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Can Judges claim to stride on exclusive interpretative orthodoxy?

This essay will critically examine in detail the Plaintiff M68-2015 v Minister for Immigration and Border Protection . This case has been chosen for the only reason of it being very relevant in the Australian context. All the cases being critically examined in this essay are landmark judgements on the validity of Commonwealth constitutional powers vis a vis State powers. This writer will argue that unlike s 51 which has a list of legislative powers conferred, Sec 61 “extends to the execution and maintenance of this Constitution, and of the laws of the Commonwealth” thus it can be stated that the scope of the power is silent. This makes it an interesting for the writer choosing the Plaintiff M68-2015 v Minister for Immigration and Border Protection for being critically analysed further in this essay.
Each of these cases explored critical areas of law which had a resonance on the underpinnings of Australia’s federal structure. Each one of these cases had dissenting judges who were critical of the outcomes and its long term impact on the pillars of Australian democracy. These cases act as a lens to the validity of the various powers like the external affairs power, corporation’s power in relation to the Australian context and the judges have given directions while providing a window for further clarifications and interpretations to adapt with changing times. This can be viewed in the backdrop of the comments made by Justice Callinan “The reality is that no judge can claim to stride the high ground of exclusive interpretative orthodoxy” on the role of judges interpreting the constitution. The dissenting judges warned that these judgements could ring panic bells and pierce the social fabric of Australian Society.
For instance Justice Kirby while dissenting in New South Wales v Cth (WorkChoices case) (2006) warned this issue had the potential to tear apart the core values that built our community and economy. In this case, the validity of the Workplace Relations Amendment (Work Choices) Act 2005 CTH was challenged as being beyond the scope of s 51 (xx) of the Constitution. The majority held that the Federal Government’s WorkChoices legislation was a valid exercise of the constitutional power.
Justice Kirby dissented to this along with Justice Callinan.

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Common Thread
Constitutional Powers and its limitations
There is a common thread among the cases being discussed here as they all examine the validity of commonwealth constitutional powers and its limitations. In the Tasmanian Dam case the High Court had decided that the commonwealth could use the Corporations power in s 51 (xx) to regulate pre-trading activities. Prior to embarking on this critical examination it will be crucial to briefly examine the s 51 powers.

In Commonwealth v Tasmania the judges were divided in their verdict with heated debate if the Commonwealth had power under Sec 51 of The Constitution to halt the construction of a dam because of Australia’s international obligations. These obligations were under the world heritage convention. A discussion on this case will provide clarity to the issue in the context of this assignment. In 1982, Tasmania passed the Gordon River Hydro-Electric Power Development Act 1982 authorising the construction of a dam in an area which was included under the World Heritage List. The following year the World Heritage Properties Conservation Act 1983 (Cth) was enacted with reliance on the external affairs power and the corporations power in s 51 (xx). This case should also be seen in the backdrop of the opposition by the local Ngarrindjeri women. The issue was if the Hydro-Electric Commission was within the corporation’s power. The Commonwealth wanted to declare that the construction was unlawful, while the Tasmanian government challenged the validity of the two Acts. By majority it was held in favour of the Commonwealth In this case, Justice Mason identified the `two limbs’ of Melbourne Corp v Commonwealth (State Banking case) principle in terms of prohibition against a law which are
1. Discriminates against or `singles out’ a State; or
2. Imposes a special burden or disability upon a State or impairs its continued existence or its capacity to function.
It was held that the Hydro Electric Commission was a trading corporation despite the construction of the dam not being a trading activity. This case demonstrates the scope of the external affairs power. This case suggests that a subject which is covered under an international treaty can gain inclusion for being within the scope of the external affairs power. One of the principal issues that the High Court had to determine in this case was if certain provisions of this Act constituted a law with respect to corporations under s 51 (XX). The majority said yes. It will be relevant in this point to discuss the judgement in Actors and Announcers Equity Association of Australia v Fontana films when the High Court held that the scope of s 51 of the constitution covered not only trading activities of corporations but also extended to regulate other activities. As in Workerchoice case it was held that the relevant law regulating rights and obligations of constitutional corporations, as employers and their employees was within the scope of s 51 (xx) of the Constitution.
In Williams v Commonwealth the High Court reiterated on the significance of the Federal nature of the Commonwealth. This case commonly known as the Chaplains case was the validity of an arrangement made by the Commonwealth with the Scripture Union of Queensland to provide chaplains in State schools in return for payment. The payment was made without any statutory authorisation. The main issue was if it violated s 116 which was freedom of religion. The High Court by majority said it was not contrary to s 116 and the Commonwealth did not have the power to enter into an agreement as there was no scope to facilitate this in the executive power. The government tried to authorise the agreement through the Financial Framework Legislation Amendment Act 2012 (Cth) and this was the basis of the challenge by Williams. It was a bold initiative by Williams and this writer can be justified by describing it as a gamble but he turned out to be a winner in the case.
The issue in Kartinyeru v Commonwealth was if the Race Power could be used to the detriment of persons of a particular race. This issue came into focus after the Commonwealth repealed sections of the Aboriginal and Torres Strait Islander Heritage Protection Act 1984 to facilitate the construction of the Handmarsh Island Bridge. It was a harsh decision in the view of this writer as the High Court held that if the Commonwealth could enact the Act, it could also amend or repeal it.
Was Migration detention was supported by a valid statutory provision.
In this case, the question before the High Court in this asylum case was with regards to the detention of the asylum seekers. Central was if the Commonwealth had the validity for the purpose of the contractual arrangements with the private operator with regards to the detention centre. The crux of the issue being if the detention was supported by a valid statutory provision. In this context the Commonwealth relied on s198AHA of The Migration Act and more specifically with s 61 of the Commonwealth Constitution which dealt with executive powers. The plaintiff took guidance from the principles in Chu Kheng Lim V Minister for Immigration (Lim case) where it was interpreted. In Plaintiff M68-2015 v Minister for Immigration and Border Protection the plaintiff brought the case before the High Court to ensure she does not have to return to Nauru in the backdrop that in the absence of statutory authorisation, she could not be detained as it was not a valid exercise of power by the Commonwealth executive.
By a majority of 6:1 the High Court held that the contractual arrangement between the Commonwealth and Transfield Services (Australia) Pty Ltd was not in violation of any statutory provision. By majority the judges stated that the arrangement was supported by s 198 AHA of The Migration Act. As expected this landmark judgement triggered a lot of interest not only in legal circles but in the international media. It signalled a significant shift in the distribution of power from the States to the Federal Parliament.
The plaintiff in his submission filed on 4th of September 2015 in the High Court stated:
“On 10 September 2012, the Minister designated Nauru as a regional processing country under s 198AB(1) of the Migration Act (SC 37). The Minister’s Statement of Reasons noted that s 198AB was introduced following a recommendation by an independent expert panel that ‘a capacity be established in Nauru as soon as practical to process the claims ofiMAs irregular maritime arrivals transferred from Australia in ways consistent with Australian and Nauruan responsibilities under international law'” The plaintiff relied on the principles of Lim Case. In the absence of clear statutory authorisation, s 61 of the Constitution could not authorise the acts and conduct referred to in questions 1 and 6. That follows from the first of the Lim detention principles identified above.
The nature and scope of Sec 61 the executive power of the Commonwealth was examined in this case. . This scope of this executive power has always raised lively debates. In Davis v Commonwealth the judges when commenting on Sec 61 stated “the power has often been discussed but never defined”. In Victoria v Commonwealth and Hayden (AAP case) Judge Mason gave a ruling on the lines that the scope of the executive power under s61 was linked to existence of the Commonwealth as a national government and its nature to get involved in issues which affected the government of a nation. This view was also echoed in the judgement in Pape v Commissioner of Taxation .
Prerogative powers are bundle of special powers

In Plaintiff M68-2015 v Minister for Immigration and Border Protection Judge Gageler stated “the executive power of the Commonwealth is and was always to be permitted to be exercised at a functional level by Ministers and by other officers of the Executive Government acting in their official capacities or through agents” . At this juncture it is pertinent to discuss the prerogative powers of the Crown vis a vis the right of the Commonwealth as it will be argued that it is incorporated in Sec 61. Also, it can be stated as fact that it is not in black and white which tier of government can exercise which prerogative power. It is in this context that this case was taken and critically examined. After the proceedings had began the Parliament had passed the Migration Amendment (Regional Processing Arrangments) Act 2015 (Cth)facilitating the insertion of a new s198AHA into the Migration Act 1958 (Cth). This section clearly empowered the Commonwealth to greater powers which included “exercising restraint over the liberty of a person”. Essentially as pointed out in the judgement by Judge Gageler now with the new enactment, the Commonwealth was free and was not reliant on any non-statutory executive power for detaining the plaintiff.
As discussed earlier in the essay, in Williams v Commonwealth the national School Chaplaincy programme was established by the Commonwealth policy under s 61 of the Commonwealth Constitution without any specific legislative authority. The majority of Judges held in that case the establishment of the programme was beyond the power of the Commonwealth under s 61 of the Constitution. In Plaintiff M68-2015 v Minister for Immigration and Border Protection the amendments made to the Migration Act provided clear cut power to the Commonwealth.
It was clearly stated in the introduction of this essay that these judgements provided windows of opportunities for further expeditions in the legal journey of constitutional powers. It will be just to conclude this essay with the opinion of barrister David Hume who was a member of the counsel team for the plaintiff in this matter.
He stated

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