Document Text Contents
Page 119
9. Constitutional litigation and the
Commonwealth1
David Bennett AC QC
As a rule, Australians tend to be ignorant, perhaps blissfully so, of the existence,
terms and effect of the Constitution of the Commonwealth of Australia. A 1987
survey indicated that only about half of the population was aware that Australian
had a written constitution.2 A 1994 survey of people aged fifteen years or over
indicated that only 13 per cent felt that they knew something about what the
constitution covered and only 18 per cent actually showed some degree of
understanding of what the constitution covered.3
Of course, participants in, and keen observers of, Australian politics would be
well aware of the potential impacts of the courts’ decisions in constitutional
cases. An obvious example of a case that has attracted considerable attention in
this community is the High Court’s decision in the Work Choices case. This
decision has stimulated vigorous debate on the future of the federal arrangement
provided for by the constitution. However, the manner by which the disputes
that give rise to these decisions are conducted in the courts is, perhaps, not well
understood by many politicians and political scientists, let alone lawyers.
Potentially, the topic is both very broad and very technical. However, I will
confine myself to outlining the manner by which the Commonwealth participates
in, and thus influences the outcome of, constitutional cases before the courts.
When I refer to ‘the Commonwealth’ I refer, in a general sense, to the Australian
Government. Specifically, my essay will address the following questions:
• How do constitutional cases come before the courts?
• How does the Commonwealth become aware of constitutional cases?
• By what power is the Commonwealth able to participate in constitutional
cases?
• How does the Commonwealth participate in constitutional cases?
• What are the advantages of the way the Commonwealth participates in
constitutional cases?
How do constitutional cases come before the courts?
A court does not express its view on a question of law unless it has jurisdiction
in relation to a dispute between parties. And, by the word ‘dispute’, I do not
mean a dispute merely concerning what the law is—for example, a dispute over
what is the proper interpretation of a particular provision of the constitution.
Generally speaking, for a federal court to have jurisdiction in relation to a dispute
101
Page 120
between parties relating to a constitutional issue it is necessary, at least, that
there be a ‘matter’—that is, ‘some immediate right, duty or liability to be
established by the determination of the Court’.4 Thus, a constitutional dispute
must be real, not merely hypothetical or academic, before the courts will consider
it.
As some provisions in the constitution tend to be more productive of disputes
about the existence of relevant rights, duties or liabilities than others, the courts
have had the opportunity to consider and express their views on some provisions
in the constitution more than others. It is important to note that constitutional
litigation does not always, or even generally, arise between polities—that is,
the Commonwealth, the states and territories—or their officers, and so on.
Constitutional litigation may arise as a result of a disputed right, duty or liability
affecting only natural persons or corporations. There are many examples of such
cases. One example is Smith vs ANL Ltd ([2000] 204 CLR 493), which concerned
an employee who argued that he was entitled to assert his common law right to
sue his employer for damages for personal injury sustained during his
employment, despite the existence of a Commonwealth act that appeared to bar
him from doing so. The employee argued that the act was invalid to the extent
that it had the effect of acquiring the employee’s existing right of action without
providing just terms contrary to s.51(xxxi) of the constitution. The employer
argued that the act did not infringe s.51(xxxi). The High Court agreed with the
employee. The Commonwealth was not initially a party to the proceeding, as it
was not involved in any way on the facts. However, the Attorney-General did
intervene in the case in order to argue in support of the validity of the
Commonwealth act. (I discuss what is meant by the concept of ‘intervention’
below.)
Another, more recent, example is Australian Pipeline Ltd vs Alinta ([2007] 159
FCR 301), which concerned a provision of the Corporations Act 2001 that allowed
the Takeovers Panel to make a declaration that ‘unacceptable circumstances’
existed in relation to the affairs of a company in relation to a proposed takeover
bid. Having made a declaration of unacceptable circumstances, the panel could
then make various orders in relation to the circumstances. Failure to comply
with the orders was a criminal offence, and the panel could apply to the court
to seek to enforce its orders. The dispute arose between companies involved in
the proposed takeover. Again, the Commonwealth was not initially involved;
however, the Attorney-General intervened in order to argue in support of the
validity of the provision. The Full Court of the Federal Court held that the
relevant provision was invalid, on the basis that it purported to confer judicial
power on an administrative body. The judgment was then appealed to the High
Court, which came to the opposite view.
102
Critical Reflections on Australian Public Policy
Page 237
It is still early days for journalism on the Net. In the United States, the Drudge
Report, originated by Matt Drudge about 1994, achieved notoriety by being first
with the scandalous Monica Lewinsky story that by a long chain of events led
to the impeachment of President Clinton. In Australia, Stephen Mayne, a former
(unsuccessful) political minder to Jeff Kennett, began Crikey.com, a site that is
a mix of gossip and titbits.
In the United States, there has been a migration of some serious journalists to
the Net, including John Harris, national politics editor of The Washington Post,
who has joined a subscription web site, The Politico, which is building a reporting
staff of 30 journalists.11 Sites such as Salon.com offer serious commentary and
analysis and are a bright alternative to the mainstream press.
Efficiency is the great advantage of accessing news on the Net. It is available
anywhere, anytime. There’s no need to wait tiresomely for the next radio or
television news bulletin and then find that it doesn’t cover the item you are
interested in. And good sites make for quick and easy navigation to the stories
of interest. Radio and television, which had the great advantage of immediacy
over newspapers, are now the slow coaches.
Double helix
What can we say about how ‘the media age’ shapes politics? In turn, how does
politics shape the media world?
A metaphor from biology seems appropriate. In 1953, just as the nascent
television industry in Australia was gearing up for its launch, two scientists,
James D. Watson and Francis Crick, offered the world the image of the ‘double
helix’ to describe how DNA was constructed. Watson was supposedly on an
LSD trip when he saw the vision.
In many respects, the ‘double helix’ fits the media/government relationship,
where both strands twist together to form its DNA. Like the image of the double
helix, both spirals engage in a dance around each other, centred on the same
axis. Neither strand manages to fully dominate the other.
One strand contains ‘money’ elements of the relationship, the other the ‘black
box’ of content. The ‘money’ thread holds the ‘legislative’ codes that have
unlocked the enormous market power of the technological revolution that is
modern media. Government paced the introduction of key technologies (where
it could) and bestowed favours on media proprietors through regulating the
playing field. It is the politicians who enact the laws. So, appearances give the
impression that the government is the dominant force in shaping the structural
thread but the reality is somewhat different. No government idly transgresses
on the commercial interests of the handful of owners. Indeed, a media proprietor
expects his calls to the Prime Minister to be returned. As former NSW Premier
219
From crystal sets to the double helix in one journalist’s lifetime
Page 238
Bob Carr remarked, the only thing that separates Jamie Packer from the other
dozen billionaires in Australia is that he has media interests.12
The ‘black box’ thread of the DNA contains the ‘editorial’ codes of data and
information that make up the daily news agenda. It’s the journalists who write
the headlines, present the news, interview the politicians and pen much of the
commentary. So, appearances give the impression that this role makes journalists
the dominating force in the content thread. Again, the reality is somewhat
different. Journalists and politicians live in a tightly woven relationship of
co-dependence. Both sides are busy ‘framing’ the news to put their own
interpretation on events. Neither side wants to yield to the other’s version. A
prime minister expects his or her calls to an editor to be returned. The editor
will call, but if they are worth their salt, will not necessarily buckle.
The helix shape, of course, corresponds to a ‘screw’ and perhaps that is the more
fitting image, as both sides of the relationship seek to screw down the other,
fastening, keeping in check, protecting their source of power as they play the
great game of politics and media.
ENDNOTES
1 This essay was prepared for the ANZSOG Strategic Media Management Workshop held on 22 August
2006.
2 Inglis, K. S. 1983, This is the ABC, Melbourne University Press, Melbourne, p. 78.
3 Ibid., p. 216.
4 Ibid., p. 128.
5 See < www.freetvaust.com.au http:/true/truewww.freetvaust.com.au/true >
6 ABC submission to Review of Australian Government Film Funding Support, August 2006.
7 Murdoch, Rupert 2005, Speech to American Society of Newspaper Editors, 13 April 2005.
8 See <Ketupa.net>
9 See Internet Society’s history at < www.isoc.org http:/true/truewww.isoc.org/true >
10 ABC submission to Review of Australian Government Film Funding Support.
11 Button, James 2007, Sydney Morning Herald, 13–14 January 2007.
12 ANZSOG Media and Government Seminar, August 2006.
220
Critical Reflections on Australian Public Policy
http://www.freetvaust.com.au/
http://www.isoc.org/
9. Constitutional litigation and the
Commonwealth1
David Bennett AC QC
As a rule, Australians tend to be ignorant, perhaps blissfully so, of the existence,
terms and effect of the Constitution of the Commonwealth of Australia. A 1987
survey indicated that only about half of the population was aware that Australian
had a written constitution.2 A 1994 survey of people aged fifteen years or over
indicated that only 13 per cent felt that they knew something about what the
constitution covered and only 18 per cent actually showed some degree of
understanding of what the constitution covered.3
Of course, participants in, and keen observers of, Australian politics would be
well aware of the potential impacts of the courts’ decisions in constitutional
cases. An obvious example of a case that has attracted considerable attention in
this community is the High Court’s decision in the Work Choices case. This
decision has stimulated vigorous debate on the future of the federal arrangement
provided for by the constitution. However, the manner by which the disputes
that give rise to these decisions are conducted in the courts is, perhaps, not well
understood by many politicians and political scientists, let alone lawyers.
Potentially, the topic is both very broad and very technical. However, I will
confine myself to outlining the manner by which the Commonwealth participates
in, and thus influences the outcome of, constitutional cases before the courts.
When I refer to ‘the Commonwealth’ I refer, in a general sense, to the Australian
Government. Specifically, my essay will address the following questions:
• How do constitutional cases come before the courts?
• How does the Commonwealth become aware of constitutional cases?
• By what power is the Commonwealth able to participate in constitutional
cases?
• How does the Commonwealth participate in constitutional cases?
• What are the advantages of the way the Commonwealth participates in
constitutional cases?
How do constitutional cases come before the courts?
A court does not express its view on a question of law unless it has jurisdiction
in relation to a dispute between parties. And, by the word ‘dispute’, I do not
mean a dispute merely concerning what the law is—for example, a dispute over
what is the proper interpretation of a particular provision of the constitution.
Generally speaking, for a federal court to have jurisdiction in relation to a dispute
101
Page 120
between parties relating to a constitutional issue it is necessary, at least, that
there be a ‘matter’—that is, ‘some immediate right, duty or liability to be
established by the determination of the Court’.4 Thus, a constitutional dispute
must be real, not merely hypothetical or academic, before the courts will consider
it.
As some provisions in the constitution tend to be more productive of disputes
about the existence of relevant rights, duties or liabilities than others, the courts
have had the opportunity to consider and express their views on some provisions
in the constitution more than others. It is important to note that constitutional
litigation does not always, or even generally, arise between polities—that is,
the Commonwealth, the states and territories—or their officers, and so on.
Constitutional litigation may arise as a result of a disputed right, duty or liability
affecting only natural persons or corporations. There are many examples of such
cases. One example is Smith vs ANL Ltd ([2000] 204 CLR 493), which concerned
an employee who argued that he was entitled to assert his common law right to
sue his employer for damages for personal injury sustained during his
employment, despite the existence of a Commonwealth act that appeared to bar
him from doing so. The employee argued that the act was invalid to the extent
that it had the effect of acquiring the employee’s existing right of action without
providing just terms contrary to s.51(xxxi) of the constitution. The employer
argued that the act did not infringe s.51(xxxi). The High Court agreed with the
employee. The Commonwealth was not initially a party to the proceeding, as it
was not involved in any way on the facts. However, the Attorney-General did
intervene in the case in order to argue in support of the validity of the
Commonwealth act. (I discuss what is meant by the concept of ‘intervention’
below.)
Another, more recent, example is Australian Pipeline Ltd vs Alinta ([2007] 159
FCR 301), which concerned a provision of the Corporations Act 2001 that allowed
the Takeovers Panel to make a declaration that ‘unacceptable circumstances’
existed in relation to the affairs of a company in relation to a proposed takeover
bid. Having made a declaration of unacceptable circumstances, the panel could
then make various orders in relation to the circumstances. Failure to comply
with the orders was a criminal offence, and the panel could apply to the court
to seek to enforce its orders. The dispute arose between companies involved in
the proposed takeover. Again, the Commonwealth was not initially involved;
however, the Attorney-General intervened in order to argue in support of the
validity of the provision. The Full Court of the Federal Court held that the
relevant provision was invalid, on the basis that it purported to confer judicial
power on an administrative body. The judgment was then appealed to the High
Court, which came to the opposite view.
102
Critical Reflections on Australian Public Policy
Page 237
It is still early days for journalism on the Net. In the United States, the Drudge
Report, originated by Matt Drudge about 1994, achieved notoriety by being first
with the scandalous Monica Lewinsky story that by a long chain of events led
to the impeachment of President Clinton. In Australia, Stephen Mayne, a former
(unsuccessful) political minder to Jeff Kennett, began Crikey.com, a site that is
a mix of gossip and titbits.
In the United States, there has been a migration of some serious journalists to
the Net, including John Harris, national politics editor of The Washington Post,
who has joined a subscription web site, The Politico, which is building a reporting
staff of 30 journalists.11 Sites such as Salon.com offer serious commentary and
analysis and are a bright alternative to the mainstream press.
Efficiency is the great advantage of accessing news on the Net. It is available
anywhere, anytime. There’s no need to wait tiresomely for the next radio or
television news bulletin and then find that it doesn’t cover the item you are
interested in. And good sites make for quick and easy navigation to the stories
of interest. Radio and television, which had the great advantage of immediacy
over newspapers, are now the slow coaches.
Double helix
What can we say about how ‘the media age’ shapes politics? In turn, how does
politics shape the media world?
A metaphor from biology seems appropriate. In 1953, just as the nascent
television industry in Australia was gearing up for its launch, two scientists,
James D. Watson and Francis Crick, offered the world the image of the ‘double
helix’ to describe how DNA was constructed. Watson was supposedly on an
LSD trip when he saw the vision.
In many respects, the ‘double helix’ fits the media/government relationship,
where both strands twist together to form its DNA. Like the image of the double
helix, both spirals engage in a dance around each other, centred on the same
axis. Neither strand manages to fully dominate the other.
One strand contains ‘money’ elements of the relationship, the other the ‘black
box’ of content. The ‘money’ thread holds the ‘legislative’ codes that have
unlocked the enormous market power of the technological revolution that is
modern media. Government paced the introduction of key technologies (where
it could) and bestowed favours on media proprietors through regulating the
playing field. It is the politicians who enact the laws. So, appearances give the
impression that the government is the dominant force in shaping the structural
thread but the reality is somewhat different. No government idly transgresses
on the commercial interests of the handful of owners. Indeed, a media proprietor
expects his calls to the Prime Minister to be returned. As former NSW Premier
219
From crystal sets to the double helix in one journalist’s lifetime
Page 238
Bob Carr remarked, the only thing that separates Jamie Packer from the other
dozen billionaires in Australia is that he has media interests.12
The ‘black box’ thread of the DNA contains the ‘editorial’ codes of data and
information that make up the daily news agenda. It’s the journalists who write
the headlines, present the news, interview the politicians and pen much of the
commentary. So, appearances give the impression that this role makes journalists
the dominating force in the content thread. Again, the reality is somewhat
different. Journalists and politicians live in a tightly woven relationship of
co-dependence. Both sides are busy ‘framing’ the news to put their own
interpretation on events. Neither side wants to yield to the other’s version. A
prime minister expects his or her calls to an editor to be returned. The editor
will call, but if they are worth their salt, will not necessarily buckle.
The helix shape, of course, corresponds to a ‘screw’ and perhaps that is the more
fitting image, as both sides of the relationship seek to screw down the other,
fastening, keeping in check, protecting their source of power as they play the
great game of politics and media.
ENDNOTES
1 This essay was prepared for the ANZSOG Strategic Media Management Workshop held on 22 August
2006.
2 Inglis, K. S. 1983, This is the ABC, Melbourne University Press, Melbourne, p. 78.
3 Ibid., p. 216.
4 Ibid., p. 128.
5 See < www.freetvaust.com.au http:/true/truewww.freetvaust.com.au/true >
6 ABC submission to Review of Australian Government Film Funding Support, August 2006.
7 Murdoch, Rupert 2005, Speech to American Society of Newspaper Editors, 13 April 2005.
8 See <Ketupa.net>
9 See Internet Society’s history at < www.isoc.org http:/true/truewww.isoc.org/true >
10 ABC submission to Review of Australian Government Film Funding Support.
11 Button, James 2007, Sydney Morning Herald, 13–14 January 2007.
12 ANZSOG Media and Government Seminar, August 2006.
220
Critical Reflections on Australian Public Policy
http://www.freetvaust.com.au/
http://www.isoc.org/
