NZYQ and constitutional culture

Abstract

The political and social reaction to the High Court's decision in NZYQ is evidence of a deficit of constitutional culture in Australia: there has been a race to the bottom in public debate. This is against the background of the failed Voice referendum. Possible ways forward are discussed, and France is mentioned as counterpoint on the issue of constitutional culture.

We suffer collectively from a deficit of constitutional culture, which is not appropriate in any democracy worthy of the name. ¹

Two recent events have foregrounded the Constitution in Australian public life – the referendum on the Aboriginal and Torres Strait Islander Voice and the decision of the High Court in NZYQ v Minister for Immigration, Citizenship and Multicultural Affairs [2023] HCA 37. Addressing the chamber on 15 November 2023, Prime Minister Anthony Albanese observed:

[Peter Dutton] stood up here and said we should have prevented people from being released – prevented a High Court decision. He stood in here, day after day, week after week, month after month and said: ‘You've got to respect the Constitution. You can't change the Constitution, because if you do, you can't out-legislate it.' That's what he said. That's what they all said in justifying their ‘no' vote, day after day and week after week.

This is what he said in May, in this chamber, ‘The parliament cannot out-legislate the Constitution.' But, when it's convenient, just chuck it out and pretend it doesn't exist. ²

The foreground of public debate is an unusual place for the Constitution, given that ‘[i]t is generally accepted that Australia lacks a popular constitutional culture.’ ³ In 2003, Ronald Sackville wrote, ‘[t]he inaccessibility of the Australian Constitution is a serious defect in our constitutional arrangements.’ ⁴ It has been observed time and time again that, as an act of the British Imperial Parliament, the Constitution is an opaque document unfamiliar or irrelevant to the ordinary Australian. ⁵ Two observations then commonly follow: first, the Constitution is largely directed to setting up the apparatus of state rather than enumerating basic rights or freedoms (Australia is an outlier among Western democracies in this respect); and secondly, the Constitution has proven very difficult to amend since its inception, inviting criticism that the text has not developed with the society it founds.

The focus of this essay is not the failed Voice referendum. This subject, and the broader issue of how First Nations Australians fit into a settler Constitution, is too complex to address here. More authoritative commentators have spoken and written on the referendum as a failure of Australian civil society and indicative of a general social apathy as to how Australia is governed. ⁶ Acknowledging this background, my focus is on a narrower chapter from the same playbook: the recent decision of the High Court in NZYQ. The argument advanced is that the fallout from NZYQ illustrates a deficit of constitutional culture in Australia. Before making this argument, I will give an overview of the decision. I will also refer to France as an interesting counterpoint on the subject of constitutional culture.

NZYQ

On 8 November 2023, at the conclusion of the hearing, Chief Justice Gageler announced that ‘at least a majority’ of the High Court agreed that the plaintiff’s continuing detention by the Commonwealth was beyond the legislative power of the Commonwealth provided for in the Constitution. ⁷ The reasons of the Court, unanimous in any event, were published on 28 November 2023. The plaintiff was a stateless Rohingya Muslim who, since May 2018, had been held in immigration detention ‘pending removal’ from Australia. ⁸ Simply, the argument put by the plaintiff and accepted by the Court was that it is beyond power for the Commonwealth Parliament to legislate for the executive to indefinitely detain a person in immigration detention; that is, where there is ‘no real prospect of [removal] from Australia becoming practicable in the reasonably foreseeable future’. ⁹ The Court ordered the plaintiff’s immediate release.

NZYQ is the latest instance of ‘gargantuan struggles between the government and the judiciary’ on refugee cases in Australia, stretching back decades. ¹⁰ There are few areas of law in Australia which are so overtly confrontational, characterised by judicial determination countered by legislative change. In NZYQ, the High Court departed from precedent dating back 20 years ¹¹ (that indefinite immigration detention was not unlawful) and the effect of the Court’s order to release the plaintiff from detention meant not only his release, but also the release of other persons indefinitely detained: over 150 people since November 2023. ¹²

A deficit of constitutional culture

The principle affirmed by the High Court in NZYQ is, at its most basic, that it is unconstitutional for the Commonwealth Parliament to pass laws purporting to authorise a person’s arbitrary detention by the government (here, arbitrary meaning indefinite). The prohibition on arbitrary detention is a fundamental and discrete human right espoused in the international community. ¹³ So stated, it is difficult to see how there could be discontent with the Court’s finding. However, the blind focus of government ministers, and members of parliament, was the travesty of ‘foreign’ ‘criminals’ being released into Australian society; a fire fanned by mainstream media. One would be led to think that the decision in NZYQ is itself a threat to the national interest. The tone of the political and social fallout from the decision is captured in comments from Opposition Leader Peter Dutton in the House of Representatives on 16 November 2023:

The fact is that Australians are being put at risk. This is a very serious matter. We're now talking about 84 hardcore criminals … [T]hese people are now staying in motels at taxpayers' expense. … These are people who have murdered Australians. These are people who have raped young children. These are people who are serious domestic violence offenders. These are people who are of the worst character, and they are noncitizens. We're not even talking about Australian citizens here. These are people who do not deserve to live in our country. […]

I want to be clear to the Australian people today: the Prime Minister has taken a decision not to re-detain these 84 serious criminals. […]

[This government] believe[s] that the rights of these individuals trump the rights of the victims of these crimes, and the rights of the future victims of these criminals as well. […]

This minister stands condemned for releasing these people into the community when he had a choice to do completely the opposite. ¹⁴

Faced with mounting pressure, Minister for Home Affairs, Clare O’Neil said in a number of settings that, if it were up to her, none of ‘those people’ would be at liberty. ¹⁵ Mainstream media fixated on drip-feeding to the Australian public updates on the release of persons from detention accompanied by gratuitous details of their past crimes. ¹⁶ On the back of reports of three persons re-offending, Minister O’Neil was asked in a press conference on 6 December 2023 whether she owed the victims an apology. Attorney-General Mark Dreyfus intervened (I would suggest on good grounds), as follows:

I want to suggest to [the journalist] that that question is an absurd question. You are asking a cabinet minister, three ministers of the Crown, to apologise for upholding the law of Australia, for acting in accordance with the law of Australia, for following the instructions of the High Court of Australia. I will not be apologising for upholding the law. I will not be apologising for pursuing the rule of law. And I will not be apologising for acting – do not interrupt – I will not be apologising … for acting in accordance with a High Court decision. Your question is an absurd one. ¹⁷

As the government scrambled to quell popular panic, the Community Protection Board – ‘protection’ from a High Court decision – was established in December 2023 to give transparency as to who was being released and under what conditions. ¹⁸ A recent instalment of the damaging media output came on 14 June 2024 in The West Australian, with the author decrying that of the persons released, ‘including convicted murderers and rapists’, ‘only 85 … are required to wear GPS monitoring devices, while 77 are subject to a curfew.’ ¹⁹

NZYQ has been received as a bad decision for Australia when the constitutional principle upheld is a good one. Lacking from the political or public discourse was a sombre acknowledgment that the Commonwealth had unlawfully detained hundreds of persons over a long period of time, many of whom had served full prison sentences for their convictions. ²⁰ I say that the reaction to NZYQ illustrates a deficit of constitutional culture because one would expect that if Australia, including its politicians, had a deeper connection to the Constitution and the freedoms protected therein, the value of the Court’s decision as a public good, as a safeguard on individual liberty, would be more apparent. There is inherent value in the Constitution being enforced to cut down government overreach, as well as in a constitutional watchdog like the High Court. Of course, the fallout says just as much about Australians’ empathy for ‘un-Australians’. On 14 March 2024, Immigration Minister Andrew Giles accepted, albeit in a partisan way, the worrying standard of public debate:

I am concerned that this has been a debate where heat has consistently obscured light. … This conduct follows months of the Shadow Minister for Immigration appearing to advocate to simply ignore or put aside a decision of the High Court. […]

This is dangerous. To the standard of public debate about important issues, to policy making and to the state of our democracy – a democracy anchored on the separation of powers and the rule of law. ²¹

Where to from here?

On 25 January 2024, the French Constitutional Council handed down a decision which disallowed many of the government’s immigration reforms. ²² Members of the political right accused the Council of a coup d’état and a ‘betrayal of the French people and the parliament’. ²³ Separately, on 4 March 2024, France became the first country in the world to enshrine access to abortion in its Constitution. In these ways, constitutional matters have occupied similar prominence in public debate as in Australia. If any country could be looked to for strong constitutional culture, one could expect it would be France: the archetype of Western republicanism with the Declaration of the Rights of Man forming part of its written Constitution. ²⁴ Nevertheless, in an article published in Le Monde in May 2023, two French jurists wrote that ‘the deficit of constitutional culture is contributing to the development and to the aggravation of the democratic crisis’. ²⁵ Further, in respect of the courts, Philippe Bernard wrote, ‘[o]ne need only look to countries where the institutions entrusted with this control … are mere puppets of those in power … to understand the precious character of an institution like the Constitutional council.’ ²⁶ These authors argue that civic education should be reprioritised in France including from early school years.

What then should be done in the Australian context? As alluded to above, some commentators have characterised the Voice referendum as an ‘overdue civics lesson’. Jon Faine calls for the urgent development of ‘a civics education program to inform and educate the population with nontechnical language, free of legal jargon. A “slip-slop-slap” type of campaign but about civics, not cancer’. ²⁷ Certainly, the fallout from NZYQ underscores the necessity of this. Otherwise, as Sackville lamented, the inaccessible wording of the Constitution has been ‘matched, throughout much of the High Court’s history, by what can fairly be described as a legalistic approach to constitutional adjudication.’ ²⁸ He suggests that judges have a role to play in conveying to the Australian people in their written judgments the significance of certain findings in plain terms. ²⁹ NZYQ neatly illustrates the inaccessibly legalistic quality of the Constitution given that the Court relied not on a simply enumerated prohibition on arbitrary detention, but on a limit to legislative power thought to be an incident of the separation of powers in turn derived from the structure of the text.

Writing in 2017, Associate Professor Weis argued that the lack of a bill of rights is a key cause of Australia’s deficit of constitutional culture. She suggests that fundamental constitutional reform is needed, yet:

[t]he modest defence of popular constitutional culture … presents a paradox for constitutional reform. The cultivation of popular constitutional culture appears to require engaging the very amendment process that I have just suggested cannot function properly in its absence. Pursuing one of the lines of reform … is essentially an act of constitutional faith: faith that the Australian people will rise to the occasion if and when it is presented. ³⁰

Now, in 2024, one might think that the Australian people did not rise to the occasion when it was presented. The act of constitutional faith was not answered. The fallout from NZYQ can be viewed as a more digestible illustration of our national deficit of constitutional culture. We should be concerned about the race to the bottom which has unfolded in public debate.