Are the new citizenship laws unconstitutional?

Last night the Australian Citizenship Amendment (Allegiance to Australia) Bill 2015 passed through the Senate. You may have heard many constitutional experts, some politicians, the Human Rights Commission and the media say that the laws might be unconstitutional. But what does this really mean?

To give you a better understanding, this week we will explore the separation of powers principle of Australian democracy that is enshrined in our Constitution.

Separation of powers

Articulated by the French political thinker and social commentator Montesquieu in 1748 during the Enlightenment period, was the principle of the separation of powers. He wrote in his book ‘The Spirit of the Laws’:

Constant experience shows us that every man invested with power is apt to abuse it, and to carry his authority as far as it will go….To prevent this abuse, it is necessary from the very nature of things that power should be a check to power….When the legislative and executive powers are united in the same person, or in the same body of magistrates, there can be no liberty; because apprehensions may arise, lest the same monarch or senate should enact tyrannical laws, to execute them in a tyrannical manner.

Montesquieu published the book anonymously due to his previous works being subject to censorship. However it was translated and quickly spread around the world. A few year later the book was banned by powerful authorities, but it was too late. The ideas had already begun to influence the work of others including the founders of the American Constitution. And so the Australian Constitution was formed on the same principles.

The separation of powers principle in the Australian Constitution divides the institutions of Government into three separate groups. The legislature, the executive and the judiciary.  The legislature make the laws, the executive put the laws into action and the judiciary make judgements about the law. In Australia the legislature and the executive overlap as the executive is made up of members of the legislature and the legislature make laws that delegate some of their power to the executive within regulations (although most regulation changes are able to be disallowed by the parliament).

Each of the three powers or arms of government is contained within separate chapters of the Constitution.

The Parliament – Chapter I

Section 1 Legislative power 
The legislative power of the Commonwealth shall be vested in a Federal Parliament, which shall consist of the Queen, a Senate, and a House of Representatives, and which is hereinafter called The Parliament, or The Parliament of the Commonwealth. 

The parliament makes the legislation. Bills must pass both houses of Parliament and are then assented into law by the Queen’s representative in Australia, the Governor-General. At this point the Bills becomes an Act of Parliament.

The legislature is a check on the power of the executive, especially since the Senate voting method changed in 1949. Since this time, it is very rare for the Senate to be controlled by the executive. So while legislation may sail through the House that is controlled by the executive, the Senate with its crossbench will usually carefully scrutinise, debate and amend legislation.

The Executive Government – Chapter II

Section 61 Executive power 
The executive power of the Commonwealth is vested in the Queen and is exercisable by the Governor‑General as the Queen’s representative, and extends to the execution and maintenance of this Constitution, and of the laws of the Commonwealth. 

The executive power is exercised by the Governor-General, but the principle of responsible government applies which means that the Governor-General acts on the advice of his or her Prime Minister and ministers. The executive in Australia is made up of members of the House and the Senate and further outlined in Section 64.

Currently the executive is made up of Prime Minister Malcolm Turnbull and his Ministers who are taken from the governing parties. The executive controls what legislation is given to the Parliament (although private members bills can be introduced by anyone in the legislature, they hardly ever get through).

As you can see there is quite a bit of overlap between the legislature and the executive.

The Judicature – Chapter III

Is there any overlap of the other two powers with the judicial powers in Australia?

Section 71 Judicial power and Courts 
The judicial power of the Commonwealth shall be vested in a Federal Supreme Court, to be called the High Court of Australia, and in such other federal courts as the Parliament creates, and in such other courts as it invests with federal jurisdiction. The High Court shall consist of a Chief Justice, and so many other Justices, not less than two, as the Parliament prescribes. 

The High Court of Australia was set up with the introduction of the Judiciary Act in 1903. There are currently seven justices that sit in the High Court. Underneath the High Court are a series of lower federal and states courts that also exercise federal judicial power.

As early as 1915 the High Court determined that only these courts could exercise federal judicial power and they must comply with other sections of the Constitution, including judges tenure for life (it was later changed by referendum to age 70) as stipulated in Section 72 of the Constitution.

Why? The defining feature of the courts is that they exercise judicial power that is completely independent and impartial. If a judge has to rely on being re-appointed after a few years, there is the potential for a judge to swing their judgements the way that their appointer would like. We’d like to think this wouldn’t happen, but to be sure the founders of our Constitution stipulated that tenure is for life.

At a Magna Carta conference that CEFA staff attended last weekend we heard one speaker state that judges being appointed by the executive could compromise their independence. But as one commenter at the event stated, this is a perceived potential problem, not something that has been evident and if judges are not appointed by the executive, who appoints them? Would there still be some perceived potential conflict?

In any case, the High Court is one of the most trusted institutions in Australia. It’s up there along with the trust levels of the federal and state police. While trust in Parliament is much lower and political parties are at the bottom of the table of trusted institutions.

It is essential that the judiciary remains separate from the legislature and the executive as a check on power. There have been many cases where the judiciary have used their power to strike out laws made by the executive when they are found to be unconstitutional. As such, the High Court has not been willing to compromise on the strict separation of judicial powers.

Now this leads us onto the citizenship laws.

The constitutionality of the citizenship laws

By now you might be thinking, what does the separation of powers have to do with the new citizenship laws?

The revocation of citizenship by the relevant minister could look like the executive giving a penalty to someone who does a certain thing. The amendments to the Citizenship Act passed by the legislature last night and enforced by the executive leave the judiciary out of the process.

The established process for someone alleged of a crime involves a trial in a court that has the authority to exercise federal judicial power. A place where the accused is able to plead their case, produce evidence and witnesses and cross-examine state witnesses,  before guilt is established. It is only after guilt is established that a penalty is given. And this penalty is decided by a judge.  

The new laws passed by the legislature may have given the executive federal judicial power which would make them unconstitutional. There is a lot of emotion about terrorism at the moment and it seems like taking citizenship away from terrorists might be a good way of preventing an attack in Australia. It will be up to the High Court to decide the constitutionality of this legislation if and when someone challenges it. 

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