a distinction between theConstitution, which deals only with 'the structure and powers of organs of government',and the common law which 'govem(s) the rights and liabilities of individuals inter se' .197

Since Theophanous, the composition of the High Court has of course changed.198 It isnow more likely that the dissentient's view will prevail. However, this does not mean thatthe Constitution will inevitably be construed in line with the common law. Brennan J, forone, has explicitly said that the Constitution will 'prevail ... over the common law wherethere is inconsistency', and that the Constitution has indeed 'altered the common law byits provisions creating the structures and powers of the organs of government'. 199


Contemporary values

And so, we must ask, if the common law is not the sole repository of reason for interpretingthe Constitution, what other sources are available? The answer provided by the majorityin Theophanous seemed to be: 'the judge's perception of the contemporary values andcircumstances of the Australian community' .200 In Theophanous the defendants had arguedthat since the framers of the Constitution had not regarded the common law of defamationas inimical to the system of representative government provided for by the Constitution,the same balance must be adopted today. Mason CJ, Toohey and Gaudron JJ rejected theargument, and said: 'what the framers of the Constitution thought, but did not provide inthe Constitution, 100 years ago, is hardly a sure guide in the very different circumstanceswhich prevail today' .201

Deane J was more emphatic on this point. In his view, a Court should adhere to InglisClark's instruction that 'the Constitution must be treated as "a living force", and not as, 'a declaration of the will and intentions of men long since dead" , .202 He concluded thatin determining whether existing common and statutory law on defamation was consistentwith the constitutional implication of freedom of communication, 'the court must take fullaccount of contemporary social and political circumstances and perceptions'.203

In describing some of the significant political and social developments which haveoccurred since 1901, Deane J portrayed a new, modem concept of representativegovernment which bore little resemblance to the 'theoretical doctrine'204 which wasenshrined in the Constitution at the tum of the century. The modern concept insteademphasised the 'practical realit(ies)' of popular sovereignty.205 In essence, Deane J wassaying that since our perceptions of what is necessary for an effective system ofrepresentative government have changed, so the content of the doctrine - originallyderived from the common law - must also have changed.

After Theophanous, the concept of representative government appeared to be more

197 Id 36.198 Mason CJ and Deane J have retired, and Gummow and Kirby JJ have been appointed.199 Theophanous (1994) 124 ALR C 36.200 Brennan J would also seem to agree with this proposition. In Theophanous (1994) 124 ALR 1, 28-29 he says

that '[i]n the interpretation of the Constitution, judicial policy has no role to play', but also agrees that '[t]heConstitution speaks continually to the present and it operates in and upon contemporary conditions'.

201 ld 16.202 Id 52 per Deane J, referring to Inglis Clark, Studies in Australian Constitutional Law (1901), 21-22.203 Theophanous (1994) 124 ALR 1, 52.204 Ibid205 Ibid

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indeterminate than ever.206 The concept was not to be confined to the minimal conditionsnecessary to implement certain provisions in the Constitution (in particular, ss 7 and 24),nor by limitations drawn by the common law (whether as at 1901, or currently). Its contentwas to be modified by the political and social attitudes of our time.

More recently, however, in the case of McGinty,207 a differently comprised courtsignalled a change in direction. A majority held that the Constitution guarantees only thoseaspects of representative government which can be drawn directly from 'the text andstructure'208 of the Constitution. There is no 'free standing'209 principle of representativegovernment in the Constitution, which would enable judges to identify and protect newforms and aspects of representative government from time to time.210

Nonetheless, it is apparent that underlying constitutional doctrines such as representativegovernment may be used to 'explain or illuminate the meaning of the text or structure ofthe Constitution ... ' .211 They may, for example (as in McGinty's case) assist the Court indeciding what electoral and other processes are protected by the phrase 'directly chosenby the people', which appears in ss 7 and 24 of the Constitution.

And the principle which provides the illumination is capable of reflecting societalchange. In McGinty there was considerable judicial support for the view that the principleof representative government or democracy is an evolving concept.212 Its essence is fixed:its defining feature remains the requirement that there be 'ultimate control by the people,exercised by representatives who are elected periodically'.213 However, its application 'the method of giving expression' to it - may change.214 And so, the words in theConstitution which implement aspects of the concept will be understood to refer to, andperhaps to require, a more modem conception of representative government.

As mentioned earlier, an example of this updating of constitutional provisions anddoctrines was provided by a number of the judges in McGinty. They suggested that theprinciple of universal adult suffrage was now a necessary part of our system ofrepresentative government. Although the principle had not been in operation in all coloniesat the time of Federation, it was now a well established component of our system and

206 It could of course be claimed that the Court in the early 'free speech' cases was protecting a procedure - thedemocratic process itself - rather than a set of substantive values: see McDonald, supra note 182, 189. However,as McDonald has pointed out, the distinction appears untenable: 189. In Cunliffe (1994) 124 ALR 120 for example,it seems obvious that members of the Court have preferred some values over others on the basis of argumentsthat are not firmly linked to either constitutional provisions or the common law. I have said earlier that MasonCJ's judgment espouses a particular vision of a system of representative government which emphasises a fonnalconcept of free speech. This emphasis is insisted upon at the expense of a government decision to restrict speechin order to protect the rights of a powerless minority group.

207 (1996) 134 ALR 289. Here, for the first time, the focus was squarely on the content of the principle ofrepresentative government rather than on the freedom of political communication necessary to sustain it 296-297per Brennan CI, 318 per Toohey I.

208 Id 345 per McHugh I. This viewpoint was expressed by Brennan CI, Dawson, McHugh and Gummow JJ.Toohey J continued to regard representative democracy as an independent principle, guaranteed in full (andaccording to contemporary views of the fonn that it must take) by the Constitution: McGinty (1996) 134 ALR289, 319-320. Gaudron I did not discuss the scope of the implication in the Australian Constitution.

209 Ibid210 McHugh I, for example, says pointedly: 'To decide cases by reference to what the principles of representative

democracy currently require is to give this court a jurisdiction which the Constitution does not contemplate andwhich the Australian people have never authorised.... That is a political question . . .': Id 348, see also 296 perBrennan CJ, 310 per Dawson J.

211 (1996) 134 ALR 289, 345 per McHugh J, see also 296 per Brennan 1.212 Id 388 per Gummow I.213 Id 387 per Gummow J.214 In Toohey 1's words, whilst the connotation of constitutional provisions and concepts remain fixed, their denotation

- 'the method of giving expression to [them]' - 'varies over time and according to changes in society': Id320.

Judicial power

I turn now to a second constitutional concept - that of judicial power - to examine itsapplication to aliens, and its susceptibility to modem influences.

The Constitution is said to incorporate, and to be 'structured upon' ,219 a doctrine ofseparation of judicial power which has two main elements. First, the judicial power of theCommonwealth can only be exercised by a body which is a 'Chapter III court' .220

215 Ibid. Also 337 per Gaudron J, 388 per Gummow J, 293 per Brennan CJ (who says that this statement is 'at leastarguable' .)

216 Id 337 per Gaudron 1.217 Id 352 per McHugh 1.218 Another example of such legislation is the Migration Legislation Amendment Bill (No.2) 1996 (Cth). This provides

that 'unlawful non-citizens' in 'immigration detention' do not have a right to receive material from the HumanRights and Equal Opportunity Commission or the Commonwealth Ombudsman unless they have initiated acomplaint in writing with the relevant body: schedule 1(2) to the Bill. The Bill thus purports to curtailcommunications from these bodies to aliens: see C Sidoti, 'Boat People and Human Rights' (1996) 31 AustralianLawyer (issue 7), for a description of the background to the Bill.

219 lim (l992f176 CLR 1,26 per Brennan, Deane and Dawson JJ.220 That is, a body which complies with the requirements set out in Chapter m of the Constitution.

could not now be abrogated.215 Where once the Constitution would have countenanceddiscrimination in the voting rights accorded to women, members of certain races, and thosewithout certain 'property or educational qualification[s]', it would no longer do SO.216

However it is clear that inferences based on contemporary values will not be lightlydrawn. The judgments in McGinty reveal a heavy - although not an exclusive - relianceupon historical source material. There, such material indicated that at the time ofFederation, '[r]epresentative government was not perceived as requiring that electoraldivisions should be numerically equal' .217 It seems likely that changes' in society will onlybe regarded as influential when they can be seen to be so well-established that it wouldbe inimical to modem Australian society to disregard them. The Court will not draw overthe Constitution a veil of contemporary standards (for example, on rights anddiscrimination) which a majority of Australians may not espouse.

To summarise, McGinty heralds a new direction for the High Court. The doctrine ofrepresentative government has been stripped of its potential to effect significant change inthe law, including in those laws which discriminate against aliens. And yet, even beforethis, the judgments in Cunliffe had (with one exception) indicated that aliens could notthemselves invoke the expanded concept of representative government. Aliens were deniedthe right - generally available to citizens - to communicate with government about theadministration of government power which affected them.

And so, within the forseeable future the principle of representative government willinvolve neither equal voting rights for citizens and aliens, nor equal rights to be informedabout and communicate about government policy. The frrst area of differentiation wouldprobably be widely accepted as a justifiable concomitant of an individual's decision toretain a link, a formal 'allegiance', to a foreign power. As we have seen, article 25 of theICCPR confines the right to vote to citizens. The second area, however, deserves morecareful scrutiny. In the absence of a constitutional principle of equality, there is no obviousmechanism for examining whether such a distinction in the rights accorded to citizens andto aliens is 'rational'. Nor is there always a mechanism for determining whether legislationwhich singles out aliens for special treatment (for example, by introducing a migrantadvisers registration scheme for aliens) is impermissably discriminatory.218 Nonetheless, asI have attempted to show, the concept of representative government remains anindeterminate one, and one potentially subject to the influence of contemporary values andinternational opinion.

69Aliens.' The Outsiders in the Constitution

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Secondly, such power can only be exercised in a way that is consistent with 'the judicialprocess' .221

In order to apply these two forms of constitutional protection, it is of course necessaryto determine the nature of judicial power. What constitutes an exercise of judicial power,and what does not? Does the concept contain an abstract core, which may change ascircumstances and values change, or is it simply a practical term to describe all the thingsthat, historically, courts have always done? This question was at the heart of much of thereasoning in Lim's case222 to which I now tum.

In Lim, the High Court was asked to rule on the validity of migration legislation whichauthorised officers to detain without warrant and keep in custody a 'designated person' .223A designated person was defined as a non-citizen who had been on a boat in the territorialsea of Australia, had arrived in Australia without presenting a visa, had not been grantedan entry permit, and 'had been given 'a designation' by the Department'.224 Section 54L(2)of the legislation provided that such a person 'is to be released from custody if, and onlyif, he or she is (a) removed from Australia under section 54P (that is, upon his or her ownrequest); or (b) given an entry permit ...' .225

The High Court had previously held that aliens, like citizens, are entitled to insist uponthe common law right to liberty and security of the person.226 As a result, they may notbe detained - whether by an exercise of judicial or executive power - unless there isstatutory authorisation for the detention. They may challenge the lawfulness of theirdetention by application for a writ of habeas corpus or by seeking an injunction against aCommonwealth officer.227

In Lim's case, however, the Court was considering legislation that authorised executivedetention of aliens. There is, in Australia, no constitutional right to seek 'substantive habeascorpus': that is, to insist that a court examine the justificatio.ns given for authorising suchdetention. For the plaintiffs in Lim the only avenues for challenge lay in the scope of thealiens power, and in the protection which might be afforded by the separation of judicialpower doctrine. ,J

The aliens power

The Court considered the scope of s 51(xix) of the Constitution, the aliens power. It wasimplicit in the various judgments that the power - which in itself singles out a particulargroup of people - must confer legislative power to treat aliens differently from citizens.It confers a power to 'discriminate', in the broad sense of the term. However, onlyGaudron J confronted the question of whether s 51(xix) confers a power to discriminatein every field of activity. Clearly, Gaudron J regarded ss 51(xix) and 51(xxvi) ('the racepower')228 as purposive - as conferring power to legislate with respect to issues that areparticular to members of the specified groups, but not otherwise. In her view, a law whichspecified 'the conditions on and subject to which [aliens] . . . may enter and remain inAustralia' was sufficiently connected with alien status.229

221 Leeth (1992) 174 CLR 455, 502 per Gaudron J. In Nationwide News (1992) 177 CLR 1, 70 Deane andToohey JJ refer to 'our traditional judicial process'.

222 (1992) 176 CLR 1.223 Migration Act 1958 (Cth), ss 54L, 54N. These provisions were contained in the new Division - Division 4B

- which was inserted into the Migration Act by the Migration Amendment Act 1992 (Cth).224 Lim (1992) 176 CLR 1, 22 per Brennan, Deane and Dawson J1.225 This is subject to s 54Q.226 Re Bolton; ex parte Beane (1987) 162 CLR 514.227 ld 528-529 per Deane J.228 Section 51(xxvi) confers power to legislate with respect to '[t]he people of any race for whom it is deemed

necessary to make special laws'.229 Lim (1992) 176 CLR 1, 57; cf the approach taken by McHugh J, 64.

230 ld 10 per Mason CJ, see also 33 per Brennan, Deane and Dawson JJ ('reasonably capable of being seen asnecessary for the purposes of deportation or necessary to enable an application for an entry permit to be madeand considered'), 57 per Gaudron J ('capable of being seen as appropriate or adapted to regulating entry orfacilitating departure ...'). ,

231 It is perhaps instructive to contrast this approach to proportionality review with that utilised in Nationwide News(1992) 177 CLR 1, by those judges who based their judgments on grounds other than the constitutional freedomof political communication.

232 (1945) 70 CLR 60, 69 as cited in lim (1992) 176 CLR 1, 64 per McHugh J.233 (1982) 151 CLR 101, 106 as cited in Lim (1992) 176 CLR 1, 64 per McHugh 1.234 R v Trade Practices Tribunal; Ex parte Tasmanian Breweries Pty Ltd (1970) 123 CLR 361.235 Id 394 per Windeyer J as cited by McHugh J in Lim (1992) 176 CLR 1,66.236 Lim (1992) 176 CLR 1, 67.237 Id 27 per Brennan, Deane and Dawson JJ.238 Ibid

In any event, the Court in Lim upheld the legislative provisions authorising detention.It regarded the provisions as supported by s 51(xix) on the basis that the detention was'for the purposes of expulsion or deportation' ,230 or did not go beyond 'what wasreasonably necessary to effect the deportation' of an alien. At least five members of theCourt used either the latter formula or a variant of it. However, no real attempt was madeto consider the question of whether a long period of detention of an alien was in fact likelyto be necessary whilst processing an entry application, or in order to secure eventualdeportation. There was no mention of other alternative means for securing such ends such as a modified bail system.231

Such deference to legislative judgment is, of course, not surprising in the area ofimmigration. Previous Courts have taken an expansive view of the legislative powerconferred by s 51(xix). In Polites v Commonwealth, for example, Latham CJ referred tothe aliens power and said: '[t]he Commonwealth Parliament can legislate on these mattersin breach of international law, taking the risk of international complications'.232 Morerecently, in Pochi v Macphee, Gibbs CJ said that under s 51(xix) 'Parliament has powerto make laws providing for the deportation of aliens for whatever reasons it thinks fit'. 233

Judicial power - historical considerations

Nonetheless, s 51(xix) is, like all heads of legislative power in s 51 of the Constitution,subject to the constitutional protection provided by the separation of judicial powerdoctrine. As we have seen, there is a general rule that the Executive may not exerciseCommonwealth judicial power (since it is not a 'Chapter m court'), and a principle thatjudicial power must be exercised according to 'judicial process'.

The High Court in Lim considered the nature of 'judicial power'. In applying theconcept to the legislation before it, its emphasis was on historical considerations - onwhat courts have traditionally done. McHugh J cited a passage from the TasmanianBreweries case234 in which it had been said that the concept of judicial power seems 'todefy ... purely abstract conceptual analysis', and that it 'invites comparison with thehistoric functions and processes of courts of law' .235 He concluded that '[h]istorical practiceplays an important, sometimes decisive, part in determining whether the exercise of aparticular power IS legislative, executive or judicial in character'.236

As detailed in several of the judgments, 'historical practice' has decreed that the'adjudgment and punishment of criminal guilt' is a judicial function, exercisable only bya Court.237 The involuntary detention of a citizen is regarded as 'punitive' in character,and so may only occur if it is a punishment imposed by a court after conviction for acriminal offence.238

However, according to the Court in Lim, there are 'some qualifications' to the latter


72 Belinda Wells,

1

proposition.239 The Executive (usually the police) may arrest and detain a person accusedof a crime 'to ensure that he or she is available to be dealt with by the courts' .240 Secondly,an authority which is not a court may be authorised to detain a person on the grounds of'mental illness or infectious disease' .241 Historically, courts have viewed each of thesetypes of detention as 'non-punitive', and as therefore not requiring the exercise of judicialpower.

A third category of detention which has been viewed in this way is the executivedetention of aliens pending deportation.

The High Court confmned in Lim that the detention of aliens for the purpose ofdeportation (or application for an entry permit) does not involve an exercise of judicialpower. This is because detention has not traditionally been characterised as 'punitive' 'ifthe purpose of the imprisonment is to achieve some non-punitive object' .242 Here, thepurpose was said to be 'to ensure that the deportee is excluded from the communitypending his or her removal from the country' .243 Further, the point was made that detentioncannot be characterised as 'punishment' where the designated person has the power tochoose to be removed from Australia - and so be released from custody.244

In my view, such an approach to the concept of judicial power is artificial in theextreme. As one judge in Lim indicated, the touchstone for designating an exercise ofpower as 'judicial' is - or at least was once - what a 'just society' would demand.245

The 'well-accepted categories'246 of exceptions to the general proposition were explicableon this basis. The 'just society' of late last century was prepared to countenance executivedetention, for potentially long periods, of patients suffering from mental illnesses andinfectious diseases, and of aliens pursuing entry applications. Judicial authorisation of suchdetention was regarded as unnecessary.

Today, however, the requirements of a just society are different. A just society wouldperhaps demand judicial authorisation and/or supervision of any long period of detention,whatever its professed purpose. It might do so because it is now widely accepted that adeprivation of personal liberty is always a serious matter from the point of view of thedetainee.

Societal change

Here again, as in the area of representative government, it is the High Court which mustevaluate and respond to such societal change. It must identify and retain the essence of aninherited common law principle, but be prepared to apply it to new circumstances. So, theCourt must start from the premise that the separation of powers doctrine continues to havea particular purpose: to preserve exclusively for courts the sorts of powers that in a 'justsociety' only courts should exercise. However, the Court should then be prepared to readjust its traditional approach. In particular, it must begin to focus on the impact ofdetention on the individual, rather than simply accepting the rationale offered by the State:that the purpose of the detention was 'non-punitive'.

239 Id 28. Other qualifications not mentioned here are referred to 28-29: 'the traditional powers of the Parliament topunish for contempt and of military tribunals to punish for breach of military discipline'.

240 Id 28 per Brennan, Deane and Dawson JJ.241 Id 55 Gaudron J also mentions as qualifications '[d]etention pursuant to mental health legislation' and

'imprisonment on remand pending trial'.242 Id 71 per McHugh J.243 Ibid244 Id 72 per McHugh J, 34 per Brennan, Deane and Dawson J1.245 'Detention in custody in circumstances not involving some breach of the criminal law and not coming within

well-accepted categories of the kind to which Brennan, Deane and Dawson JJ refer is offensive to ordinary notionsof what is involved in a just society'; Id 55 per Gaudron J.

246 Ibid

There is no reason why the High Court could not develop a more modem paradigm ofthe type of activities that involve an exercise of judicial power.247 Traditional techniquesof constitutional interpretation would not be threatened. The Court could consider, on acase-by-case basis, whether groups such as aliens and persons with mental illnesses andinfectious diseases should continue to be regarded as exceptional - as being outside therange of people who require judicial safeguards in relation to their detention. It couldderive assistance from the international law on arbitrary detention248 and nondiscrimination. International law has been used as a guide on other aspects of judicialpower.249

In Lim, of course, the Court resisted such a re-evaluation. It chose to regard the detentionof aliens as a historical exception, rather than reconsider the matter in light of current, lessdiscriminatory attitudes. And, as mentioned earlier,250 the Court's reasoning retained linkswith the old, tum of the century preoccupation of intel1)ationallaw - the sovereign powerof States - instead of absorbing the more modem emphasis on the rights of individuals.


'Judicial process' requirements

In any event, the judicial power doctrine, once attracted, would provide only limitedprotection against a law which authorised the detention of aliens. A court exercisingCommonwealth judicial power must 'act judicially' ,251 in a way that is consistent with 'thejudicial process'.252 It is likely therefore that any such court would consider itself obligedto provide certain minimum procedural rights, and to provide them equally to all - aliensand citizens alike. However, the court would not be prepared to entertain arguments basedupon a principle of substantive legal equality - equality in the law.

In Leeth, as we have seen, various members of the High Court were prepared to elidethe two types of equality253 - procedural and substantive - and so to find constitutionalsupport for both. However, as mentioned earlier,254 there seems now to be little supportfor the view that the judicial power doctrine and/or the Constitution generally give rise toa guarantee of substantive legal equality. A Chapter ill court must apply each lawaccording to its tenor - regardless of how discriminatory its underlying basis may be.

Nonetheless, the judicial power doctrine is capable of affording significant proceduralprotection to all who come before Chapter III courts. It is clearly a doctrine to whichaliens would wish to have access. The requirement of 'judicial process' carries with itbroad notions of 'fairness' and 'natural justice' .255 These are common law concepts, whosecontent changes over time - in line, broadly speaking, with what members of the judiciarysee as changes in community values. So, for example, in the recent case of Dietrich v R

247 The issue has recently been raised in the case of Kruger v Commonwealth (unreported), and also in the case ofWake v Northern Territory (1996) 109 NTR 1 in which the validity of the Rights of the Tenninally III Act 1995(NT) was challenged before the Northern Territory Supreme Court: B Lane, 'Euthanasia: A Critical Case', TheAustralian, 1 July 1996, 11.

248 The UN Human Rights Committee in General Comment 8(16)b on article 9 of the ICCPR said that Article 9.1,which prohibits arbitrary detention, applies to 'all deprivations of liberty, whether in criminal cases or in othercases such as . . . immigration control' .

249 See Polyukhovich v The Commonwealth (1991) 172 CLR 501, 688 per Toohey J in relation to the principle ofnon-retroactivity of criminal laws; Dietrich v R (1992) 177 CLR 292, 334, 337 per Deane J, 373 per Gaudron J,in relation to the requirements of a 'fair trial'.

250 See text accompanying supra notes 138-159.251 Leeth (1992) 174 CLR 455, 487 per Deane and Toohey JJ.252 Id 502 per Gaudron J. See also Nationwide News (1992) 177 CLR 1, 70 per Deane and Toohey J1.253 See text accompanying supra notes 59 and 60. See also Kennett, supra note 74, 594, 603.254 See text accompanying supra notes 89-92.255 See L Zines, 'A Judicially Created Bill of Rights?' (1994) 16 Sydney Law Review 166, 168.

74 Belinda Wells

the High Court extended the scope of protection afforded by the concept of a 'fair trial' .256

In doing so, it referred to community concern over the particular issue in question, and

international developments.On the other hand, in Dietrich most members of the Court confined themselves to

consideration of the common law concept of a fair trial.257 It remains to be seen whetherthe High Court will in due course both accept such common law concepts as importedinto the Constitution and yet, at the same time, continue to acknowledge the importantinfluence of contemporary values and international standards.258

ConclusionIn conclusion, I reiterate several points. Whilst the common law may legitimately be seenas a 'reservoir of reason' 259 from which to draw sustenance to nourish constitutionalprinciples, caution must be exercised. A Court must bear in mind that it is a reservoirfilled with the thoughts and informed by the values of other eras. This much is evidentfrom the position accorded to aliens in the common law based doctrines of representativegovernment and (more significantly) judicial power.

On the other hand, any attempt to interpret the Constitution by reference to pure reason,or contemporary values such as equality, will be subjected to charges that the result iscontingent upon the judge's own value system. Considerable judicial agility will berequired to successfully (that is, without undue academic or public criticism) maintain atheory of constitutional interpretation which takes as its centrepiece Deane J's aphorism:'The Constitution: "a Iiving force" '.260

256 In (1992) 177 CLR 292, the concept of a 'fair trial' was extended to require legal representation in all butexceptional circumstances for indigent accused charged with serious federal offences.

257 Deane and Gaudron JJ, however, regarded the 'Dietrich principle' on legal representation as 'entrenched in theCommonwealth Constitution by Ch Ill's implicit requirement that judicial power be exercised in accordance withthe judicial process': 362 per Gaudron J, 326 per Deane J.

258 As mentioned earlier, this has occurred on occasion. See, for example supra note 249.259 See McDonald, supra note 182, 181.260 Theophanous (1994) 124 ALR 1, 50; see also McGinty (1996) 134 ALR 289, 319 per Toohey J.

Nicholas Aroney BA; LLB; LLM. Associate Lecturer in Law, University of Queensland.

Representative Democracy Eclipsed? The Langer,Muldowney and McGinty Decisions

'McGinty' (1996) 134 ALR 289; 'Langer' (1996) 134 ALR 400; 'Muldowney' (1996) 136 ALR 18.R Pullan, 'Langer: Justices take a liberty', The Australian, 23 February 1996, 17. In Langer, Dawson J (dissenting)alone held that the legislation in question was invalid, whereas in AC1V, Dawson J (dissenting) was the onlyjudge completely to resist the implied guarantee of freedom of political communication - a remarkable inversion!Australian Capital Television Pty Ltd v Commonwealth of Australia (No.2) ('AC1V') (1992) 177 CLR 106;Nationwide News Pty Ltd v Wills ('Nationwide News') (1992) 177 CLR 1; Theophanous v The Herald and WeeklyTimes Limited (~Theophanous') (1994) 124 ALR 1; Stephens v West Australian Newspapers Limited ('Stephens')(1994) 124 ALR 80; contrasting Cunliffe v Commonwealth of Australia ('Cunliffe') (1994) 124 ALR 120.Langer v Australian Electoral Commission (1996) 136 ALR 141 was an appeal against orders made by theSupreme Court of Victoria restraining Langer from publishing material calculated to encourage voters to expressless than full preferences for every candidate on the ballot fonn. Langer immediately distributed his pamphletsto journalists outside the court and was subsequently imprisoned for contempt for defying the order: K Lyall,'Prisoner of the ballot box', The Australian, 23 February 1996, 15.McGinty (1996) 134 ALR 289,293 per Brennan CJ; 331 per Toohey J; 341 per McHugh 1.AC1V (1992) 177 CLR 106, 210 per Gaudron 1.

Earlier this year, the High Court handed down its decisions in McGinty v WesternAustralia, Langer v Commonwealth of Australia and Muldowney v South Australia. l Inthose cases, the Court was asked to strike down legislation which was said to beinconsistent with the Commonwealth Constitution for being contrary to the principle ofrepresentative democracy implied by the Constitution, and contrary to the guarantee offreedom of political communication derived from the principle of representativedemocracy. In Langer and Muldowney, the plaintiffs attacked the compulsory preferentialvoting provisions of the Commonwealth Electoral Act 1918 and the Constitution Act 1934(SA) as inconsistent with representative democracy and freedom of politicalcommunication. In McGinty, the plaintiffs assailed the manner in which the ConstitutionActs Amendment Act 1899 and the Electoral Districts Act 1947 (WA) distributed WesternAustralian electorates for the purposes of State elections. Again, they said that the Actswere invalid as contrary to representative democracy as implied by the CommonwealthConstitution and by the Western Australian Constitution.

However, the High Court, somewhat unexpectedly and perplexingly,2 rejected theplaintiffs' arguments in each case, even though they were based on the apparently nascentemphasis which the High Court has of recent years given to representative democracy andfreedom of speech.3 In the Langer decisions,4 freedom of political communication did notsave Mr Langer from spending some ten weeks in prison for continuing to encouragepeople not to express full preferences in their voting after a Supreme- Court orderproscribing such conduct; in McGinty, representative democracy did not imply the needfor equality of voting power so as to strike down Western Australian electoral legislationwhich allowed discrepancies in the sizes of electorates of up to 376%, and on currentenrolments, apparently as high as 414%.5 -

In ACTV, Gaudron J had derived the implication of freedom of political communicationfrom the principle of 'a free society governed in accordance with the principles ofrepresentative parliamentary democracy', itself predicated or implied by the constitutionalprovisions for election of members of the Commonwealth Parliament.6 On the basis of

12

3

4

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76 Nicholas Aroney

these principles, said to be implicit in the Constitution, her Honour had raised thepossibility of an implied 'freedom of movement, freedom of association and, perhaps,freedom of speech generally'.7 In the same place she noted that Murphy J had earlierconsidered that prohibitions of serfdom and slavery, and of cruel and unusual punishments,a guarantee of freedom of movement and the principle of the rule of law were also impliedby the Constitution.8 McHugh J likewise referred to constitutional 'rights of freedom ofparticipation, association and communication', and left open the possibility of a 'generalright of freedom of communication in respect of the business of government of theCommonwealth'.9 In tum, in a speech made soon after ACTV and Nationwide News,Toohey J stated that the courts over time might articulate 'the content of limits on powerarising from fundamental common law liberties', and that in that sense 'an implied "billof rights" might be constructed'. 10

These developments precipitated an excited discussion as to how far it would all betaken. ll In basing their decision on a 'generalised' system of representative democracy,12the Freedom of Speech cases lead a significant number of commentators to speculate asto what further rights could be derived from this concept and actually used by the HighCourt to strike down recalcitrant legislation.13 In particular, some observers suggested thatrepresentative democracy implies an equality of voting power, so that the size of electoraldistricts must in fact be as nearly as practicable equal in size - which was precisely thepoint made by the plaintiffs in McGinty.14 And as early as June 1993, the Court of DisputedReturns was asked to find that aspects of the federal system of compulsory preferentialvoting were contrary to the principles enunciated in the Freedom of Speech cases.15

Evidently, the litigants in Langer and Muldowney thought that compulsory preferentialvoting is inconsistent with representative democracy, since it requires voters to expresspreferences for candidates for whom they might not wish to vote at all.

Moreover, the later cases of Theophanous and Stephens, decided in 1994, seemed onlyto confmn and extend the application of the generalised concept of representativedemocracy.16 For a 4:3 majority in those cases, representative democracy in theCommonwealth Constitution, via s 106 of the Constitution, meant that the State legislatureswere subject to the implied guarantee of freedom of political communication. A majorityalso held that the Western Australian Constitution Act, by entrenching the requirement thatmembers of the WA Parliament be 'chosen directly by the people' of the State, itselfnecessarily implied that the WA Parliament is bound by the implied guarantee. Further,the law of defamation, as drawn from common law and State legislation, was held to beaffected by the implied guarantee. So challenges to State and Federal legislation weremounted in Langer, Muldowney and McGinty, essentially relying on the 'new' approach

7 ld 212 per Gaudron J.8 McGraw-Hinds (Aust) Pty Ltd v Smith (1979-1980) 144 CLR 633, 670 and Miller v TCN Channel Nine Pty Ltd

(1986) 161 CLR 556, 581.9 AC1V (1992) 177 CLR 106, 227 and 232. But cf Theophanous (1994) 124 ALR 1, 77.10 Sir John Toohey, 'The End of Democracy?', (1992) (Nov Iss) Australian Law News 7, 10; 'A Government of

Laws, and Not of Men?' (1993) 4 Public Law Review 158.11 Editorial, 'At the Frontiers of Wider Freedom', The Age, 1 October 1992, 13; Editorial, 'A More Activist High

Court?', The Sydney Morning Herald, 7 October 1992, 14.12 L Zines, 'A Judicially Created Bill of Rights?' (1994) 16 Sydney Law Review 166, 176.13 J J Doyle QC, 'Constitutional Law: At the Eye of the Storm' (1993) 23 University of Western Australia Law

Review 15, 27: 'The Court has ... opened a door to a house which has many rooms'.14 For example J Kirk, 'Constitutional Implications from Representative Democracy' (1995) 23 Federal Law Review

37.15 Muldowney v Australian Electoral Commission (1993) 178 CLR 34; Re The Honourable Justice Sir Gerard

Brennan; Ex parte Patrick Kevin Muldowney (1993) 67 AUR 837.16 But note the forceful dissents of Brennan CJ, Dawson and McHugh JJ. Indeed, in pending cases Levy v Victoria

(M042195) and Lange v Australian Broadcasting Corporation (S 109/96), the High Court has opened up thepossibility of reconsideration of Theophanous and Stephens.

Aliens: The Outsiders in the Constitution · And yet, aliens are not 'outlaws'.All categories of...

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