A A C L ABN STATE CONVENORS REPORT TO THE ANNUAL GENERAL MEETING 2012

Transcription

1 STATE CONVENORS REPORT TO THE ANNUAL GENERAL MEETING 2012 NSW The NSW Chapter has hosted the following events that have been well attended: Monday 13 August 2012 Williams v Commonwealth How the School Chaplains and Mr Pape Destroyed the Common Assumption Regarding Executive Power Mr Williams challenged the validity of the National School Chaplain's Program under section s116 of the Constitution upon the basis of a 'common assumption' regarding the scope of Commonwealth executive power under section 61. The Court upheld the challenge by destroying the 'common assumption', but did not rely on section 116: Williams v Commonwealth [2012] HCA 23; (2012) 288 ALR 410. This address will analyse the Court's reasoning and its future implications for the Commonwealth's ability to spend money and enter into contracts. It will also explore the effectiveness of the swift legislative response to the decision. Paper presented by Professor Geoffrey Lindell AM (Adjunct Professor of Law, University of Adelaide and Professorial Fellow in Law, University of Melbourne) Commentators: Professor Simon Evans (University of Melbourne) and Dr Nicholas Seddon (Special Counsel, Ashurst, formerly Blake Dawson) Chair: Professor Denise Meyerson (Macquarie University) Thursday 13 September 2012 The Intersection Between Arbitration Law and Constitutional Principles Federalism, both in the USA and Australia, limits but also encourages the development of domestic arbitration law. It has already been suggested that Chapter III of the Commonwealth Constitution may influence the structure of the arbitral process: PMT Partners Pty Ltd v Australian National Parks (1995) 184 CLR 301, This paper considers ways in which these constitutional challenges might be addressed within the framework of the ever converging international law of arbitration, and in a way that promotes Australian jurisdictions as international centres for alternative dispute resolution. Paper presented by Mr Justin T Gleeson SC (Banco Chambers) and Mr Jonathon A Redwood (Banco Chambers) Australian Association of Constitutional Law Secretariat Melbourne Law School 185 Pelham Street University of Melbourne Vic 3010 Telephone: Fax: cccs@law.unimelb.edu.au

2 Commentators: Dr Andrew S Bell SC (Eleven Wentworth Chambers) and Mr Will Bateman (Freehills) Chair: The Hon Justice Ruth McColl AO (NSW Court of Appeal) Forthcoming Events: Tuesday 11 December 2012 Comparative Constitutional Law Final Courts Round-up 2012 This is a joint event organised by the Gilbert + Tobin Centre of Public Law (UNSW) and AACL: This seminar will provide an outline of recent constitutional developments in three jurisdictions the United Kingdom, Canada and the United States that are of key interest to Australian constitutional lawyers. Experts from each jurisdiction will report on two or three major constitutional cases argued or decided over the last year; changes in the composition and politics of each country s highest court; and flag the state of debate over constitutional reform. Together, the panellists will also discuss the potential relevance of these comparative developments for current issues in Australian constitutional law. A list of cases to be discussed will be provided prior to the seminar. Speakers: Professor Conor Gearty (London School of Economics) Assistant Professor Vanessa MacDonnell (University of Ottawa) Professor David Cole (Georgetown Law Center) Chair: Professor Rosalind Dixon (University of New South Wales) Wednesday 6 February 2013 State Jurisdictional Residue: What Remains to A State Court When Its Chapter III Functions Are Exhausted? Among the many issues facing the High Court in Momcilovic v The Queen [2011] HCA 34, was the constitutional validity of declarations of inconsistent interpretation made under section 36 of the Charter of Human Rights and Responsibilities Act 2006 (Vic) and exercised for the first time in 2010 by the Victorian Court of Appeal. Four members of the High Court found the declaration power valid. Of these, Chief Justice French notably found it valid for a State court, but invalid in the exercise of federal judicial power. The complication was that, when it made its declaration, the Victorian Court was exercising federal jurisdiction, under section 75(iv) of the Constitution. How, then, were these positions reconciled? The Chief Justice identified what this paper calls State jurisdictional residue. In his words, There is no reason in principle why the Court of Appeal, having exhausted its functions in the exercise of its federal jurisdiction... could not proceed to exercise the distinct non-judicial power conferred upon it by the Charter. This paper considers what else, if anything, might lie in a State court s jurisdictional residue, and its potential implication for the evolution of the Kable doctrine. 2

3 Paper presented by Professor Helen Irving (Sydney Law School) Commentators: The Hon Justice Steven Rares (Federal Court of Australia) and Mr Richard Lancaster SC (Fifth Floor St James Hall Chambers). Chair: The Hon Justice Christine Adamson (Supreme Court of New South Wales) [A date to be determined, but between March to June 2013] Military Justice and Chapter III of the Constitution: The Constitutional Basis of Courts Martial The High Court has long struggled with the constitutional status of military tribunals established to hear disciplinary charges against service personnel. The Court s judgments reveal three distinct theories on this issue. The first view holds that military tribunals exercise judicial power, but not the judicial power of the Commonwealth within the meaning of s 71 of the Constitution. The second view holds that the power in question is not judicial power at all for constitutional purposes. The third view holds that the power is the judicial power of the Commonwealth, but can be exercised by courts martial under a limited exception to the rules set out in Chapter III of the Constitution. The first view dominated the High Court s reasoning until Lane v Morrison (2009) 239 CLR 230, where the judges endorsed the second view. This article contends that the first and second views pose insuperable difficulties when placed in their broader constitutional context. The authors therefore argue for the third interpretation. They further argue that the constitutional basis for the third view strongly implies that military tribunals may only exercise jurisdiction over offences by military personnel that relate to service discipline. Paper presented by Professor Suri Ratnapala and Dr Jonathon Crowe (University of Queensland) [The paper will be published in (2012) 40 Federal Law Review]. Commentators: The Hon Justice Margaret J White (Queensland Court of Appeal) and [TBA] Chair: Mr James Renwick SC (Twelfth Floor Wentworth Chambers) Dr Christos Mantziaris NSW Convenor 9 November 2012 VIC Activities since the 2011 Annual General Meeting: In the past year (from September 2011) the Victorian Chapter has organised the following events as part of its "Victorian Seminar Series": Friday 21 October 2011: Forum on Momcilovic's Case (speakers Mr Richard Niall SC, Associate Professor Jeremy Gans and Assistant Professor Rosalind Dixon; chair Ms Debbie Mortimer SC) 3

4 Thursday 26 April 2012: Seminar on Constitutional Interpretation (speakers Professor Jeffrey Goldsworthy and Dr Patrick Emerton; chair Justice Susan Kenny) Thursday 7 June 2012: Seminar on The Significance of the Human Rights (Parliamentary Scrutiny) Act 2011 (Cth) (speaker Associate Professor Dan Meagher; commentators Ms Catherine Dixon and Dr Charles Parkinson; chair Professor Cheryl Saunders) CCCS/AACL (Vic) Public seminar on the Williams Case (speakers Professor Geoffrey Lindell and Professor Simon Evans; chair Sir Daryl Dawson AC KBE CB). The Momcilovic and Williams events were open to the public and attracted more attendees than the other two seminars, which were open only to AACL members and those who specifically contacted us asking to attend. (There were usually one or two students who wished to attend, and we always agreed that they could and should do so.) On average, around 20 people attended each event and there was a small core of "usual suspects" who attended all or most of them. To our knowledge, judges, barristers, solicitors (both in government and private practice), academics and students all attended, with barristers and solicitors making up the bulk of attendees. The online registration system for events has worked well, which Jean helps us set up for each event. For the Momcilovic seminar we originally asked people to RSVP by to us but this was time consuming to manage. We have implemented the online registration system for all other events. All events have been held at the Commonwealth Law Courts, which has made it easy to encourage those working in the city to attend. The Federal Court has, however, charged us a small fee (usually around $100) for each event to cover the cost of keeping the building open. The advantages of using the Federal Court's facilities outweigh the disadvantages of this small cost, but this has made it difficult for us at times to meet the costs of speakers who have to travel to Melbourne to speak. On one occasion (the Lindell/Evans seminar), we approached the University of Melbourne's Centre for Comparative Constitutional Studies to assist in the cost of Professor Lindell's travel costs, in return for which we co-branded the event with the CCCS. While it would always be helpful to have more money, we expect that, now the Seminar Series is established, we will find it easier to attract the participation of local speakers and commentators (as was the experience of Christos Mantziaris in NSW). We have had considerable help in establishing the Seminar Series from Jean Goh, Christos Mantziaris, Adrienne Stone and Kris Walker, to whom we are grateful and extend our thanks. Future activities since the 2011 Annual General Meeting: On the night of the AGM, we will be holding a seminar by Professor Anne Twomey on The Unrecognised Reserve Powers (Dr John Waugh and Mr Peter Hanks QC to comment, a chairperson to be confirmed at the date of this report). Anne kindly stepped in to present a seminar, as Ms Frances Gordon's seminar had to be postponed until We are yet to finalise next year's plans, but it is our intention to hold four or five events of a similar nature to those which were held this year. 4

5 Membership: The Victorian Seminar Series has played a large role in increasing the membership of the Victorian Chapter. In the last year, the membership increased from 31 members to 48 members. Olaf Ciolek and Christopher Tran VIC convenors 9 November 2012 ACT In 2012 we decided to rest the Talking Constitution event (where recent High Court decisions were presented by academics and/or practitioners). It is a format that I think we could revisit in the future, especially as there are some interesting High Court cases to be handed down next year. While the ability of the ACT Chapter to hold events in 2012 was compromised due to my ill-health., we did hold one event in conjunction with the Centre for International and Public Law at ANU. This was a 90 minute seminar on Williams v The Commonwealth held at the ANU College of Law on 31 August Three speakers (Mr Will Bateman, Dr Nick Seddon and Mr Daniel Stewart) gave excellent presentations on the case to a very well attended event. I would like the assistance that CIPL and the ANU COAST team provided in running the event to be acknowledged. I am also grateful to the help provided me by Daniel Stewart in organising this event. We also welcomed some new members to the AACL in July this year, however, to the best of my knowledge, our official membership remains quite small. I will be on maternity leave for all of 2013, and unfortunately, was not able to identify a suitable replacement to act as convenor before I rather unexpectedly went on maternity leave. This also means I have not been able to put in place plans for the ACT Chapter for next year. I apologise for the difficulty this creates for the AACL. I look forward to being an active member of the AACL in the ACT once I return to the ANU College of Law. I would also like to thank Adrienne Stone, Jean Goh and Thomas Bland for the support they have given me during my time as convenor. Dr Dominique Dalla-Pozza ACT Convenor Lecturer, ANU College of Law 8 November

6 QLD Publications: Crowe J. & Ratnapala S., 'Military Justice and Chapter III: The Constitutional Basis of Courts Martial' (2012) 40 Federal Law Review 161 Aroney N & Thomas S., A House Divided: Does MMP Make an Upper House Unnecessary for New Zealand? [2012] 3 New Zealand Law Review 403. Events in Queensland: 19 November 2012, 1-3pm, Griffith Southbank Graduate Centre (S07), Lecture Hall 1.23 The Electoral Regulation Research Network and invites you to the ERRN (QLD) Seminar:'Participation or Stagnation? Parties and Participation in the US and Australia A post-us election follow-up This event is timed to roughly coincide with both the US presidential election and the Australian Electoral Commission s Year of Enrolment marking a century of compulsory enrolment. Seminar participants will include: o Scott Ryan, Liberal Senator for Victoria o Sam Mclean, Acting National Director, GetUp! o Andrew Bartlett, convenor of the Queensland Green Party o Dr Dennis Grube (Griffith), former Labor Party Speechwriter o Prof Clive Bean (QUT), expert on elections and political behaviour o Dr Liz van Acker (Griffith), expert in women s participation The focus is on challenges and controversies surrounding public participation in electoral politics in both countries, including participation by women, minorities, youths, advocacy groups and minority parties. Is the era of Australia s international leadership in democratic innovation at an end? What can other countries continue to learn from Australia? What can we learn from them? 12 December 2012 Seminar: The Consequences of Consequentialist Criteria Paper presented by: Assistant Professor Nick Stephanopoulos Calls for jurisdictions to consider the electoral consequences of their redistricting decisions are proliferating. Election law scholars such as Samuel Issacharoff and Richard Pildes argue that districts should be designed to be as competitive as possible. Political scientists such as Bernard Grofman and Gary King assert instead that the partisan fairness of district plans 6

7 should be maximized. Almost unnoticed by the literature, a handful of jurisdictions, both in America and abroad, have recently heeded these appeals from the academy. Arizona, Washington, and Wisconsin embraced competitiveness as one of their official redistricting criteria. The Australian state of South Australia enacted a rule requiring whichever party wins a majority of the state-wide vote also to win a majority of seats in the legislature. Less formally, U.S. states including New Jersey and New Mexico sought to minimize the partisan bias of their district plans. In this paper, I empirically assess the results of these efforts. I assess, in other words, the consequences of consequentialist redistricting criteria. I find that competitiveness requirements have not worked particularly well. Races in jurisdictions that employ these requirements have not been significantly more competitive than races in jurisdictions that lack them (or than races in the former jurisdictions prior to the requirements adoption). On the other hand, partisan bias criteria seem to have functioned quite effectively. Jurisdictions that use them have exhibited lower levels of bias than jurisdictions that lack them (and than the former jurisdictions before the implementation of the criteria). One lesson from these results is that competitiveness is very difficult to predict. As desirable as it may be, it appears to be beyond the capability of contemporary redistricting authorities even properly instructed authorities to guarantee. A more optimistic conclusion is that partisan bias can be accurately forecast, and that line-drawers can design plans that reduce its level. Since the inequitable treatment of political parties is at the heart of any definition of gerrymandering, the implication is that this unsavory practice can effectively be curbed by appropriate legal rules. Ending gerrymandering may be as easy as enacting the right law. Prof Nicholas Aroney QLD Convenor 5 November 2012 SA Since July 2011, the SA Chapter has hosted the following events: On 6 September 2011, the Hon John Rau MP, Deputy Premier (and Attorney General), spoke about the role of the Attorney-General. The discussion was facilitated by Professor John Williams On 22 March 2012, Damian O'Leary of the Crown Solicitor's Office presented a paper entitled "A Universal Right to Vote: Shifting Conceptions of the People in Australian Constitution Law". 7

8 On 29 May 2012, Professor Elizabeth Handsley of Flinders University, Associate Professor Alexander Reilly of the University of Adelaide and Khatija Thomas, South Australian Commissioner for Aboriginal Engagement, presented a seminar entitled "Recognising Aboriginal and Torres Strait Islander Peoples in our Constitution: Three Perspectives". On 24 July 2012, Gabrielle Appleby of the University of Adelaide, Stephen McDonald of Hanson Chambers and Mike Wait of the Crown Solicitor's Office delivered a seminar entitled "The High Court's New Spectacles: Re-envisioning executive power after Williams v Commonwealth". On 15 August 2012, Joshua Neoh of the University of Adelaide presented a paper entitled "Text, Doctrine and Tradition in Law and Religion". The paper was followed by comment by the Hon David Bleby QC formerly a Justice of Supreme Court of South Australia and Rev Dr Michael Trainor AM of Flinders University. On 13 September 2012, Anne Hewitt and Cornelia Koch of the University of Adelaide presented a paper entitled "Is Circumcision a Crime? A critique of the legal regulation of genital cutting in Germany and Australia". This paper was presented by the Research Unit for the Study of Society, Law and Religion. On 5 November 2012, Dr Matthew Stubbs of the University of Adelaide presented a paper entitled "Plain Packaging in the High Court: JT International SA v Commonwealth". The paper was chaired by Dr Melissa de Zwart of the University of Adelaide. The SA Chapter will present one further event in 2012: On 29 November 2012, Sarah Moulds and Cornelia Koch of the University of Adelaide will present a paper entitled "The Role of Proportionality" Mike Wait SA Convenor 8 November 2012 WA Details of Papers presented May Twilight Seminar: Complex Laws in Legal Practice: Statutory Interpretation for Practitioners Chair: Justice Ken Martin View from the Bench Justice James Edelman 8

9 Academic Perspective Jacinta Dharmananda Barrister s Perspective Peter Quinlan SC 2. Appointing Justices to the High Court [Event on 12 June 2012 was cancelled due to a heavy storm in Perth and is to be re-scheduled] Chair: Grant Donaldson SC Solicitor General for Western Australia. Setting the Legal Background Jim Thomson The Process of Appointment of Supreme Court Justice in the United States His Excellency, the Hon Jeffrey Bleich, United States Ambassador to Australia October Roundtable Seminar: The Western Australian Constitution: An Evolving Story (papers to be published in a special issue of the University of Western Australia Law Review) Chair: The Hon Christine Wheeler Participants: o His Excellency, Mr Malcolm McCusker QC, Governor of Western Australia o Associate Professor Sarah Murray o Dr James Thomson SC o Lee Harvey and Geoff Lawn o Professor David Black o Peter Congdon o Dr Peter Johnston o Grant Donaldson SC, Solicitor General of Western Australia o Kathleen Foley o The Hon Wayne Martin, Chief Justice of Western Australia o Robert Mitchell SC o The Hon Carmel McLure o Adam Sharpe o Professor Anne Twomey Proposed events for 2013: Seminar on the implications of the decision in Williams Appointing Justices to the High Court Roundtable Conference on recent High Court cases (to be held in the second half of 2013 A/Prof Sarah Murray WA Convenor 5 November