At the conclusion of 2014, UQ’s long-serving Professor of Public Law, Suri Ratnapala, will be retiring from TC Beirne. In a tribute to Professor Ratnapala’s contributions to the teaching of constitutional law and jurisprudence at UQ, two Editors of Pandora’s Box, Samuel Walpole and Tristan Pagliano (and with the assistance of another, William Isdale) joined Professor Ratnapala in this conversation about some of the thematic issues in Australian constitutional law.*
Professor Ratnapala, pictured with the interviewers
PB: Professor Ratnapala, thank you for joining us. What would you consider the most significant development in Australian constitutional law over the last 25 years?
SR: In my view it is the development of the doctrine of institutional integrity of state courts beginning with Kable v DPP.[1] The doctrine introduces an element of separation of powers to the state constitutions. There are four aspects to the doctrine that have been established through the jurisprudence as the doctrine has developed.
The first concerns the constitution of a court, with the High Court expressing an opinion that the overuse of acting judicial appointments would be unconstitutional.[2] The second element relates to the prohibition against conferring impermissible jurisdictions and incompatible functions on state courts, such as those relating to control orders and the like.[3] The third aspect, established in Kirk v Industrial Court of NSW,[4] is the most important. It is concerned with prohibiting the withdrawal of jurisdiction and says that a state parliament cannot remove a state Supreme Court’s jurisdiction to review a judicial or administrative decision on the basis of legality. This is a direct support of the rule of law at the State level. Finally, there are the procedural guarantees. The High Court has not always held in favour of accused persons in these cases, but they have restricted the limitations state parliaments can place on procedural guarantees.
PB: What aspect of Australian constitutional jurisprudence are you most critical of?
SR: For me, the Engineers{C}[5] doctrine, as affirmed in Workchoices,[6] is the most pernicious constitutional doctrine since Federation. I am most concerned about the way it is used. There is an element, with respect, of hypocrisy with the way the High Court uses the doctrine. The doctrine is like a sword. It is left sheathed whenever the High Court wishes to, ironically, strike down, legislation. However, when it wants to defend a piece of legislation it unsheathes the sword. The subsequent implied rights cases, the Melbourne Corporation case[7] and those cases that followed it all basically ignored the Engineers doctrine. However, where desired, the High Court will bring it out. WorkChoices was a recent example. I am opposed to the doctrine as I do not think a constitution can be interpreted without taking into account its text and structure.
PB: What are you views on the two recently proposed amendments to the constitution? Firstly, to provide a power to fund local governments directly (proposed by the Gillard government) and secondly, constitutional recognition of indigenous Australians?
SR: My opposition to the local government referendum proposal is well known. My opposition is basically that it undermines fiscal federalism and the economic existence of the States. The states must have a real existence if federalism is to prevail, not just one in form or law. A real existence means an economic existence. Direct funding by the Commonwealth erodes that capacity of the states to manage their own local economy. Furthermore, if implemented it further erodes state legislative power. It happens in this way: if a local authority receives a grant on conditions determined by the federal parliament, those conditions which are constitutionally authorised under an amended s 96 will prevail against state law. It is an indirect way of taking over State legislative power. States’ financial dependence on the Commonwealth means they cannot refuse s 96 grants. Local authorities are even more dependent on such funding.
PB: What about the proposal to constitutionally recognise Indigenous Australians?
SR: Those seeking to constitutionally recognise Indigenous Australians seem to seek three things. The first is a symbolic statement of recognition. I do not see any objection to that, though it I do not think it will provide a material benefit to Indigenous communities. The second goal is to remove s 25,[8] which I am in favour of.
The third proposal, to reformulate the race power in s 51(xxvi) is more problematic. I am in favour of repealing this paragraph but many proponents of the proposal also wish to replace the paragraph with a power to legislate for the benefit of Indigenous Australians but not for their detriment. Although I like this in principle, it is not possible to implement. People within Indigenous communities themselves will clash over whether law conveys a benefit. To an extent these will be clashes of economic theories. Disputes will go up to the High Court, however, as it will be a constitutional matter. How will the High Court resolve these political and economic arguments? There is one solution to this, which is very simple – a constitutional prohibition on racial discrimination generally. The Expert Panel did want to have the power to legislate for Indigenous Australians to be given to the Commonwealth to the exclusion of the states. However, it also sought a prohibition on racial discrimination.
PB: There could be problems with that position though. Section 8 of the Racial Discrimination Act 1975 (Cth) allows a discriminative law to be upheld if it is a special measure. There have been laws upheld on this basis, such as those restricting alcohol in remote communities. What if a particular community wanted such laws. Would such a blanket prohibition in the Constitution prohibit such programs even if the community sought them for their benefit? Is that a legitimate concern?
SR: It is. There always will be such when you insert a provision like that into the Constitution. There has to be some sort of reservation or qualification. At least it will be an easier issue for the High Court than deciding whether legislation is beneficial or detrimental. This is because there is established jurisprudence in the United States, European Union and Australia on what amounts to discrimination. There is, at least, more guidance on the point.
PB: Are they any other possible constitutional amendments you would like to see that are not widely discussed?
SR: I have two amendments in mind. One relates to my views on federalism. The first one I would like is the extension of the just terms clause[9] to the States. Hardly a month passes where some rural farmer doesn’t write me a letter – as I have written on the subject – saying they have suffered as a result of regulatory takings: restrictions on property use so extensive that they could be considered acquisitions. They have no defence and no way in which they can get anything out of the government if the government decides to regulate some land use in a way that destroys the market value of the land. It happens time and time again. That is in the rural properties but there are issues even in urban areas.
PB: And your second proposal?
SR: Remove the conditionality of grants to the states by the Commonweath under s 96, as that is what has undermined the powers of the States.
PB: The States have essentially become service providers for the Commonwealth, in some respects. This takes us to our next question. There is currently discussion occurring about 'reforming' Australian federalism. Does Australian federalism need reform, and what shape should reform take?
SR: The main issue with Australian federalism is vertical fiscal imbalance. The main thing I would like to see reform of is fiscal federalism. I would like the Australian fiscal arrangements to be brought into line with the United States system. This means the states have to be allowed to impose income tax. That ties in with amending s 96 as the High Court has said s 96 grants can be made subject to the condition that states do not impose income tax. The Commonwealth has a monopoly on income tax. There is no way in which the states can refuse to take grants offered by the Commonwealth and they have to agree not to impose income tax to obtain the grants. The US states can impose income tax without any limit except for practical ones. The other aspect of this is to amend s 90 and allow the states to charge sales tax. That again is a power that US states possess. The fiscal position of the states is much better there, although not perfect, for that reason.
PB: It can be quite interesting in the US when you leave a store, check your receipts and notice the sale taxes are different from state to state.
SR: Yes, and there is competitive federalism there! I once was in Conneticut on the border with New York state. In Conneticut, you could not buy a beer on a Sunday. So we just drove ten minutes into New York state and got our beer!
PB: Continuing this federalist theme in our discussion, the Commonwealth Government's power to fund many schemes was struck a blow by the High Court's decision of Williams v Commonwealth (No 1).[10] Do you think this was a good decision, and do you think it will result in a more powerful role for the states in the future?
SR: I would not say it will give the states a more powerful role as state financial dependence on the Commonwealth continues. What it means, however, is that the Commonwealth cannot bypass the states in making a s 96 grant unless covered under a head of power or required by a national emergency. It limits the Commonwealth’s power to give direct grants to local authorities and private institutions. This was affirmed in Williams (No 2).[11] Of course, there is a level of cost involved in sending money through the states but in the long term it is for the benefit of fiscal federalism. However, it could be a pyrrhic victory if the local government amendment to the Constitution succeeds at a referendum.
PB: It’s like a game of Whack-a-Mole. Every time you think you’ve got the Commonwealth it just jumps up somewhere else.
SR: Yes, as someone said at a conference on the case, the Commonwealth is like a hydra. On the whole I think Williams is positive but it could be a pyrrhic victory. Both parties support the constitutional amendment to allow direct funding, because they want the legislative power.
PB: The Australian Constitution was based significantly off the American constitution. As Dr Ananian-Welsh has observed in a recent interview,[12] since the drafting of the Australian constitution many other constitutions (eg. the Indian Constitution) have been created. Are there any particular concepts Australian constitutional law can draw from the jurisprudence interpreting these constitutions?
SR: Certainly, we could take from the US Constitution and we have in the past around separation of powers issues and section 92. I do not think we have made enough use of American jurisprudence. What about those constitutions that came after our own? We have to be a little careful about that. There are different types of constitutions: federal presidential models, unitary presidential models, unitary parliamentary models, federal parliamentary models and the French hybrid model. Federal presidential models include US, Mexico, Brazil, Argentina and so on. Then you have federal parliamentary models (Australia, Canada, India, South Africa) and unitary parliamentary models (UK, NZ, Japan and many EU models).
One of the limitations on applying foreign jurisprudence in Australia is that we do not have a Bill of Rights. With regard to the Indian Constitution, the Indian Supreme Court until recently had developed a fairly sound body of jurisprudence regarding their Bill of Rights though of course we lack such provisions. However, in recent years, the Indian Supreme Court has gone mad in adopting its public interest jurisdiction. They have employed their Bill of Rights to do many different thing usurping the powers of the executive and legislature. They have basically taken the view that they can draft a law because the parliament has not done enough and this becomes the law until the parliament does otherwise. They also ordered all government motor cars to be run on natural gas. They have ordered bridges to be built to connect remote parts of the country. They have given instructions about foreign adoptions and basically legislated.
This came about due to a lack of confidence in the legislature and executive. The institution with the most credibility in the public eye is the Supreme Court. In any case, I would not like the High Court of Australia to imitate the activism of the Indian Supreme Court. That sort of culture will not fit in here where the political institutions are stronger. If they imitated the Indian Supreme Court, the public would come and chase them out of their courthouse!
What this illustrates is that in determining whether to adopt comparative jurisprudence you should not just look at the equivalence of the law but also consider the institutional qualities of the Court. There are two factors to consider: the equivalence of the law and the quality of the jurisprudence. The quality of the jurisprudence does not depend solely on the intellectual abilities of the judges. It depends on the conditions that bear on the independence, impartiality and integrity of the courts. What political pressures are they subject to? However, there is nothing wrong in reading their judgments and seeing what you can get out of it. You must be very careful in adopting some overseas precedents though.
PB: I suppose, however, with respect to the US Constitution our Constitution is more related to it and the institutions there are stronger. And I suppose something similar could be said about Europe?
SR: Exactly. Why don’t we look at Germany? Germany is a federation, and their Constitutional Court is very, very competent. To some extent we can use European Court of Human Rights’ judgments. However, I would hesitate about using jurisprudence from many other jurisdictions.
PB: In the case of Tajjour v NSW, handed down by the High Court last week, the High Court upheld the validity of NSW's anti-consorting laws. The High Court held that whilst the laws burdened the implied freedom of political communication, they could be justified as proportionate to the aim of preventing crime. Law enforcement issues aside, do you think cases such as Tajjour show a reluctance on the part of the Court to employ their implied rights jurisprudence to invalidate legislation?
SR: I do, actually. It is not easy for them to do it, however. I think drawing limits on implied rights is quite difficult. Once the burden on free speech is established it becomes a question of reasonableness of the limitations. That is where I think the Courts like to respect the judgment of Parliament rather than take it upon themselves.
There is one case where I think the Court should have decided the issue differently. That is APLA Ltd v Legal Services Commissioner (NSW)[13] where the Court ruled that the ban on advertising legal services did not violate free speech. Access to legal services in my opinion is essential to the functioning of representative democracy. Australia has a legal service industry that is one of the most tightly regulated in the world. This regulation makes legal service unaffordable to most people and imposes a heavy economic cost on the nation. In an increasingly complex legal system, having access to information about legal services is an essential condition for vindicating rights that are founded on democratically enacted laws. There is a direct link, I think, between the right to advertise legal services, – even if you exclude all other commercial advertising from the freedom – the rule of law and the democratic nature of the polity. Legal services are the ultimate way of vindicating individual rights. Accounting services are allowed to be advertised. If accounting services can be deregulated to that point, then why can’t lawyers be treated the same? It is old-fashioned protectionism.
PB: What do you think are the greatest threats to liberty and the rule of law in modern Australia?
SR: Without doubt, the greatest current threat is Jihadist terrorism. It is a threat in two ways. Firstly, the jihadist ideology rejects liberal institutions such as basic rights and the rule of law. Its main aim is to overturn the liberal way of life. Hence, it directly threatens liberty and the rule law. Terrorism also affects liberty and the rule of law in an indirect way. It provokes democratic governments to take counter-terrorist measures that curb our liberties and erode the rule of law. There is a need for extraordinary measures to meet extraordinary threats. There is also a need for heightened vigilance to safeguard against excessive grants of power to governments, particularly unreviewable powers. Thus, this type of threat is not only harmful itself but has another effect that can also be quite dangerous. It is a responsibility of politicians to debate such powers with public servants, consider the other factors involved, take the people with them and strike a balance. Judicial oversight is one essential aspect that should not be given up. The other safeguard needed is to have a sunset clause. It cannot be such that these strong powers are an indefinite part of legal culture.
PB: What advice do you have for students who are nearing the end of their degrees?
SR: If you look at Res Ipsa last year, I had to write a message. If you excuse me, I will repeat a little bit of that:
“There no shortcuts to success for most of us. Genius is overrated. Industry, tenacity, integrity, reliability, trust, fellow feeling, courtesy, modesty, and dare I say, a bit of personal charm and decent luck are all helpful to success. Always play with a straight bat. But don’t let the pursuit of success consume you. If you do, you will miss out on some joys of life that are on offer for free.”
PB: It’s been an honour having you here teaching us all in Constitutional Law and Jurisprudence. What are your plans for retirement?
SR: I am looking forward to enjoying retirement. Watch more cricket! I will continue to research and write because that is something I have done for the joy of it and because of my passion for it. There are important things I want to continue to say in my writings. That will not stop. Other than that, I want to go and write travel books.
PB: Anywhere in particular?
SR: I am a fan of Europe, and Italy in particular. I have been there many times. I love the medieval cities and Renaissance architecture. There are so many cities I want to see in Europe. Hopefully, I can get there.
PB: Professor Ratnapala, thank you for speaking with Pandora’s Blog.
* Professor Suri Ratnapala (LLB(Hons) LLM PhD) is presently Professor of Public Law at the TC Beirne School of Law, University of Queensland where he has taught constitutional law, jurisprudence and legal method. After a distinguished career, Professor Ratnapala will be retiring from the University at the end of 2014. This interview was conducted at UQ on 15 October 2014 by Samuel Walpole and Tristan Pagliano. The interviewers wish to thank Will Isdale for his assistance in formulating questions and Balawyn Jones for her editorial assistance.
[1] (1996) 189 CLR 51.
[2] Forge v ASIC (2006) 228 CLR 45.
[3] See, eg. South Australia v Totani [2010] HCA 39.
[4] (2010) 239 CLR 531.
[5] Amalgamated Society of Engineers v Adelaide Steamship Co Ltd (1920) 28 CLR 129.
[6] New South Wales v Commonwealth (2006) 229 CLR 1.
[7] Melbourne Corporation v Commonwealth (1947) 74 CLR 31.
[8] Section 25 allows the states to disqualify particular people of races from voting in federal elections.
[9] Constitution s 51(xxxix).
[11] [2014] HCA 23.
[12] ‘An Interview with Dr Rebecca Ananian-Welsh’ (2014) 21 Pandora’s Box 35.
[13] (2005) 224 CLR 32.